*1 S076339. Aug. [No. 2016.] PEOPLE,
THE Plaintiff and Respondent, GRIMES, LEE
GARY Defendant and Appellant.
Counsel Gardner, Court, Cliff under Catherine White and appointment by Supreme Lazuli Whitt for Defendant and Appellant. *6 Harris, General,
Kamala D. Dane R. Gillette and Gerald A. Attorney Engler, General, Farrell, Chief Assistant Michael P. Assistant Attorneys Attorney General, Mitchell, Ward A. Kenneth N. Sokoler and A. Campbell, Stephanie General, for Plaintiff and Deputy Attorneys Respondent. Hersek, Defender, Helft,
Michael J. State Public P. Chief State Barry Deputy Defender, Rivkind, Defender, Public and Nina State Public for Office Deputy of the State Public Defender as Amicus Curiae.
Opinion
KRUGER, convicted defendant Lee Grimes of one count of A jury Gary J. murder with and circumstances and one count each burglary robbery special to commit to commit robbery, burglary, conspiracy robbery, conspiracy Code, (Pen. and the unlawful or of a vehicle. burglary, driving taking §§ 190.2, 211, 459; Code, (a), (a), (a)(17), subd. subd. subd. Veh. § murder, (a).)1 In subd. connection with the robbery, burglary, conspiracy counts, the found true that defendant inflicted jury allegations great bodily victim, 1203.09, (§ (a)), an subd. and that the injury upon elderly person 1203.085, (§ offenses were committed while defendant was on parole (b)). In subd. a bifurcated the trial court found true proceeding, allegations 667.5, (§ (b)) that defendant had served four terms subd. and had prior prison been convicted of a serious or violent within the of the felony meaning 1170.12). (§ “Three Strikes” law returned a verdict of death. The trial court sentenced defendant to death for the murder and a term of imposed six for the of a motor vehicle and four terms years driving taking one-year for the four term Sentences on the counts prior prison allegations. remaining were imposed stayed.
Over defendant’s the trial court excluded certain statements objection, made the actual killer of the murder victim which the killer claimed that he acted alone the murder and that defendant was not involved. committing case, After an initial was filed this we opinion granted rehearing clarify for statements the declarant’s application hearsay exception against Code, (Evid. interest. We now conclude that the trial court erred § the statements. the error does not reversal of the excluding Although require murder conviction and the circumstance it does special findings, require reversal of the of death. judgment statutory All references are to the Penal Code unless otherwise indicated. *7 Facts
I.
A. Guilt phase
1. The offenses 1995, defendant, old, friend, In October then 33 was with a years staying (Sheila), in Sheila Abbott her trailer. Also the trailer were Sheila’s staying son, Fernalld; Shane her Abbott and daughter Misty (Misty); Misty’s boy- friend, Wilson, Patrick James then 19 old. On the of October years morning Morris, John a friend of the arrived at Sheila’s trailer. 20-year-old family, noon, Morris, Wilson, At and defendant obtained some medi- approximately bandanas, cal and bandanas from the trailer. tried on the gloves They placing mouths, them over their before them their then drove putting pockets. They Morris’s red car to a house shared sports Redding by 98-year-old Betty Bone and her ransacked the house and took includ- daughter. They property, rifle, a .38-caliber a music some a a ing handgun, portable player, jewelry, box, in a and a brown truck. telephone Styrofoam Bone was killed. Her showed evidence of blunt force trauma to the body head, and stab wounds. There was a cord ligature strangulation, telephone and a bandana around her neck. There was on her bruising tongue lip was caused a Her were consistent with her been likely by gag. injuries having unconscious, knocked and then stabbed due to strangled, repeatedly. Bleeding death, was the cause of with as a contribu- stabbing primary strangulation cause. tory murder, defendant, Wilson, trailer,
After the and Morris returned to Sheila’s with Morris and Wilson Morris’s car and defendant the brown driving truck that had been taken from Bone’s residence. unloaded items from They the truck. Defendant showed a of to Sheila and asked whether it bag jewelry real; him was she told it was costume Defendant drove the truck to jewelry. Lake, Shasta with Morris and Morris’s car. Defendant Misty following lake, drove the truck into the and the three returned to Sheila’s trailer Morris’s car. afternoon, defendant, Morris,
Later that were defendant’s Misty brown Camaro when a roadblock that had been set they approached up by roadblock, Shasta Sheriff’s Before defend- County Department. reaching ant and Morris threw their into the bushes. When went guns they through roadblock, defendant identified himself to an officer as Woods” and “Gary the officer a false Social number. He was gave Security wearing pair white similar to the that Bone’s fingerless gloves, type gloves daughter in the brown truck. kept *8 returned to Sheila’s trailer and then left for Sacramento. and
They Misty in in her rode Morris’s car and defendant drove his car with baby Misty’s brother, in Shane Fernalld. the Sacramento with Morris’s They spent night In aunt. her left a and the box a apartment, they bag jewelry containing that had been taken from Bone’s house. The next Fernalld left telephone day, in defendant at the Sacramento. apartment complex 2. arrest and statements to police Defendant’s 21, 1995, crime, Morris was arrested on October three after the and days in killed himself his cell the next afternoon. Wilson was arrested the jail On that same a sheriff recovered a kitchen following day. day, deputy long knife and a knife that had been buried near Sheila Abbott’s pocket property. DNA from both knives was consistent with a mixture of Bone’s DNA and DNA; Wilson’s none of the DNA on the knives could have come from defendant.
Defendant was arrested the as he drove into the area following day parking car, of the Sacramento As he out of the a loaded apartment complex. got .22-caliber fell out of the driver’s side door. Defendant called Sheila handgun him from and she told that Morris had killed himself. jail, trial, In a interview for the defendant admitted tape-recorded played in to detectives that he was involved the He denied burglary robbery. any murder, however, involvement Morris had killed Bone while claiming defendant, defendant was the back of the house. it had been According Morris’s idea to break into a house because he needed for his money pay he, Morris, automobile insurance. Defendant said that and Wilson each had a them, bandana that Sheila had had latex that were given they gloves obtained from her first-aid kit. Morris drove defendant and Wilson to Bone’s car, an area which defendant had lived. neighborhood, formerly bandana, defendant handed Morris a which was a and Morris gun, wrapped it his then watched a house and saw a put pants. They neighborhood kill woman outside. Morris said could her and take their time they going house, killin’ but defendant that he was “not into through replied people.” house, Defendant told the detectives that when arrived at the Bone they answered; Morris and Wilson knocked on the door. no one Morris Initially commented that no one was there and defendant concluded would they just be Then Morris said that someone was the house. committing burglary. Defendant walked back to the car and saw Bone answer the door. Wilson “no, asked for a named Debbie and Bone name is girl replied, my daughter’s Barbara.” Wilson the door Bone and her to the pushed open, hitting knocking Defendant walked door. At some he saw Bone ground. through open point *9 her; him on the floor with Morris on Bone was with to lying top pleading Morris, women, let her Defendant said to “Don’t hurt no don’t hurt go. He said he went into the back of the house because he “couldn’t nobody.” Bone, deal with it.” When he returned he saw Morris who was tied strangling said, witnesses,” “I with a cord. Morris can’t leave no and “that up phone bitch won’t die.” Defendant then saw Morris fucking rummaging through knife, kitchen for a after which he saw or heard Morris looking stabbing Bone Morris Wilson a sack forcefully repeatedly. gave paper containing him the knives that were later recovered and told to rid of them. get defendant, him to Morris ordered to take Bone’s truck. According They loaded the items from the house into the truck and took them back to Sheila’s trailer, where Wilson and Morris out of the truck. Defendant siphoned gas Lake, drove the truck to Shasta Morris and Morris instructed following Misty. defendant to break out the truck’s windows and drive it into the lake.
Defendant told the detectives that the he had when he was arrested gun Sacramento did not come from the house and he had obtained it that same He stated that Wilson had found a Bone’s house and Morris had day. gun found a rifle. Defendant denied the location of the taken from knowing guns the house and asserted that Morris was of them. supposed dispose
Law enforcement officers recovered the that defendant and Morris guns had thrown into the bushes before roadblock. One of going through police these had been taken from Bone’s home. guns statements Testimony regarding out-of-court
3. trial, Lake, At Abbott testified that the ride to Shasta Morris Misty during woman, told her he had tried to and when she did not die he took a strangle knife from the kitchen and stabbed her. She testified that fatally during trailer, ride back to her mother’s after had Bone’s truck they dumped lake, defendant and Morris fired their out of the windows of the car. guns When she was interviewed Wilson’s she said that private investigator, Morris and defendant about the murder and called each other “down laughed brother, Fernalld, white Shane testified that while he and boys.” Misty’s Sacramento, defendant were defendant told Fernalld either that driving it”; “she deserved it” or “she didn’t deserve Fernalld was not sure which. trial, however, Before Fernalld told several law enforcement officers that defendant’s statement was “she deserved it” or “the old bitch deserved it.” that, suicide, Morris’s testified an hour or two before grandfather committing him Morris called from and said that Morris’s jail, sounding very upset,
707 him friends had turned and were to that he had killed against going testify Bone, but that he had not done it.2 Howe,
Jonathan a who had been housed with defendant prisoner Jail, him Shasta testified that defendant told about the murder. County Howe, defendant said he had ordered Wilson and Morris to tie According Bone, kill and that he could not be linked to the murder with DNA up evidence because he had never touched the Howe also that body. reported defendant said either that he had Bone killed or that he enjoyed watching the fact that she died. Howe testified under an that enjoyed agreement him to for a sentence of a permitted plead guilty pending charges months, maximum of consecutive to a term he was already serving. forward, Before he had been offered a with a 24-month coming plea bargain consecutive sentence. Under the new he could receive a plea agreement, months; sentence of less than his was until after trial sentencing postponed case, in the at which time the over defendant’s trial present judge presiding would decide his sentence.
4. evidence Defense The defense conceded that defendant was guilty burglary, robbery, murder, but contested the circumstance on the special allegations grounds kill defendant was not the actual killer and lacked an intent to or a reckless indifference to life.
The defense introduced admissions made Wilson to law enforcement officers that were consistent with defendant’s statements to the police regard- Wilson’s role: Wilson said he had and had ing participated burglary house; back, Bone inside the when she fell she was knocked out and pushed minutes; he watched her for several he found a .38-caliber revolver house; kill toolbox a closet Bone’s he cleaned the knives used to Bone cloth; on them and them off with a he out of by spitting wiping siphoned gas the truck before defendant drove it to the lake.
Defendant also evidence that Morris called Sheila Abbott’s trailer presented him after his arrest and asked her Abbott to day daughter Ginger provide with an alibi. refused. Ginger convicted defendant on all counts. jury The trial court admonished the that it could not consider for its truth Morris’s Bone; grandfather explained statement to his that he did not kill the court that the statement only evaluating Misty’s testimony regarding
was relevant Morris’s confession to her.
B. Penalty phase
1. Aggravation The introduced evidence that after the truck into the prosecution driving lake, defendant, Morris, and and Misty bought injected methamphetamine. also of defendant’s 10 prosecution presented proof prior felony convictions, in as well as evidence four incidents which he regarding engaged 1985, in in violent criminal conduct. defendant and Specifically, accomplice $300 Anna Cline tied James Leonard and stole from him. Defendant up Afterward, in brandished a that was a towel to simulate a pipe wrapped gun. A he and Cline used the after that a money buy drugs. day robbery, police in In officer saw defendant a sawed-off an orchard. a shooting shotgun in officer encountered defendant a restaurant with a loaded .25-caliber police in semiautomatic his waistband. a with his handgun during fight throat, in defendant held her down his car her girlfriend, threatening lot, in choke her she left him. When he the car she stopped parking He ran after her and until arrived. escaped. they struggled police
2. Mitigation The defense case focused on two themes: defendant’s mitigation cogni- tive and his contributions to his friends and impairment positive family members. John Wicks testified that he tested defendant’s Neuropsychologist areas, in 12 mental and that he scored retarded functioning mentally areas, areas, seven low dull-normal two and normal three areas. range retarded, IQ Defendant’s overall score was which is borderline and he tested of third to fourth and generally range grade reading, spelling, arithmetic. Wicks concluded that defendant had brain and organic damage that his low intellect could his impair judgment decisionmaking ability, him cause and make it difficult for to learn academic impulsivity, subjects social behaviors. acceptable Globus, Albert who interviewed defendant and reviewed the
Psychiatrist results, test with Dr. Wicks’s Dr. Globus defendant agreed findings. thought suffered from brain at birth due to his organic damage (possibly beatings mother suffered while based on the test results and on his low birth pregnant), life, trouble loss of his first week of weight, breastfeeding, weight during incontinence to the and a At he up age eight, speech impediment. age suffered a serious head which have exacerbated his brain disorder. injury may defendant could determine from Dr. Globus concluded Although right wrong, that he would have to his difficulty applying knowledge decisionmaking and would on others to make decisions for him. like likely rely People *12 defendant, said, in he often function better a structured like setting prison because most decisions are made for them. nine,
At defendant was referred to a who age psychiatrist, prescribed in Ritalin and Librium. At he was education classes for age placed special teacher, disturbed children. Defendant’s education a emotionally special aide, teacher’s and a resource for the education specialist special program defendant, time, behaved, follower, described at that as well a nonaggressive, in and someone need of love and attention. At he age began running away in from home and was foster care and then hall. He was placed juvenile committed to State 17 for nine months. His records Napa Hospital age from the indicate he was retarded and had latent hospital mildly mentally schizophrenia. sister, Darlene,
Defendant’s testified that when defendant was a young boy him he was incontinent and their mother made wear a dress and stand out Defendant, said, as she lacked self-esteem and confi- yard punishment. dence, him and was a follower who did what others told to do. mother, Grimes,
Defendant’s Patricia testified that she loved her son. She testified that defendant’s father beat her while she was and left her pregnant birth, before defendant was born. After the she was for more hospital than three months with and defendant lived with her postpartum depression She recalled that at a he told her he heard voices and he parents. young age, would wake Defendant’s mother also testified that the night screaming. arrested, remorseful, before he was he was and said he was day crying that the victim had died. very sorry ex-wife, Grimes,
Defendant’s who was married to defendant Cindy briefly him testified that she loved and he had treated her and her teenage son, son well. Defendant also take care of her disabled father. Her helped Michael, well, testified that defendant treated both of them and had very him influenced his General Educational certificate and get Development out of trouble with the law. mother and the of their stay Cindy’s manager confirmed that defendant was and kind to apartment complex helpful Cindy’s A and to others who lived their fellow family apartment complex. prison inmate, Huntsman, Michael testified that defendant came to his aid when he was assaulted of inmates. by group fiancée, defendant to assist the mother of his Shannon attempted
Yarnell, in a domestic violence incident Shannon’s involving stepfather. however, incident ended when Shannon’s rammed his tragedy, stepfather truck into the car which Shannon was Shannon. riding, killing *13 Discussion
II. A. Exclusion Morris’s statements interest alleged against As witness Abbott testified for the previously explained, Misty prosecution that while she was with John Morris to Shasta Lake after driving shortly murdered, Bone, Bone was Morris told her he killed first attempting then, die, her and because she did not a knife from the kitchen strangle taking her. The trial court admitted this statement as a declaration stabbing Code, (Evid. Morris’s interest. against penal § in
The defense also to admit an additional statement made the sought course of the same conversation: to defendant’s offer of According proof, in would that when asked whether defendant took the Misty testify part not; Morris that he had Morris told that after he “did killing, responded Misty defendant and Wilson “looked at as were lady,” they saying, [Morris] what the hell are dude.” The defense also evidence you doing, proffered that while Morris was incarcerated his arrest for county jail following Bone, he told inmate Albert Lawson that he stabbed Bone and murdering throat,” her and that defendant and Wilson “were “grabbed by house but took no the actual Lawson did not at trial. part killing.” testify The trial court ruled that Morris’s statement to was inadmissible Misty that did not as a declaration interest. The court ruled hearsay qualify against that Morris’s statement to Lawson that he stabbed Bone and her grabbed admissible, the throat was but that his statement that defendant and Wilson took no the actual was not. part killing
Defendant asserts the statements were admissible as declarations against interest and that the trial court’s violated his to due a rulings right process, trial, defense, fair and to reliable death present procedures penalty Const., 5th, 6th, Amends.; (U.S. cases. 8th & 14th Chambers v. Mississippi 1038].) (1973) 410 U.S. L.Ed.2d 93 S.Ct. As explained below, the trial court erred under Evidence Code excluding testimony error, trial, section and the while harmless at the guilt phase requires reversal of the of death. judgment
1. Declarations interest against statements are inadmissible under Cali Although hearsay generally Code, (Evid. (b)), fornia law subd. the rule has a number of § One such the admission of statement that exceptions. exception permits any made, “when was so far to the declarant’s contrary pecuniary proprietary interest, him or so far to the risk of civil or criminal or so subjected liability,
711 another, him far tended to render invalid a claim or created such a against hatred, ridicule, him risk of an or social the making object disgrace that a reasonable man his would not have made the community, position Code, 1230.) (Evid. statement unless he believed it to be hue.” As applied § interest, in to statements the declarant’s the rationale against penal particular, the is that ‘“a interest underlying exception person’s against being criminally reasonable assurance of the of his statement made implicated gives veracity interest,” associated with against thereby mitigating dangers usually (1964) the admission of out-of-court statements. v. 60 Cal.2d (People Spriggs 868, 841, 377].)3 874 389 P.2d Cal.Rptr. [36
To demonstrate that an out-of-court declaration is admissible as a declara-
interest,
tion
of such evidence must show that the
against
proponent
”[t]he
unavailable,
declarant is
that the declaration was
the declarant’s
against
penal
interest when made and that the declaration was
reliable to
sufficiently
(2000) 24
warrant admission
its
character.”
v. Duarte
despite
hearsay
(People
603,
701,
(Duarte).)
12
“In
Cal.4th
610-611
P.3d
Cal.Rptr.2d
[101
1110]
whether a statement is
interest within the
determining
truly against
meaning
1230,
of Evidence Code section
and hence is
to be
sufficiently trustworthy
admissible, the court
take into account not
the words but the
may
just
uttered,
circumstances under which
were
motivation of the
they
possible
declarant, and the declarant’s
to the defendant.”
v.
relationship
(People
730,
440,
1197].)
(1991)
Frierson
53 Cal.3d
745
808 P.2d
Cal.Rptr.
[280
We review a trial court’s decision whether a statement is admissible under
Lawley (2002)
Evidence Code section 1230 for abuse of discretion.
v.
(People
102,
614,
461],
27 Cal.4th
153
38 P.3d
v.
Cal.Rptr.2d
citing People
[115
1223,
451,
(1990)
Gordon
50 Cal.3d
1250-1253
Cal.Rptr.
[270
251]
form,
against-interest exception permitted
In its traditional
the admission of out-of-
interest,
against
pecuniary
proprietary
court statements
the declarant’s
but not statements
(See
against penal
Donnelly
interest.
v. United States
(Gordon).) Whether a trial court has construed Evidence Code correctly is, however, (See section 1230 of law that we review de novo. question Gordon, at 1251 the of the “to p. application against-interest exception [while discretion, the facts of the individual case” is reviewed for abuse of peculiar “we review the determinations the court’s under the specific underlying ruling thereto”]; (1986) 42 standards v. Louis Cal.3d 985 appropriate People 110, 728 P.2d of law are to de novo Cal.Rptr. subject [232 180] [conclusions review].) held,
As the trial court this case the of Morris’s correctly portions statements to Bone were admissible under Evidence Code admitting stabbing section 1230 because a reasonable Morris’s would have person position him believed that these admissions would to criminal subject liability. Defendant’s concerns the of Morris’s statements challenge portions indicating (1) (2) defendant did not the and defendant reacted participate killing, In with when Morris killed Bone. these of the surprise excluding portions statements, “if the trial court reasoned that is to a somebody confessing someone, murder and to the one who stabbed ... it does not personally being enhance the detriment to the confessor he any way significantly personal else had it. . . . fact that the others did or did says nobody any part [T]he ridicule, him not assist isn’t to diminish his his et going exposure, public cetera.” The court found v. Gatlin 31 People Cal.App.3d (Gatlin) to be Cal.Rptr. controlling. 171]
The trial court’s reflects a of the law ruling misunderstanding governing matter, the admission of statements interest.4 As an initial to the against Gatlin, extent the trial court relied on its reliance supra, Cal.App.3d Gatlin, was a defendant with to misplaced. charged burglary sought introduce of statements three codefendants. The codefendants recordings [it],” claimed the defendant “had to do with but made these nothing they (Id. 44.) statements while their own involvement. at The Court disclaiming p. thus held that their of the defendant was “not Appeal exculpation (ibid.) because it was made the context of the specifically disserving” J., (cone. concurring dissenting opinion opn. Cantil-Sakauye, post, The & dis. C. 741) p. holding pay proper ruling asserts that our fails to the deference to the trial court’s under designed the abuse of discretion standard of review. But the abuse of discretion standard is pay application governing “peculiar' deference to trial court’s law to the facts of the (Gordon, supra. designed legal individual case.” 50 Cal.3d at It is not to insulate (Ibid.) appellate errors from review. justices concurring dissenting appeared recognize now as much at an earlier stage original opinion affirming judgment, they signed, of the case. This court’s which was Rather, any ruling. opinion not based on deference to the trial court’s concluded with respect though excluding to one of the statements that even the trial court’s stated basis for reasons; faulty, right wrong respect evidence was the trial court reached the result for the with statements, remaining opinion simply any excluding to the concluded that error in statements was harmless. *16 Here, 43).
declarants’ denials of at “self-serving” culpability p. by {id. contrast, the of Morris’s statements at issue were made portions during conversations which Morris admitted the victim personally murdering her—admissions that were choking stabbing unquestionably against Morris’s interest.
The General that the trial court nevertheless Attorney argues properly excluded the relevant of Morris’s statements because were portions they defendant, collateral assertions that tended to not to “further exculpate incriminate” Morris. The General contends that the trial court’s Attorney of Morris’s statements was because Evidence Code section parsing necessary 1230 does not the admission of statement or of a permit “any portion statement not itself to the interests of the declarant.” specifically disserving 419, 752, (1975) v. Leach 15 Cal.3d 541 P.2d (People Cal.Rptr. [124 296] demonstrates, (Leach).) As the General’s Attorney argument proper of the Leach rule to have some confusion. We application appears generated therefore discuss the of the rule some origins purpose depth.
The
Leach concerned the
question
admissibility
coconspirators’
confessions
other defendants
a murder
which
extrajudicial
implicating
plot,
as,
alia,
introduced
inter
declarations
interest.
prosecution
against penal
(Leach,
428, 438.)
15 Cal.3d at
This court concluded that to the
supra,
pp.
extent the confessions contained collateral assertions that
inculpated
defendant,
confessor,
rather than the
the statements were inadmissible.
at
{Id.
441-442.) We
that those
of a confession
pp.
explained
portions
inculpating
others are not as
as those
that are
inherently trustworthy
portions
actually
rule,
439-441.)
to the declarant’s interests.
at
disserving
pp.
resulting
{Id.
noted,
we
is consistent with the constitutional
of a defendant to confront
right
Constitution—and,
his or her accusers:
is
we
precisely
purpose
“[I]t
add, the
rule—to
defendants from statements of
might
hearsay
‘protect
” (Id.
unreasonable men there is to be no
for cross-examination.’
opportunity
at
We further
that
limitation on the
p.
explained
against-interest
“[t]his
was at least
decisions of this court and of the United
exception
implicit”
States
Court that
forbid the
trial of
Supreme
generally
prosecution
joint
two defendants from
those
of one defendant’s confession
introducing
portions
17,
(Id.
the other defendant.
fn.
implicate
citing People
265],
(1965)
Aranda
Concurring judgment, Kennedy approach raises as to collateral statements that rather than questions applied exculpate, in the defendant. Justice as an a statement inculpate, Kennedy gave example “ ” said, alone,’ T which a declarant robbed the store but a criminal defendant on trial for was to introduce the robbery permitted “only portion ” (Williamson, in T statement which the declarant said robbed the store.’ result, J.).) (cone. 512 U.S. at Such a Justice supra, p. opn. Kennedy, (Ibid.) “seems The Williamson did Kennedy opined, extraordinary.” majority not to Justice on this since no such issue was directly respond Kennedy point, raised the case. But the did make clear that the majority proper application of the rule on context. The depends majority explained question “[t]he under is whether . . . ‘. . . a reasonable against-interest exception] always [the in the declarant’s would not have made the statement unless person position true,’ it to be and this can be answered of all believing question only light 603-604.) (Id. circumstances.” at surrounding pp. Williamson, In the wake of the United States Court of for the Appeals Ninth Circuit has considered how the rule to a statement which the applies another, declarant both himself and much as Justice inculpates exculpates 1997) (U.S. (9th Cir. F.3d 928 Kennedy’s hypothetical. Paguio the court reversed the defendant’s conviction on the (Paguio).) Paguio, that the trial court abused its discretion his father’s ground by admitting forms, confession that he had falsified certain tax but excluding portion “ ” (Id. the statement that that the son ‘had to do with it.’ represented nothing court, that, 934-935.) at for the Kleinfeld pp. Writing Judge explained context, interests, the latter statement both disserved the father’s insofar as bad,” others into has been seen as “leading wrongdoing always especially (Id. was “not from the remainder of the confession. practically separable” 934.) The court that the rule an rejected government’s argument nounced Williamson that the trial must judge always parse “mean[s] Rather, (Ibid.) statement and let means that only inculpatory part.” “[i]t
715
context,
the statement must be examined
to see whether as a matter of
common sense the
at issue was
interest and would not have
portion
against
(Ibid.)
been made
a reasonable
unless he believed it to be true.”
person
sense,”
“As a matter of common
the court
this is less
to be
explained,
likely
“
it,
‘I
X
I
true when the statement takes the form
did
but
is
than
guiltier
”
“
am,’
alone,
‘I
than when the statement is
did it
not with X.’ That is
because the
of the statement
on X’s
is an
part
touching
participation
attempt
former,
to avoid
or
favor
the
but to
undiluted
responsibility
curry
accept
1985)
(Ibid.;
(10th
in the latter.”
see also U.S. v.
Cir.
responsibility
Lopez
543,
111 F.2d
554
court erred
statements of a
excluding hearsay
[trial
in a vehicle that he alone had
cocaine into the vehicle and
passenger
placed
them].)
that the defendant was not aware of the
to
drugs prior
transporting
cases, too,
Our
have taken a contextual
to the
approach
application
Leach rule. We have
Leach to bar admission of those
of a
applied
portions
third
confession that are
or otherwise
to shift
party’s
self-serving
appear
(Duarte,
to others.
Cal.4th at
responsibility
supra,
[excluding
that,
of confession
“far from
de-
portions
‘specifically disserving’ [the
interests,
interests”];
served those
cf. In re Sakarias
penal
positively
clarant’s]
(2005) 35 Cal.4th
106 P.3d
the
Cal.Rptr.3d
[25
931] [under
rule,
Leach
of declarant’s confession that tended to
an
portions
inculpate
“could well have been held inadmissible as
to deflect
accomplice
attempts
declarant”].)
from the
But we have
the admission
culpability away
permitted
that,
of those
of a confession
not
portions
though
independently disserving
interests,
the declarant’s
also are not
but “inextri
penal
merely “self-serving,”
tied to and
of a
statement
interest.”
v.
cably
part
specific
against penal
(People
Samuels
36 Cal.4th
120-121
Cal.Rptr.3d
1125]
(Samuels)
the trial court’s admission of declarant’s assertion that
[upholding
victim,
him kill
the defendant had
paid
rejecting
argument
the reference to the defendant “should have been
where the state
purged,”
collateral”].)
“in
In
ment
was
no
question
way exculpatory, self-serving,
Samuels, we
the Leach rule to admit evidence that
applied
inculpated
token,
defendant.
the same
the Leach rule
courts to consider
By
permits
another,
whether the
of a confession that tends to
rather
portion
exculpate
favor,
than to shift blame or
should be admitted
view of
curry
surrounding
circumstances, even
of the statement is not
though
exculpatory portion
of the declarant’s interests.
independently disserving
rule,
General relies
on
advocating
contrary
Attorney
heavily
102, in
27 Cal.4th
which we
the Leach rule
People Lawley, supra,
applied
a trial court’s exclusion of those
of an out-of-court
upholding
portions
confession that were neither
nor
of the defend-
self-exculpatory
inculpatory
ant. That reliance is
The defendant
was
with
misplaced.
Lawley
charged
murder,
murder,
to commit
and solicitation to commit murder. At
conspiracy
trial,
his
he
evidence that an
had
sought
present
alleged coconspirator
*19
confessed to
the victim
to a contract
issued
the
killing
pursuant
Aryan
Brotherhood
The trial court admitted the
of the statement
prison gang.
portion
victim,
to
for
the
but excluded the
confessing
accepting payment
killing
contract,
Brotherhood as
issued the
as
portion identifying
Aryan
having
in
well as the declarant’s statement
that “an innocent man was
jail,” charged
(Id.
152.)
In
with the crime.
at
the trial court’s
we noted
p.
upholding
ruling,
that the excluded statements did not make the declarant “more
than
culpable
(id.
154)
did the other
of his statement”
at
or “further incriminate”
portions
p.
(id.
21).
Samuels
in
the defendant
at
fn.
But as our later decision
p.
clear,
Lawley
makes
did not announce a
rigid
hypertechnical application
the Leach rule that would
in
all cases
exclusion of even those
require
portions
of a confession that are
intertwined with the declarant’s admis
inextricably
Samuels,
(See
supra,
sion of criminal
The and faults us for down the concurring dissenting opinion “watering (Cone. standard for admission under the & dis. against-interest exception.” J., 745.) in C. at But opn. Cantil-Sakauye, post, p. rejecting Attorney A General’s we have broken no new rule that argument, ground. permitted admission of no more of a declarant’s statement than was necessary expose him to criminal courts to sever and excise the liability, requiring mechanically rest, be easier to But as the certainly might apply. concurring dissenting itself this is not the rule we have: Under the opinion appears recognize, California, in in law as it has as the federal context matters developed system, whether a statement or thereof is admissible under the determining portion This contextual accords with the ratio- against-interest exception. approach nales the modern of the rule the admission underlying expansion governing 934; (See of statements interest. F.3d at see also against Paguio, supra, p. 3, ante.) fn. case, this we conclude that defendant’s
Applying approach statements to Lawson and were declarations interest. proffered Misty against context, Considered of those two statements form disputed portions thus, of Morris’s admission of for Bone and for part responsibility killing of Evidence Code section are not from purposes practically separable instance, the remainder of the statements. each of the disputed portion murder; statement elaborated on Morris’s for the rather than responsibility others, to minimize his or shift blame to Morris attempting responsibility A instead assumed sole reasonable Morris’s responsibility. person position, moreover, would have understood that Morris’s comment his explanatory statement to he confessed to undiluted for Misty—when responsibility carry out the brutal murder of Bone and elaborated on that confession ing by that his confederates looked on as it occurred— acknowledging surprise course, was his interest. Of his elaboration did not against penal specify reason for his confederates’ whether the fact of the the brutal surprise, killing, out, manner which it was carried or both. But under conceivable any statement, it tended to underscore Morris’s interpretation responsibility crime, for the rather than diminish it.5 concurring dissenting opinion speculates portion that this of Morris’s statement to (1)
Misty may impression surprised” have reflected Morris’s that defendant and Wilson “were Bone; (2) difficulty killing “annoyed killing that he had were or frustrated” that the took as did; (Cone. long killing.” opn. as it were “amused the circumstances of the & dis. J., context, Cantil-Sakauye, post, portion simply C. But in this of the statement was *21 718 law, under California while Morris’s role as an actual killer a
Certainly him murder made for the death of the role felony eligible penalty regardless confederates, his his admission of sole for the brutal played by responsibility murder of Bone would have as an circumstance qualified aggravating tending 190.3, (See (a); of the death factor v. justify imposition penalty. People § 312, 1, (1997) 15 Cal.4th 414-415 935 P.2d Carpenter Cal.Rptr.2d [63 708] defendant acted alone could be considered as a circumstance of by jury [that the crime on other v. determining penalty], disapproved grounds People 1176, 431, 62]; (2015) 60 Cal.4th 345 P.3d Cal.Rptr.3d [185 Diaz 1132, 268, (1992) 1 v. Howard Cal.4th 824 P.2d People Cal.Rptr.2d [5 role as the actual killer and force behind the motivating 1315] [defendant’s crime was a factor his And while Morris not aggravating culpability].) may law, have been familiar with the intricacies of Californias death it is penalty reasonable to infer that he understood the commonsense notion that killers who act on their own are to be more than those who likely punished severely confederate, were or assisted or who some lesser role encouraged by played in the act. neither the circumstances which the statements were made nor
Finally, Morris’s to defendant reason to believe that Morris made relationship provide Frierson, (See the statements to defendant. 53 Cal.3d protect People supra, 745.) There was no evidence that defendant and Morris were close p. acknowledgment participate an elaboration on Morris's that defendant and Wilson did not light, explaining ruling the murder. The trial court viewed it in that in its tentative that it provided regarding” part “details Morris’s observation that defendant and Wilson “did not take killing.” prosecutor challenge person in the did not this characterization. When a “third acquaintance purely private setting implicates talks to a friend or in a and himself in the crime, involved,” charged saying expressly while that defendant was not the entire statement is logical part admissible “when there is a close and narrative connection between the of the (5 implicating speaker paid referring statement the and the to the defendant.” Mueller & 8:131, (4th 2013) Kirkpatrick, Federal Evidence ed. That was the case here. § accept concurring dissenting opinion’s speculations Even if we were to and as to the meaning, any interpretation statement’s further the bottom line is that reasonable acceptance responsibility killing, statement reflects Morris’s of sole for a brutal and thus forms part specific against penal of a statement Morris’s interest. The statement is therefore unlike the 571, 576-577, (D.C. 2009) concurring one at issue in Andrews v. U.S. 981 A.2d cited found, dissenting opinion, appellate agreed, where the trial court and the court that the reasonably expose entire statement at issue was construed in a manner that did not liability. declarant to criminal Ultimately, concurring dissenting opinion’s argument relates not to whether Morris’s against penal interest—they clearly statements were his were—but to whether Morris’s sufficiently powerful killing below, statements were evidence of defendant’s noninvolvement in the they explained that would have made a difference in defendant’s trial. For the reasons they guilt phase. say we do not believe would have made a difference at the But we cannot “ ” jury’s penalty phase ‘surely verdict at the was unattributable’ to the trial court’s error in (2003) excluding (People Cal.Rptr.3d the statements from evidence. v.Neal 31 Cal.4th 86 [1 280], quoting Sullivan v. Louisiana 508 U.S. L.Ed.2d 2078].) 113 S.Ct. *22 friends, which have Morris a motive to defendant might given protect by in his the murder. Defendant and Morris do not minimizing participation well; indeed, to have known each other defendant told the that appear police he did not even know Morris’s last name. And while some offenders may to enhance their about crimes did not attempt reputations by bragging they commit or the extent of their for a criminal act exaggerating responsibility (see, v. and Satele 57 Cal.4th e.g., People Cal.Rptr.3d [158 Nunez 585, 302 P.3d that members about [expert testimony gang may “brag 981] crimes did not commit to they gain reputation”]; People Gonzales (2011) 52 Cal.4th Cal.Rptr.3d 543] Soliz [same]), Morris had no incentive to to enhance his apparent attempt reputa- Moreover, in in tion such a manner his conversation with Morris Misty. Lawson, committed suicide not after his statement to and it is long making that a suicide his arrest for murder unlikely person contemplating following would have interest his any enhancing reputation jail. short, (and
In we can think of no reason none has been offered plausible by court, General, the trial Attorney concurring dissenting Morris’s assertion to Lawson that defendant and Wilson took opinion) why Bone, no and his assertion to that both of them part killing Misty her, were shocked when Morris killed would be less than the any trustworthy In remainder of Morris’s confession. This is the absence of hardly surprising: Wilson, with defendant and should he lie not any special relationship why murder, about committed a brutal but also about their lack of only having involvement and their at his conduct? surprise
We therefore conclude that Morris’s statements to and Lawson that Misty he acted alone and that defendant and Wilson startled when he appeared killed Bone were so to his interests that a reasonable his disserving person would not have made them unless were true. The statements position they were thus admissible under Evidence Code section 1230.
2. Prejudice Before to the of whether the trial court’s error was turning question we to consider the standard of review. prejudicial, briefly pause appropriate case, this General did not the answer brief she filed Attorney argue, court, when this matter was first before this that error the trial court’s any exclusion of Morris’s statements was harmless. This court invited the hearsay to submit briefs parties supplemental addressing significance, any, omission, and whether exclusion of the statements defendant prejudiced *23 brief, at the of trial.6 his defendant guilt penalty phases supplemental law, that when trial court error violates state no forfeiture acknowledged however, Constitution, occurs. He that the error violated the federal argued, General’s failure to brief the acts as a Attorney question prejudice forfeiture, and that a court can find the error harmless reviewing question “(1) in three limited circumstances: the record is short and only straightfor- own, (2) ward and the court can determine on its easily prejudice doubt, harmless error is no a remand would be futile.” question General, turn, forfeiture does not affect this Attorney argued any court’s to determine whether error was harmless. independent duty any
We conclude that it is to resolve this debate over ultimately unnecessary General’s failure to brief the significance, any, Attorney question because the answer to that does not alter the outcome prejudice, question of the case. Under either California’s traditional harmless error test or under defendant, the more standard advocated the trial court’s erroneous rigorous exclusion of Morris’s statements to and Lawson was harmless at the Misty of trial. And of which test we the error guilt phase again, regardless apply, reversal of the of death. requires judgment
With to the effect of the error at the defendant respect guilt phase, that the trial court’s erroneous exclusion of the acknowledges proffered murder; evidence had no effect on his conviction for first under the degree rule, he was of this crime of whether he had felony-murder guilty regardless contends, however, to do with the He that the error well anything killing. may have affected the with to the jury’s finding respect felony-murder special circumstances. true,
To find the circumstances had to find either that special kill defendant acted with the intent to or that he assisted the criminal as a and acted with “reckless indifference to enterprise ‘“major participant” 190.2, (§ (c), (d).) human life.” subds. The excluded evidence that defendant after Morris killed Bone well have affected the expressed surprise might determination with to whether defendant had the intent to kill. jury’s respect parties questions: Attorney Our order asked the to brief these “1. Does the General’s failure argue alleged any in the answer brief that an error is harmless constitute forfeiture of argument regarding harmless error either state law errors or federal constitutional errors? 2. Assuming excluding hearsay Misty the trial court erred in statements of John Monis to interest, proffered by against Abbott and Albert Lawson that were defendant as statements does require special Assuming the error reversal of the circumstances or death sentence? 3. that the excluding trial court did not err in victim, Morris’s statement to Abbott that after Morris killed the surprised, defendant looked at him as if he were but that the trial court did err in excluding Morris’s statements to Abbott and Lawson that defendant was not involved in the killing, require special findings actual does the error reversal of the circumstance or death sentence?”
But the relied not on that but on the evidence prosecution primarily theory that defendant was a who acted with reckless indifference to major participant human life. That evidence was overwhelming. in defendant’s statement to the he admitted that he police, participated of the that resulted Bone’s death and that he planning burglary/robbery
handed Morris a He also admitted that he entered Bone’s house gun. along Wilson, with Morris and Patrick that he participated ransacking house, and that he drove from the house Bone’s truck. These away uncontroverted admissions demonstrate that defendant was a overwhelmingly in the offense. major participant
The evidence that defendant acted with reckless indifference to life is He knew Morris was armed: He told the equally overwhelming. police home, before entered Bone’s Morris was for his they looking gun entered, defendant it to him. Defendant also admitted that before gave they “ said, it, Morris had observed a woman out her trash and ‘Fuck we’ll taking ” house, Thus, kill fuckin’ her an’ look at the we all even just got day long.’ if, claimed, as defendant he to Morris’s comment Morris responded by telling killin’ that he was “not into he nonetheless handed Morris a people,” gun thereafter entered Bone’s house with Morris while aware of Morris’s fully kill, desire to reckless indifference to the thereby clearly demonstrating that a would indeed occur. possibility killing evidence,
Based on this
no reasonable
could have found
undisputed
jury
that defendant was not a
the crime or that he did not act
major participant
Thus,
with reckless indifference to life.
the trial court’s exclusion of the
evidence that defendant did not
and was
participate
killing
surprised
that it occurred was harmless with
as to the truth of
respect
jury’s finding
circumstance,
of whether we
the standard test for
special
regardless
apply
(see
(1956)
errors
California law
v. Watson
46 Cal.2d
violating
People
243]),
(see
P.2d
the test for errors
the federal Constitution
violating
[299
824]),
(1967)
v.
nia the effect of a trial court’s erroneous on the ruling admissibility evidence is measured the standard first described ordinarily People Brown 46 Cal.3d Cal.Rptr. 1135]: “[W]e (i.e., will affirm the unless we conclude there is a reasonable judgment realistic) that the would have rendered a different verdict had possibility “ the error or errors not occurred.” This reasonable test ‘is the possibility *25 ” same, in substance and effect’ as the test for errors that violate the federal Constitution, which reversal unless the court can requires reviewing say a reasonable doubt that the error was harmless. v. Pearson beyond (People 793].) (2013) 56 Cal.4th Cal.Rptr.3d in The case relied on the circumstances prosecutor’s aggravation primarily In of the offense. her the told the “The closing argument, prosecutor jury: in to remember deliberations is to focus on the important thing your defendant and his conduct on of the Not the defendant as a day [the murder]. child, life, in not the defendant at some other time his but the defendant and his behavior on .... This is the to focus on.” day thing [the murder] Bone, the never that defendant killed Although prosecutor argued personally at the the had the of Jonathan guilt phase prosecution presented testimony Howe, kill who told the that defendant had ordered Morris to Bone and jury that he had the victim’s death. Howe’s was not a enjoyed credibility was, noted, issue at the the central issue as whether significant guilt phase; defendant was indifferent to the that the would recklessly possibility robbery in result a murder. But the issue took on at the particular significance penalty fix when the was asked to a for defendant’s crime based phase, penalty on the nature of defendant’s involvement the death of precise Betty Bone—whether, Morris’s, as defendant he was a follower of argued, merely or, as the defendant was for the prosecution argued, directly responsible of the murder. Howe’s that defendant had a planning testimony played role the murder for the leadership provided strong support prosecution’s view that defendant should be held for Bone’s death. directly responsible believable,” to defense counsel’s that Howe was “not the response argument was, fact, that Howe’s of belief: prosecutor argued testimony worthy defense has never been able to a reason that Mr. Howe give you “[T]he would lie. never been able to reason that he would They’ve give you any make this about the defendant. . . . never simply up They’ve given you reason to doubt his also the violent testimony.” prosecutor emphasized nature of the that defendant “stood while Bone was killing, arguing by” and stabbed to death. brutally strangled
The excluded statements would have the defense a substantial basis given for would have testified that countering prosecutor’s argument. Misty and, Morris told her that defendant did not take after it part killing looked at Morris as what the hell are happened, “saying, you doing, dude?” Lawson would have testified that while he was incarcerated suicide, before Morris committed Morris told Lawson that county jail, shortly “in defendant and Wilson were the house but took no the actual part statements, that, Based on these well have concluded killing.” jury might to Howe’s that defendant had ordered the contrary testimony killing, was, claimed, murder as the defense Morris’s idea and that defendant entirely was shocked when it defendant later told that he happened. Although police *26 him had observed Morris Bone and then saw or heard strangling stabbing Bone, conclusion; neither statement is inconsistent with this the jury might have inferred that defendant was Morris’s actions while surprised by they occurred and remained thereafter. And even had the surprised jury interpreted Morris’s of defendant’s as a reaction not to the fact of description surprise but, out, for the with which it was carried the killing, example, brutality still would have countered Howe’s that defendant had testimony testimony death, the victim’s as well as the that defend- enjoyed prosecutor’s argument ant deserved the death because he “stood as Morris penalty by” watching and stabbed the victim. brutally strangled
We cannot with whether the evidence would say certainty proffered have caused the to render a different verdict. But ultimately jury given that, of the issue of defendant’s role the murder—a murder as all centrality defendant did not commit—we also cannot that acknowledge, personally say “ ” verdict was unattributable’ to the trial court’s error jury’s ‘surely from evidence that tended to show that defendant preventing jury hearing in, not did not but was the brutal of only participate surprised by, killing Neal, Bone. v. 31 Cal.4th at Sullivan v. Betty (People supra, p. quoting Louisiana, sum, 279.) In 508 U.S. at had the heard the supra, p. jury evidence, realistic) (i.e., excluded we find a “reasonable that it possibility” Brown, would have rendered a different verdict. 46 Cal.3d at (People supra, 448.)7 We must therefore set aside the of death. judgment B. Instructions on circumstantial evidence The trial court delivered the standard instruction circumstantial regarding 8.83), (CALJIC evidence No. which told the that each fact that is jury essential to a set of circumstances to establish the truth of complete necessary doubt, (2) if circumstance must be a reasonable special proved beyond evidence, there are two reasonable of the circumstantial interpretations must the one that favors defendant. Defendant jury accept argues these connection with instructing jury regarding principles only circumstantial evidence could cause the to believe that the did principles (See (1974) 12 not when direct evidence is used. v. Vann Cal. 3d apply People 226-227 on circumstantial Cal.Rptr. 824] [instruction evidence, in the absence of a instruction of general requiring proof guilt doubt, a reasonable have been as beyond might interpreted by jurors requiring direct].) a lesser of the evidence is He contends the instruction degree proof undermined the of a reasonable doubt as requirement proof beyond applied evidence, direct and that this instructional error reversal of the requires 7 would, course, applied rigorous We reach the same conclusion if we a more standard as Attorney question prejudice. a result of the General’s failure to brief the *27 724 circumstance because it could have affected the consid-
special finding jury’s eration of Howe’s which was direct evidence that defendant testimony, intended to kill. General contends defendant forfeited this claim to Attorney by failing “A
ask the trial court to the standard instruction. We modify agree. party may not on that an instruction correct law and complain appeal responsive the evidence was too or unless the has general incomplete party requested (1989) v. 49 appropriate clarifying amplifying language.” (People Lang 991, 386, 627], Cal.3d 782 P.2d on other Cal.Rptr. disapproved [264 Diaz, 1176, 1190; v. 60 Cal.4th see v. grounds People supra, People 139, (2012) 53 Cal.4th 274 P.3d Livingston Cal.Rptr.3d [140 1132] forfeited claim that instruction direct evidence discussing proof by [defendant should have included additional related to the burden of principles proof a reasonable doubt that were contained the instruction on circum- beyond evidence]; (1998) stantial v. Bolin 18 Cal.4th People Cal.Rptr.2d [75 412, 956 P.2d forfeited claim that instruction directing jury 374] [defendant find circumstance not true it had a reasonable doubt as to its truth special was because it did not define reasonable doubt or direct the incomplete jury doubt”].) to find the circumstance a reasonable The instruc- special ‘“beyond tions circumstantial evidence were not incorrect or regarding inapplicable defendant did not modification of the instructions to address the request any concerns he now presents. merits, An
Were we to address the we would the claim. reject instruction between direct and circumstantial evidence does “[differentiating not undermine the reasonable doubt standard or of innocence.” presumption 1166.) v. 53 Cal.4th at We addressed and (People Livingston, supra, p. claims identical to defendant’s rejected nearly Livingston People Solomon 49 Cal.4th 825-827 Cal.Rptr.3d Solomon, the defendant that because the instruction on argued 501]. evidence, circumstantial evidence did not refer to direct would have “jurors direct, believed that a fact essential to that was based on rather than guilt circumstantial, (Id. evidence need not be a reasonable doubt.” proved beyond 826.) at We noted that the trial court had instructed the “that both p. jury direct and circumstantial evidence were means of that the acceptable proof,” “ innocent, ‘in defendant was to be and that case of a reasonable presumed shown, doubt whether his is he is entitled to a verdict of guilt satisfactorily ” (Ibid., instructions, 2.90.) not CALJIC No. “These guilty.’ quoting coupled with the directive to ‘consider the instructions as a whole and each light others,’ that the reasonable doubt standard fully apprised jury applied (Solomon, to both forms of proof.” Solomon,
in As here the trial court instructed the on the presumption doubt, of innocence and the a reasonable and it requirement proof beyond *28 told the to consider the instructions as a whole. We see no reasonable jury additional, detailed, likelihood that because the was some more jury given direction about how to the reasonable doubt standard to circumstantial apply evidence, evidence, but was not such direction direct given regarding jury would have concluded that the reasonable doubt standard did not fully apply direct evidence. proof by
Furthermore, received additional relevant instructions jury applicable the direct evidence with which defendant is here concerned—Howe’s testi- him that defendant told he ordered the which was evidence of mony killing, “if defendant’s intent. The was instructed that the evidence as to jury any intent or mental state is of two reasonable specific susceptible interpretations, one of which to the existence of the intent or mental state and points specific state, the other to the absence of the intent or mental must specific you adopt that which to the absence of the intent or mental interpretation points specific state.”
C. Failure to instruct that the must on jury unanimously agree any
overt acts
to commit
required
conspiracy
robbery
for
Defendant was convicted of
to commit
Con
conspiracy
robbery.
to commit a crime
of an overt act committed
spiracy
requires proof
(§
The information
five different
pursuance
conspiracy.
alleged
overt acts
furtherance of the
Defendant contends the trial court
conspiracy.
him
erred
to instruct the
that it could not convict
failing
jury
conspiracy
unless the
overt act.
jurors unanimously agreed regarding
required
Defendant concedes that this court has
previously rejected
argument
the overt act is
under state law.
v.
jury unanimity regarding
required
(People
1124,
436,
(2001)
Russo
25 Cal.4th
Cal.Rptr.2d
[108
641]
contends, however,
(Russo).) He
that Russo did not consider whether the
federal Constitution
of at least a
on
requires
agreement
majority
jurors
Fifth, Sixth,
an overt act. Defendant cites cases
that the
and Fourteenth
holding
Amendments to the federal Constitution
trial and
require jury
proof beyond
(Sandstrom
a reasonable doubt on all elements of the offense
v. Montana
Mullaney
510,
39,
2450];
(1979) 442 U.S.
512-514
L.Ed.2d
99 S.Ct.
[61
684,
508,
1881];
(1975) 421
Wilbur
U.S.
697-698
L.Ed.2d
95 S.Ct.
In re
[44
358,
368,
1068];
(1970) 397 U.S.
363-364
L.Ed.2d
90 S.Ct.
Winship
[25
(1952)
Morissette v. United States
342 U.S.
274-275
L.Ed.
[96
240])
72 S.Ct.
and the
of some minimum number of
agreement
jurors
(Burch
(1979) 441
v. Louisiana
U.S. 130
L.Ed.2d
99 S.Ct.
[60
1623]
a nonunanimous
violated defendant’s
to a
six-person jury
right
[conviction
trial];
Johnson v. Louisiana
None of the cases cited defendant calls into our conclu by question prior sion that the need not on which overt act of a jurors agree unanimously was Russo reasoned that the must on what conspiracy proved. jury agree committed, crime was not how that crime was committed. the “Although jury act, had to find at least one overt whether it was one or another of several committed, i.e., acts concerns the which the crime was possible only way case, Thus, if not whether discrete crimes were committed. theory committed, as to what overt act was that jurors disagreed agreed only committed, an overt act was would still have found they unanimously (Russo, defendant of a 25 Cal.4th at guilty particular conspiracy.” supra, Russo, Consistent with our the United States p. reasoning Supreme Court has that when a defendant’s conduct constitutes a recognized alleged offense that be committed different the federal Constitu single may ways, tion does not how the crime was committed. require unanimity regarding 624, 555, (Schad (1991) 111 v. 501 U.S. 629-645 L.Ed.2d S.Ct. [115 Arizona clause does not process require jury agree unanimously 2491] [due intentional, whether a of first murder was committed an charge degree murder]; (cone. id. at 649 premeditated killing by felony opn. Scalia, J.) has been the rule that when a crime can be long general single [“it committed various need not the mode of commis ways, jurors agree upon sion”]; 2011) (2d see also U.S. v. Cir. 667 F.3d need Kozeny [jury conviction]; not on a overt act to sustain a U.S. v. agree single conspiracy 2009) [same]; (7th (5th Cir. 569 F.3d U.S. v. Sutherland Cir. Griggs 1981) [same].) 656 F.2d
D.
order
Discovery
Defendant contends that the
that the trial court ordered the
discovery
defense to
to the
under section 1054.5 violated
provide
prosecution
provi
sions of the federal and state Constitutions
his self-incrimination
protecting
his
to due
and his
to the effective assistance of
privilege,
right
process,
right
counsel. Defendant
that we
these
recognizes
rejected
arguments
Izazaga
but,
304],
Court
E. to instruct that the must request jury unanimously agree Refusal of on the circumstance verdict theory supporting special robbery burglary special-circumstance allegations required kill to find either that defendant intended to or that he was a jury major 190.2, (§ in the crime who exhibited reckless indifference to life. participant (c) (d).) subds. & The trial court refused to instruct the that it must agree on the unanimously theory supported special-circumstance allegation.
727 Defendant that when a is under different acknowledges charge prosecuted theories, legal the need not on which jury agree unanimously theory applies. 900, v. Jenkins (See, (2000) 22 e.g., People Cal.4th 1024—1025 [95 377, 997 P.2d need not whether the defendant Cal.Rptr.2d [jury agree 1044] is of murder based on a of direct or a guilty theory culpability theory 787, v. Edwards (1991) accomplice liability]; People 54 Cal.3d 824 [1 696, 819 P.2d need not which acts Cal.Rptr.2d [jury agree unanimously 436] 560, wait]; v. Failla (1966) People constitute 64 Cal.2d 567 lying [51 103, case, 414 P.2d need not unani- Cal.Rptr. burglary jurors agree 39] [in which the defendant intended at the time of mously regarding felony entry].) Defendant contends he was under a with prosecuted single legal theory victim, (1) kill alternative theories: That he ordered Morris to the factual kill, (2) which case he acted with intent to he did not order the but killing was a the crime whose conduct evidenced a conscious major participant circumstances, contends, for life. Under these defendant disregard jury had to on the acts the offense. He contends agree unanimously constituting that the omission of the instruction violated his Sixth Amendment unanimity to a trial and his Amendment right jury Eighth right heightened reliability in a case. capital
A if instruction is there is evidence that more than one unanimity required occurred, crime each of which could the basis for conviction under a provide v. Diedrich (1982) (People count. 31 Cal.3d 281 single Cal.Rptr. [182 354, 643 P.2d evidence more than one act of suggested bribery, 971] [when conviction]; must which act was the basis for see jury agree unanimously v. Beardslee People 53 Cal.3d Cal.Rptr. to acts that could requirement jury unanimity typically applies
1311] [“A
offenses”].)
have been
as
But the
instruction is
charged
separate
unanimity
“
theories or acts
not
‘where
form the basis of a
required
multiple
may
guilty
” (Russo,
supra,
verdict on one discrete criminal event.’
25 Cal.4th at
added.)
italics
the evidence shows
discrete
p.
only
single
“[W]here
crime but leaves room for
as to
how that crime was
disagreement
exactly
was,
committed or what
the defendant’s
role
need not
precise
or,
it,
on the basis
as the cases often
unanimously agree
put
‘theory’
(Id.
1132.)
the defendant
is
This is true even
whereby
guilty.”
p.
Jenkins,
(People
supra,
theories are based on different facts.
Cal.4th at
instruction not
even where ‘“different facts would
p.
[unanimity
required
as a direct
support aiding
abetting liability
liability
perpetrator”].)
Here, there was no evidence that more than one crime of murder was
Rather,
committed.
the evidence left “room for
as to
disagreement
exactly
how that crime was committed or what the defendant’s
role was.”
precise
(Russo,
supra,
25 Cal.4th at
When a defendant’s
conduct
alleged
constitutes a
offense that
be committed
different
single
may
ways,
federal Constitution does not
on how the crime was
require unanimity
*31
Arizona,
(Schad
committed.
v.
Defendant this case to v. analogizes People Dellinger 503], in 300-302 which the Court of Cal.App.3d Cal.Rptr. Appeal held that the defendant was entitled to a instruction because unanimity evidence that he could have killed the victim either blunt force suggested by trauma or cocaine that most cases that poisoning. Dellinger recognized instruction, have addressed the need for a there were not unanimity only criminal acts that could have constituted the offense but also multiple charged (Id. contrast, 301.) In offenses. “there potentially multiple p. Dellinger was one offense and one victim but there were several as to only hypotheses Nevertheless, (Ibid.) which act or acts caused death.” [the victim’s] court concluded that a instruction was appellate unanimity required, explain “As as there are acts to the which could ing: long multiple presented jury offense, constitute the a defendant is entitled to an instruction on charged (Ibid.) unanimity.” decided,
Even that was it is distin assuming Dellinger correctly factually Here, from this case. there was no as to what acts caused guishable dispute the victim’s death. We have concluded that s previously Dellinger holding defendant, does not extend to the situation which the based on a single conduct, course of could have been convicted either as an aider and abettor to Beardslee, a murder or as the actual killer. 53 Cal.3d at (People supra, here, 93.) Much less should it where there was no that apply dispute killer, defendant was of murder even he was not the actual guilty though kill issue was whether he acted with the intent to or as a only major with a reckless for life. No instruction was participant disregard unanimity required.
F. the instruction on the mental state element Misreading of circumstance felony-murder special circumstance either that the felony-murder special requires proof kill,” defendant aided the murder “with the intent to or that the defendant was the crime and exhibited a “reckless indifference” to “major participant” 190.2, (§ (c) (d).) human life. subds. & The written instructions provided that defendant acts with reckless indifference jury correctly explained “[a] to life when that defendant knows or is aware that his acts involve a grave added.) (Italics risk of death to an innocent human But when being.” reading instruction, the trial court told the defendant acts with “[a] reckless indifference to life whether knows or is aware that his acts [he]
729 added.) (Italics involve a risk of death to an innocent human grave being.” Defendant contends this instruction was erroneous because the court appar- ‘“when,” substituted the word ‘“whether” for that ently thereby indicating reckless indifference could exist whether or not defendant knew or was aware that his acts caused a risk of death. He contends this instruction grave misstated the law and violated his under the Fifth and Sixth rights Amendments of the federal Constitution.
‘“Therisk of a between the delivered and the written discrepancy orally trial, instructions exists and verdicts are not undermined the mere every 158, fact the trial court v.Mills 48 Cal.4th 200 misspoke.” (People [106 153, 276].) 226 P.3d often have held that when erroneous Cal.Rptr.3d ‘“[W]e ones, oral instructions are correct written we assume the supplemented by instructions, when, here, followed the written as is jury particularly jury (2008) 44 instructed that the written version is controlling.” (People Mungia 1101, 614, 880]; Cal.4th 189 P.3d see v. Osband Cal.Rptr.3d People [81 (1996) 13 Cal.4th 919 P.2d that the Cal.Rptr.2d [noting [55 640] “ was instructed to be instruction its final jury ‘governed only by [each] Here, ”].) whether or handwritten’ was wording, printed, typed jury instructed before the of deliberations that it would be just beginning given written instructions and that ‘“the instructions be or may typed, printed handwritten. Portions have been added or deleted. . . . of the may Every part instruction, text of an whether or handwritten is of typed, printed, equal You are to be the instruction its final importance. governed only by wording.” if
Even we did not assume that the understood that the written jury instructions were we would find no reasonable likelihood that the controlling, misunderstood the for jury requirements proof felony-murder special circumstance. ‘“Whenan court addresses a claim of misinstruc- appellate jury tion, whole, it must assess the instructions as a viewing challenged instructions, instruction context with other order to determine there was a reasonable likelihood the instruction an jury applied challenged (2008) 44 manner.” v. Wilson Cal.4th impermissible (People Here, 1041].) the instruction as read to the Cal.Rptr.3d jury was, most, Both the and the defense focused on ambiguous. prosecution the ‘“reckless indifference” element of the circumstance their special stated that it that defendant knew his act arguments, correctly required stated, created a risk of death. The ‘“The definition of a grave prosecutor reckless indifference to human life as taken from the instruction itself is that the defendant knows or is aware that his acts involve a risk of grave death to an innocent human ‘“Mr.Grimes knew there was a risk being.” grave into this house with these Bone was be by going people Betty gonna indifference, killed .... So when we talk about reckless knowing being aware that acts involve a risk . . . it’s his and his your grave knowledge *33 awareness at the time that he into this residence as to what could goes to this woman.” Defense counsel read the potentially happen correctly it, ‘“I I I’ll instruction to the know have read but read it to . . . jury: you again. A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a risk of death to an innocent grave human ‘“Thelaw on the circumstance above and being.” special beyond murder, acts, first is that Mr. Grimes must know or be aware that his degree conduct, does, his what he involves a risk of death to an innocent grave defined, human ‘“That’s how reckless indifference is when that being.” defendant knows or is aware that his acts involve a risk of death to an grave innocent human of counsel’s statements and the being.” light repeated instructions, correct written there is no reasonable likelihood that the was jury misled the trial court’s misstatement. by
G. Instructions on the element robbery felony-murder special of circumstance was instructed that the circumstance could jury felony-murder special unless, not be found true other ‘“the among things, prosecution proved murder was committed order to out or advance the commission of carry the crime of or to facilitate the therefrom or to avoid robbery escape detection.” The was instructed on the elements of jury correctly robbery. Defendant nevertheless contends the robbery special-circumstance finding must be reversed because the trial court erred with instructing jury 2.15, CALJIC No. which told the that it found defendant had been jury of stolen that circumstance was not possession property, enough support conviction and evidence of his also was robbery corroborating guilt required, but ‘“this evidence need be and need not itself be corroborating only slight, sufficient to warrant an inference of Defendant contends that CALJIC guilt.” him No. 2.15 an of based on his gave option convicting robbery evidence, of stolen some without possession goods plus corroborating finding all the elements of He also claims that it robbery. unconstitutionally lightened the state’s burden of a conviction based on persuasion by permitting ‘“slight evidence.”
We have the same previously rejected arguments, concluding CALJIC No. 2.15 does not appropriately permits—hut require—jurors infer or theft from the of stolen guilt burglary, robbery, possession property evidence, some and that it does not violate due plus corroborating process 347, (See reduce the burden of v. Gamache 48 Cal.4th proof. People 771, 342]; (2008) 44 375-376 227 P.3d v. Parson Cal.Rptr.3d People [106 Smithey 1]; Cal.4th 355-356 187 P.3d Cal.Rptr.3d People [79 1171].) (1999) 20 Cal.4th 975-977 Cal.Rptr.2d *34 Defendant relies federal cases that have found a violation upon conspiracy instructed, of due when the was over the defendant’s process jury objection, “ ‘[ojnce that the existence of the or common scheme of con- agreement shown, is . . . evidence is all that is to connect a spiracy slight required ” 1977) (U.S. (5th defendant with the v. Partin Cir. particular conspiracy.’ 621, 628, omitted; 1990) (7th 552 F.2d italics see U.S. v. Durrive Cir. 902 F.2d 1221, review, that on court must find [concluding appellate reviewing “ ” “ ” evidence,’ evidence,’ ‘substantial rather than ‘slight connecting 348, 1977) (9th defendant to the U.S. v. Dunn Cir. 564 F.2d conspiracy]; 356-357 that defendant’s connection to the need [clarifying conspiracy only doubt].) be but the connection must be a reasonable slight, proved beyond “ cases, to these the evidence” instruction ‘reduced the According “slight level of for the to its burden proof necessary government carry by possibly the about the standard or even confusing jury proper convincing jury in members that a defendant’s need not be participation conspiracy ” Partin, (U.S. a reasonable doubt.’ v. U.S. v. proved beyond quoting 1976) (5th Hall Cir. 525 F.2d with the instruction addressed these federal cases is that it problem to conclude that the defendant was a
permitted participant contrast, based on evidence.” CALJIC No. 2.15 conspiracy only “slight By conviction of theft-related offenses based evidence that the permits upon additional, defendant was found of stolen recently possession property plus evidence. We have “slight,” corroborating recognized “[possession stolen is so that to warrant conviction there recently property incriminating be, in need addition to corroboration the form of only possession, slight statements or conduct of the defendant to show his tending guilt.” (People 449].) McFarland 58 Cal.2d Cal.Rptr. Defendant’s reliance on the federal cases is therefore conspiracy inapt.
H. Admission testimony jail-house from informant Howe, Jonathan an inmate the Shasta Jail where defendant was County trial, incarcerated before testified admissions that defendant made regarding trial, to him. Before defense counsel moved to exclude unsuccessfully Howe’s on several but he did not contend that the testimony grounds, should be excluded on the that Howe’s with testimony ground plea agreement him under a accor- prosecution placed strong compulsion testify dance with his statements. Defendant contends his counsel rendered pretrial deficient assistance to move to exclude or strike constitutionally failing Howe’s on this latter testimony ground.
It is for the of a witness proper prosecution present testimony to a the witness believes that the pursuant plea bargain agreement merely *35 732 746, (1989) truthful v. Garrison 47 Cal.3d 768
requires testimony. (People 257, 1194, 419]; (1989) 765 P.2d v. Johnson 47 Cal.3d Cal.Rptr. People [254 569, trial, 1047].) A 1229 767 P.2d defendant is denied a fair Cal.Rptr. [255 however, if a the witness under “a plea agreement places strong compulsion Here, (Garrison, in to a fashion.” there is no testify particular in evidence that Howe was under to accordance with any compulsion testify his statements. Howe to certain previous pleaded guilty pending charges in to a sentence of to months for the dismissal of agreed up exchange other of his sentence was to be decided charges. precise length case, same who was his judge presiding present depending upon determination as to whether Howe testified The written truthfully. plea stated that Howe had ‘“an to do other than to agreement obligation nothing truth, tell the He had been offered this same fully accurately.” agreement defendant, before he came forward with information that the regarding except sentence would have been months. exactly
Defendant that because the Howe a voice argues prosecution put through stress test and two before his it was clear to Howe that polygraphs testimony, believed his statements were truthful and he therefore prosecution pretrial would have understood the to to mean he was agreement testify truthfully to accordance with his statements. The record required testify pretrial demonstrates that such notion was the trial court’s clear any dispelled by very direction that Howe was to tell the truth court of what he regardless may have said At his Howe told the it was his previously. plea hearing, judge that he would have to and ‘“consistent with understanding testify truthfully I’ve—I’ve made so far this case.” The any report judge clearly explained himto that he was to whether or not it’s consistent with ‘“testifytruthfully any here, truth, other statement. . . . the truth the actual would be telling [I]f said, inconsistent with that fact that it’s incon- something you’ve previously In sistent will not cause me to conclude that not truthful. ... you’re being words, Howe, I other don’t want to think Mr. that for me to you any way, believe the truth that what here this courtroom has you’re telling you say words, to be consistent with said before. ... other do something you’ve not that isn’t true because it’s consistent with what said say something you enforcement, in I to law that will therefore conclude previously hopes you’re the truth here.” Howe affirmed that he understood. Given telling repeatedly facts, these to Howe’s on the that he was under challenge testimony ground with his former statements would have been pressure testify consistently unsuccessful. There the record to demonstrate defense being nothing counsel Howe’s on performed deficiently by failing challenge testimony (See this relief on direct is unwarranted. v. ground, appeal People Mendoza 1134]; (1997) Tello 15 Cal.4th 266-267 933 P.2d Cal.Rptr.2d [62 859].) 23 Cal.3d People Pope Cal.Rptr. *36 I. Trial court’s to and impanel separate juries guilt refusal for penalty phases in Defendant contends the trial court erred to refusing impanel separate for the and of his motion for juries guilt penalty phases. support separate defendant of California State juries, presented transcript testimony Chico, in Professor Edward Bronson another case. Professor University, Bronson testified that the of death is to a process qualification prejudicial First, in defendant two who are not eliminated tend to be less ways. jurors Second, of due values than those who were eliminated. supportive process of death on the death process qualification, by focusing penalty asking to themselves found the defendant to be jurors put position having that the defendant is and that their is to guilty, suggests jurors guilty duty him find and it also desensitize them to their task. guilty, may According Bronson, extent, Professor voir dire would “to some minimize or sequestered effects,” those but it would not eliminate them. The trial court denied mitigate motion, defendant’s that much of the concluding potential prejudice resulting individual, if from death could be avoided the court used qualification voir dire and the court and counsel were careful to sequestered impress that defendant’s was not a conclusion. upon potential jurors guilt foregone 190.4, (c),
Section
subdivision
the same
to decide
requires
jury
guilt
absent
cause. We review the trial court’s
for abuse of
penalty
good
ruling
96,
261,
(2011)
discretion.
v. Bivert
52 Cal.4th
(People
Cal.Rptr.3d
[127
300].)
254 P.3d
Professor Bronson’s
the conclusion
testimony supported only
that
tend to be more
to convict. “This
death-qualified juries
general
likely
court and the United States
Court have
the claim
Supreme
repeatedly rejected
are
because
who survive the
selection
separate juries
required
jurors
jury
in death
cases are more
to convict a defendant.”
process
penalty
likely
322,
(2009)
v. Davis
46 Cal.4th
208 P.3d
(People
Cal.Rptr.3d
[94
78];
(1986)
see Lockhart v. McCree
J. counsel in to Alleged performance by advising deficient defendant reject plea bargain Defendant contends that his trial counsel performed deficiently advising him to a that would have avoided the death before reject plea bargain penalty counsel was familiar with the case to such advice. Because sufficiently give the record does not establish what counsel knew about the case at the time defendant, the was refused or what advice counsel to plea bargain gave defendant has not shown that his counsel’s actions fell below an objective standard of reasonableness.
Defendant was with murder and circumstances October charged special later, of 1995 and not Fifteen months pled guilty. January District of Shasta Dennis notified defendant’s Attorney County, Sheehy, counsel that he had decided not to seek the death Because defendant penalty. killer, was not the actual District did not believe that a Attorney Sheehy thereafter, would the death impose penalty. Shortly Sheehy resigned 23, 1997, in Scott him. On to defendant’s McGregor replaced May response (1970) 2 Marsden motion v. Marsden Cal.3d 118 (People Cal.Rptr. counsel, Maxion, 44]), the trial court new Richard for appointed defendant. Two weeks after Maxion was on June District appointed, Scott informed the court he would seek the death as of June Attorney penalty unless, date, before that defendant decided to to plead guilty special circumstances murder. court on June defense counsel stated that his client would not and the announced that he would plead guilty prosecution seek the death penalty. trial,
Prior to defendant moved to from prohibit prosecution seeking death on a number of claims that the decision to penalty grounds, including seek the death constituted vindictive and that defendant penalty prosecution was denied effective assistance of counsel because Maxion had not Attorney been time to the district not to given enough attempt persuade attorney motion, seek death. At the on defendant’s the trial court hearing rejected claim that the offer to allow defendant three weeks to prosecution’s only decide whether to for a life sentence violated his plead guilty exchange to effective assistance of counsel because it was made two weeks right only after new counsel was established that defense counsel appointed. Testimony deadline, him had to the and that the would have agreed prosecutor given more time he had asked for it.
Here, defendant contends that his counsel rendered constitutionally him deficient assistance not to before he had advising accept plea A familiarized himself with the case. defendant has the adequately right effective assistance of counsel whether to deciding accept reject
735 924, (See (1992) 2 In re Cal.4th proposed plea agreement. [8 Alvernaz 713, 747].) An 830 P.2d is Cal.Rptr.2d attorney’s performance constitutionally (1) if deficient it falls below an standard of reasonableness under objective norms, that, (2) and there is a reasonable prevailing professional probability but for counsel’s the result would have been more favorable to the failings, (Strickland (1984) defendant. v. 466 U.S. 687-696 Washington 2052].) L.Ed.2d 104 S.Ct. defense attorney’s simple misjudg [80 “[A] case, ment as to the of the the chances of strength prosecution’s acquittal, conviction, the sentence a defendant is to receive other likely upon among not, more, matters the exercise of counsel’s will without involving judgment, Alvemaz, rise to a claim of ineffective assistance of counsel.” re give {In 937.) “When a claim of ineffective assistance is made on direct appeal, the record does not show the reason for counsel’s actions or challenged omissions, the conviction must be affirmed unless there could be no satisfac v. Anderson 25 Cal.4th tory explanation.” (People Tello, 347]; see 15 Cal.4th Cal.Rptr.2d People supra, Mendoza 266-267.) at pp. case,
The record does not show how much counsel knew about the how defendant, counsel advised or what defendant’s was. There is no response evidence that he did not advise defendant the offer. Defendant accept contends that the record demonstrates that counsel could not have had a sufficient of the case to advise defendant at the time understanding adequately that, advised, if that defendant declined the offer and defendant plea properly would have He bases this conclusion on the fact that accepted plea. offer), (more selection than a after defendant declined the during jury year trial, when counsel was for counsel told the court fully prepared defendant was a sentence of life without willing plead guilty accept But the record does not establish that defendant’s possibility parole. decision to was based on counsel’s additional about plead guilty knowledge the case. number of circumstances unrelated to counsel’s Any representation have occurred after defendant’s offer and before the may rejection plea start of trial that could have led defendant to his mind.8 change Consequently, defendant has failed to show that counsel’s conduct fell below professional norms or that defendant would have advised. pled guilty properly K. Prosecution’s decision to seek death unless pled guilty defendant to murder and the circumstance special Defendant contends he was denied due when the district process attorney decided to reverse the decision of the district and to seek the prior attorney example, during period For this time witness Howe came forward to offer evidence that Bone, defendant admitted he directed Morris to kill and trial counsel became aware that Howe might be called as a witness. *39 736
death unless defendant to the of murder with penalty pleaded guilty charge above, circumstances. As after the district office special explained attorney’s notified defendant that it would not seek the death a new district penalty, was He reconsidered that decision and decided to seek the attorney appointed. death but defendant the to the penalty, gave opportunity plead guilty of murder with circumstances and serve a sentence of life charges special without Defendant his to due was possibility parole. argues right process violated because the district the death after defendant attorney sought penalty him refused to for his to a plead guilty, thereby punishing exercising right trial. jury clause,
Under the due not certain process prosecutors may ”tak[e] defendant, actions a criminal such as against increasing charges, retaliation for the defendant’s exercise of constitutional It rights. [Citations.] violation, however, benefits, in is not a constitutional for a to offer prosecutor the form of reduced for a defendant’s or to charges, exchange guilty pleas, threaten to increase the the defendant does not charges plead guilty. In the there is no of vindictiveness pretrial setting, presumption [Citations.] or, here, when the increases the as prosecution charges potential penalty. Rather, the defendant must that the ‘prove objectively prosecu [Citations.] him tor’s decision was motivated a desire to for charging by punish doing ” (2006) him the law allowed to do.’ v. Jurado 38 something plainly (People 72, 319, 400].) Cal.4th Cal.Rptr.3d [41 motive, Absent of vindictiveness or other proof improper increasing or when a is refused does not constitute charges punishment plea bargain unconstitutional or retaliation for the exercise of a defendant’s punishment there is no such legal rights. ‘give-and-take’ plea bargaining, “[I]n element of or retaliation so as the accused is free to punishment long accept (Bordenkircher (1978) offer.” 434 U.S. reject prosecution’s Hayes 663].) L.Ed.2d 98 S.Ct. The district was free to attorney [54 the decision made his not to seek the death change predecessor penalty, (United and that decision does not raise ‘“a of vindictiveness.” presumption 2485]; States v. Goodwin 457 U.S. L.Ed.2d 102 S.Ct. 381-385.) ‘“A see id. at should remain free before trial to pp. prosecutor him exercise the broad discretion entrusted to to determine the extent of the An societal interest initial decision should not freeze future prosecution. (Id. conduct.” at p. case,
In the the record establishes more than that a present nothing plea was offered and refused. The trial court conducted a at which bargain hearing the district he with the decision of his attorney explained why disagreed who had considered the decision a close call but believed that a predecessor, was not to return a death verdict. The new district likely attorney *40 reconsidered that decision after a review of the case. thorough Following testified, at which both the former and current district hearing attorneys trial court concluded that the decision was not or and that arbitrary capricious there was no element of retaliation the decision. the record Nothing defendant’s to the supports argument contrary.
L. Cumulative error Defendant contends that the circumstances verdicts should guilt special be reversed based on the cumulative effect of the from all prejudice resulting errors, even each is not itself. We have found alleged prejudicial only one error—the trial court’s exclusion of statements John Morris to Misty Abbott and Albert Lawson—and we concluded that this error was prejudicial at the not at the there is only penalty phase, guilt phase. Consequently, to cumulate and hence there can be no cumulative nothing prejudice. M. Waiver trial on conviction jury prior allegations Defendant contends that the trial court’s true on certain findings noncapital must be vacated because his waiver of a trial was sentencing allegations jury The information contained a number of involuntary. noncapital sentencing that defendant committed the allegations, including allegations charged 1203.085, (§ (b)), crimes while on subd. that he had been convicted of parole a serious or violent within the of the “Three Strikes” law felony meaning 667.5, 1170.12), (§ (§ and that he had served four terms prior prison trial, (b)). subd. Prior to defense counsel moved to bifurcate on proceedings these and offered to waive trial. The trial court received allegations jury defendant’s waiver of a trial on these jury allegations. Subsequently, during deliberations, the court and defense counsel reviewed the tran- guilt phase of defendant’s waiver and that the waiver was sufficient and no script agreed court, further advisements need be were tried to the given. allegations which found that defendant had been convicted of a serious or violent felony within the of the Three Strikes law and that he had served four meaning prior terms. Based on these the trial court doubled defendant’s prison findings, sentence under the Three Strikes law for the offense of unlawful driving vehicle, of a four terms for the four taking imposed one-year prior prison term enhancements.
Defendant contends that his waiver of a trial on the was jury allegations him invalid because the trial court and counsel informed that he was required to waive that so the would not be to evidence of his right jury exposed criminal at the This advisement was defend- history guilt phase. misleading, contends, ant because defendant could have retained his to a trial right and the trial court could have bifurcated trial on the so sentencing allegations, *41 that the would not have heard evidence of his until after jurors history they (See had decided his on the substantive v. Calderon guilt charges. People 333, 83].) (1994) 9 Cal.4th 885 P.2d Cal.Rptr.2d [36 Defendant has forfeited this claim based on his failure to the trial object court. of the to trial on the deprivation statutory right jury prior prison ‘“[T]he term does not the state or federal constitutional to allegations implicate right trial. Absent an to the or commencement jury objection discharge jury trial, of court defendant is from on a claim of precluded asserting appeal ineffectual waiver of the trial of term statutory right jury prior prison v. Vera 15 Cal.4th allegations.” (People Cal.Rptr.2d [62 1279]; (2008) 44 see v. Towne Cal.4th 74-79 People 530, 186 P.3d constitutional to a trial does Cal.Rptr.3d right jury 10] [federal not extend to that a defendant has suffered a conviction or allegations prior Here, term].) served a after the of defend prior prison reviewing transcript waiver, ant’s defense counsel with the trial court that expressly agreed defendant’s waiver was sufficient.
Furthermore, the claim fails on the merits. There is no evidence the record that defense counsel advised defendant that trial on the sentencing could not be bifurcated unless defendant waived his to a allegations right jury trial. The record does not show what advice counsel to defendant. There gave was a brief the while defendant consulted with counsel pause proceedings before the trial court’s advisements and trial on the hearing waiving jury The trial court to defendant that have allegations. explained ‘“your attorneys indicated want this when this is the issue of whether they jury, jury deciding or not the have a reasonable People proven charges against you beyond doubt, to be influenced also any way by considering allegations these convictions and related matters. ... order to avoid prior felony issue, deal with that are having jury your attorneys recommending you, issue, that waive to have the decide that apparently, you your right jury issues, that have those as to each one of these you prior special allegations, contention, be decided the court.” to defendant’s the court solely by Contrary never stated that a trial was the to avoid waiving jury only way exposing Rather, to defendant’s criminal the court history during guilt phase. stated trial was the means that defendant’s only waiving jury attorneys were to avoid such That statement was not incorrect recommending exposure. and does not render defendant’s waiver misleading, involuntary.
N. evidence to term Sufficiency prove prior prison allegations four
Defendant claims the trial court found four improperly one-year enhancement for service of terms to be true when the allegations prior prison evidence showed that he had served three terms. Section only separate prison
739 667.5, (b), subdivision for a one sentence enhancement “for provides year A each term” served the defendant. prior separate prison “prior separate term” is “a continuous incarceration prison completed period prison for the offense alone or combination with concurrent or imposed particular 667.5, (§ consecutive sentences for other crimes . . . .” subd. Under this (g).) “a defendant who has served concurrent or consecutive provision, prison sentences on various commitments is deemed to have served one only prior term for the of the enhancement of Penal Code prison purpose provisions section 667.5.” v. James 733 (People Cal.App.3d [162 548]; (1992) see also Cal.Rptr. People Cal.App.4th Perez 141].) Cal.Rptr.2d concedes,
As the evidence shows that defendant served con- respondent secutive terms on two of the four convictions convictions felony alleged—his (Stanislaus for a felon of a firearm and being possession escape County 265697). case Nos. 265702 & he did not serve terms Accordingly, “separate” 667.5, (b). for these offenses within the of section subdivision meaning Therefore, 667.5, the trial court’s true on one of the section subdivision finding (b), must be vacated. allegations Disposition
III. death, We reverse the and we set aside one of the judgment findings 667.5, (b). under section subdivision The matter is remanded for a new determination and for The is affirmed all penalty resentencing. judgment other respects. J., Liu, J., Cuéllar, J., concurred.
Werdegar, CANTIL-SAKAUYE, J.,C. court Concurring Dissenting.—This origi- case, affirmed the of death this defendant nally judgment rejecting Gary Lee Grimes’s that the exclusion of certain statements at his argument hearsay trial amounted to error. After of this prejudicial granting rehearing, majority court now with defendant that these statements should have been agrees admitted under the to the rule to statements exception hearsay applicable Code, (Evid. interest. also concludes that against majority § the exclusion of these statements was harmless at the although guilt phase, of a different outcome at the means perceived possibility penalty phase that the of death must be reversed. judgment
I with the assessments of error and respectfully disagree majority’s preju- dice. This court was correct when it found no reversible error originally I trial court’s as to the statements. On have rulings disputed rehearing, given careful reconsideration to these issues and find even more reason now to *43 in conclude that the trial court did not abuse its discretion one of excluding statements, these and no reasonable that introduction of the other possibility evidence would have affected the outcome at the or proffered guilt penalty Therefore, I of defendant’s trial. while concur with the phases majority I insofar as it affirms the verdict and the circumstance guilty special findings, dissent from its reversal of the of death. judgment trial,
Prior to defendant admission of statements John sought coperpetrator Abbott, Morris made to an on the of the and acquaintance, Misty day killing, inmate, Lawson, in to a fellow Albert while Morris and Lawson were held a few later. Morris committed suicide to trial and was therefore jail days prior conversations, unavailable to As to both defendant’s offer of testify. proof included several statements made Morris that were Morris’s by clearly against Abbott, interest. Morris told her that “he murdered the penal According little old that “it didn’t work . . . her . . . and so he stabbed lady,” strangling her,” her, and that “she wouldn’t die so he had to a knife from choking get “I the kitchen.” Morris also told Lawson that he “killed that old lady,” saying, I stabbed her. Also her the throat.” The trial court grabbed by correctly that these statements were Morris’s interest when recognized against penal made, and thus found them admissible under the statement interest against to the rule. exception hearsay
Defendant that the trial court also should have admitted other argues Lawson, statements Morris made to Abbott and hearsay inculpatory attributes of which are far less obvious. to the offer of According proof by counsel, if defendant’s trial when a detective asked Abbott defendant and a Wilson, third Patrick had her perpetrator, participated killing, response was, “no, told her after he did the Johnny quote lady, unquote [Morris] him if looked at as were what they saying, [defendant] [Wilson] hell are dude.” Defendant also offered Morris’s statement you doing, that, attack, Lawson connection with the home invasion and defendant and Wilson “were the house but took no the actual Defendant part killing.” Morris, asserts that these statements also for the by although hearsay, qualify and claims that their exclusion the trial court against-interest exception, by amounts to reversible error at both the The guilt penalty phases. majority defendant, I with at least do not. agrees part. to the rule for statements interest exception hearsay against appears
Evidence Code section 1230. It “Evidence of a statement provides, by declarant sufficient is not made inadmissible having knowledge subject rule the declarant is unavailable as a witness and the hearsay statement, made, when was so far to the declarant’s contrary pecuniary interest, him or so far to the risk of civil or criminal proprietary subjected . . . that a reasonable man his would not have made the liability position
741 Code, 1230.) (Evid. statement unless he believed it to be true.” ‘“The § unavailable, of such evidence must show that the declarant is that proponent the declaration was the declarant’s interest when made and that against penal the declaration was reliable to warrant admission its sufficiently despite 603, (2000) 24 character.” v. Duarte Cal.4th 610-611 hearsay (People [101 701, 1110].) 12 P.3d The to the Cal.Rptr.2d against-interest exception hearsay rule is to evidence of statement or of a statement ‘“inapplicable any portion not itself to the interests of the declarant” v. specifically disserving (People 419, 752, 296]; (1975) 441 Leach 15 Cal.3d 541 P.2d see also Cal.Rptr. [124 Duarte, 612), v. at and ‘“adeclaration interest must be People p. against penal (1975) the declarant’s interest” v. 49 ‘distinctly’ against penal (People Shipe 343, 701]; (1972) 354 see also v. 23 Cal.App.3d Cal.Rptr. People Traylor [122 323, 116]). 330-331 Whether or not a statement is Cal.App.3d Cal.Rptr. [100 interest can be determined ’’the statement against penal only by considering 102, (2002) in context.” v. 27 Cal.4th 153 (People Lawley Cal.Rptr.2d [115 614, context, 38 P.3d Understood even a statement that (Lawley).) 461] admits to criminal not be the declarant’s wrongdoing may against penal Duarte, 611-612.) interest when made. v. at (People pp.
A the trial court as to whether a statement is admissible ruling by hearsay as the declarant’s interest is reviewed for abuse of being against penal discretion. 27 Cal.4th at Whether a statement meets (Lawley, supra, p. the criteria for this to the core of the of basic exception “goes question trustworthiness, and hence must be deemed entrusted to the court’s discretion.” (Pe 1223, 451, (1990) v. Gordon 50 Cal.3d 792 ople Cal.Rptr. [270 251].) P.2d Such a “will not be disturbed on a the trial ruling except showing court exercised its discretion an absurd arbitrary, capricious, patently manner that resulted a manifest v. miscarriage justice.” (People 618].) (1999) 20 Cal.4th 9-10 971 P.2d Rodriguez Cal.Rptr.2d [82 standard, the abuse of discretion court does not applying reviewing wholly own; if the trial court’s with its a reasonable basis existed to replace judgment statement, exclude a that means the trial court did not abuse its discretion so, even that a reasonable also existed for admit doing assuming argument (See it. v. 55 Cal.4th ting People Cal.Rptr.3d Valdez circumstances where the trial court reason [observing 924] evidence, could have chosen to admit or exclude it does not abuse its ably Gordon, [same].) discretion either by choosing path]; People that the abuse of discretion standard majority acknowledges applies here—but then what it as a material mistake of law spots perceives trial court and on that basis conducts what amounts to ele novo review. My review of the record on leads me to with this rehearing disagree approach. The trial court ascertained the crux of the declaration correctly against penal interest rule—that a statement must be “specifically disserving” declarant’s interest to for admission under this to the penal qualify exception *45 742 Leach, 441)—and rule v. 15 Cal.3d at the record
hearsay (People supra, p. does not establish that the this judge misapplied principle excluding Morris’s statement about the looks he received from defendant and Wilson review, I after the victim.1 standard of would killing Applying appropriate hold that the trial court did not make an or absurd decision when it arbitrary excluded this statement because the trial court could have found reasonably that due to this statement’s inherent defendant failed to show that ambiguity, it was and Morris’s interest when made. distinctly specifically against penal 2009) (See (D.C. Andrews v. U.S. 981 A.2d 576 there are two [“if of statement . . . possible interpretations purported] [against penal [a interest] one of which would to criminal while the subject liability [the declarant] not, absent”].) other would indicia of trustworthiness are necessary Abbott, In other statements he made to Morris told her that he had killed the victim her. The trial court found these by strangling stabbing properly contrast, statements admissible. Morris’s remark that related tangential how his cohorts reacted to the once it was does not killing complete connotations that the unambiguously possess distinctly incriminating demands. Morris’s statement did not against-interest exception Significantly, him in he defendant and Wilson looked at the manner he explain why thought described. Morris’s of the looks as “what the hell are description signifying 1 original majority opinion People in this matter observed that the trial court relied on (Gatlin), Cal.App.3d Cal.Rptr. factually inapposite Gatlin 31 a somewhat 171] case, statements, ruling admissibility may on the of Morris’s and noted that the trial court (as it) categorical principle majority phrased have endorsed the “that a declarant who has personal culpability by claiming admitted to murder does not enhance his he acted alone”—an that, observed, may Accordingly, assertion we not be accurate under some circumstances. record, majority recognized any ground concluding that it could affirm on in the before that excluding the trial court did not abuse its discretion in Morris’s statement to Abbott about the received, determining any looks he had that assumed error in the exclusion of other statements was harmless. rehearing requires regardless A a fresh look at the record. This review establishes that Gatlin, supra. Cal.App.3d whether the facts of were on all fours with those involved here, gleaned principle the trial court from that case the correct that “the Evidence Code section against exception applies only part 1230 declaration interest to that of the statement which is Gatlin, (See specifically disserving to the—the declarant.” 1230 is not [“Section applicable any specifically disserving to evidence of statement not itself to the interests of the Meanwhile, declarant”].) may categorical to the extent that the trial court have made assertions statements, regarding types hearsay contemplat- certain the record shows that the court was declarant, crime, ing having “nobody circumstances in which a admitted to a also said that else some, any part him”—phrasing parallels had in it” or that others “did or did not assist but all, not of the contested statements here. Therefore, regardless may point of whether the trial court have been mistaken on a of law statements, assume, does, pertinent majority to Morris’s other I would not as the that the trial misunderstanding excluding court labored under a of the law in Morris’s statement about the (as ambiguity looks he received from defendant and Wilson. The inherent of this statement will post) subject simple be examined meant that it was to exclusion on the basis that defendant specifically disserving. had not shown that it was *46 them, dude” admits to several the state- you doing, interpretations. Among ment have reflected Morris’s that defendant and Wilson were may impression in the that Morris had the victim. Or Morris surprised by difficulty killing could have believed that defendant and Wilson were or frustrated annoyed that the had taken as as it did. Or Morris could have killing long perceived them as amused the circumstances of the “what the hell are by killing; you reaction, does not describe a on how doing” necessarily negative depending Morris delivered these words. Other even less interpretations, disserving interest, Morris’s also are Under of these penal possible. any interpretations, viewed context Morris’s observation the reactions of others to regarding the violent actions he described his other statements to Abbott was a collateral assertion that was of his interest as to insufficiently disserving penal the trustworthiness and demanded the possess reliability by against-interest exception.
The most construction of this statement would cast it as an disserving kill admission Morris that he alone had made the decision to the implicit defendant to at the fact that Bone was victim—causing register surprise Betty killed at all. But this is a dubious of Morris’s statement. As the interpretation observes, that, defendant himself admitted to majority police knowing was he Morris find his and that before robbery planned, helped gun, they entered the victim’s residence Morris saw a woman out her trash and taking “ ‘ said, it, kill “Fuck we’ll fuckin’ her an’ look at the house just ante, Furthermore, 721.) at his statement to defendant (Maj. opn., p. police Bone, said that he had observed Morris heard Morris that she strangling say die, kitchen, would not saw Morris look for a knife and then saw or facts, him heard Bone. Given these it seems that defendant stabbing unlikely was afterward at the fact of the More even surprised killing. fundamentally, of such an of other assuming possibility interpretation, presence of the statement it was not readings whereby specifically distinctly Morris’s interest when made means that the trial court did not against penal abuse its discretion to admit the statement.2 declining statement, The character of this majority acknowledges ambiguous therefore cannot and does not state that it was as “specifically disserving,” statement, our demands for the admission of a or a of a precedent portion majority plausible why The asserts that “no reason” has been offered this statement should Abbott, regarded “any trustworthy” be as less than Morris’s other statements to and that it can ante, 719.) (Maj. opn., p. ambiguity think of none. of Morris’s surmise about looks he received, majority say specifically disserving—as juxtaposed against which even the cannot is personally strangled statements in which Monis told Abbott in no uncertain terms that he had course, victim—supplies majority’s point merely and stabbed the such a reason. And of sidesteps inquiry applying against exception the fact that the crucial the declaration interest “specifically disserving,” generic concerns whether the statement is not a more trustworthiness Leach, (People supra, assessment. 15 Cal.3d at *47 744
statement, Leach, under Evidence Code section 1230. v. 15 (People supra, 441; Duarte, 612.) Cal.3d at see also v. Cal.4th at p. People supra, p. rationale, for an alternative nevertheless finds the Grasping majority because “under conceivable inter- against-interest exception applicable any statement, it tended to underscore Morris’s for pretation responsibility crime, it,” rather than diminish the statement “elaborated on [Morris’s] confession,” and the statement was “not from the practically separable ante, 717.) remainder of statements” to Abbott.3 at (Maj. opn., p. [Morris’s] IAs will the last of these assertions is false. The other explain, demonstrably two standard for declarations interest with simply replace existing against a nebulous and less that will be more difficult for courts to rigorous approach and less to screen out apply likely untrustworthy hearsay.
With to the assertion that Morris’s statement about the regard majority’s looks he received was “not from the remainder of practically separable ante, 717), I statements” to Abbott at cannot see how (maj. opn., p. [Morris’s] this is so. Unlike situations which a contextual fact is tied to “inextricably and of’ a statement v. Samuels part specifically disserving (e.g., People 1125]), 36 Cal.4th which case Cal.Rptr.3d the contextual fact would alteration of the stripping require incriminating itself, statement Morris’s statement the looks he received was describing from his admissions that he had and stabbed the readily separable strangled victim. It takes no of how Abbott could great leap imagination appreciate have testified to Morris’s statements about fully coherently strangling Bone without also to Morris’s collateral statement about stabbing testifying the looks he received from defendant and Wilson afterward. rationales,
As for the other test for majority’s accepted admissibility a statement under the is not whether the statement against-interest exception crime, somehow tends to “underscore” the declarant’s for a nor responsibility whether it on” an actual statement interest against (maj. opn., “elaborate[s] ante, 717), at but the more standard of whether the statement was p. stringent Leach, 441) so 15 Cal.3d at “specifically disserving” (People supra, p. the declarant’s interests “that a reasonable man his would not have position Code, 1230). (Evid. made the statement unless he believed it to be true” As § majority “simply also describes this statement as an elaboration on Morris’s acknowl murder,” edgment participate that defendant and Wilson did not in the and references the trial ante, supposedly (Maj. opn., court’s similar of the statement. fn. “view[]” statement, stated, excluding the the trial court “The next statement that was mentioned was allegedly part where Mr. Monis told Ms. Abbott that Mr. Grimes and Mr. Wilson did not take that, killing regarding again, appear in the and some other details that does not at all to be disserving description vague of Mr. Morris’ interest.” This shorthand of defendant’s offer of proof any regarding meaning did not involve measured “view” of Monis’s statement about received, perceived the looks he and does not establish that the trial court Monis’s statement as unambiguous.
745
above,
discussed
this standard has not been met here.
down the
By watering
standard for admission under the
against-interest exception,
majority
“assumes that a declaration
interest involves a truth-
erroneously
against
frame of mind which carries over to statements other than those
telling
interest. But the
of the declaration
interest does not
against
presence
against
add to the trustworthiness of neutral and
statements.
would
self-serving
They
seem
or unreliable whether
a declaration
equally trustworthy
accompanied by
(Jefferson,
interest or not.”
Declarations
Interest: An
against
Against
Excep-
Hearsay
1, 62;
(1944)
tion to the
Rule
58 Harv. L.Rev.
see also Williamsonv.
114
United States
512 U.S.
600
L.Ed.2d
S.Ct.
2431]
reliable;
fact that a statement is
does make it more
but
self-inculpatory
[“The
the fact that a statement is collateral to a
statement
self-inculpatory
says
at all about the collateral statement’s
nothing
reliability”].)
The
a
majority’s expansion
against-interest exception represents
and,
view,
shift
our
of Evidence
significant
my
misguided
interpretation
effect,
Code section 1230.
endorses a form of
majority
bootstrapping
a
statement can tow related collateral asser
whereby specifically disserving
tions within a
narrative into the
larger, generally incriminating
against-interest
This is not
a “contextual
as the
exception.
merely
approach,”
majority
ante,
717),
characterizes it
at
since the
(maj. opn,
p.
“specifically disserving”
standard
the consideration of a statement’s context.
already requires
(E.g.,
Duarte,
Instead,
24
v.
Cal.4th at
People
supra,
p.
majority’s
invocation of “context”
cover for its dilution of the
rule.
provides
prevailing
This
raises difficult
about the
approach
questions
necessary logical
tethers,
narrative
on which the
little
It also
points
majority provides
guidance.
retreats from our
enforcement of the
disserv
formerly rigorous
“specifically
Leach,
441;
standard
v.
15 Cal.3d at
see
ing”
(People
supra,
p.
Lawley, supra,
27 Cal.4th at
no abuse of discretion
the trial court’s
[finding
Duarte,
standard];
exclusion of evidence that did not meet this
People
612-614,
Cal.4th at
error
the trial court’s
supra,
pp.
[finding
admit,
interest,
decision to
as a statement
a statement
against
containing
“
Leach,
”];
441-442),
that were not
portions
‘specifically disserving’
pp.
consistent with the one taken
the United
thereby abandoning position
rule,
States
Court
its construction of the
federal
Federal
Supreme
parallel
Evidence,
States,
U.S.C.)
804(b)(3) (28
(Williamson
Rules of
rule
v. United
804(b)(3)
Our decision 27 Cal.4th the Lawley, supra, applied against-interest more and establishes that there was no abuse of discre exception faithfully in tion here. The defendant was convicted of murder based on Lawley kill evidence that he hired one Seabourn to the victim. We held that the trial court did not abuse its discretion Seabourn’s statement admitting hearsay interest, kill that he was hired to and did the victim as a statement against while Seabourn’s statements that he had been hired excluding by Aryan hit, Brotherhood for the and that ‘“aninnocent man was for the crime.” jail 154.) (Id. at We reasoned that these latter two statements did not p. disserve Seabourn’s interest—even specifically penal though they arguably underscored Seabourn’s for the crime details responsibility by adding regard involvement, his and elaborated on Seabourn’s core admission of involve ing (Id. 154, 155, inment a murder for hire. at fn. The same pp. reasoning to Morris’s statement about the looks he received after the applies killing. Even Morris’s statement have a connection to though may specifically statements, it was itself not disserving distinctly specifically disserving context, when viewed and therefore does not for the qualify against- interest exception.4 sum, whereas our decision 27 Cal.4th as well as Lawley, supra,
our rec- prior rulings construing against-interest exception appropriately the difference between statements and state- ognized specifically disserving collateral, ments that are decision blurs this merely today’s regrettably distinction and fails to standard of review apply proper concluding I the trial court erred. therefore with its of error. disagree finding 4 Furthermore, Lawley. supra. press 27 Cal.4th this court did not the limits of its imagination way to devise some conceivable that Seabourn’s collateral statements could have Brotherhood, (His concerning Aryan example, might incriminated him. statement for have reason; ties.) suggested gang good specifically distinctly disserving With a statement is not conceive, fact, every judges possible though instance where can after the some nonobvious (See upon incriminating People Traylor, basis which the statement could have had an effect. supra, Cal.App.3d applying exception] test is not whether the [“The [for provide leading statement could a link in a chain of evidence to the declarant’s criminal liability, why against but whether the statement satisfies the reason declarations interest are rule”].) exception hearsay person approach by admitted as an to the The reasonable codified presume Evidence Code section 1230 does not such omniscience the declarant. *50 in
This also leads me to from the its disagreement depart majority in assessment of The exclusion of Morris’s “what the hell are prejudice. you statement forms the backbone of the But doing” majority’s prejudice analysis. above, discretion, as the trial court did not abuse its and therefore explained err, in did not this statement. With to the trial court’s excluding regard evidence, exclusion of the other even error the trial disputed assuming court, no reasonable exists that the error affected the outcome at possibility or the of defendant’s trial. guilt phase penalty phase
The most reasonable statement that defend- interpretation proffered ant was another of the house and did not the “actual part participate Abbott, (and whatever similar statement Morris have made to as killing” may clear) to which defendant’s offer of was not was that he did not proof in the act of But never participate killing. prosecutor argued defendant the act of this clarification beside participated killing, making killer, The evidence at trial Morris as the actual point. presented portrayed and the no evidence that defendant had prosecution presented actually the homicidal act. his statement to the defendant participated police, Bone, said he was the house while Morris killed but asserted that present he did not Abbott’s participate killing. Misty testimony concerning Morris’s of how he killed the victim cast Morris as the sole description Likewise, for the actual defendant’s out-of-court person responsible killing.5 statement to informant Jonathan Howe was that he never jailhouse personally touched the victim and his DNA would not be found on the No DNA or body. other evidence linked defendant to the actual As the physical killing. majority observes, the did from Howe that defendant prosecution present testimony However, kill admitted he had ordered Morris and Wilson to the victim. evidence would not have countered this Morris’s challenged testimony. statement that defendant did not the “actual did not participate killing” conflict with Howe’s that defendant admitted he ordered Morris to testimony colloquy, In one Abbott testified as follows: you way lady? Did Mr. Monis tell on the to the lake that he had murdered the old “Q: “A: Yes. lake, Okay. way say lady? And on the to the did Mr. Morris that he had stabbed the old “Q: “A: Yes. first, strangle strangle That he tried to her Mr. Monis tried to her first? “Q: “A: Yes. die; you lady right? And Mr. Monis told that the wouldn’t is that “Q: right. “A: That’s you got And Mr. Monis told then that he went to the kitchen and a knife and stabbed “Q: her?
“A: Yes.” *51 short, kill In Bone.6 had the heard a Morris that representation by defendant was not involved the actual this additional evidence killing, would not have made at trial nor the assess- impacted arguments jury’s whole, ment of the evidence as a whether at the or the guilt phase penalty phase.
This court’s decision to this case has led to a careful grant rehearing error, me, however, reconsideration of defendant’s claims of as it should. To this review leads back to the same conclusion we drew before—that defend- ant’s trial involved no errors that reversal of the of death. require judgment otherwise, the renders the less holding majority against-interest exception I coherent and error and where none exist. therefore dissent. spots prejudice Chin, J., J., concurred. Corrigan, 6 Although grandfather wrongly Morris's testified that Monis had told him that others were murder,
blaming only purposes impeachment him for the that statement was admitted for and, event, any nothing suggested killing in it that defendant assisted Morris in Bone.