*1 Dist, B041110.Second Div. Seven. [No. Nov. 1992.] PEOPLE, THE Plaintiff and Respondent, al.,
ROBERT ANTHONY VON VILLAS et and Appellants. Defendants *13 Counsel
Russell under the Court Iungerich Mark D. Greenberg, appointments for Defendants and Appeal, Appellants. Williamson, General, Chief Assistant George Lungren, Attorney Daniel E. Pollack, General, Gen- Attorney Assistant Acting Carol Wendelin Attorney eral, General, Ament, Attorneys Deputy Turchin and Paul C. Marc E. Plaintiff and Respondent.
Opinion
FLYNN, J.*
I Background Procedural case, it is appropriate of this unique procedural history Because of Janie Ogilvie, turns it followed. set the various twists and length forth defend- were named and Richard Herman Ford Robert Von Villas Anthony Grand County Jury the Los Angeles an indictment returned by ants to commit with charged conspiracy Each defendant was February 1984. 182; Code, the Penal Code references are to (Pen. murder all statutory § was the 187). Thomas Weed indicated) (§ and murder unless otherwise 190.2, (§ subd. financial gain victim. The circumstance of murder for special (a)(1)) alleged. preliminary a postindictment Ms. Von and Ford Ogilvie, requested Villas 16, 1984, hearing the preliminary March and on March
hearing on as Von Villas and Ford in an filed being against resulted information Joyce coconspirator, a nondefendant Ogilvie defendants. Ms. became coconspirators. nondefendant and Julie Rabold were also named as Reynolds 14,1985, through the information challenged On Von Villas and Ford May filed a motion a section 995 motion. Concomitantly, prosecution defendants against consolidate the case with another prosecution pending inter alia.1 murder of Joan involving Loguercio, attempted 15, 1985, conditionally granted On the section 995 motion July 17, 1985, of a subject Altman was the On by Judge July Judge Altman. part Chairperson of sitting assignment *Judge Angeles Superior Court under of the Los *14 the Judicial Council. A392422, Villas, court’s number this 1People Angeles Superior Los Court No. Von B033751, charges conspiracy of It involved subject separate opinion is the of a of this court.† related robbery several Loguercio, and attempts to murder and two to murder Joan as the be referred to This case will hereinafter charges. separately. The two cases were tried case, case. Loguercio to as the Weed the other will be referred while 62], (1992) Cal.Rptr.2d Cal.App.4th Villas †Reporter’s People Note: v. Von Civil Proce- to section 170.6 of the Code of peremptory challenge pursuant 25, 1985, Judge dure the On the case was to July assigned prosecution. Williams. 26, 1985, Loguer-
On motion consolidate August prosecution’s 1985, 27, Williams Judge cio and Weed cases was and on granted, August motion, modified the section 995 Judge ruling Altman’s conditional on 25 overt in the count of the Weed allowing charged acts be conspiracy case as to the act that count opposed charged one overt allowed be Altman. Judge 14, 1986, information,
On October filed an amended prosecution consolidating the and Weed cases. Loguercio the 11-month William’s on the sec-
During period Judge ruling between tion 995 motion and motion to consolidate and the of the amended filing information, extensive motions were heard. pretrial 10,1987,
On March Williams Von Villas and Ford’s motion Judge granted to transfer the Weed case to the Northwest District because of constitutional venue considerations. That was until the of the trial ruling stayed completion Williams, case which trial was concluded on Loguercio Judge before 7, 1988. January
The Weed then January case was transferred to the Northwest District on 21, 1988, where it on for all assigned Judge Schempp purposes 27, 1988. January 5,
Ford filed a motion for trials separate Judge Schempp April before was, however, which was He tried aby denied. to be granted right separate from that which would hear the Von Villas evidence. jury 5, 1988,
The trial Von juries Villas and Ford commenced on both July evidence at times and at other times out of the hearing together, presence one another. Ford returned verdicts of as to all and found jury guilty charges At the time
special circumstance to be true on October 1988. allegation verdict, delivery of Ford the Von Villas the midst of jury defense case.
The Von Villas returned verdicts as to all and found jury guilty charges circumstance to be true on November 1988. special allegation *15 1988, 7, and was November trial commenced on penalty phase Ford’s 22,1988. trial Villas’s penalty phase Von jury submitted to on November 28, 1988, to the on jury and was submitted commenced on November 13, December 1988. 29,1988, that it was announced jury
On November the Ford penalty phase elected not to proceed deadlocked and it was discharged. prosecution Ford, 11-1 in favor of having with a new voted penalty phase against jury life without the of possibility parole. 15, 1988, fixed his
On phase jury December the Von Villas penalty as life of punishment possibility parole. without 23, 1989, On a term of life without Ford was sentenced to February count, and 25 of on the murder with circumstance possibility parole special count years to life on the count. The sentence on the conspiracy conspiracy 654, to and the life without stayed pursuant possibility parole section life sentence sentence was ordered to run consecutive to the 36 years him in the case. imposed upon Loguercio 8, 1988,
Von Villas was the same sentences that sentenced on March were The life sentence was imposed upon parole Ford. without possibility ordered to run consecutive to the 35 life Von upon sentence years imposed Villas in the case. Loguercio
Von Villas and Ford from their convictions below. appeal
II
Facts Disappearance
A. The Weed Thomas Mr. Weed was for the Coordinating Medical Associates employed On he purpose preparing advertising. February Wednesday, brought some artwork the office taken printers into that had to be office, Baron, deadline. Mrs. an of that saw Thursday Marilyn employee 23d, him the on but never saw him never was able to contact thereafter and him Weed again. Mr. had never caused before and was not owed problems money by Mrs. Baron’s Helen also last saw company. daughter, Epler, Mr. Weed him 23. After unsuccessful to reach on February attempts week, Thursday of that she called the about his Friday police disappear- ance on Friday, 1983. February *16 Inc., 4:30 Prix at approximately at Grand Auto Body,
Mr. Weed did appear 23, for an insurance attorney in order to sign power on p.m. February business, Black, him. Ms. seeing recalled of that operator draft. Warden draft sign joint came estranged spouse, Mr. Weed’s Ogilvie, 30 minutes Mr. Weed about spent after Mr. Weed left the premises. sometime Ms. divorce from and He talked about his upset. at the and was shop agitated draft sign Black recalled that both were Ogilvie. parties required Mr. son, car, and Ms. Ogilvie’s he release the which belonged before could which had been repaired. Brockstedt, Mr. Weed’s apartment manager
Christina apartment end February entered sometime toward the his complex, apartment neighbor She entered with a at the of Ruth Mr. Weed’s sister. request Caplan, hot, left Mr. Weed and the heat had been on. very found since apartment with two along was nowhere to be found. His clothes were stored neatly suitcases, and articles. Hiere was stale bread empty and appropriate toiletry table, and, Brockstedt, as Mr. though melted butter on the to Ms. it looked had been late with Weed had out and would be Mr. Weed stepped returning. his rent but March once—in 1982. 4, 1983, the Los Police Angeles
On March Officer Jack Dillard of Division, Weed’s entered Mr. (LAPD) to Devonshire Department assigned call reporting He to a station manager. with the was apartment responding made Ms. He made identical to those missing. Mr. Weed as observations Brockstedt. Toronto, Weed’s, lived in a suburb of
John friend of Mr. Sharp, good Canada, wife Weed and his then contact with Mr. kept telephonically 1977, Mr. to California. on a basis since the Weeds moved regular year arrival in California. Mr. Sharp and Mrs. Weed had been divorced after their occasions, such as and Mr. Weed would talk to each other on special 18 and February He to Mr. Weed sometime between birthdays. spoke was on birthday him a Weed’s birthday. order to wish happy Mr. Mr. received from regularly birthday greetings 28. February Sharp Weed, after the February but never received another call from Mr. Weed 1983, talk. sister, Mr. close to very
Ruth Mr. Weed’s lived Canada but Caplan, Weed he After Weed’s divorce from even after moved to California. Mr. Weed, his new Mrs. and her husband Mr. Weed and Betty joined Caplan wife, the Weed-Ogilvie Janie Las on the weekend of Ogilvie, Vegas also Mr. Weed and Ms. marriage November 1981. visited Caplans Caplan and Mrs. Ogilvie during holidays, for two weeks the 1981 Christmas heard to say Ogilvie tension between the Ms. newlyweds. sensed could do she did not need men now that she was established she *17 the Caplans with after Caplan herself. Ms. Mrs. things by Ogilvie spoke life. I could I him out of get my returned She “If could just to Canada. said $500.” here for him will do this down have run down. There’s that people 21,1982, On March Ms. her was talking foolishly. Mrs. told that she Caplan she, was obsessed that Ms. indicating Ogilvie, wrote Mrs. Ogilvie Caplan were and Mr. Weed with that she felt that Mrs. Caplan Mrs. Caplan on her and her. ganging up cheating brother, find her and Ms. called 1983 to Ogilvie
Mrs. Ms. Caplan on her. Ogilvie hung up 20, 1983, with Mr.
On had her final conversation February Mrs. Caplan Weed when her discussed his They he called her at Florida vacation home. desire that the him in an join starting up move to California and Caplans science he were conduct- allergy Ogilvie business similar to the one and Ms. He ing. said he call on never did. Mrs. Thursday night, Caplan would but $1,000 sent Mr. Weed after the call. her, (Mr.
After Mr. Weed Slayton failed to call Mrs. called Don Caplan Brockstedt, (Christina Weed’s lawyer) complex and “Tina” his apartment who, in She returned to Canada and called manager). Ogilvie, response Ms. whereabouts, with about Mr. Weed’s that Mr. Weed was questions stated Caplan. Mrs. This call occurred March 1983. weeks,
After not heard Weed Mrs. having from Mr. for three or four Times, She Caplan placed an ad the Los no Angeles receiving response. then traveled to Los where Mr. her at Angeles, Slayton picked up airport. to Mr. Weed’s where she for about four They proceeded apartment stayed A days. review of his mail indicated cards sent to Mr. Weed birthday that the ex-wife, Weed, She also by both Mrs. and his were Caplan Betty unopened. “Jan found a in the contained the words piece paper apartment kill threatened to me written in hand. today” Mr. Weed’s her Mrs. recalled that her few with Caplan during last conversations brother that he aware that dissolve the business Ogilvie Ms. wanted to with him and he her. partnership frightened by that was threatened Mrs. LAPD Ms. Caplan Ogilvie also wrote a letter to wherein she quoted as rid men “It’s to scatter saying easy get easy that it is as partners. their and I’m She further testified that just gal. bones . . that could do it.” within 45 stated that she days Weed/Ogilvie marriage Ogilvie Ms. here have you knew crime because perfect “[d]own how to commit in order to ... body without anything have a can’t body. They prove just You body. do rid of get commit the crime what have to is perfect you scatter the bones.” first Ogilvie’s her that Ms.
Mrs. Weed told recalled Mr. Caplan husband, get life and your run for him should “you Richard told Shepard, hell.” me 20 away given years from her. She has Branch, which the branch Northridge An Savings’ of World employee $1,000 account, was made deposit indicated that a checking Mr. Weed had a *18 on Caplan and Ruth the names Thomas Weed containing with a check 22,1983. 17, No further February was made on deposit and a small February that time was noted. on the account checking subsequent activity was Tarzana office Pacific Bank’s box at deposit Security Mr. Weed’s safe 22, 1983, at 11:30 a.m. on February last accessed Mr. Weed by Alessio, a “rush” order had received Chuck of Et Cetera operator Graphic, 20, 1983, Mr. next day. picked up Weed to be February from Mr. on was additional work indicated that Weed came and checked the order and 23, needed it a Mr. Weed because ready February needed. The on job by was never seen the work and up Mr. Weed never hurry. appeared pick again. Mr. Alessio Jr., into a 36-month KMI entered Leasing,
Reg Fudge, general manager made consistently Weed Starlet. Mr. Toyota lease with Mr. Weed of a 1981 1, 1983, January was received on due February The on payment payments. 31, 1983, on the payment made. last additional were payments and no 1, returned to The car was 1984. lease was to have been due on September 1983, 2, and out. dust inside KMI coated with fingerprint on April him in October retained attorney, Weed’s Slayton, Don Mr. dissolution of both including matters with Ms. Ogilvie, to handle litigation Mr. Slayton things. other marriage, among the business and the partnership Mr. He last saw a volatile one. Weed/Ogilvie relationship considered the 22,1983. that he Slayton Mr. never indicated to Weed Mr. Weed February on interest an expressed Mr. Weed had contrary, to leave. To the planned and Ms. Ogilvie he to the business laboratory a business similar starting expressed Mr. Weed conversations During telephone were some running. A few the case. if he did not settle him away fear that Ms. Ogilvie might put had Ms. Ogilvie he Mr. Slayton his told disappearance weeks before arrested for could never be if the was not found she body friends and that any of murder. He I charge stated at one should take point “Maybe just whatever she I’m offers because afraid will it On carry she out.” March 1983, Mr. filed Slayton a with missing person’s LAPD. report
B. Law to Find Mr. Weed Enforcement Efforts LAPD Officer James Lewis was assigned investigate missing filed person report interviews, Mr. on March He Slayton 1983. conducted office, checked the coroner’s checked to determine whether Mr. accident, Weed had been the victim of crime Mr. traffic and visited Weed’s A apartment. discussion between Officer Lewis and Ms. Ogilvie revealed that she recalled two men her New from Las Vegas visiting who, felt, Day Year’s she were for Weed looking Mr. so could collect they gambling debt. She told Officer Lewis that Mr. Weed had a gambling and she problem remembered the two visitors his home address. giving Other LAPD were officers assigned search Mr. Weed. His dental records were sent to the Los Angeles Coroner’s office and County eventually to the Department of Justice in Sacramento for analysis. *19 23, 1983,
On March Mr. Weed’s was found at the Toyota Angeles Los International The car Airport. and revealed dusty signs no of violence inside. There were three different in brands of the ash which cigarettes tray were tested for saliva and scientifically blood The results of type analysis. the tests were A inconclusive. of in map Wyoming was found the car. On it was an unknown No other were fingerprint. prints found inside or outside the car, yet car did not to have appear been clean for the wiped purposes destroying The car had prints. been parked either on airport February 23 or 1983.
Other officers sent Mr. Weed’s to the in fingerprints Department of Justice Sacramento, sent identifying information on Mr. Weed to the Federal Bureau contacted, of Investigation and to officials 49 states. as were Interpol Mexican and Canadian officials. The Immigration and Naturalization Ser- vice was notified of Mr. Weed’s Other disappearance. included investigation airlines, lines, police contacts with car rental agencies, hospitals, shipping railroads, travel and other agents, governmental agencies. Mr. Weed was nowhere to be found.
Admittedly there were some flaws the search process. Mr. Weed had aliases, which, White, certain one of Michael he had with the registered Department of Consumer Affairs his as a debt collector. That capacity authorities, name was forwarded to the but which other names Mr. Weed (Teleford, used Stevens) Hart and were not forwarded to all of them. invoices account, credit card that Shell Oil Company word certain Upon receiving Weed’s Mr. May dated 1983 had surfaced on April through Petroski, LAPD, and determined Officer the matter investigated Henry Weed. signed invoices were not Mr. by son, one (T.J.), point Ms. Thurston had indicated at Ogilvie’s Shepard J. he up that he had Weed to nine after had days picked seen Mr. seven some car at He corrected that date his Grand Prix Auto on later February 1983. when reflect wrong, that he was admitted that he was confused as but he had last seen Weed. Mr. Mr.
C. Plan to Kill Weed Ford-Kennedy Ms. and Mr. Weed had started a called Ogilvie business which Medical their It was a successful venture marriage. Lab before business, but Ogilvie in food Ms. specialized allergy testing. operated administrator, issues. handling payroll Mr. Weed worked as an principally began their marriage, they experienc- Once was confirmed relationship Mr. Although severe and were of 1982. ing problems, separated January lab, verbal physical Weed continued to work at the had both they altercations at the about division workplace, principally revolving Weed. In August lab Ms. was beaten Mr. proceeds. Ogilvie allegedly business, orally 1982 Ms. asked Mr. Weed leave the both Ogilvie he writing, that was from her. claiming stealing one charges Their so filed they against feuds became violent both with another LAPD.
Julie the lab the summer Rabold Kanoske became an of employee during Ogilvie though only of and a close friend of Ms. even she became mother, a friend Ms. 20 at the Julie’s also became Joyce Reynolds, time. and the lab often. Ogilvie, fairly visited in Ogilvie
After divorce commenced the fall of Ms. proceedings in marital with of her staff. quite open discussing problems her members Ms. hire a suggested Julie Rabold Kanoske on several occasions that Ogilvie friends hit man and Mr. Weed killed. She told that she had Ogilvie have Ms. Division, others, in LAPD’s could take care of among Devonshire who first, did Julie on Ms. Although she not take later problem. seriously did. Ogilvie Kanoske, Smart, Elzo Perkins and Ogilvie,
Ms. Julie Rabold Patricia December, went Ms. Diane Shamis Perkins to lunch 1982. Northridge Julie responded, comment stated fed which Ogilvie up” she was “just “well, taken care him of.” Julie hit have said you a man and ought just get Ms. Ogilvie stated disappear. knew make someone people she who could should the discussion. they discontinue December, 1982, and stated that Von Villas called Ms. at the lab Ogilvie him he was a friend Julie’s. She with for about five or six spoke and Joyce and Diego minutes her in San his interest concerning opening lab plans in investing it.
In January Reynolds again suggested Ogilvie, once to Ms. Joyce lab, while were they both at the that she should hire someone to rid of get Mr. Weed. Joyce had friends who could that month Ms. help. Ogilvie Later lunch had with Ms. at a Ms. Again, Howard Johnson restaurant. Reynolds Reynolds repeated suggestion, had friends mentioned she who could and, fact, help, mentioned the name “Bob.” On New Year’s Ms. recalled two men she Day Ogilvie thought were from Las her visiting home for Mr. Weed. Vegas looking about 8 a.m. She knew Mr. Weed had a assumed that gambling wanted problem, they complete collection After Mr. procedure. them Weed’s address giving number, and telephone called Weed him the she and advised visit. He said knew he who the men were and did not seem upset. collectors, “Charlie,”
The Las Vegas identified as “Vic” and had at least three more Ogilvie encounters with Ms. during January During 1983. one $5,000 meeting, they cut her off road driving while she was demanding $2,800 to Mr. pay Weed’s debt. She the men and never saw eventually gave them again, although she later denied that she made such a She did payment. tell the police about the encounter with “Vic” “Charlie” in her 1983, interview, August nor could she they recall what looked like. A few after days a divorce court hearing which occurred on or about 12, 1983, “Charlie,” 11 and January “Vic” and two police officers assigned Division, Devonshire to her came home to her with Mr. problem discuss *21 stated, Vic Weed. was later as identified Von Villas and Charlie as Ford. Vic friend, have a “We mutual and Joyce He further told her he Julie.” that could her with her help care When she he problem by taking asked what guy. that, meant Von said Villas that he could hurt real just be bad or $7,500 $30,000. The disappear. price mentioned was to anywhere from Ms. Ogilvie remembered that Von Villas a which was brown wearing wig with some gray it. He had a wearing moustache. He to be appeared fit, makeup. Ford looked his hair like did not although she could not quite she whether face was darker than when wearing wig. tell he was a Ford’s court, him the during and he not much 20- to 30-minute say saw did think Von Villas plan. said she would have to about meeting. Ogilvie Ms. The if advantage her to know wanted to take of the offer. Joyce told let she her staff about the following Ms. several members of Ogilvie told day Perkins, Smart. Diane Perkins and Patricia meeting, including Shamis Elzo Chefalo, a wigs With to the and Darlis makeup, professional respect recalled introduced toupees, being who and makeup specialized wigs artist Either referred her Jack Stone. being to Von Villas and Ford their upon officers Villas her federal narcotics they Von or Ford that were explained undercover, would wigs and and that working acquire makeup wished to wigs makeup and alter their for their work. Ms. Chefalo appearance provided with meetings After of three and instructed them on how to use them. the last them, Ford, and that her not to a leaving, keep copy receipt told upon had them given she should that she ever seen them. Ms. Chefalo forget had meeting. a and for at that bag makeup sponges application Near the about 9:30 January Reynolds end of Ms. met with Ogilvie Joyce her that friends to Joyce’s restaurant and told she wanted p.m. Darby’s care of contacts. Joyce appropriate take Mr. Weed. said she make the would Ogilvie Either later or on called Ms. night following Joyce that night, stated, as Mr. is He wants to be known going calling you. “Bob be Ory.” call, who night received a call from a Joyce’s Ogilvie person after Ms. He did recognize.
identified himself as Mr. but whose voice she Ory, she, stated that understood Ms. wanted Joyce Ogilvie, he from Weed, with the and advised that he would need a of Mr. proceed plan, photo his car and items of identification. identifying concerning information other when Mr. said he would call for the information in a Ory couple days, did, he Mr. he information. said Ogilvie provided identifying Ory Ms. the job would to her with he how difficult get back once determined price later, would be. A few called would be price Mr. back and said days Ory $20,000, she which was the same Ms. had told Ogilvie Joyce amount A making could afford restaurant during meeting. plan Darby’s three Mr. said he would payment Ory two or installments discussed. call her. working guys be with from of town and that “Dickie” would out Ogilvie Ms. never received a call. such
During background her conversations with Mr. heard noises Ory she which sounded like motors Once Mr. excused revving Ory garage. himself “Dickie.” talking while and was heard to call out telephone *22 $7,500 $50
Mr. the Ogilvie payment instructed Ms. to make first Ory $100 The bills were to in an and in a car with envelope put or bills. be placed windows a service station the corner of Roscoe slightly open parked and Reseda The delivered her the money by Boulevards. pushing into the Pontiac envelope slightly Chevy Burgundy- window of open car, colored which she later identified.
After he had making the Mr. called her and advised that the payment, Ory also, and make the He money arrangements would second payment. for of, when asked Ms. as how Mr. Weed was to be taken care Ogilvie stated, “Well, are never find him . there is they just just say . . let’s going a lot of desert between here and Las Vegas.” $5,000.
The second Ory was to be in the amount of Mr. payment drop called Ms. five Ogilvie some or six after the first discuss the days drop to second drop, but did not as and A few specifics to time provide place. days call, after this Mr. called her Ory again (mid-February) and told her to togo an on address Reseda Boulevard about 9 and look for white p.m. parked van near the 6000 The block. modus the second operand! drop first, identical to that of the to be money pushed through slightly cracked driver side window. delivering payment Instead of the second personally, Ogilvie Ms. arranged for her divorce and intimate attorney confidant Ron Brot to make the drop. Ogilvie Ms. delivered the money Mr. Brot at Charley Brown’s Marina Del with a Rey together paper slip with the address.
Mr. Ory contacted Ms. later Ogilvie on night second drop indicated that he had not received the money. When she explained another had made he person became drop, Ogilvie Ms. upset. eventually but, Brot, was successful in her efforts to contact Mr. unable to recover the funds, $5,000 put together another and made the package second drop at the personally same address but into a different car. Mr. Ory called Ms. Ogilvie on February 20 or he report that had received second drop funds, and that he would her call once was taken care of. everything 23, 1983,
On February Ms. Ogilvie saw Weed at a Mr. city attorney hearing one their concerning very altercations. She became at this angry hearing, when she received a call Ory evening, from Mr. she screamed, it, “Do do it!”
Ms. talked Ogilvie to Mr. February Weed before afternoon she conversed Ory with Mr. about planned killing. last completing she discussion had with Mr. Weed concerned insurance draft that had to *23 Body, Prix Auto Inc. Grand Weed at her and Mr. both signed by be day. stated, me 25, 1983, “You owe her and Mr. called Ory February
On Ory Mr. and final $7,500.” drop, the third her about After giving particulars He and Reseda. near Oxnard in white van parked money her to put told where her he knew as drop, to her not to let anything happen also told he there. got and how went to school son 1984, with contacts had several Ogilvie in Ms. her February
Before arrest time, she met Lewis for some to avoid Officer LAPD After trying officers. 1983, and told them in August Affairs Division officers LAPD Internal with her about becoming suspicious their in effort to avoid lies an several Weed’s Mr. forged She also disappearance. Mr. Weed’s involvement 1983, it appear to make an effort dated November on a letter signature Gailey, Detective sent Ogilvie In Ms. January that he was still alive. Division, anonymous typewritten a four-page LAPD Homicide Robbery and 9, 1984, Perkins Diane Shamis falsely implicating January letter dated She had been in Mr. Weed’s disappearance. her Elzo Perkins husband them, to shift to seek and used them with disputes business experiencing from her. away to them investigation Weed disappearance focus of the with them. drugs Weed was involved in the letter that Mr. She alleged Agency by Detective the Nick Harris went far as to contact Ms. so Ogilvie out for someone a search conducting as to cost for telephone, inquiring her to mislead used by was a smoke screen file This also country. investigation. dis- capable that Mr. Weed was Ogilvie acknowledged Ms.
Although own, he disap- think that she did not of time on his appearing periods have him killed. she paid because peared as November of 1982 life October or came into Ms. Ogilvie’s Ron Brot the proposal him in about January She with her divorce lawyer. spoke Weed, thing he that sort of Mr. said her friend Julie to eliminate made He, fact, able be might “Mr. No Neck” who time. knew a was done all the her. help at least two occa- “hit men” on with Mr. Brot about Ogilvie spoke Ms. him sions, did pay kill Mr. Weed. She never him money but paid rendered, $32,000 she which services legal for professional approximately Mr. went to of that amount felt thousand dollars Twenty-two was excessive. $4,000 Brot, $5,000 an additional to Mr. Ory plus as did first payment *24 $5,000 $5,000 was, in March of first for Mr. payment Ory 1983. 1983, Ms. March according Ogilvie, used Mr. Brot to cocaine. The buy for never legal was services. She Mr. Brot his payment upon request, paid for a him asking as to time on certain matters or for spent by breakdown her, of bill kind. Mr. Brot handled of any legal hearings two for one only $10,000. which she believed was covered her initial retainer of Her records revealed two on the of telephone early morning short calls she decided Brot’s day to have Mr. Weed killed from her to Mr. telephone residence, and an like 85-minute call at 7:04 of nature. day same p.m. Ogilvie Ms. could not recall the nature She Mr. calls. called Brot 23, February at 11:25 and other a.m. for 77 minutes. Several spoke lengthy ensued her subject calls between and Mr. Brot. She could not recall matter of the discussions. Kanoske,
Julie Rabold Joyce Reynolds’ was daughter, granted immunity as a part of a plea bargain involving her mother. She had Von Villas known for 13 years, but did know in not Ford. Her first contact with Von Villas was a police community service and was program, though she felt as Von Villas a father figure her.
She started work at in the lab the summer and Mr. grew of 1982 to hate rude, mean, Weed he because was a and He drank verbally abusive boss. also and lot abused Ms. Ogilvie. Ms. Kanoske told her mother Villas and Von about her feelings toward Mr. Weed. She recalled to Ms. suggesting Ogilvie that she hire a hit man while at “Wolfy’s” restaurant sometime December. At that time she did think her Ogilvie Ms. She taking seriously. also suggested hiring a hit man kill to Mr. after left Weed she employ 1982, lab in December and during divorce Ogilvie/Wood proceeding. She admitted to lied her having about testimony before grand jury order to protect herself and her mother. mother,
Joyce Reynolds, Julie’s had 13 years. known Von Villas for She met him at the of her inception daughter’s community service work. police Ms. Reynolds Von Villas were like brother sister.
In December she attended a where Christmas she encountered party Von Villas. theAt he told her party that he was tired an being cop. honest He asked her to him in if mind heard keep any jobs she that people done, wanted such as or murder for hire. He prostitution nothing said small, big too or too and that he would anything do money.
Having heard complaints about Mr. Weed from her and Ms. daughter Ogilvie, Ms. Reynolds recalled telling Ogilvie Ms. to hire a hit man three reinitiated this of conversation type or October 1983. She
September four times on later occasions. called Ms. Ogilvie Ms. p.m.
On 7:30 February approximately and, When Ms. if had the friends. asked she still Reynolds crying, her affirmative, meet at Darby’s they agreed Reynolds responded car, Ms. Ogilvie’s around Ms. driving which did. While evening, they had Ms. said she Reynolds said she wanted Mr. Weed killed. Ogilvie *25 Villas. Ms. the name Bob Von would and mentioned help someone who $20,000 she would and Ms. said job, Reynolds said she had for Ogilvie call her back. him Ogilvie her home and told Ms.
Ms. called Von Villas from Reynolds list of and asked for a job wanted Mr. Weed killed. He said he could do the mind and told He then his things get Ogilvie. changed she should from Ms. direct, received for and he call Ms. and asked Reynolds Ogilvie Ms. would that he tell Ms. Ogilvie her number. He said Ms. should telephone Reynolds the call made Ory. Reynolds would call her and that his name was Mr. Ms. to Ms. on the Ogilvie passed message. Reynolds Ms. Ms. Ogilvie,
Not heard from Von Villas or having anything after their last conversation. called Von Villas at a about one month garage he the problem, When asked him if he had been able to take care of she stated, here “The I can tell is that there’s lot of between thing you space only Weed about Tom worry and Las ‘and that’ Julie doesn’t have to Vegas he, Weed, He dead. anymore.” said Mr. was In he jail Von Villas called when was August Reynolds Ms. she, him if and ask her to loan Reynolds, Ogilvie asked Ms. would call Ms. $30,000. Ms. did not make the call. Reynolds murder and to commit Ogilvie charged conspiracy
Ms. with originally murder and faced of life without prison possibility sentences possible with the agreement prosecution or death. She entered into a parole plea degree wherein in return her to second guilty she cooperation, pleaded murder and received a of 15 to life. Ms. years Reynolds sentence entered into a plea with to murder Mr. Weed. She too charged conspiracy her agreement plea guilty with the return for prosecution, whereby, murder, term receive a charge probationary of solicitation of the she would days jail. of five on condition that she serve two hundred years ninety-five with her along Diane Shamis Perkins worked at the lab August husband, as Elzo Perkins. She echoed the of Julie Rabold Kanoske testimony Mr. volatility Ogilvie/Wood to the and confirmed that relationship, remembered Weed was somewhat of drinker and Ms. Perkins gambler. fall at where the subject late 1982 or 1983 conversation early Wolfy’s came She Mr. Brot called having Mr. Weed killed also remembered that up. Perkins, she, Ogilvie many Ms. often the lab and that Ms. made payments from lab to Mr. Brot without bills. seeing Day Ms. told Perkins in the New Year’s Ogilvie Ms. about January visit of “Vic” from Mr. and “Charlie” to her house to collect debts gambling Weed. after Shortly hearing respect 1983 court with January divorce, and, Ogilvie Ms. called her into Pat Smart Ms. office with Ogilvie’s told about a men had to her home. She present, spoke couple of that been if Ms. Perkins that she valued life never to anyone her she should recount she told what had her. Ms. men Ogilvie dangerous, stated these were criminals; terrible kill they just you, would as as breathe on you soon and that she should never about She then told speak again. it with anyone Ms. Perkins that men were two Devonshire One was policemen. Division *26 $15,000 named Bob. She stated kill they had offered Weed and to Mr. for $7,500. him maim or run him out of town or him beat for She also stated that son, T.J., one of the officers (Ms. let her spin the barrel of his gun. Ogilvie’s occurred). son denied that this “Charlie,” Ms.
Although had Ogilvie told Ms. Perkins about “Vic” and Weed, two Las debt Vegas collectors who were Mr. never seeking out she told her their about car her on Roscoe for stopping Boulevard and asking money, or she had to give borrow cash and it “collectors.”
Ms. Perkins’s opinion Ogilvie’s of Ms. reputation truthfulness was that she was a liar.
Early she, March of 1983 told Ogilvie Ms. Ms. Perkins that Ms. Ogilvie, was going to Marina Del meet Brot Rey to Mr. Brown’s Charley restaurant. The next Ms. Ms. had day Ogilvie told Perkins that Mr. Brot arrived very, late and that very she missed him. She asked Ms. Perkins to her the accompany next day, but Ms. did show Ogilvie up. husband, Elzo, and
Ms. Perkins her a few quite cashed checks for Ms. $2,500. $3,500 Ogilvie, of them in the many amounts of or Ms. Perkins was familiar with Ogilvie/Brot wit- relationship, having them, nessed several between shouting matches most of which centered on Brot’s cocaine and problem his taking money from Ms. She knew Ogilvie. that Mr. Brot visited the lab at least once a week met Ogilvie and Ms. him with at his home. She they knew were having an affair. LAPD, Bonneau, 8, 1983, a search pursuant conducted Sergeant July
On to Judith Prix which was registered a Grand a search warrant of Pontiac at International Automotive The car was parked and Robert Von Villas. documents, savings a including he six From the car seized Chatsworth. ticket, ticket, with a document savings a of a account copy account deposit name and and a female’s and numbers Ogilvie telephone the name of Ms. had written that Von Villas later revealed testimony number. Expert phone the words document and that number on the telephone “Jan Ogilvie” him. written by tickets were also Res” found on the deposit “Ros and broker, West, dealings. through knew Von Villas business a mortgage Gayl lunch at Villas for she met Von February Around January, early Callender’s, Von leaving, As were they Marie where discussed business. they out put if knew who wanted contract Villas told her that she anybody Von make a commission. with call would both phone they one anybody, West, taken statement and Ms. was not when he made the laughing Villas aback, in her left car. immediately were in high when they had known Von Villas since 1961 Ory
Michael After Mr. few 1964 and 1965. school. lived for a months They together their wife upon of Von Villas and his marriage certificate Ory signed Villas, no definitely with Von he had little or no contact marriage, in February contact 1983. the trial.
He about 10 before years had last seen Von Villas *27 name, had never met use his never Von Villas Ory gave authority Mr. When shown unfamiliar with the lab. Ms. or Ms. and was Ogilvie Reynolds, friend jail” “Call Mr. Mr. close Ory. Ory the note the words containing 15, 1983, Villas of the Von (seized a search during July from Mrs. Von Villas had had no of 1983 and home), jail July Mr. stated he was not Ory indicated testimony contact with Von Villas that month. during Expert note, note.” “Ory referred to as the wrote the words on the Mrs. Von Villas Bank, covering at the Santa Anita National Von Villas’s bank statements 14, 1983, 14, reflected a of 30 deposit March through the period February 22,1983; $200 $100 a check $100 of 18 bills and bills on a February deposit 28, 1983; $100 There on that of 20 bills. day on and a third February deposit 14, 14, $4,655.29 through February January were made between deposits 14, 1982, $2,862.98 14, 1983, January and and made between December 1983. indicated, ante, Villas LAPD conducted a search of the Von
As officers 1983, Avenue, 15, while Mrs. Simi on Valley July residence at 6248 Goshen her Investigator papers posses- Von Villas sion, Rendon observed present. investigator and seized them. She including “Ory Note” told Rendon that the she taken from her over contained notes had husband papers included conversing or while Some of the notes telephone person. number”; Mr. might have “Call number “police your phone second “Joyce"; Ory and “Julie.” emergency”; “pay phone”; LAPD, 20, 1983, Helvin,
On December Detective a search conducted Street, to a Horace pursuant search warrant the Ford residence on seized, A calendar for the and the date Northridge. year February 1983 was 23, was blackened out. Extensive scientific was unable to disclose analysis whether the blackened out covered or other any writing markings. area 8,1983,
On a July search of Ford’s search warrant pursuant residence to a 20, LAPD officers found a and On shotgun shells. the December shotgun they search found two boxes shells behind a movable shotgun in the partition wall.2
In a search of the Ford residence conducted pursuant to a search warrant 15, 1983, on July LAPD officers recovered hair and piece tape makeup, various used for appliances application makeup.
In assigned Ford was detective to the unit of burglary LAPD’s Devonshire Division’s Detective Villas Division. Von also worked in the same detective division as well juvenile as the unit as a school car officer. They were not assigned as them partners nor was either of assigned as narcotics investigators. Officer Vernon knew Von Higbee Villas and Ford had an automobile never repair business. worked as undercover They officers in any and never capacity, worked with federal law enforcement 6, 1982, Von agencies. Villas with conferred Officer Higbee December action, regarding proposed disciplinary was suspended Von Villas during January for conduct officer.3 unbecoming police *28 21, 1983, Von Villas was not at work as an LAPD officer on February 23, he did although work February on and 24. Ford did not work as an 21, 22, LAPD officer February and 23. 20,
On December a conversation between Ford and his wife was audiotaped pursuant to a in warrant visiting Angeles room Los 2This presented evidence was only jury. to the Ford 3This concerning evidence Villas disciplinary problem Von with presented LAPD was only to the Von jury. Villas difficulties, surreptitiously taped technical Because of
County jail.4 long 20-minute recorded The only approximately conversation was part. revealed the recording following part: to see where the went to.
“They’re trying money “Good, There there nothing There’s connection to me there. is good. no that connects me.
“There’s no body. The . Ford:
“The that worries me is the . . only thing gas ‘What?’] [Ms. you?’] That bother (Unintelligible) ‘Why? Shell credit card. Ford: [Mrs. I if I remember. Yeah. don’t know . . . Don’t got gas. it, idea, I have they but don’t
“They’re fishing. They got they gotta, don’t think. We’ll see. where he’s at. He’s to find out just gone. gone. They’re trying
“He’s me is the shotgun. “We’ll see. Game’s not over What worries yet. shells.” Credibility Ogilvie
D. The Attack on the Janie T.J., where Ms. met Ms. 1979 at hall Lily Virgil Ogilvie juvenile son, After subject hearing. and Ms. son were the of a Ogilvie’s Virgil’s cancer Ms. that she was need of tests a skin advising Virgil regarding if a week that she Ms. asked her she could T.J. for so problem, Ogilvie keep Virgil could receive the treatments. T.J. thereafter with Ms. necessary stayed $80 as year, Virgil receiving Ogilvie support for almost a Ms. but from Ms. for T.J. One did return residence after school and day Virgil T.J. had failed to never contacted Ms. Ms. denied that she Virgil again. Ogilvie support T.J. married after he had
Ronald Franzman Ms. November Ogilvie her telling been was divorced Mr. Weed. He did recall advised she from him for Mr. looking that a of “hood from Las were couple types Vegas” inWeed When she introduced her son T.J. to gambling order to collect debts. him, She Ms. that he was her dead sister’s son. also told Ogilvie represented him of California at taught University that she was a had at the pathologist, (UCLA), she Angeles County. Although Los and worked for Los Angeles University did earn a Ph.D. in administration at the actually public California, in biology. to him that her Ph.D. was Southern she represented *29 presented only jury. 4This evidence was to the Ford and Franzman her was “not too reputation honesty high” Mr. believed Franzman/Ogilvie marriage that she was a liar. “definitely” Eventually was annulled. confidant, Brot,
Mr. became unavailable as a Ogilvie’s Ms. and attorney when he invoked Fifth self incrim- witness his Amendment privilege against ination, his to admissible as allowing grand jury testimony prior become He testimony. indicated he had Ms. Febru- Ogilvie prior that to represented 23, 1983, in ary connection with and civil and that had disputes, divorce she mentioned to him on Mr. Weed could possibility several occasions that be made to in his Although somewhat Mr. disappear. conclusory testimony, Ogilvie Brot recalled Ms. him credit card could and would telling that slips Canada; be found Mr. bearing signature Weed’s after his disappearance Mexico; that car his would be found and men Las that from couple had been Vegas for Weed in with Ms. looking gambling connection debts. never Ogilvie Mr. told Brot details of how the Weed disappearance occur, to but did state that he would would go away without trace. Money have to be for the and paid Mr. Brot recalled that she once stated that job, $50,000 would be needed to from the east. She that pay mentioned people she knew and that police meaning officials mentioned a name took on only a fair later time from the Ogilvie That name was Von Villas. Ms. newspapers. Kanoske, stated Julie that her daughter Reynolds, worked for Joyce and they lab that knew Von Villas. Von Villas looked out for the welfare Villas, of Kanoske and Reynolds. Von came her according Ogilvie, by Ms. Weed, “if house and stated you ever need with let us know.” There any help Brot, were several telephone conversations between Ogilvie Ms. and Mr. but matter subject involved her usually complaints about the unfairness of his fees other negative him comments Ms. about Ogilvie generally. Gutierrez, Institute, Olga
Dr. a psychiatrist assigned to the Brand Sybil jail trial, in which Ogilvie Ms. was housed prior began stated that she and, Ms. treating Ogilvie May because she had been diagnosed as schizophrenic, residual type, taking was aware that she was Haldol She Cogentin. opined Ogilvie that Ms. experiencing hallucinations or delusions at the time she treated her. Brot,
Timothy an Chang, attorney associated with Mr. did recall Mr. Brot he, Brot, to him stating had told Ms. rid of it Ogilvie “get that guy, doesn’t cost much” or words to that effect. Mr. Brot did have a cocaine December, 1982, habit in November and and the first two months of 1983. Schroeder, Deborah an at the employee lab for the two-year period preceding August stated that Ogilvie Ms. had a tendency brag *30 inmen a convert- Schroeder that two things. about She told Ms. exaggerate for Mr. Weed. looking had come to her house ible with Nevada plates 1983, disappearance, in or summer of after Mr. Weed’s Sometime the spring her credit card. told her that Mr. Weed was Ogilvie using Ms. testimony many She disputed Janie testified for defense. Ogilvie untruthful, her for being who had testified to reputation witnesses Franzman, and She once Virgil Ron Richard others. including Shepard, Lilly “Charlie,” men visited her house around “Vic” and who again described Brot that she telling paid middle She also denied Mr. January 1983. $50,000 reiterated her in care of Mr. Weed. She the east to take people involve- as to Mr. Brot’s as a witness for the testimony given prosecution in of Mr. Weed. in her about the trying bringing disappearance ment to assist with the lab testified that he had been associated Dr. Bassett Brown in invited him to be medical sometime or Ms. had Ogilvie 1983. 9, 1983, to Ms. Ogilvie at the lab. On June Dr. Brown sent a letter director her to use his name his association with the lab and terminating warning he had a designated connection with it. When he became aware that been document dated director the lab’s structure as reflected a corporate 1983, he claimed which contained his September purportedly signature, it on sign a and that one had been authorized to signature forgery was no his behalf. David trained Conney, psychiatry psychopharma-
Dr. a physician Mellaril, a ingested tranquil- stated that the fact that Ms. had cology, Ogilvie izer, before years, initially for at least three and that she had taken Haldol Mellaril, her one psychotic that the indication would be that problem Angeles rather than a mood or disorder. After the Los anxiety examining and UCLA Ms. admission to County concerning Ogilvie’s records Hospital the UCLA unit in that her symp- Dr. neuropsychiatric Conney opined voices, He toms were consistent with an illness. (hearing lapse memory) her also that since she had come into the after arrest opined jail hospital medications, thought after three or four suffered a years on she antipsychotic disorder. ex-husband, her
Ms. other Richard the father of son Ogilvie’s Shepard, T.J., extremely revealed that theirs had been an through prior testimony they volatile In or June after their relationship. May shortly marriage, were to Mr. separated. according about separation brought part, kill him Shepard, gun dispute. because she had threatened to with a after She kill continued to issue threats to either him ruin his life. He did meet with Weed The meeting Mr. at Weed’s to discuss Ms. request Ogilvie. *31 Mr. marriage. after the Airport shortly Weed/Ogilvie occurred at the Marriott him, kill and Mr. indicate had threatened to Ogilvie did that Ms. Shepard 1982, he harsh words Ogilvie Weed said that and Ms. had had November him, Weed, asked and that she threatened kill Mr. as well. When his truthfulness, her a person about Ms. he described as who opinion Ogilvie’s something could almost and make believe you straight eye you look that is not true.
E. Explanation Concerning Deposits Von Villas’s Bank Justice, jeweler Mr. William a retail buying selling engaged pre- stones, 4, 1982, cious stated that on December he three diamonds bought $2,000. 13, 1982, from Von Villas for Two dated documents December $4,800 indicated that Von Villas had sold worth during of stones one $3,300 cash, transaction and another. Mr. Justice Von Villas paid (18 $3,300) third although for the there some purchase stones for sort of involved, credit as he had made a for Villas. ring Von A bank officer Sanwa Bank check identified a dated December 1982, which was cashed at her bank on December 14. Von Villas cashed the $5,100. check $100 $50 and was 31 given bills and bills for a total of F. Wigs Ford’s and Makeup wife,
On Thanksgiving night of Ford’s then a transit district rapid driver, robbed, bus beaten and The assailant could not brutally raped. be found and Ford Ms. asked her husband to look for him. The makeup, wigs, sponges other paraphernalia taken from application disguises Ford’s during house the search were used Ford to mask his identification as he sought out his wife’s attacker the streets. 23, 1983,
G. The February Calendar with Blackened Out it was Although that the disputed calendar seized from broom closet of the Ford residence on December did reflect the oblitera- ink, son, Ford, Jr., tion of 23 with February black adopted Ford’s Richard stated that he had blocked out that date had because his admon- girlfriend it, him ished so. He do could not remember he did why but records of his high school indicated a dance was scheduled that he did night, and recall attending the dance.
III Issues Presented
A. Introduction *32 and review. Some relate
Both Von Villas Ford issues for present multiple will discussed to each and some to both. be appellant individually, They seriatim. 20, 1983,
B. The December Conversation Between Ford Taping Angeles County and His at the Los Jail Wife 1. Factual Summary 1983,
Ford had been arrested in from July robbery charges stemming in The Loguercio case and was at the Los custody Angeles County jail. 20,1983, of Mr. Weed was under On December disappearance investigation. Ford was held module while Von Villas was housed in module being 6000. Ford and Von Villas were not allowed meet with each to speak other. Sheriff Ed information
During July Deputy began receiving Dvorak about Ford from a named Brown. Dvorak jailhouse Billy Deputy informant informant, Love, also received regarding information from another Anthony Von Villas. Love told Villas Dvorak on several occasions that Von Deputy had offered Love kill wife money to Ford. Von Villas also told Love that his was him in assisting witnesses and of his intent to have finding prosecution those witnesses killed. LAPD relayed Dvorak this information to Deputy Detective who was to and was Gailey assigned robbery-homicide investigat- ing of Mr. Weed. disappearance information,
Detective armed with this and a Gailey, other obtained search warrant on December The 1983. search warrant contained provisions which LAPD permitted officers to Ford and tape conversations of Von Villas with their visitors on the intercom The respective jail telephones. surveillance authorized the search the mainte- by warrant had as its purpose nance jail and the security protection of witnesses. It was not the Los Angeles to County jail policy record conversations made inmate during visits on either a random or continuous basis. 20, 1983, Holder,
On December LAPD Detective Gal- Detective one of associates, ley’s went to the with the search warrant He county jail armed to set assigned was an LAPD technical assistant who was accompanied by The monitoring taping. equipment conduct up equipment actually there space was insufficient set module because originally up Holder visiting conceal the the module 7000 room. Detective equipment Ford, arrival, her instructed the officials first direct Mrs. jail upon module in module so inoperable 7000. 7000 were to be made phones her Mrs. Ford then be to continue visit with would directed module 6000 Ford. areas;
Both visiting modules 6000 and had identical both virtually areas stations. Visitors from inmates having eight visiting separated by were them Each plexiglass communicated with means of a station phone. from the separated other 15 feet from the partition. Approximately stations was control which were order phone deputies booth stationed *33 to constantly visually monitor visits. The would be monitoring deputy see, situated behind mirror he she could one-way through only which although opening small at the allowed the visitor to the top deputy. observe visitors Additionally, were to show their deputy guest pass the required identification the upon entering visiting area.
When Ford Mrs. arrived to in finally visit her husband the module 6000 room, visiting no other were did visitors not work present. phones because the in the been amplifier control booth had turned off. inadvertently Fords, Because the were phones useless to the they to communi- proceeded cate with one another by raising their so that hear they voices could one another the through while the plexiglass, still receivers to their keeping ears. Mrs. Ford aware was that a visually was visit deputy monitoring their from the control booth.
Deputy Baker was in the control booth time at the of the December 1983, visit and recalled that Ford’s voice audible the throughout was con- versation, whereas Ms. voice Ford’s was audible only percent time. He did not hear what was said because he trying to determine the why taping equipment phones were Neither inoperative. Detective Holder nor his technician could recall the substance of the Ford conversation the during visit. 24, 1983,
On December Detective received a that Ford knew Gailey report his in the visiting conversations area were being monitored. Mrs. Ford “Hello, confirmed her about their knowledge taping writing of visits by (Internal IAD” Division) Affairs her on of December pass visitor’s 1983. Although the Ford conversations were on visits to the taped subsequent 20, 1983, visit, December that evidence tape only tape was the offered into by prosecution. were were never
Only Ford visits Von Villas visits taped. taped. 20, 1983, by Taping 2. Issues Raised Ford the December Regarding Ford claims that his of constitutionally cognizable expectation pri was violated the LAPD of the fact vacy of the conversation taping spite that it was made in He the fact focusing narrows this claim county jail. LAPD, that were an that had no eavesdroppers, investigative agency maintain obligation jail, unlike sheriff’s security deputies office, did who have such an section 2600.5 Ford claims obligation. Citing the state Legislature has of those recognized expectation privacy confinement. their Assuming constitutionally expectation privacy cognizable, Ford next was fatally claims that the search warrant at issue defective because it was not cause and was over- supported by probable broad.
Ford’s next argument is based afforded married upon privilege persons Code, when (Evid. 980.) communicate in He they confidence. asserts § confidential, because the December 20 discussion was carried on although manner, a fairly loud it is privileged.
Ford then III asserts was made violation of title jail taping *34 (18 Omnibus Crime Control Act et federal U.S.C. 2510 seq.), § statutes. wiretap
As a final in argument, Ford out his brief that points opening supplemental 20, of the tape December conversation should have been excluded from was, evidence in because it unintelligible. substantial part, 3. There WasNo Constitutionally Cognizable Expectation Privacy Enjoyed by During the Fords the Taping 704, In (1983) Donaldson v. 24 Superior Court 35 Cal.3d Cal.Rptr. [196 110], 672 P.2d the California Court held Amend- Supreme that Fourth ment of the federal Constitution did not law from prohibit enforcement surreptitiously in intercepting conversations of inmates a station. This police holding was based Donaldson court’s view that under federal consti- tutional there law is no in right to a detention and that the privacy facility, Fourth Amendment is not violated such an of a conversation by interception provides: 5The statute person imprisonment prison may, during “A sentenced to ain state confinement, any such period of deprived rights, only rights, be of such such as is necessary provide in order to security for the reasonable of the institution in which he is confined and for the reasonable protection public.” of the
213
a
between
and a visitor
a
or
a
station.
prisoner
jail
police
Donaldson
New
holding was based
on dictum contained
v.
largely
Lanza
384,
1218],
(1961)
York
where jail
Although the area” “protected later analysis repudiated Lanza (1967) v. United States Katz U.S. 351-352 L.Ed.2d 581-582, 507], 88 S.Ct. federal courts have followed consistently Lanza upheld admission of monitored in jails conversations stations. police *35 Paul, (United States v. supra, 116.)6 614 F.2d at p.
In
447,
Bell
(1979)
1861],
v.
confinement 472].) at 545 at prison.” p. L.Ed.2d No “Iron p. [60 Curtain” from their The rec- separates prisoners rights. constitutional court ognized pretrial detainees at least the possess rights same as convicted (Ibid.) prisoners. Lanza,
Citing court noted the that “a in confined a possibility person detention facility has no reasonable with expectation of privacy respect (441 480].) his room or cell . . . .” U.S. at 556 L.Ed.2d at p. p. [60 Furthermore, if any in expectation was to be a privacy recognized scenario, detention it would be of a definitely diminished nature due to the Bell, security (Id. concerns 480].) involved. at 557 at In p. L.Ed.2d it p. [60 assumed, arguendo, that the detainee had a diminished expectation of Still privacy. the Fourth Amendment was not violated by the unannounced search of his cell. In regard, this the court deferred to the of the judgment (Id. prison administrators. 473].) at at p. L.Ed.2d p. [60 The more recent (1984) Court Supreme decision of Hudson v. Palmer 393,104 3194], U.S. 517 L.Ed.2d S.Ct. also involved a [82 random search of Katz, an inmate’s cell. By citing the test set forth in the court found that for Fourth Amendment protection apply, the Fourth person asserting Amendment must rights have a subjective and the expectation privacy expectation must be one that is “society as reason prepared recognize States, (Katz 347, able.” v. supra, United 389 U.S. 360-361 L.Ed.2d [19 Harlan, (conc. J.).) opn. The 587-588] court stressed the importance Palmer, (Hudson latter requirement. supra, 468 U.S. at fn. 7 p. [82 402].) test, L.Ed.2d at p. By utilizing the court determined that balancing is not “society prepared recognize as legitimate any subjective expectation that a privacy prisoner might (Id. have his prison cell. . . .” at p. 402].) L.Ed.2d at p. [82 interest of of its society security penal institutions outweighed interest of the within prisoner privacy his cell. (Ibid.)
The Hudson court ultimately held that right to privacy traditional “[a] Fourth Amendment terms is fundamentally with the incompatible close and continual surveillance of inmates and their cells required to ensure institu- tional security and internal (468 order.” U.S. at 527-528 pp. L.Ed.2d 403-404]; pp. (9th see Nakao 1985) v. Rushen Cir. 766 F.2d 412 [citing Hudson—no expectation of cell].) exists privacy prisoner’s
The Ninth Circuit Court of dealt Appeals has with Fourth similarly Hearst, Amendment issues arising jail In settings. United States v. supra, 1331, 563 F.2d a conversation with a detainee and a pretrial jail’s visitor on a telephone-like intercommunication system was monitored and recorded by The towas jail policy with an established policy. officials accordance jail in “very who were involved publicized record all conversations detainees by the to provided This high particular tape cases or security problems.” the was read to tape a Investigation transcript Federal Bureau of and 1344.) (Id. at jury during p. trial. Hearst, found to be
In facts to analogized the court the Lanza Lanza the of authority, seeming repudiation “protected the persuasive despite Lanza defeat analysis area” the court relied on Additionally, Katz Katz. detainee’s Amendment The held that intrusion Fourth claim. court “[a]n of officials to a rule with a jail policy justifiable purpose or pursuant not violative of the Fourth Amendment.” or is imprisonment prison security 805-806; 796, (See (9th 1975) United United States v. Dawson Cir. 516 F.2d cert, 1371, 1373, denied, (9th 415 U.S. Savage 1973) States v. Cir. 482 F.2d a of some showing justifiable L.Ed.2d 94 S.Ct. [39 1446] [absent or letter not be prison security, prisoner’s should purpose imprisonment intercepted photocopied].) (2d 1986) urges
Ford
that United
Cohen
Cir.
796 F.2d
States v.
denied,
189],
virtually
certiorari
Ford that since the did the could prosecution taping, purpose evidence, have been than to and the gather protect rather Ford prospective witnesses. Cohen,
Cohen is In distinguishable. the sole reason the search easily evidence; case, was to not gather of the seizure was Ford’s purpose evidence, gather but only jail security public safety. also to ensure Also, search, Cohen involved a cell rather eavesdrop jailhouse an The Cohen is fact that conversation. this case shares with only similarity This does us prosecution performed compel search. factor alone not Cohen, to follow a Second Circuit Court of decision. Appeal Ford if As wife acknowledges, subjective he and his lacked a expectation conversation, then he would have no privacy during December 20 basis upon judges which to assert a Fourth Amendment claim. trial found below that Ford did entertain such expectation privacy. an *37 Indeed, conversation, given the attendant in- surrounding circumstance alia, the loud voices of the cluding inter we are convinced participants, Ford’s that the Amendment invoked request protections Fourth be through of the suppression taped rejected. conversation was properly
Whether the LAPD in taping performed by charge jail or those view, the sheriff’s in security, department, our has no on the Fourth bearing Amendment issues raised Ford the December 20 concerning by conversation.
4. The Search Authorizing Warrant the Conversations Seizure of
Ford asserts that the search warrant authorizing the seizure of the December 20 conversation of the Fords was overbroad and did not establish cause as to adequate probable Ford.
The provisions of the search warrant are authorizing eavesdropping The quite specific. to be searched . . place was described as follows: “. installation and operation of electronic surveillance and recording equipment in areas and on internal telephone systems not of a used part public system by inmates Richard Herman Ford and Robert Von Villas for con- Anthony with versing any persons (for other than the attorneys for those inmates 4).”7 Item No. Property
The warrant sets clearly forth that the was to occur taping only jail visiting rooms on the intercom not on telephone system, public telephones. When one considers that the of the purpose informa- taping acquire tion about the of either kill plans Ford or Von Villas to or each witnesses other, conduct, or to engage other any criminal future scope search warrant is very The trial held in specific. judge court so that the ruling conversations were intercepted with the restrictions set forth accordance in the warrant.
Ford alleges that the affidavit the search warrant does supporting not set forth sufficient probable cause as Ford and therefore the tapes should be suppressed Fourth Amendment grounds. cause for probable the warrant was obtained the use of jailhouse informants who relayed who, turn, information to Dvorak Deputy relayed information to Detective Gailey.
7Property item No. 4 was defined in the warrant as follows: writings “Conversation and Anthony in which Richard Herman Ford or Robert Von Villas intimidate, harass, any makes regarding statement future plans injure, any or kill witness or conduct; any person other engage any or to writings other criminal and all other to and Villas, from Richard Herman Ford and Robert Anthony except Von those to or from the attorney of either.”
217 31, 1983, him that Von Villas offered On about Love stated October Adams, in $30,000 witness key prosecution if he kill Bruce a would either him, or against kidnap case then the murder robbery-attempted pending Also, have Loguercio, Villas offered to Joan money Adams’s son. Von Love that his murder killed. Von Villas told attempted charges, victim of “the to syndicate” knew his had contacted activity wife about criminal and about Mr. and his son. On or track down the Adams whereabouts 1983, 19, and kill if he could to Ford get November Von Villas asked Love Villas, that Von his Judy him. On November Von Villas told Love wife, that testify and was to prostitutes had located Mr. Adams going pay that he had Von and Ford Von Villas also told Love Mr. Adams Villas set up. “hitman,” in a man hired that he two others had shot was a and and killed that when Von Villas also stated he was Ford Northridge. present man had wife. raped who Ford’s Brown, informant, Bill while in
Ford was also an inmate approached However, did not jail. presumably Ford was Brown and suspicious of him that affidavit. any disclose information to became the basis for the “education, In affidavit train- Gailey through Detective stated that his he in similar believed “. . . Robert ing experience many investigations” Judith Von Villas are and will continue discuss continually discussing witnesses, evidence, fabricate intimidate plans to and murder and obstruct justice, their Villas and during jail; conversations both Von county written, communications, engage Ford oral and with other may such state- persons. Gailey’s . . .” Based informant and Detective on Love’s ments, the cause magistrate concluded the affidavit established probable issuance of search warrant. asserts, however,
Ford that there was cause linked Ford no which probable to the alleged criminal of Von that the state- activity Villas. Ford contends Ford, ments of the only informant relate Von Villas and not and that Detective Gailey’s is based on a hunch and not solid opinion probable cause. cause,
To establish a one must show probable probability criminal Also, facie is not must activity; prima showing evidence be required. “[t]he weighed seen and as understood the field law enforce by those versed (People (1991) ment.” v. Cal.Rptr. McNabb 228 463 Cal.App.3d [279 11]; 73].) People (1988) see v. 203 684 Cal.Rptr. Rochen Cal.App.3d [250 506], Spears (1991)
In People Cal.App.3d Cal.Rptr. court held that of an determining sufficiency support affidavit search an infer warrant officer’s law enforcement as well as experience, ences or deductions to trained law enforcement officers be apparent may Here, if considered. Detective inferred that Von Gailey logically witnesses, kill Villas was Ford could well be concert planning acting *39 him with based their upon knowledge joint activity. his criminal past The affidavit the with a for provided magistrate finding “substantial basis” (See (1987) probable People Schilling cause. 188 1021 Cal.App.3d [233 744].) The trial held that the did act Cal.Rptr. judge magistrate properly in bad faith when he issued the warrant the in the based facts contained upon affidavit.
Even if it were determined that the warrant was improvidently cause, issued because there was insufficient the the Decem probable tape ber 20 conversation was still the executed properly admitted because officers the in warrant good faith. to a warrant will pursuant “‘[Searches reasonableness,’ [citation], rarely require any deep inquiry into for ‘a warrant issued aby magistrate suffices to establish’ that a law enforcement normally ” officer in (United has ‘acted faith in good the search.’ States v. conducting (1984) 3405].) Leon 922 468 U.S. L.Ed.2d 104 S.Ct. [82 to the rule forth in in exceptions set Leon are not applicable this case.
There is no evidence
in
the warrant the
“was
issuing
magistrate
misled
in
by information
an
the
affidavit that
affiant knew was false or
would have known was false
for his reckless
of the truth.”
except
disregard
(
Likewise, Ford
no evidence
produced
that the
aban-
issuing magistrate
doned his role as a neutral and detached
officer in
the
judicial
signing
search
(468
warrant.
U.S. at
923
699].)
L.Ed.2d at
p.
p.
[82
Furthermore, Ford did not demonstrate
the
below that
officers were
“relying on a warrant based on an affidavit ‘so
lacking
indicia of probable
”
cause as to render
official belief
its existence
unreasonable.’
entirely
(
The officers were entitled to certainly rely magistrate’s legal on the determination that a warrant could issue. were not properly They required (and were obviously not qualified) second-guess determi- magistrate’s nation affidavit’s sufficiency. “Penalizing magis- officer for error, own, trate’s rather than his cannot logically contribute to the deter- rence of Fourth (468 Amendment violations.” U.S. at at 921 L.Ed.2d p. [82 699], p. omitted.) fn. the warrant “so way any Ford did not demonstrate
Finally,
deficient—i.e,
to be searched or
the place
facially
failing
particularize
reasonably
officers cannot
executing
[have]
to be seized—that the
things
699].)
L.Ed.2d
(468
p.
it
be valid.”
U.S. at
presume[d]
p.
Remedy
Ford
5. Section
Provides No
for
may
“be
prison
Pursuant to section
state
person imprisoned
necessary
provide
such
as is
in order
deprived
only
rights,
of.
. .
. . .
Section 2601
. . . and
security
public.”
reasonable
institution
including
right to
certain retained civil
designates
rights
prisoners,
have
visits.
personal
*40
866, 647
Superior
(1982)
Cal.Rptr.
De Lancie v.
Court
[183
concerns,
142],
pretrial
held
conversations between
P.2d
that absent security
to
evidence
be
gather
detainees and visitors could not be monitored
to
solely
871-872.)
Lancie's
(Id.
holding,
used at their
at
De
upcoming
pp.
trials.
however, did not turn
there was a reasonable
of
upon
expectation
whether
rather,
in
viola-
any monitoring
a custodial
it stated that
privacy
setting;
privacy
tion
and
of
right
of sections 2600
2601 violates
fundamental
I,
guaranteed
the California
article
section 1.
by
Constitution
exist in
De
must
right
The
Lancie decision
that a
to
emphasized
privacy
jails
to
Sections 2600 and 2601
pursuant
statutory
or
California
law.
prisons
security.
restore to inmates civil
which are
with
rights
compatible
jail
in jail
that there is
need for
persons
court
an obvious
confined
opined
at
(31
Cal.3d
p.
communications with
enjoy private
spouses
family.
Furthermore,
876.)
Superior
Court
rejected
De Lancie court
North v.
1305,
155],
(1972)
In decided Superior supra, Donaldson v. 35 Cal.3d at pages Lancie, De that “no just year Supreme opined one after the California Court jail police federal case has dictum or excluded a repudiated Lanza If cases such conversation from evidence. occasional state court [Citation.] course, as De take a federal they grounds. Lancie different do so state not Court, Bound matters of the United which federal law States Supreme York, its dictum in influenced decisions rejected never v. New Lanza courts, of the lower federal we are that the impelled conclude Lanza (Id. 30.) dictum continues to in federal law.” control at p. Elwood,
This view and Ahmad A. v. People supra, has been followed Court, Superior supra; both there expectation cases hold that is no justifiable 220 Also, Elwood and jail as to remarks made a interview room. privacy right
Ahmad A. the existence a California acknowledge statutory et set forth simply for but noted that section 2600 privacy prisoners, seq. (El- violations thereof. rights providing remedy without for suppression wood, 1371; A., at supra, supra, at Ahmad 215 Cal.App.3d p. Cal.App.3d 536.) “The that in the search and California Court has made clear p. Supreme context, I, held seizure the Article section clause has never been privacy Amendment establish broader than that Fourth protection provided by I, United States Constitution or Article section 13 of California (Elwood, 1371-1372.) Constitution.” supra, 199 Cal.App.3d pp. conclusion, In Ford will find little section calling upon solace No tape. for of the December providing remedy suppression such ruled that remedy judge correctly is available. The trial statutorily Ford’s reliance on Penal Code et seq. misplaced. section 2600 Privilege 6. Evidence Code Section California for Communications, Remedy Marital Provides No Ford
Confidential states, in Evidence Code section 980 pertinent part: *41 article, a “Subject to Section 912 and as otherwise this except provided , . the marital spouse during . . whether or not a has a party, privilege disclose, and afterwards to refuse and to another from relationship prevent if disclosing, a communication he claims the and the communica- privilege tion was made in confidence him while they between other spouse were and wife.” husband
A communication between married is to have been persons “presumed made in confidence and the of the claim of has opponent privilege (Evid. burden to establish that the communication was not confidential.” Code, 917; People (1973) see Carter v. 34 752 Cal.App.3d § [110 324].) “The be asserted to Cal.Rptr. may prevent privilege] [marital Court, (North v. testimony by anyone including Superior eavesdroppers.” 301, 310, omitted.) supra, 8 Cal.3d italics
Ford that the December 20 conversation was “confidential” urges within the of Evidence He that the trial meaning Code section 980. contends when, claim, court erred it carried out Ford’s marital considering privilege an expectation wrong. Ford’s contention is privacy analysis. “ confidence,’ ‘in
To make a marital one must intend communication nondisclosure and have a of privacy.” reasonable expectation [citations]
221 P.2d 818 Cal.Rptr. 654 (1991) 54 Cal.3d Mickey v. (People privilege the marital invocation of before 84].) must be shown Both factors stated, the confidential “the claimant Mickey court As the will be honored. by preponder to prove, has the burden privilege marital communication 655; see (Id. at evidence, p. claim.” sustain the necessary the facts ance of 715.) 1982) p. Jefferson, (2d 25.2(p), ed. § Evidence Benchbook Cal. statutory presumption claimant is aided that the Mickey acknowledges at p. Cal.3d Mickey, supra, (People section of Evidence Code 917. 655.) indicated, Fords,
Here, justifiable expectation had no as jail in a regular were They 20 conversation. their December during privacy with through plexiglass to each other visiting loudly room speaking indicated clearly Their conduct watching them. knowledge guard that a Further, their conversation. privacy during there was no expectation nondisclosure, the second did not intend they conduct demonstrated that Mickey test. prong short, “in
In made confidence.” the conversation was not 20 conversation the December surrounding Ford the facts analogizes Court, He that the urges Cal.3d 301. Superior supra, those of North v. North, the conversants which allowed factual circumstances of unique facts of this case. to the claim a marital are similar successfully privilege the mark. argument Once Ford’s misses again, North, private wife were led to a detective’s In detainee and his pretrial initial for the talk and was present office. The detective told them could they left them The detective then his wife. contact between the detainee and couple’s indicated that the the detective did or said entirely Nothing alone. *42 held that the (8 311.) The court would be Cal.3d at taped. p. conversation that the conversation couple’s had created an expectation detective’s actions surreptitious taping. by would be This was violated private. expectation the Fourth of meaning The had within court found that a search occurred Amendment, due to the violated and that the marital had been privilege reasonably could in which privacy deliberate creation of a situation marital 311.) into this belief. (Id. This was “lulled” couple be to exist. expected p. 787, (Cf. (1973) Cal.Rptr. 319] 33 791 People Cal.App.3d v. Finchum [109 an attempt alone in a room was not improper communicants [merely leaving (1973) 30 Joseph Cal.App.3d re A. to create an In expectation privacy]; 880, by representation privacy Cal.Rptr. implied 885-886 729] [no [106 himself’; “by the words defendant “by a visitor’s to see granting request meaning as and be construed ambiguous reasonably himself’ were could “in other rather than custody” private.”].) from “away persons Further, ‘under court held that when “a communication is made North indication that strong circumstances where others could overhear is a easily therefore, is, the communication was not intended to be confidential and comment, Code, (Evid. v. supra; People see unprivileged. § [Citations.]’ 678].)” (North (1972) Cal.Rptr. Santos Cal.App.3d Court, 311.) Superior supra, 8 Cal.3d at the court noted Additionally, p. communication between “eavesdropping upon recording jailhouse 636; Court, (§ Superior is not barred section 630 et North v. spouses” by seq. 6.) supra, 8 Cal.3d at fn. section 636 does not mention p. Because communications, marital marital conversations recording appears permissi ble and such will be the necessary showing conversations admissible absent of an confidentiality. expectation privacy bar,
In the case at are met virtually “lulling” no factors Fords present. in an ordinary jailhouse area. the Fords’ usual visiting Although meetings were in module 7000 and were directed to module 6000 when the they occurred, taping these areas are contain virtually identical. Both modules several stations and a phone regular control booth. Both areas are used for visits of all inmates are within jail confines.
The fact that the room was of other visitors does not match the emptied deliberate made the officer North. The Fords were lulling attempts never alone as the their in the truly guard, to knowledge, always present control booth. Mrs. Ford was well aware of this fact because she had to show him her identification and guest argues arrival to the area. Ford pass upon that he and Mrs. Ford did not know that the could hear them. The facts guard short, belie such a In contention. none of the factors were which present would warrant under a North suppression tapes “lulling” analysis. sum,
In no valid assertion of the marital can privilege successfully be made the Fords because there was no justifiable expectation privacy and no intent of nondisclosure as to their conversation.
Evidence Code section 981 states that is no under this privilege “[t]here made, if article the communication was whole or to enable or aid part, anyone to commit or plan commit a crime or a fraud.”
The trial court determined that the made in December conversation was crime; in full or part to enable the commission of a the crime being obstruction of justice and removal of evidence related to a criminal activity. On the Ford advises Mrs. Ford her tape, away to throw letters from personal him. he Additionally, states that he will rid of get something. These state- ments can be construed as easily to obstruct which would attempts justice, to the marital privi- “crime fraud” exception or warrant application Santos, 402-403 (See People supra, Cal.App.3d [conversa- lege. the marital the limitation on evidence was within destroying tion about privilege].) addition, pertinent part, section 912 provides,
In Evidence Code . . . Section claim a provided . to right any person privilege “. . such protected is waived with to communication respect 980 ... coercion, has disclosed if holder of the without any privilege, privilege, of the communication.” significant part another—loudly enough one
Here the Fords were to speaking very loudly knew them. They to be heard which beyond plexiglass separated of sheriff’s person should have known that third reasonably parties were present. deputies the marital
Clearly concluding trial court was reasonable number any section 980 was not available to Ford privilege provided by indicated, “in 20 was not made of theories. As the conversation of December Further, that the there was insufficient evidence to conclude confidence.” being were not Fords were “lulled” into the belief that their conversations overheard. The trial determined that the conversation question court also made well have because it “. . . was ... may privileged not been Evidence Code commit or to commit a crime or fraud” plan pursuant 981, the “crime the trial court was faced Finally, section or fraud” exception. if with sufficient evidence warrant the that even the December conclusion 20 conversation was such was waived privileged, any privilege pursuant Evidence Code section 912.
Each of the the trial the marital are findings regarding privilege court of December 20 was supported by substantial evidence. conversation under Evidence Code section 980. privileged et Federal seq.—The 7. Title 18 United States Code Section 2510 Wiretap Statute (18
Title III Crime Act of 1968 Omnibus Control and Safe Streets U.S.C. 2510 et criminalizes the willful or disclosure of seq.) interception § alia, the introduc- certain wire or oral communications and inter prohibits, its tion into evidence of communications or derived violation of gathered It must be fulfilled prescribes procedural terms. also which requirements alia, wire before a inter can take interception, legally place. of title 18 scope
The December 20 not fall within taping does law, therefore, United States Code section The federal wiretap 2510 et seq. has no on the bearing issues before this court.
224 2510(1) a “wire communica- United section defines
Title 18 States Code tion” as follows:
“ made in or part ‘Wire means aural transfer whole any communication’ by for the transmission of communications through use of facilities wire, cable, origin like of point aid of or other connection between engaged . furnished or operated by any person . . point reception of interstate or or such facilities for the transmission operating providing foreign communications interstate or foreign affecting communications or communi- term electronic of such any storage commerce and such includes cation, of a cordless but such term does not include the radio portion the cordless telephone communication that is transmitted between telephone and the base unit. . . handset a “wire communi-
The Fords’ conversation is not within the definition of jail’s cation” because their conversation took on the intercommunica- place tion did have outside lines which could affect system. system This not (See People interstate not a carrier. commerce common operated Santos, v. supra, jail phone system 26 402 Cal.App.3d [conversation furnished facility not “wire communication” because “it involved no carrier”].) a common operated by communication” as
Ford that the conversation as an “oral alleges qualifies section, 2510(2). an defined 18 United Code section Under that States “ ” uttered aby ‘oral communication’ is defined as “oral communication any subject an that such communication is not person exhibiting expectation term under circumstances such but such interception justifying expectation, Hence, does include there to be any appears electronic communication.” that the conversants exhibit a reasonable requirement expectation in order for their fall within the 18 United States privacy conversation to 2510(2) (See People Code section for an “oral communication.” definition Santos, A., 402; supra, Joseph supra, In re Cal.App.3d Cal.App.3d 880, 883; 1985) (5th United States v. Cir. 754 F.2d Harrelson an that a conversation between an inmate and visitor was not “oral [holding regarding communication” because the had no parties expectation privacy the jail intercom telephone].) Santos,
In federal statute was found because wiretap inapplicable did not have an and the mode of communica- parties expectation privacy tion did not involve a common carrier. The on an intercom couple spoke conversation, in the at the their system visiting jail. room During Nonetheless, he husband warned his wife that the could be phones tapped. continued incriminating a hushed tone and thus made statements speak
225 York,supra, New cited v. the court Lanza Additionally, which were recorded. is 139, privacy no of expectation that holding of the support U.S. 370 visitor. and his inmate jail between a a conversation by taping violated 400, 402.) Santos, supra, at (People pp. 26 Cal.App.3d v. when of privacy a reasonable expectation Here the Fords did not exhibit short, 20, the Fords’ conver- In because 1983. on December they conversed communication,” States title 18 United as an “oral sation does not qualify us. to the issue before 2510 et does not seq. apply Code section 20 Conversation Unintelligibility the December 8. The of should 20 conversation of the December asserts that the tapes Ford that their admis unintelligible are so they not have been admitted because evi admissibility “A as to finding sion caused great prejudice. to the sound discretion dence under Evidence section 352 is left Code abuse constituted an manifestly unless it trial court and will not be disturbed 123, Cal.Rptr. 127 (People v. Hall (1980) 112 Cal.App.3d [169 of discretion. 729, 548, Cal.Rptr. 574 (People Siripongs 149].)” (1988) 45 Cal.3d [247 v. Here, tibe tapes ruled that 1306]) the trial court properly 754 P.2d impact whether their balancing prejudicial were admissible after carefully of discretion. There was no abuse would their value. outweigh probative admissible, intelligible need be recordings completely “To be tape be relevant enough intelligible the entire conversation as as is long (People v. or unfairness.” without an inference of creating speculation 814]; People v. 548, Demery (1980) Cal.Rptr. 104 559 Cal.App.3d [163 25, Miley (1984) recording [tape Cal.Rptr. 347] 158 Cal.App.3d [204 admitted]; as unduly was not containing unintelligible parts prejudicial People Phillips (1985) 711 P.2d Cal.Rptr. 423] v. Cal.3d 78 [222 affected clear was not meaning held admissible because the letter’s [letters 444, 454 People v. Finch (1963) 216 Cal.App.2d unintelligible parts]; state- showing any absent a [recordings admissible Cal.Rptr. 901] missing].) were ment was a misstatement or that material statements People supra, defendant’s Siripongs, telephone In 45 Cal.3d certain portions his knowledge. Despite conversation was without taped admissible held that the unintelligible, tape the court recording being efforts to defendant’s because understandable demonstrated portions The court further noted remove evidence from his home. incriminating were made recording by interpreters. comprehensive transcripts (Id. at admitting tapes. Court of found no abuse of discretion Appeal 574.) p. December 20 conversation
The trial court reviewed the of the recordings therein, well as those as and was aware of the contained pauses gaps testified trial parts clearly that were Mrs. Ford intelligible probative. unintelligible as that contained many portions gaps tapes *46 Her of the efforts were focused obviously upon interpretations comments. rather which would than unintelligible prove exculpatory comments gaps inculpatory. not
The trial court’s the comments the would lead tape conclusion that short, rights to the was In Ford’s to speculation reasonable. improper by jury due under the federal were violated the admis- process Constitution Further, not constitute a sion of the admission of did tapes. tapes VI, of of section 13 of the miscarriage justice meaning within the article California Constitution. in the Excluding Impeachment
C. The Trial Court’s Order Evidence Convictions, Felony Form Three Prior and Burglary ofDarlis Chefalo’s Alleged Her LAPD Evidence Reasons Hatred of Officers for 1. Darlis Prior Convictions Chefalo’s in
Before Ms. to her activities Chefalo was called to testify appliances Von Villas and with and attendant providing wigs, Ford makeup care, they for their as in their moved application, well as instructions use and in limine for her with convictions she permission impeach felony burglary to 1963, suffered in had her last paroled felony and 1965. She been from trial, 2 some 20 before the but did suffer misde January years meanor convictions 1977. No effort made to use misdemeanors convictions purposes, agreed burglary and it was impeachment were crimes of moral thus relevant the issue of credibility. turpitude, (1988) 891].) Muldrow (People Cal.Rptr. Cal.App.3d and Ford Chefalo LAPD against Von Villas asserted that Ms. was biased officers, Stone, who as she had so Jack artist had makeup indicated to referred them her. denied that interest seeing she she had an Although officers, case, according in the LAPD conviction her hatred of alleged Ford, Her impeach- Von such against Villas would militate a conclusion. ment, therefore, was her and bias were credibility deemed essential because his motive in issue. Ford’s view was that her would reflect that testimony of a objectives obtaining disguises fulfilling was for purposes makeup criminal while true motive was to so enterprise, wigs his use that the of his would be facilitated. pursuit wife’s assailant in that the
The that the convictions were remote last argued prosecution trial. felony conviction occurred 20 before years Code Evidence The court conducted the called for weighing process her first section 352 and the time of found that Ms. Chefalo was but 19 at trial, her convic- conviction some 29 before 23 at the time of second years tion, and 25 at the time third conclusion conviction. court’s that the there to be questioning convictions “. . . are too remote time for on.” 2. The Denial the Motion in Limine Permission Requesting
Impeach Ms. Chefalo *47 I, 28, (f), Article section subdivision of the California Constitution— 1982, 8, adopted by voters on June when 8 was Proposition approved by in electorate—declares that pertinent part “Any prior felony conviction in any of criminal person any . . . shall be used proceeding subsequently without limitation in for of ... criminal purposes impeachment any proceeding.” 719,
In People
(1985)
v. Castro
ment use of the voluntary manslaughter prior. it under I’m exclude highly going relevant but marginally prejudicial. of time.” of the remoteness Code because primarily [Evidence section] ,4th 655.) (2 Cal at p. for A court of made is reviewed ruling a trial the sort below (1985) (People of discretion. v. Stewart 171 Cal.App.3d abuse 705].) have con trial courts well Although may other Cal.Rptr. otherwise, “exceed(ed) here the bounds say cluded we cannot the court (Ibid.) . for felony impeach of reason. . .” exclusion of the convictions ment purposes appropriate. Into Request 3. The Introduction Evidence Denial of for LAPD Reasons
Alleged Ms. Hatred Officers Chefalo’s use through Chefalo impeach only Von Villas and Ford wished to Ms. convictions, specific her but her about by questioning also prior felony LAPD. her in her caused a virulent hatred generate instances life which *48 LAPD allegedly hatred because her child was raped This arose apparently facts and The of Ms. Chefalo on the officers. court examination precluded LAPD, Von although which caused Ms. Chefalo to dislike circumstances feelings her Ford to her about question generally Villas and were allowed the organization. toward and The analysis
The trial court’s was within its discretion. court’s ruling her was admissible against conclusion as to the material that impeachment too which was either to Evidence Code section 352 and that pursuant (Ibid.) To conclude tenuous or remote to be admissible was reasonable. merely Villas falsely Chefalo would Von and Ford testify against Ms. officers, LAPD they she at some time became aware that were because officers, LAPD was of some her child alleged wrong because to past The of trial court eyes ruling tenuous of the trial court. Chefalo (Ibid.) and an discretion. Ms. reasonable was not abuse of its clearly LAPD. To allow to the that she disliked explicit stating jury utterly her would negative feelings to for explore underlying counsel reasons Villas and Ford little or to the which Von nothing contribute conclusion would do reach: that she them jury personally wished hated see them convicted. anything The Sixth Right
4. Amendment of Confrontation trial restriction of Von Villas and Ford that the court’s finally argue of cross- their of Ms. Chefalo curtailment impeachment amounted confrontation, examination their of right violation of Sixth Amendment 513, (1988) Olden v. 488 U.S. L.Ed.2d 109 S.Ct. citing Kentucky 227 [102 thus claim that it cannot be deemed that the court’s errors were They 480]. that the trial court’s harmless a reasonable doubt. also claim beyond They the evidence alleged errors so affected an close case on seriously extremely as to presented meaning constitute a within miscarriage justice Constitution, VI, 13, California article thereof. citing section We The disagree. opportunity confrontation clause an “guarantees cross-examination, effective in what- not cross-examination that is effective extent, ever way, (Delaware to whatever might defense wish.” 19, (1985) 292], Fensterer (per 474 U.S. L.Ed.2d 106 S.Ct. Here, curiam) italics in Von Villas and were such an original.) given Ford opportunity. confrontation wide latitude judges clause allows “trial . . . ... reasonable impose limits . . . cross-examination based on con- about, harassment, cerns other among things, confusion of the prejudice, issues, the witness’ or safety, interrogation that is repetitive only margin- (Delaware relevant.” ally (1986) v. Van Arsdall 475 U.S. 679 [89 674, 683, L.Ed.2d 1431].) 106 S.Ct. The trial court did that which it was permitted restricting cross-examination of Ms. Chefalo.
An examination of the entire record leads us to conclude that the trial court’s ruling restricting counsel its examination of Ms. Chefalo did not VI, constitute a miscarriage justice within the meaning of article section 13 of the California Constitution.
D. Introduction the Ford February 1983 Calendar Withthe Blackened Out 23d Date *49 20, 1983,
On December LAPD officers seized a calendar from Ford’s residence. The date February was blackened out Mr. completely. date, Weed disappeared on or about that as the evidence at trial indicated. The trial court allowed the seized calendar evidence the objection into over of Von Villas that it was inadmissible The hearsay. prosecution successfully argued that although the calendar may well constitute as an hearsay implied conduct, statement or as nonassertive it fell within the admis- coconspirator sion to the rule exception against hearsay was admissible both against Code, Ford (Evid. 1223.) and Von Villas. §
Section 1223 in provides the pertinent part that admission of a coconspir- ator can be admissible if:
“(a) The statement was made in by the declarant while a participating to commit crime in conspiracy a . . . and furtherance of the objective of that conspiracy; was the party made or the time that
“(b) prior during The was statement in the conspiracy; participating the . or . to subject The either after . . . .
“(c) evidence is offered admission of such evidence.” identifiable writing no other analysis
Extensive scientific disclosed the calendar. blackening marks other than the date on First, evidence that there no direct Von Villas asserts because date, insuffi the that an that Ford blackened prove personally presented in this admit the calendar under section cient foundation was laid to the court . it still seems to finding trial court’s that “. . spite indeed, was, Mr. out that that extremely logical person that blacked Villas, fact, son In Von of Ford’s according testimony Ford. . . he a contrary the effect that the date conclusion. compels blackened Second, to prove even if evidence was Von Villas claims that sufficient date, it was does that that Ford blackened the the blackened date not prove kind, is inapplicable. an admission of thus section 1223 any Third, he there evidence produced claims that because was insufficient blackened, 1223 is because when the date was section prove inapplicable . made “. . while requires participating that section statement be there . Von Villas Finally, argues to commit a crime. . conspiracy was done blackening was no evidence that the date presented shown, i.e., necessary furtherance of the no motive conspiracy, be which that the statement requires element invocation of section . . objective conspiracy. made “. . . furtherance of the of that to admit the the trial court’s decision respondent upholding focuses dismissing calendar theory proffered prosecution blackened Instead, the calendar of its admission at trial. the blackened date on support as characterized it was a “statement” being hearsay is as not at all since Further, date the blackened calendar defined Evidence Code section 225.8 therein, rather contained but was not offered to the truth the matter prove *50 or state of knowledge, was offered as circumstantial evidence of Ford’s mind, the blackening time the occurred. calendar to effect that the blackened
Although respondent’s argument the attractive, and date was not at all because a statement is it was not hearsay (b) or (a) expression 225. ‘Statement’ written ‘Statement’. means oral or verbal 8“§ him verbal conduct or written person by nonverbal of a intended a substitute oral as expression.” 231 that, event, in was relevant as circumstan- its contention the exhibit any only allure, we are evidence of state mind has its (knowledge) tial Ford’s of the trial decide issue That issue is whether to the before us. compelled fall blackened calendar date court’s below was correct: does the ruling Further, Von within the 1223? we face the of argument of section purview him, as to the the thus a determination admissibility against Villas of exhibit the blackened was was not admitted to show Ford’s that calendar date or irrelevant, of is is attributable
state mind since Ford’s state of mind uniquely Ford, Villas, not Von a different legal theory. to absent consideration of the
The trial the court was determine that required proponent evidence, the as to the or carried its burden of prosecution, proof preliminary evidence that admitting foundational facts before the exhibit. This meant that was for a the sufficient reasonable trier of fact to make a existence finding First, had made the following been the statement was presented. by second, crime; declarant while in the a to commit a participating conspiracy statement made in was furtherance of the of that objective conspiracy; third, the statement made the or the was declarant either prior during Code, 403; (Evid. time the in 1 was the party participating conspiracy. § Jefferson, Benchbook, 3.5.) Cal. Evidence supra, § evidence,
The state the at the time the trial allowed the court blackened calendar into evidence as within the Evidence Code section hearsay falling 1223 was exception, clearly ambiguous. somewhat The section require- ment that the coconspirator’s object statement must further is often conspiracy broadly construed. Courts rule statement which any relates to the (See, to be v. conspiracy e.g., People furtherance thereof. Saling 610]; (1972) Cal.3d 844 P.2d Cal.Rptr. Salazar (9th 1968) United States 74.) Cir. 405 F.2d
Here, the blackened calendar was found Ford’s home some 10 months after February 23d date. No evidence tied which presented directly date, Ford to the act of blackening the such as scientific fingerprint other nor it proof, shown that he in some had to the way sole access exhibit hand, during the relevant time frame. On the other the trial court was presented with testimony Ford’s son’s which was defense presented he, father, an effort to convince the court that his had the date blackened conclude, question. trial court was position reasonably reflects, record that Ford’s son was subject impeachment. of considerable Further, Ford, it wife appeared only his and his son were who people conclude, had regular access to the calendar in We based on a question. record, complete review of the that the reasonably trial court determined foundation been proper had laid for of the exhibit the submission *51 Villas, recog- We Von a against coconspirator. section 1223 as through jury the admis- been presented support nize foundations have stronger that its “statements,” abuse did not that the trial court but conclude sion of such the exhibit. admitting discretion both Von to trial wide latitude judge gave
The record also reflects that the if the blackened dilute the impact, any, and Ford in their efforts to Villas the admitting did err in Even if the trial court jury. date on the calendar 1223, we to section pursuant the admission of a coconspirator exhibit as error, (1956) 46 (People v. Watson if was harmless. any, conclude such 243].) Cal.2d 818 P.2d “Ory"
E. The Note search, 20,1983, LAPD a pursuant officers of conducted On December warrant, and present home. Mrs. Von Villas a search of the Von Villas reference to “Mr. contained Ory” had her a note which made person incriminatory. were entries which the determined prosecution various other created Mrs. Von by the conclusion that the note was The record supports therefore argued Von Villas. The prosecution Villas at direction of note, exception. if fell within the authorized admission it was hearsay, Code, that admission (b).)9 To Von Villas’s contention (Evid. subd. § 980, the privilege Evidence Code section the note would be violation of communications, successfully marital the prosecution afforded confidential confidential, it was if were considered that even the communication argued it a to conceal the marital because constituted protected by privilege plan through its status justice, losing privileged evidence and obstruct thus Code, (Evid. 981.) “crime or fraud” exception. § warrant to recover executing attempted When the officer the search Villas, hide the note. She Mrs. Von she apparently attempted note from Mrs. Von Villas also stated “Those are notes of husband.” efforts of my the trial court hide or secrete the notes was found inadmissible by admitting to Evidence while her comment Code section pursuant a the notes were from her husband was found to be admissible as spontane- Evidence 1240. ous statement Code section pursuant that the trial court need not have reached Again, argues respondent determination that the note was as the contents of the note hearsay (“police 1222(b). against party is not Authorized admission. Evidence of a statement offered 9“§ hearsay made rule if: inadmissible “(a) by person party The statement was made to make a statement or authorized statement; (b) concerning subject statements for him matter of the The evidence is or, finding authority offered either after admission of evidence sufficient to sustain a of such evidence.” proof, subject in the court’s discretion as to the order of to the admission of such
233 alia) inter Ory jail,” have number” and “Mr. close friend might your phone were hearsay were not offered the truth of the matter and thus not prove to We trial error at are asked to determine whether the court committed all. time; the under the court at the not to admitting theory note the before the of on a new and different readjudicate admissibility theory. issue There trial the was sufficient record before the court to warrant that reasonable conclusion the contents of the note admissions represented that Code 1220. Von Villas were admissible under Evidence section properly Further, there reasonably was sufficient evidence to allow the court to note, Villas, conclude that Von the the position Mrs. author of The under authority. therein was information contained thus admissible 1222, Evidence (b). Code section subdivision the trial that finding by court the afforded confidential privilege marital communications did not attach to the note because of the “fraud crime” forth in Evidence exception set Code section 981 was supported substantial evidence.
The trial court did not abuse its There admitting Ory discretion note. error. no F. The Trial Court’s to It Jury Required Instruct the That Was Refusal Unanimously Upon Agree Specific Overt Act Committed in Conspiracy Furtherance Each
Ford
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Cal.App.3d [182 v. Court (Feagles overt act is an essential element of conspiracy Superior 735, 197]), contends that (1970) 11 739 Ford CahRptr. Cal.App.3d [90 Thus, Ford argues failure a instruction amounts to error. give unanimity “absurd,” the trial court’s reli- that the Jones decision is and consequently misguided. ance thereon was Diedrich, Moore, and Deleito are Crawford,
This is incorrect: argument offense, criminal involving constituting cases acts the multiple proscribed An act a conspiracy not overt acts of a overt of multiple alleged conspiracy. an actual has been held to be of the of the case rather than part “theory” 516-517; Jones, at (People supra, element of v. 180 conspiracy Cal.App.3d 596, 538], (1991) v. 231 People Cal.Rptr. Cribas 611 Cal.App.3d [282 den.). review that are the multiple The authorities cited Ford entail acts offense, act elements of an which a criminal present not “theories” multiple Diedrich, People v. jury. (People supra bribery]; to the v. acts of [multiple Moore, Deleito, supra, People acts of “drive v. [multiple by” shootings]; Crawford, supra, supra, People acts of oral v. [multiple copulation]; [multi ex-felon].) acts of of a firearm an This distinction is ple possession it the significant jury agree because is not one necessary require more of the several theories it is sufficient presented by prosecution; each is that the defendant is juror convinced a reasonable doubt beyond in and murder guilty burglary offense. This rule has been applied 560, 103, 414 (People (1966) cases. v. Failla 64 567 Cal.Rptr. Cal .2d [51 584, (1951) P.2d Cal.2d 586 People v. Nor Woods 37 [burglary]; [233 39] [theft]; People (1951) P.2d v. 37 Cal.2d 670-672 P.2d 897] [234 Chavez [murder]; (1973) People v. Milan 9 Cal.3d 195 Cal.Rptr. 632] Hence, [murder].) is 507 P.2d the assertion that Jones is “absurd” 956] act incorrect because Ford fails to the distinction between an overt recognize act that constitutes a “theory” as of the of the crime as to an part opposed crime. Jones,
In in regard the court held that an instruction specifically unanimity an to overt acts was not “Inasmuch as the overt act . . . is not required: crime, actual element of the it that the need be unanimous jury only follows an overt act in furtherance finding conspiracy, was done Hence, overt act was . the overt act is finding particular part done. . . case, Thus, “a trial of the not an act the offense.” ‘theory’ constituting unanimously agree court need not instruct the must as to jury they [sic] Jones, supra, 180 (People overt act done of a v. pursuance conspiracy.” 516-517; Cribas, at Cal.App.3d People supra, Cal.App.3d p. v. pp. 611.) stems
Jones teaches that the rationale the overt act underlying requirement that this from concerns of crime of contends evidentiary conspiracy. Ford rationale is would dictate which evidentiary “absurd” because concerns then are elements to be included the definition crime. Ford fails to any recognize scope simply Jones decision. Jones concerns conspiracy. crime; It is narrow deals with a ruling consequently, which unique Jones rationale does not to elements of crimes. other pertain
Other have unanimity cases maintained dicta that a specific, separate, be (1987) instruction must submitted to the (People jury. Ramirez *54 603, 645]; Cal.App.3d People (1991) 611-613 226 v. Brown Cal.Rptr. [233 1361, Cal.App.3d 309].) 1369 The and Brown Cal.Rptr. opin [277 Ramirez are ions based the upon ruling that an overt act is an essential of a element court, (Feagles 739), Superior supra, v. 11 conspiracy at Cal.App.3d p. thus must jury unanimity be assured.
This view fails to the recognize distinction Jones: an act overt espoused is an essential element in that it the which is a criminal theory proves Further, rather than conspiracy, an element in the actual crime of conspiracy. and Brown fail credit refute Ramirez the the reasoning behind Jones conclusion. Jones states that an overt as the of evaluating part “theory act a case” is in “logical of the light stated for the act: purposes requiring overt allowing termination agreement of the punishment avoid and requiring proof Therefore, of an intent to act the evil thoughts on of the conspirators.” ‘the overt act merely establishes the legal existence of a criminal conspira- “ ” cy,” and thus isit ‘the not agreement, the act is overt punishable.’ Jones, 516, (People v. supra, omitted.) 180 Cal.App.3d p. italics Lastly, Jones, at the time trial court decided to on it was rely bound to follow Court of Appeal decision. “Under the doctrine of stare decisis, all tribunals exercising jurisdiction inferior are to follow required decisions of exercising (Auto courts superior jurisdiction.” Equity Sales Superior (1962) Court Cal.2d 937].) 455 Cal.Rptr. 369 P.2d Therefore, the trial court’s reliance on Jones not was as “misplaced,” contends, appellant but inwas fact mandated. there no Accordingly, error. Newspaper
G. The Photo Ford and Von Villas Found in Janie Ogilvie’s Desk December 1. Factual Summary 20, 1983,
On December LAPD officers found article dated newspaper 30, 1983, in September Jan Ogilvie’s desk at the lab. It contained a photo- of Von Villas graph and Ford together huddled and a handwritten notation “Jan, pointing well” with a arrow handwritten sleeping are you stating, hope in hearing The article dealt with the preliminary Villas the picture. at Von direct its during prosecution It was offered case. Loguercio to the according prosecution, Its relevancy, of Ms. Ogilvie. examination rather to show were but and Ford conspirators, to show that Von Villas is, her possession mind—that continued state of Ogilvie’s Ms. that she acknowledgement as a tacit interpreted could be clipping reasonably which smacked Ford a matter to Von Villas and was connected light to the prosecution This became wrongdoing. important Villas and the Von had fabricated deliberately defense claim that Ms. Ogilvie deflecting in the interest of kill Weed scenario Ford contract to Mr. harsh she punishment escape death to others order to blame for his deserved, view, her death on own. masterminding his their if could be shown be refuted it view was that such a claim would prosecution Von clipping depicting an incriminatory that Ms. continued to Ogilvie keep murder of Mr. with the charged and Ford with her even before she was Villas *55 Weed. of certain versions the trial decided to admit
The record reflects that court counsel. by described as “whipsawing” the after what can best be clipping the only photograph delete the article and offer The offered to prosecution to originally objected present- Ford with the arrow and handwritten notation. thereon writing the the to his because ing clipping jury photo of the until after termination and because the article did not hearsay appear of the photo did to introduction object Von Villas conspiracy. originally to objected the and later the handwritten notation and arrow objected but the would be admitted the The trial court first ruled that photo as well. photo would be notation and arrow as to Villas but that the handwritten only, Von the objected presenting clipping excised the exhibit. Von Villas then from to do so would while the was absent because jury to the Von Villas Ford jury than Von Villas.” Ford guilty the that “Ford is less jury indicate to Von Villas problem. Von Villas’s that a instruction would solve suggested cautionary excised, the as ruling, ordering clipping, its changed trial court then that the be clipping Ford then juries. requested would be to both presented included but arrow and handwritten notation to his with the presented jury trial and the with face excised. Von Villas to this objected procedure, Ford’s included would be with the arrow only court ruled that the finally clipping handwritten with no arrow or the Ford while the jury clipping presented jury. be to the Von Villas presented notation would in her desk. having been Ms. authenticated as Ogilvie clipping handling When trial court reviewed the exhibits for of purposes objections to their the conclusion of the case-in- admissibility prosecution chief, no to the objection Ford’s counsel indicated that he had specifically of the clipping introduction with arrow. The Consequences Object
2. Ford’s Failure to of of the Although counsel for Ford to the introduction originally objected it Ogilvie became clipping, apparent during cross examination Ms. he believed the for clipping purposes. would be useful impeachment have Specifically, may counsel Ford that Ms. attempted Ogilvie show learned use of as the defendants disguises, such wigs makeup, her rather with through articles than actual contact reading newspaper them. In fact Ford’s counsel elicited the substance handwritten well”) notation (“hope you’re before and even introduced sleeping jury an enlargement of the headline of the article an effort to newspaper Ms. impeach Ogilvie’s recollection of the disguises used defendants. Ford’s tactical object decision not to to the introduction as clipping Code, 353, excised (Evid. constitutes waiver of the issue on subd. appeal. § (a).)
3. The Clipping Properly Was Admitted
Ford’s in argument the to the admission of is opposition clipping grounded on a hearsay is theory—the more than an anon clipping nothing ymous person’s in the opinion Ogilvie’s Ms. of Von guilt using services above, Villas and Ford kill to Mr. Weed. The as indicated prosecution, offered the clipping different rebut totally proper the purpose—to contention that Ogilvie Ms. acted in with doing alone Mr. Weed. The away trial court requested input with respect limiting might instructions that ease the defendants’ concerns about the any misuse of evidence the by jury, Code, but none was (Evid. 355.) forthcoming. § It should finally be noted that counsel use in for Ford did the clipping and, fact, cross-examination of Ms. Ogilvie, to the matters presented jury contained thereon which the court trial had excised Surely from exhibit. any error that the trial court may admitting have committed arguably Watson, clipping 836.) (People supra, harmless. v. 46 Cal.2d H. Jury Instruction Concerning Presence or Absence Motive The Ford jury was instructed as follows:
238 element and need not be shown. charged
“Motive is not an of the crime However, lack motive as a circumstance you may consider motive or motive Absence of guilt. this case. Presence of motive tend to establish may absence, its as give tend to establish innocence. You will may presence be, the which find it to be entitled.” you case may weight evidence presented Ford contends that because there was no kill the trial court committed he had a motive to Mr. Weed directly proved Further, because Ford reversible error when it read the motive instruction. to financial unsusceptible did not evidence that he was present particularly as of the instruction with absence of motive gain, portion dealing and, indeed, establishing unjustified. innocence was unnecessary if nor out that even the record neither motive Respondent points provided evidence, absence of motive error of the motive instruction any giving (1977) (People Cal.Rptr. was harmless. v. Rollo 20 Cal.3d [141 771].) In those disregard 569 P.2d fact the was instructed to jury did which which the determined jury instructions to a state of facts applied not exist. 833], People (1984)
In Cal.Rptr. Cal.App.3d Martinez reversible court found that the of the motive instruction constituted giving under the facts of from this case error that case. What distinguishes Martinez there was an is the fact that the defense thus entrapment, Martinez in the alleged admission the defendant that he fact did that which was under those instrument. of a motive instruction charging Clearly giving have would have well confusing jury may circumstances been them, In the case at bar the mislead as motive was a irrelevant issue. totally reach a jury of the balanced motive instruction allowed the giving reasoned inference based on the evidence.
theAs court opined: Martinez *57 harmless, “Our high court has declared that ‘such an error is usually ’ little having charge.” or no effect “other than to add to the bulk of the There is for concern when an or irrelevant ground only abstract [Citation.] instruction creates a substantial risk of the to the defendant’s misleading jury (Rollo, prejudice. supra, People 20 Cal.3d at v. from p. quoting Sanchez (1947) 673].)” (157 669.) 30 Cal.2d P.2d at Cal.App.3d p. We find that the of the motive did create a substan- giving instruction not tial risk of the There its misleading jury. by was no caused Ford prejudice Rollo, reading. (People supra, 123.) 20 Cal.3d Jury Concerning I. The Instruction Admissions (1980 rev.) which defines Ford to the of CALJIC No. 2.71 objected giving an the evidence an oral admission of a “admission” cautions jury defendant should be viewed with caution.11 court,
The at from the instruction trial Ford’s struck two sentences request, and read the following:
“An admission other than his trial by is a statement made defendant crime(s) which does not itself his which he by acknowledge guilt of the trial, is on but which when with statement tends to his considered prove guilt the rest of evidence. “You are the judges exclusive as to whether the defendant made an admission, so, and if whether such statement is true whole or part. of an
Evidence oral admission of the defendant should be viewed with caution.”
Ford contends that the statements he during made the conversation 20, 1983, with his wife of December were and thus the issue ambiguous as to whether they constituted admissions was crucial to the case. He defense claims that giving admissions instruction misled the jury created confusion it strongly suggested that statements were as a admissions matter law. We disagree.
The instruction it clearly points out that was within exclusive province jury determine whether by statements made Ford were any “admis- sions”. Ilie jury was not railroaded in did any way. trial court commit error when it instructed the by the modified CALJIC jury giving No. 2.71.
J. Judge Ruling Judge Williams’s on the Section 995 Motion After Altman’s Ruling Tentative Thereon case,
Before the Weed case severed from the Loguercio Judge Alt- man, trial, originally assigned preside over issued a tentative ruling (1980 rev.) 11CALJIC No. 2.71 reads: “An is a admission made statement defendant other than at his trial does not which trial, acknowledge guilt crime(s) itself his but for which he is on which statement tends prove guilt his when considered with the rest of the evidence. admission, so, “You are judges the exclusive as to whether an and if defendant made whether such statement is in whole part. you true or in If find that should the defendant did *58 statement, not you reject make the you part, you must it. If find that true in whole or in it is may part consider that you which find to be true. an “Evidence of oral admission defendant with should be viewed caution.” in the to commit murder certain overt acts Weed striking charged conspiracy alia, inter The were included allegations, count. overt acts that stricken inter- and arrangements were involved certain discussions coconspirators 15, 1985, made on ruling July nal to the tentative conspiracy. motion). (hereafter Uncertain as Ford’s section 995 motion response arrangements among coconspirators to whether the internal discussions and acts, ruling could constitute overt Altman couched his tentative legally Judge A stay granted the form of alternative and provisional judgments. to file a for writ of order to the an provide prosecution opportunity petition mandamus or to a memorandum of and authorities which prepare points on the issue. fully legal arguments would more set forth prosecution’s the internal discussions Although Judge among Altman was of the view that did acts under the conspiracy constitute overt coconspirators legally count, them, amended to struck that the information be initially ordering act, Weed, reflect he did indicate that his one overt of Mr. killing Thus, assessment of the have he issued two tentative may law been incorrect. law, and the other findings, alternative one his view of reflecting law; did reflecting the view of the that such discussions prosecution’s constitute overt acts.
Rather than review of the alternative orders or pursue appellate provide matter, Altman Judge with additional authorities on the the prosecution chose to exercise its Altman to Code challenge Judge pursuant peremptory of Civil Procedure section 170.6 on 1985. July Williams, eventually transfer of the matter to who Upon Judge presided case, find that Loguercio urged over Ford and Von Villas the court to in the con- Judge Altman’s tentative the relevant overt acts ruling striking count was a final failed to spiracy judgment. prosecution pursue Because its and authorities appellate remedy present points its memorandum of it had support legal argument, argued, of its counsel for Ford and Von Villas waived benefits of offered Altman. The any remedy by Judge prosecu- conduct, tion’s had rendered Altman’s they argued, Judge original ruling striking relevant overt acts a final order.
Judge Williams reconsidered the in the and ruled issues raised 995 motion that the internal discussions and did arrangements among coconspirators legally constitute overt acts.
Ford now that Judge Judge claims Williams’s decision to reconsider Altman’s earlier alternative an ruling on 995 motion constituted abuse and, case, discretion under the right circumstances of his of this violation to due process of law.
241 21 (1971) re Cal.App.3d In Kowalski argument Ford’s initial is based on 444], stated motion “[o]rdinarily, 70 wherein the court Cal.Rptr. circumstances are changed under section should not be renewed unless 995 a defendant shown which on the whether significant question have bearing Proc., (Cf. Civ. indicted or committed without cause. Code probable 1008).” §
Ford’s on The that judge reliance Kowalski is initial trial misplaced. case the granting requested by entered a final the relief clearly judgment A defendant when he dismissed the different was thereafter judge indictment. assigned the and ruled initial dismissal judge’s ruling granting case that the his, of the Trial judge’s, jurisdiction. indictment was the initial beyond set on the indictment which had dismissed. The Court of Appeal been ruled correctly that initial motion was not judge’s granting reviewable trial by another court judge.
Here the tentative Altman was not final. express ruling presented by Judge Indeed, Judge Altman on the merely parties legal informed of his views issues presented, set forth the rulings, options alternative for presented final prosecution pursue. Because there was no clearly judgment, free, Judge Williams was make a legally, ruling final on 995 motion. Kowalski is inapposite.
Next Ford claims that Judge by ruling Williams committed error 995 motion because the Civil challenge under Code of Procedure peremptory section 170.6 should never have allowed in He argues been the first place. filed, that because the was not Altman peremptory challenge timely Judge should not have allowed for Ford in challenge. Interestingly, counsel his opening brief when he appears frailty admit the of this states: argument “Here, were not normal appearances flattering. eschewed People proce- dures an adverse testing ruling, challenge Judge and chose rather to Altman or peremptorily—a procedure scrutiny. that allowed for little no Judge Altman abided direct authority case and recused himself the face of a legally challenge.” Judge We decline to find error in Altman’s proper response to the peremptory challenge Judge accepting Williams’s case after the challenge. Von
Finally, Ford and Villas contend that it was the of Judge combination Williams’s modification rulings Altman’s tentative on the Judge motion the circumstances under he which was the case after the assigned peremptory challenge of claim there Judge Altman elevates their was an abuse of discretion on the that their rights court to a claim part violated, to due law were process of requiring reversal of their convictions. We disagree.
There is in nothing constitutionally irregular a trial judge reconsidering tentative ruling judge, especially another when that other judge expressed some reservation as to his or her which understanding legal issue the subject of the tentative ruling. Judge Williams entered a final merely ruling based his of the upon interpretation law. As to peremptory there is challenge, no direct of that court. challenge procedure before this To indicated, ante, as contrary, Ford seems to that the suggest challenge “legally his proper” opening brief. we
Accordingly, conclude that there was no abuse of discretion below and that the right to fundamental fairness assured Ford and Von Villas the due process clause of the federal and state Constitution was not violated by Judge Williams modifying Judge Altman’s tentative on the 995 ruling motion.
K. “Internal Discussions and Arrangements” Properly Alleged Can Be to Be Overt Acts in Furtherance Conspiracy aof
Ford contends that the trial court erred when it allowed the prosecution to certain allege actions as overt acts of the conspiracy commit murder. He asserts that Judge Williams’s modification of Judge Altman’s tentative involved an rulings incorrect assessment of the law and is, therefore, reversible error.
Judge Williams allowed discussions and arrangements between cocon- to be spirators pled as overt acts of the Ford states that these conspiracy.12 actions constitute the formation of an illegal agreement, not overt acts prosecution 12The pled Judge following Williams allowed the to be included as overt acts in commit conspiracy murder count: meeting 1. The Ogilvie Reynolds, between Ogilvie in which states her desire to have Weed killed. Ogilvie 2. inquires as to whether Von Villas can be trusted. $20,000 Ogilivie 3. asserts that pay she had for the murder. Reynolds 4. promises to call Von Villas. Reynolds $20,000 5. phones Von Villas and Ogilvie states that pay will for Weed’s murder. Reynolds Weed, 6. asks Von Villas if he would kill and Von Villas answers in the positive. 7. requests Von Villas description Weed’s and address. requests town, 8. Von Villas information regarding Ogilvie dates in which would be out of so that Weed could be killed on a day Ogilvie when has an alibi. Von Villas states 9. that he will Ogilvie call and use the name of Ory. Mr. Reynolds 10. informs Von Ogilvie’s Villas of home and business number. Reynolds 11. Ogilvie calls and states that Von Villas had phone her number and would be calling under the name Ory, of Mr. seeking information about Weed. 12. Von Ogilvie. Villas calls This agreement. furtherance of made in the defini argument light is an tion of overt act v. adopted by People Court Zamora Supreme 538, 549, (1976) 18 Cal.3d footnote 8 557 P.2d Cal.Rptr. 75]: outward act done of the and in an pursuance crime manifestation of “[A]n intent or design, looking (Chavez toward the accomplishment crime. (9th United 1960) 817.)” States Cir. 275 F.2d Ford asserts that all overt *61 acts alleged by the are and prosecution agreements, arrange “internal plans, ments of the in and this are not conspirators,” “outward” actions capacity done in pursuance, but rather acts in creating done a conspiracy.
Ford contends that “internal discussions and arrangements” coconspir- ators cannot possibly constitute overt He that an acts of claims conspiracy. tentative, “overt act cannot occur until firm the is and no agreement longer and extends outward from the into action intraconspiratorial arrangements terms, toward the In agreed upon goal.” Ford infer- simple argues (through ence from the definition) Zamora discussions and any arrangements between done in conspirators of a criminal preparation act cannot be an overt act. Essentially, appellant urges this rule court to that an overt act must constitute a decisive one step, by toward the the conspirator, commission of crime. This position lacks merit.
It is well settled that at common law the offense of conspiracy made; when complete the unlawful agreement was no overt act further- ance of such needed conspiracy to be or alleged proved. (Landgringham v. 186, 188; (1874) State 386; 49 (1850) Ind. State Ripley v. 31 Me. Common- 74; (1809) wealth v. Warren (1807) 6 Mass. 2 Commonwealth v. Judd Mass. 329; People California, however, (1849) v. Richards 1 216.) Mich. In section 184 an requires overt act be done furtherance of the of the object conspiracy before the offense is complete. (People (1965) v. Olson 232 480, 760]; Cal.App.2d 490 People (1894) Cal.Rptr. [42 v. Daniels 105 Cal. 262, 720].) 264 P. [38 noted,
As “an outward act done pursuance of crime and manifestation of an intent or design, toward the looking accomplishment address, 13. number, Von Villas requests photograph, Weed’s description, phone automo- number, bile license daily and routine. 14. found, Von Villas Ogilvie states to that Weed disappear would and not be and that the job could be accomplished away while she was in Dallas. 15. Von Villas states that an professional, out-of-town named “Dickie” would contact her. Ogilvie gives 16. Von Villas the sought information in overt act No. 13. 17. Von Ogilvie Villas tells that he will call back with a price determining after difficulty job. back, 18. Von Villas calls states price and payment. the manner of $7,500 Ogilvie deposits 19. in a gas car at a Valley. station in the San Fernando $5,000 Ogilvie 20. deposits another gas in a different car and station. states, 21. Von Villas calls and acknowledges payment you and “I’ll let know when it has been taken care of." 244 Zamora, 549,
the crime” an fn. {People supra, is overt act. v. 18 Cal.3d at p. 8.) This act need not “constitute crime or even an to commit attempt crime which it that such object. is ultimate Nor is conspiracy’s required act, itself, and act.” v. step {People be a criminal or unlawful Profit 849, accord, 148]; (1986) People 183 882 v. Cal.App.3d Cal.Rptr. [229 174, McKinney (1963) act 218 177 overt Cal.App.2d Cal.Rptr. [32 175] [an need not amount to an and aiding to commit offense or to attempt “The abetting].) of an overt act before the can be requirement conspirators , prosecuted p[o]enitentiae—an exists . . . a locus punished provide reconsider, for the terminate the opportunity conspirators agreement, Zamora, thereby {People supra, avoid 18 punishment for v. conspiracy.” 8; Olson, 480, 490; Cal.3d People fn. see p. supra, Cal.App.2d People (1962) v. Crosby Cal.2d 375 P.2d Cal.Rptr. 839].)
Ford asks this ingo court to consider how far this overt act must furtherance of the crime He illegal design suggests before the is complete. acts, discussions and are overt but arrangements among part not conspirators Therefore, of the inception agreement. criminal an overt act can only occur after a has been decided This is “complete plan” upon. reasoning incorrect, because it does not take account the nature “the agreement” into of in a criminal conspiracy. act, crux,
The punishable or the a criminal evil very is the conspiracy 732, (1962) corrupt agreement. (People v. Marsh 58 Cal.2d 743 Cal.Rptr. [26 300, 300]; 376 P.2d People Aday (1964) v. 226 523 Cal.App.2d [38 199].) Cal.Rptr. This a agreement is not occurrence: the tangible specific cannot, time when a common in illegal comes into existence most design instances, act; be identified. For this reason an is a continuous agreement thus (1951) is said to conspiracy (People be a crime. v. Hess 104 continuing view, 65].) Cal.App.2d 678 P2d With we decline this to hold [234 that an overt act can only agreement be committed after a is complete formed, Thus, because an agreement is continuous. a punishable agree once formed, ment is internal discussions and between arrangements coconspira tors can constitute easily (See, overt acts furtherance conspiracy. e.g., People (1991) v. Sconce Cal.App.3d Cal.Rptr. (alleged 59] overt acts consisted of defendant’s out the intended victim a pointing coconspirator, solicitation of coconspirator’s another and defend conspirator, ant’s inquiries one kill” coconspirator victim.) to “to take care of and
To properly analyze this issue we look to whether the acts are simply “outward done of the crime and in an pursuance act[s] manifestation of intent or design, looking toward the (People of the crime.” accomplishment Zamora, 8.) supra, any 18 Cal.3d at fn. “Outward” refers p. acts that manifest a criminal If the tangible conspirators partake, intention. discussions, themselves, in regard among arrangements, and preparation act, mere to and for the criminal then have ventured criminal they beyond intention and them the overt act forgone require afforded opportunity reconsider, thereby ment: “to terminate the and avoid agreement, punishment (Ibid.) arrangements among for Such discussions and con conspiracy.” can, therefore, in crim constitute overt acts spirators chargeable properly inal conspiracy prosecution. case,
In this did err Judge allowing Williams prosecution acts allege discussions and between the as overt arrangements coconspirators two, of a (overt acts conspiracy. solicitation of additional conspirators four, five), and and the requests regarding plan information the victim thirteen, seven, kill (overt fourteen), Mr. Weed in acts and general eight, payments (overt to secure a assent to the acts coconspirator’s conspiracy three, and eighteen through twenty), numerous conversations phone out, out the laying manner which the would be carried all look conspiracy toward the of and intent the crime. accomplishment manifest an to commit
Ford also argues that these “allowing to stand as overt acts also allegations had a prejudicial affect on the outcome the murder case itself.” Because we conclude the trial judge’s order the internal allowing discussions *63 arrangements to be as overt acts was we need determine alleged proper, whether allegations had a the murder prejudicial impact on case itself.
L. The Trial Court’s Jury Decision Not to Instruct the to Determine Defendant, Whether Each Individually, Charged Wasa Member Conspiracy (CALJIC 6.22) No. Von Villas contends that the trial court erred because it failed to defendant, instruct the that it jury must determine whether each individually, was a member a charged (CALJIC 6.22.)13 conspiracy. No.
He that the argues lower court had a sua to duty, sponte, give instruction pursuant People (1951) to v. Crain P.2d Cal.App.2d [228 Crain held that 307]. CALJIC No. 6.22 given, must be sua cases sponte, where more than one (102 defendant is charged with conspiracy. Cal.App.2d 581-582.) at pp. This requirement ensures the inherent risk of against 13CALJIC No. provides: 6.22 to, receive, “Each defendant in this case individually is entitled your and must determina- tion whether was a alleged conspiracy. you member of the [he] [she] As each defendant must determine whether was a conspirator by deciding willfully, whether [he] [she] [he] [she] intentionally and knowingly joined any with alleged conspiracy.” other or others in the
prejudice when defendants are multiple tried in a jointly single conspiracy charge.14 Von Villas’s lacks argument merit. Crain,
Von Villas’s reliance on supra, is erroneous. Crain applies only cases where a single jury determines the of a In guilt number of defendants. defendant, this case two separate juries were impaneled, one for each determine the guilt tried jointly defendants.
Separate juries afford protection to a when extrajudicial defendant state- ments or other evidence cause might undue prejudice jointly tried codefendant. (People (1989) v. Harris 47 Cal.3d 1070-1072 [255 619]; Cal.Rptr. 767 P.2d People (1981) v. Wardlow 118 Cal.App.3d Thus, 500].) 382-387 Cal.Rptr. use of dual juries alleviates the inherent risks of prejudice Hence, arising single jury, defendant cases. multiple Von Villas’s contention that he was prejudiced by the failure to submit CALJIC No. 6.22 lacks merit. The use of dual juries fulfills the underlying rationale which made CALJIC No. 6.22 a instruction in required multiple court, therefore, defendant A cases. trial is not necessarily required to instruct the with jury CALJIC No. 6.22 multiple-defendant, multiple-jury cases involving conspiracy.
In support of his argument Von Villas points to where specific instances his jury was allowed to view evidence relating only to Ford’s prosecution. He defense, states that these instances did in fact prejudice his thus failure to read CALJIC No. 6.22 was error. Von Villas’s argument is inap- If posite. evidence was improperly presented to the Von Villas jury, Von Villas’s remedy was to request a limiting instruction at the appropriate point incidents, in the occur, trial. Such even if did they would not impose sua sponte duty the trial upon judge to instruct with CALJIC No. 6.22.
Accordingly, there was no error when the trial court failed to instruct the *64 sua jury, sponte, determine whether each defendant was a individually member of the alleged conspiracy.
M. The Sufficiency the Evidence Against Von Villas and Ford of
Von Villas claims that the evidence is insufficient to sustain his conviction and that this lack of evidence rises to the level of constitutional insufficiency. joins Ford generally Von Villas’s claim by reference and 14This risk is 675, described in Superior (1970) Castro v. Court Cal.App.3d 9 692 [88 Cal.Rptr. as: 500] psychological “The reality that against in a trial conspirators, a number of a weak case against one defendant strengthened will be by a mass of evidence only relevant to his codefendants.”
247
insufficiency
his
support
assertions
analysis
any specific
without
was sufficient
that there
convinces us
A
the entire record
review of
claim.
Villas and Ford.
Von
of both
the convictions
support
evidence
in most
theory
claim on
insufficiency
his
Von Villas bases
proof
the circumstantial
cases”
“circumstantial-evidence-of-corpus-delicti
evidence
connected
closely
or to someone
spouse
murder
to a
pointed
200, 749
(1988)
Cal.Rptr.
The California Court Supreme as opposed evidence the trial is circumstantial presented during principally direct, the review is no different. standard of that the circumstan court itself believe though appellate may “[E]ven innocence, evidence with defendant’s reasonably tial be reconciled might of the trier of interference with the determination this alone does not warrant direct or circumstan fact. Whether the evidence is presented [Citations.] tial, any whether reasonable ... remains appeal relevant inquiry a reasonable guilty beyond trier fact have found the defendant could Cal.3d 118-119 (People (1982) v. Towler doubt. [Citations.]” 1253].) 641 P.2d Cal.Rptr. us not
A entire record below convinces review of the complete murdered, trier of but also that a reasonable that Mr. Weed had been only as guilty charged beyond fact have Von Villas and Ford could found *65 reasonable doubt. Von Villas Villas to kill Mr. Weed.
Ms. testified that she Von Ogilvie paid The real Mr. avoid detection. use the name “Mr. as an obvious alias to Ory” had been a Von him Ory friend of Villas but had not talked with personal $7,500, “Mr. told that she him years. Ory” Ogilvie Ms. owed which state- ment, circumstances, under the her the clearly was a deed of message Mr. Weed killing had been The facts and circumstances accomplished. Mr. Weed’s surrounding ment, the condition of his disappearance, including apart- activities, his abandoned car and the total cessation of his normal daily evidence from which infer provided ample trier of fact could that his the was disappearance Combined with the other evidence of the Von involuntary. Villas and in Ford conduct with Ms. there was substantial dealing Ogilvie, evidence from which the jury could infer that Mr. Weed was reasonably murdered. Ms. Reynolds’s indicated that she asked Von Villas testimony whether he had taken care of Ms. “the Ogilvie’s His problems. response I only thing that can tell you is that there’s a lot of between here and space Las Vegas and that Julie doesn’t have to about Tom Weed worry anymore.” He told her also that Mr. Weed was The testimony Ogilvie dead. of Ms. about the money corroborated drops other evidence that Von implicated Villas, as the of the description first car into which the money placed Further, was similar to the Von Villas car. of a account discovery savings deposit ticket with the name “Jan the words “ROS” and “RES” Ogilvie”, number, reflecting location of the drop, Ogilvie’s Ms. and the telephone “6”, in number Von car Villas’s also corroborated her The first testimony. money to Ms. drop, according Ogilvie, occurred at at approximately p.m. Roscoe and Reseda Boulevards. toll records Additionally, telephone generated Von Villas’s home reflect that a call was from telephone placed that number to Ms. lab Ogilvie’s at 5:15 Motive p.m. February 1983. evidence was provided by of Ms. and Ms. West that testimony Reynolds Von Villas was search of to kill order make opportunities money. Ford, As to Ms. Ogilvie’s testimony concerning of both appearance defendants her home together and the obvious discussions Ford’s presence to kill concerning plans Mr. Weed was substantial evidence of Ford’s involvement in the The use plan. disguises both Ford and Von Villas, including wigs and which were later makeup found Ford’s resi- dence, their during meeting with Ms. Ogilvie was Also presented jury. 23,1983, date, found the Ford residence was a calendar with the February addition, the date of Mr. Weed’s In disappearance, totally blackened out. 20, 1983, tape recording December discussion between Ford and his wife contained many incriminating statements which reflected Ford’s knowl- edge of and in the murder participation of Mr. Weed. conclusion,
In we find that the evidence was sufficient to sustain the convictions of both Von Villas and Ford on both the and substan- conspiracy tive murder A counts. reasonable trier of fact could have found each defend- *66 Towler, Cal.3d (People supra, v. a doubt. beyond ant reasonable guilty 105.) Be Considered Ordinarily What Would Appellants’
N. The
Claim That
This Was
Because
Prejudicial Error
Error Was
Harmless
Transformed
a “Close Case”
478], for the
P.2d
(1942)
Citing People Zemavasky that prejudicial bemay that a close case error considered proposition any first, this a Villas that was would not be so Von claims ordinarily regarded, and, second, thus trial court should close case committed errors any considered would be they ordinarily be reversible although considered error Zemavasky court stressed harmless error. it must be that merely Initially, held: to, must, but consider state
“An court is not appellate only permitted case, In a close of the evidence in whether errors are prejudicial. determining this, reversal and may any such error of a nature a any require as substantial in favor of be doubt as to its character should resolved prejudicial (Id. 62.) appellant.” p. to “any as opposed
Thus the court concerned about “substantial” error Further, Zemavasky error” its error close cases. analysis prejudicial was indeed a prosecution involving major allegations prosecutorial unique in statutory and the of incredible witnesses presentation rape misconduct In fact the General submitted the case without prosecution. Attorney argu- which ment after Court served to presenting Appeal brief to District accentuate the General stated that appellant’s Deputy Attorney claims. “ ” ‘it that the credible.’ overly evidence appears against appellant (20 58.) .2d at p. Cal not a
A review the entire us this case is “close record convinces that support case.” We have found there was sufficient evidence that Ford, finding, that we convictions of both Von reaffirming Villas the doctrine what also conclude because this is not a “close case” is inapposite. would otherwise be error became error prejudicial harmless Reflecting His Reynolds O. Von Villas’sStatements to Ms. Westand Ms. Willingness Killings to Commit Contract women of two testimony
Over defense the trial court admitted objection, acts criminal who witnessed Von a desire to commit Villas express Villas Von told early part Ms. West testified that of 1983 money. Gayl *67 250 if
her that she knew who wanted anyone “a contract” she put anybody, him should let know and would both make a they Joyce commission. Ms. 9, 1982, Reynolds testified that on December her “that he Von Villas told tired was an honest and that there no he would not do being cop” job was The trial evidence money, including murder. court admitted this pursuant 1101, to Evidence (b) Code sections subdivision 1250.
Von Villas contends that admission of their was testimony error because it was offered to demonstrate criminal rather than a propensity material fact issue. At trial the evidence that the prosecution argued presented to show Von Villas’s intent. Von Villas countered by asserting intent, issue, identity, not was the sole relevant and that the proffered testimony only could be used jury to his bad character. We prove issue, agree that identity was crucial relevant but conclude that the claim that the testimony does not a relevant material fact without merit. prove is
“Where the purpose of evidence of other crimes is introducing issue, to show bad character but to establish some other fact the limited doctrine admissibility allows its admission for that particular purpose.” (People 468, 126, Douglas (1990) v. 50 Cal.3d 510 788 P.2d Cal.Rptr. [268 640]; 107, People (1974) 109]; v. Powell 40 154 Cal.App.3d Cal.Rptr. [115 People Phillips (1960) 830].) Cal.App.2d Cal.Rptr. Evidence (b) Code section subdivision states the as follows: exception “Nothing this section prohibits admission of evidence that a person crime, committed a civil or other wrong, act when relevant to some prove motive, (such intent, fact as opportunity, preparation, plan, knowledge, .) . . identity other than his or her to commit such an act.” disposition The testimony was relevant as clearly proof identity case, in this fell culprit thus within the ambit of section subdivi (b). sion This case (Ms. involved a woman who someone a Ogilvie) paid Villas, sum large kill her money to husband. Von according issue, solicited testimony others to let him if know wanted to anyone pay him to kill. These offers were expressed within weeks of Mr. Weed’s therefore, The disappearance. testimony, admitted properly prove because the identity suspect was a who a desire to kill for person expressed money.
The statements were also admissible under Evidence Code section 1250 as mind; a statement of Von Villas’s then existing state of a state of mind that is relevant to the crime The crime charged. was a “contract alleged killing.” statements, Von Villas his expressed desire to commit such a crime. therefore, were admissible on that relevant issue. error, over- these statements was
Even if the court’s admission of would Villas Von against evidence amassed whelming prosecution miscarriage in a this nature results render such error harmless. Error of any that it opinion the court is of the and is thus reversible error when justice *68 party appealing favorable to the is that a result more reasonably probable VI, 13; Const., art. (Cal. § reached in the error. would have been absence of error 243].) No such (1956) 46 P.2d People v. Watson Cal.2d occurred here. Comick Brown Alleged
P. The Misconduct Jurors of Introduction 1. verdict, the his judge granted
After the return of Von Villas the trial Mr. by Boykoff, to interview were interviewed request jurors. jurors Several Von Ms. Cornick and investigator, jurors, Villas’s and his trial counsel. Two Brown, Von Ms. made certain the interviews which Villas during statements claims reveal that his conviction be re- jury requires misconduct which juror’s versed. Each statement will be seriatim. analyzed 2. Juror Comick’s Statement one Feinberg,
In his for new Mr. February motion trial filed on counsel, declaration under presented penalty Von Villas’s his made alia, during that Cornick inter that delibera- perjury Ms. told Mr. Boykoff, robbery tions at the the knew about the store guilt phase jewelry jurors the that offense were discussed it. She said of the defendants for convictions in the the details were reported Angeles Los Times and some of for murder mentioned the article. She knew about Ford’s conviction also verdict, had heard about it right after the Ford its since she jury announced on radio or television. She talked the conviction the jurors said about jury room.
A from notes taken containing declaration was foregoing prepared Mr. at the but was Boykoff interview for Ms. Cornick’s signature signed.15 denied categorically Counsel for Von Villas stated that Ms. Cornick unsigned in the Boykoff things she told Mr. of the contained any unsigned 15The declaration states: Betty Cornick, “I, say: Anthony “I Robert Von juror People was a in the trial of of the State California vs. Villas. store before the robbery jewelry “I was aware that defendant was convicted [sic] learned about the penalty jurors trial. One or more of had read about that crime and during jurors it deliber- Angeles conviction from an article in the Times. The discussed Los new on the motion for hearing declaration. Ms. Cornick was present but, trial the advice of ap- at the and with suggestion prosecutor, counsel, pointed her Fifth Amendment self-incrim- against invoked privilege to, ination. In an what would have testified making offer of as to she proof counsel for that the Von Villas entered with the prosecution into stipulation showing Cornick unsigned purpose declaration would be admitted for what Mr. Boykoff him the interview. during would Ms. Cornick told testify The stipulation In addition to Ms. Comick’s accepted by court. comments about the juror’s robbery of Von Villas’s conviction knowledge conviction, and Ford’s murder that Ms. also indicated testimony Boykoff’s Cornick him that before told when the en masse court jury polled as to whether knew more about the case than had been guilt phase they *69 trial, and that knowledge, to them before the the denied such presented jurors that denial was untrue.
3. Juror Brown’s Statement 21, 1989,
On and interviewed Juror January Feinberg Boykoff Messrs. that had a Brown at her office. She told them she Kathryn apparently Kitchen, with the of Von juror, during guilt phase conversation another Ms. trial, in asked Villas’s the courthouse that chat Ms. Brown During cafeteria. Kitchen, have gotten Ms. “Where do a officer would you suppose police diamonds?” Ms. Kitchen from the store many “Probably jewelry replied, There was no statement as to which store was robbery.” express jewelry robbed or that Von were convicted such a robbery. Villas Ford of and,
Ms. Brown new trial as was at the on the motion for present hearing Cornick, with Ms. invoked her Fifth Amendment self- privilege against incrimination. This that both suggested jurors was done after the prosecution or, least, at the may, by testifying, exposed prosecution be perjury finding that were of court for the court’s orders. they violating contempt jurors, Rudy, they supposed ations. One of the Ron were to read about the advised them case in the newspaper. right “I was aware that jury defendant Ford was convicted his for murder after it happened. I it day jurors heard on radio and saw it on television. The next all of the knew about it. Ford’s was that Ford jury conviction discussed in the room. When I heard was convicted, thought guilty I that defendant Von Villas must be too. “Jurors discussed what must have to Thomas Weed that led to his death. Jurors happened being talked about Weed dig grave burying forced to his own in the desert and the defendants him in it. jurors being dumped mining Other talked about Weed into a shaft. I heard these jury discussions in the room. penalty perjury foregoing “I declare under of that the is true and correct. Oaks, “Executed this_day February, at Sherman California.
‘Betty Cornick’ Mr. of Ms. Brown. counsel on behalf privilege invoked Appointed Brown’s recollection Ms. testify then was to his allowed Boykoff 21, 1989, After an proof. as offer of January comments made her office on attempted for Ms. Brown testimony, his counsel Boykoff completed Mr. created declaration that Ms. Brown apparently introduce into evidence a in fact Kitchen Mr. which indicated Ms. hearing testify after Boykoff The trial that was Schaffer & Sons. did store robbed as identify jewelry since rejected reliability question declaration because its judge Boykoff, had Mr. thus testimony placing Ms. Brown been exposed her credibility question. Trial Issue and the Analysis
4. Prosecutor’s the Misconduct Judge’s Ruling hearing
At the the motion for new convinced prosecutor trial that it Ms. Brown judge trial would be Ms. Comick and appropriate both to invoke their Ms. Comick privilege against self-incrimination. Because denied her in the affidavit making unsigned the statements attributed to Mr. court when open because she confirmed prepared Boykoff, had whether jury jury, sworn asked masse on two occasions they, en *70 in during considered other than that which was court anything presented trial, Thus, not, had Ms. that she there was no jury evidence of misconduct. Cornick’s and Ms. against Brown’s invocation of their self-incrim- privilege left in from ination the court of admissible evidence nothing way before which it could conclude that had occurred. jury misconduct court,
Neither nor the offered to consider prosecution when requested, grant of either immunity juror. to The prosecutor, on the state the evidence at the conclusion of relying of Mr. the alle- Boykoff’s no evidence to either testimony, produced disprove misconduct, of if it caused gation jury misconduct or to that there prove no to Von prejudice Villas. Villas,
The trial judge stating, denied the motion for new trial filed Von “I have not had that the had that Von jurors evidence that any knowledge had in their Villas been involved effected of robbery finding [sic] I in the guilt. jury ... don’t have that evidence that what simply transpired in the room or conversation between Kitchen and Miss Brown effected [sic] the outcome of the That seems link.” very important missing case. to be the concluded, I find that The trial “So do evidence to judge have insufficient the defense has the burden that absolute misconduct juror met there was would the defendant.” prejudice
5. Von Villas’sAssertion That the Ms. Comick and Ms. Statements Brown Constitute Are Against Declarations Interest and Thus Sufficient Jury Raise the Misconduct Issue
Von Villas that the knew about and charges jurors improperly information; first, discussed among themselves two Villas’s pieces Von and, second, robbery conviction an earlier the fact that a prosecution separate convicted Ford of murder jury prior jury returning Von Villas its own verdict against Von Villas. The Von Villas conviction had robbery fact, never been as evidence In presented to his jury any way. conviction was the when he principle consideration of Von Villas decided not Further, testify the Weed murder case. the fact that the learned of jurors Ford’s conviction his also was of evidence other than separate jury receipt that which was presented trial.
The admissible evidence which these supports charges presented the trial judge the form of the against declarations interest of Ms. Cornick (the unsigned declaration Mr. which was into prepared by Boykoff stipulated evidence) and (the of Ms. Brown of Mr. as to their testimony Boykoff Code, 1989). (Evid. conversation of 1230.)16 Jan. § unavailable, jurors Both had become prerequisite to operation section their through invocation of the Fifth Amendment privilege Code, against (Evid. self-incrimination. (a)(1).) subd. Both jurors § were subject to prosecution for violation of their jurors oaths as by disobey- ing the orders of the trial judge as well as for contempt proceedings perjury by criminal prosecution. Both were also to the risk jurors exposed civil liability and of made being of ridicule and social in the objects disgrace *71 short, Villas, In community. asserts Von reasonable person position jurors of these would not have made the statements unless believed they them to be true. Von
Finally, Villas that the argues should prosecution be from estopped asserting (the inadmissibility of evidence secondary declarations against interest) since it was the prosecutor’s that the could be suggestion jurors 16The provides: section “Evidence by having of a statement a declarant sufficient knowl edge subject is not made by hearsay inadmissible rule if the is declarant unavailable statement, made, as a witness and the when contrary pecuniary was so far to the declarant’s or interest, proprietary or so subjected far him to the liability, risk of civil or criminal or so far another, tended to render by against invalid a claim making him or created such a risk of him ridicule, hatred, object an disgrace or community, social in the that a reasonable man in his position would not have made the statement unless he believed it to be true.”
255 counsel appointed and thus should have held contempt prosecuted legal their precarious positions.17 to advise them of present court, they provided interest were before the Once the declarations against v. Pierce (People of prejudice. sufficient evidence to raise a presumption 657, 199, 91].) Such 595 P.2d (1979) 24 Cal.3d 207 Cal.Rptr. [155 (People v. misconduct. any juror arises from a presumption prejudice 698, 1050].) 150, P.2d 570 (1977) Cal.Rptr. 156 Honeycutt 20 Cal.3d [141 no that by proving can rebut this presumption Unless the prosecution v. resulted, (People new to a trial. defendant is entitled prejudice actually Pierce, 207.) 24 supra, Cal.3d at p. Regarding Jury The Law Misconduct
6. misconduct, a court jury When a a new trial based upon seeks party whether The court must first determine must undertake a three-step inquiry. under Evidence Code the affidavits the motion are admissible supporting admissible, 1150, must (a).18If the court section subdivision the evidence is (Krouse v. Graham then consider whether the facts establish misconduct. 863, 59, 1022].) (1977) Finally, 19 Cal.3d 562 P.2d 79-82 Cal.Rptr. [137 misconduct, whether the misconduct was assuming the court must determine 907, (People (1990) Cal.Rptr. Cal.3d 949 prejudicial. v. Marshall 50 [269 57, 269, 676]; (1987) Cal.3d People 790 P.2d v. Miranda [241 1127].) ruling A discretion 744 P.2d trial court has broad Cal.Rptr. clear absent a each of these and its will not be disturbed questions rulings (1976) (People Montgomery Cal.App.3d abuse of discretion. v. 558].) 728-729 Cal.Rptr. [132 jurors
It is well that evidence from sources also settled obtained if new trial than in for a grounds other court is misconduct and constitutes (1911) Loung (People Wong the defendant has thereby. been prejudiced 829].) creates a presumption 159 Cal. 525-529 P. The misconduct actually that no may showing prejudice which be rebutted prejudice in the juror 17“Mr. Felker: have that is if a has indicated only I one concern about this and oath, trust, called to something they going under are now be they box I that didn’t do did, admit being filed on jeopardy they juror may placing be herself or himself Well, they themselves where perjury. juror placing . . . The Court: I am concerned with a *72 subjected perjury certainly contempt could be of court.” 1150, (a) “(a) validity of a Upon inquiry 18Section an as to the provides: subdivision verdict, made, or any as to statements may otherwise admissible evidence be received room, conduct, conditions, such a occurring jury or without the or events either within character as is have No evidence is admissible likely improperly. influenced the verdict statement, condition, either upon juror show the effect of such conduct or event a processes by influencing concerning him to assent to or dissent from the verdict or the mental which it was determined.” 256 cert, 949, den., 907, Marshall, (1991) (People supra, v. 50 Cal.3d
occurred. 1105, 1023]; Honeycutt, supra, _U.S__[112 v. People 111 S.Ct. L.Ed.2d 528, 156; (1960) Cal.Rptr. 53 Cal.2d 535 Cal.3d at In re Winchester p. [2 20 “ 296, 904].) a court’s by reviewing rebutted . . may 348 P.2d It also be whether there is a reasonable the entire record to determine examination of (People v. . . party. of actual harm to the probability complaining 57, Indeed, Marshall, Miranda, supra, 50 117.) People 44 v. supra, Cal.3d 907, Cal.3d the court stated:
“ reference to by influence the is resolved juror ‘The ultimate issue of effect, test, In the must an court objective the substantial likelihood standard. it is inherently material and then whether extrajudicial judge examine ” (Id. 951.) to have influenced the likely juror.’ p. opportunity misconduct is not reversible error se. Jury per miscon showing arises after a prosecution presumption to rebut jurors duct based on the jury has been made. When the misconduct is court, whether determining evidence outside of the test for receiving the jury’s defendant follows: “whether injured has been as result is as affected, burden of whether impartiality adversely prosecution’s contra has been and whether asserted defense has been lightened any proof affirmative, the If in the dicted. the answer to of these is any questions (See reversed.” defendant has been and the conviction must be prejudiced (1982) citing People v. Sutter 134 820 Cal.App.3d Cal.Rptr. 829] [184 (1978) 208].) People Cal.Rptr. 82 Cal.App.3d [147 Martinez However, to rebut this can utilize the entire record prosecution (1982) As Justice Mosk stated Hasson v. Ford Motor Co. presumption. Cal.3d 388 at 650 P.2d page Cal.Rptr. 1171]: conclusive; is not it be rebutted an affirmative presumption may “[T]he court’s by reviewing does not exist or evidentiary showing prejudice examination the entire to determine whether there is a reasonable record from the resulting of actual harm to the probability complaining party when deter- misconduct. Some of the factors to be considered [Citations.] whether the of the evidence mining strength is rebutted are presumption occurred, misconduct, and that misconduct the nature and seriousness of the that actual have ensued.” probability prejudice may whether the The standard utilized determine now California courts to in the Amer has been rebutted has been set forth presumption of prejudice ican “A verdict of guilty Bar Association Standards for Criminal Justice. must or vacated ‘whenever ... the court finds a substantial be reversed *73 to jurors or more was influenced exposure the of one likelihood that vote that was not the defendant or the case itself matter to relating prejudicial ABA (2 the case was to the jury.’ the trial record on which submitted of part Justice, 1980) 8.57.)” (People v. (2d std. 8-3.7 p. Criminal ed. Standards for 1327].) (1990) 790 P.2d Holloway Cal.Rptr. 50 Cal.3d is rebutting The in the of presumption prejudice utilized analysis ‘harmless-error-analysis’ than the “different from and indeed less tolerant (Id. 1110.) standard stringent at at The reason for the error trial.” ordinary p. the defendant’s that when even influenced to juror impermissibly is one is detriment, of the is jury the the trial and the integrity impartiality Marshall, 951.) (People supra, undermined. v. 50 Cal.3d p.
7. Conclusion
The all sides which brought record reflects a series of errors on who, turn, in committed error about an untenable situation for the trial judge By an the misconduct issue. by applying legal analysis jury incorrect “I that the stating knowledge jurors that have not had evidence that the any had that in effected robbery Von Villas had been involved [sic] her that of their the trial indicated that it was belief finding guilt,” judge so, misconduct had If to rebut occurred. would be prosecution required an adverse on the presumption prejudice ruling order to avoid Marshall, 907.) (People supra, motion for new trial. 50 Cal.3d the jurors efforts to some examination of prosecutor’s way preclude if file them by suggesting against they his office might perjury charges testified accordance with their earlier statements to the defendant’s inves- were tigator judgment, ill-advised at best. that error Compounding after his Ms. Cornick’s prosecutor, voicing objections admissibility to the declaration and Mr. of that which Ms. unsigned Boykoff’s recollection him Brown told as that the hearsay, inexplicably agreed by stipulation unsigned testimony investigator declaration and of Von Villas’s would be admissible as evidence jurors say. of what the defense team heard the counsel,
Von Villas’s after agreeing to the never stipulation, posited court a declaration legal theory supporting admissibility unsigned of Mr. That testimony Boykoff against theory as declarations interest. trial admissibility judge first raised on much too late for the appeal, determine whether the carried with them unsigned declaration and testimony that, fact, the aura of afforded declarations reliability statements constitute course, interest. Of such a against making court was foreclosed from the unsigned determination because counsel stipulated for both sides were investigator’s declaration as to Ms. Brown’s statements testimony *74 258 evi- never that the admitted stipulated Notably, prosecution admissible. themselves, rather was jurors of the but in fact the statements
dence was what they of said. Von defense team’s recollection Villas’s errors, there is a these multiple that because of Thus there is no question misconduct oc- juror that serious distinct if not a possibility, probability, however, interest, never once was that trial judge curred. Of the fact is and Ms. of Ms. Cornick credibility afforded the to test opportunity indicated, Mr. telling denied Brown. Ms. Cornick As counsel for Von Villas The con- declaration. unsigned Boykoff any things of the contained cern, then, re- be should is Von Villas’s of conviction judgment whether record, and be vacated should judgment versed toto on this or whether examination to allow the matter remanded the trial with instructions judge deliberations during of the to what occurred jurors really themselves as have constituted misconduct. might juror a absent not be allowed of verdicts should
Impeachment
jury
the extrajudicial
quality
careful examination
the trial court
likely
it was inherently
material
a
as to whether
by judgment
followed
Marshall,
951.)
Cal.3d
supra, 50
juror. (People
have influenced the
v.
concurring
in his
difficult area
Justice Mosk reflected his concern
this
Cal.Rptr.
41
575
(1986)
Cal.3d 564 at page
[224
Ballard v. Uribe
opinion
664,
“I an must express my apprehension incipient in numerous appeals verdicts. We see this parties attempting impeach jury such Giving appeals review affidavits. juror based on petitions additional credence finality judgments, places petitions any prevents with the and contributes to disenchantment burdens on the judicial process, tort . . . system. sign juror
“In difficult for counsel to persuade most cases it is not affidavit. . . .” law-office-prepared the oppor are that the trial must be allowed judge
We convinced If the trial and Brown. to at least test the of Jurors Cornick tunity credibility Villas defense team is that what told the Von judge they allegedly convinced occurred, in Juror Comick’s the information contained actually especially declaration, then a new thereby, and that Von Villas unsigned prejudiced trial must be afforded Von Villas. 141], defense (1992)
In People Cal.Rptr.2d Cal.App.4th Perez assault, counsel, per- after the defendant’s by jury requested conviction misconduct under juror mission to conduct a postverdict investigation the defend- jurors circumstances which indicated have discussed may The trial failure at trial their deliberations. during ant’s to take the stand *75 the denying request court was found to have committed error defense by The trial court funds to conduct the misconduct. investigation juror “ that argument committed when it ‘for the sake of additional error assumed 12 failure to jurors [regarding appellant’s all would that that discussion say ” (Id. counsel, 906.) hearing Defense upon at took at testify place.’ p. trial] statement, the The trial court denied that moved for a new trial. orally motion.
Justice Weiner opined:
“Given the court’s 12 jurors effectively agreed disregard scenario that instructions, the court’s the would been express declarations have jury admissible and clear court has constituted evidence of misconduct. While the motion, broad discretion to rule on a new trial that discretion was abused here, where the denied the court motion on a factual scenario presumptively establishing prejudicial jury misconduct.
“Our the in conclusion court erred the new trial prejudicially denying motion that requires we vacate the and remand for further judgment proceed- On remand we ings. wish to the trial emphasize court should not assume jurors actually discussed Perez’s failure to we a testify. Although appreciate substantial of time period has since the this case was expired jury discharged obtaining jurors declarations from some or all of the bemay difficult impossible, or we do not believe the earlier relieving court’s error defense counsel of this burden should result other than that any procedure (4 909.) law.” required Cal.App.4th pp. the
Admittedly events which occurred the the during hearing on motion for new trial in the instant case are different from those which took quite Nonetheless, place during we are that hearing. ordering concerned Perez the reversal of Von Villas’s conviction on the record before us would not Indeed, serve the interest justice. to allow of a verdict jury impeachment declaration, based upon admission of an later as unsigned juror’s rejected untrue that juror, and the of a defense as to testimony investigator statements made to him by juror juror another which indicate that miscon- would, occurred, view, duct had in our set a dangerous precedent. we By this do not mean to a new that misconduct opine juror requiring trial for Von Villas did not occur. We that the matter be merely require remanded so that the trial judge will have the to test opportunity of the credibility jurors a determination thereafter as to question and make occurred, must If misconduct the prosecution whether misconduct occurred. be presumption prejudice. to rebut given opportunity hearing
In a fair on the the trial must conduct full and regard, judge ensure that juror judge will that the trial allegations. require misconduct This and, if they be jurors every opportunity testify, question given self-incrimination, be persist they their asserting against privilege immunity upon “immunized” either of transactional grant through of “use grant to section request prosecution pursuant Cal.3d Superior (1977) through (Daly court. Court immunity” *76 1193]; (1975) 48 Tarantino Court Superior 560 P.2d Cal.Rptr. [137 61].) Cal.App.3d Cal.Rptr.
If, misconduct juror after the the trial concludes that hearing, judge occurred, be he must af- thereby, and Villas was actually prejudiced Von forded a new trial. dissent, its that our decision
As one conclude from shrill tone might justice; remand of miscarriage vacate and as to Von Villas aon record blindly affirming decision akin to an court a conviction appellate is not the case. reflecting reversible error. Such patent her view belief judge’s reflecting We are of the that the trial comments in that regard, that misconduct occurred did constitute a of fact finding to find that her had . . insufficient evidence that statement that she “. the defendant” juror there was absolute misconduct would prejudice her of the stipulated reflects concern about the value reasonably probative which the refuses accept. evidence. That is a reasonable inference dissent mind, is couched why one wonders the dissent thought With that in the Von such terms. evidence its source aggressive stipulated The found team, was, understandably, defense a source which all would agree Villas Von biased favor of Villas. Comick, which was
The unexecuted and later refuted declaration Ms. of statement, her team’s never admitted as but rather as defense recollection untrue, was the of she said before she most rejected what statement as Is evidence juror argument. of misconduct compelling support evidence, his reflecting even considered rec- Boykoff’s testimony with Mr. Brown, that outright ollection of his with Ms. conversation so compelling reversal of Von Villas’s should be conviction ordered?
Should not the trial at least be consider judge given the opportunity interest, the jurors’ against whether or not statements constitute declarations which, if in an a theory found would the statements applicable, place their different evidentiary category supporting from the totally category at the on the new trial—as statements admissibility hearing motion for Villas’s jurors themselves as of Von to statements of members opposed defense team? it is
Finally, difficult to claim that our decision comprehend dissent’s to vacate and remand stare somehow violates well-established principles decisis appellate review. admission of evidence has by stipulation been a recognized and oft used for decades. We no criticize procedure way or refute that Evidence theory proof. admitted how- by stipulation may, ever, be more or less than evidence probative through admitted proce- other dures, whether it be live testimony any other form of evidence. The claim that we have fundamentally distorted the court vacat- appellate function ing and remanding with instructions is unfounded and totally deserving is no additional comment
IV
Conclusion The is judgment affirmed as to Ford. The appellant judgment is as vacated Villas, to defendant Von and remanded for further consistent proceedings with this opinion.
Johnson, J., Acting P. concurred. (Fred), J., WOODS Concurring and Dissenting. I concur the affirmance of the Ford judgment and dissent from the majority as disposition opinion’s to Von Villas.
I dissent from that disposition because it leaves intact convictions ob tained aby trial of fundamental integrity [by] “undermine[d] [and] taint[ed] unfairness. . . (People (1990) v. Marshall 50 Cal.3d 951 [269 Cal.Rptr. 676].) 790 P.2d
Instead of forthrightly the Von reversing Villas and judgment ordering trial, new as the law the requires, majority shrinks from its and without duty authority or coherent explanation invokes the deus ex machina of simply a new ordering trial hearing. that Conceding Von Villas once that his proved him unfair, years later—requires trial was now—three majority opinion it prove again. fundamentally result? Only How reach this majority opinion does function, authority, binding appellate court distorting by ignoring appellate with stare new rule irreconcilable out of whole cloth a by creating and I decisis. explain. juror misconduct. majority opinion proved
The concedes Von Villas which agreed stipulation The majority opinion parties concedes ante, 257.) By stipulation trial accepted. (Maj. opn., pp. court testified Juror was deemed to have investigator, Boykoff, Von Villas’s Mr. that, deliberations, jury him discussed Cornick told the Von Villas during 251-252, ante, (Maj. pp. the Ford Ford for murder. jury’s opn., conviction of 15.) murder. fn. then convicted Von Villas of They evidence, was prop- This without and objection by stipulation, admitted some hand erly wringing—does received. majority opinion—despite claim otherwise.
Further, deter- testimony trial and evaluated this weighed court is, Juror mined it That the trial court determined both that to be truthful. Boykoff Cornick made the investigator had statements to “Well, narrows down to were true. The trial court stated. it statements *78 conviction influence knowledge jurors issue of did the the Ford’s ... of of (Italics added.) The jury the has it the defendant.” improperly prejudiced ante, 257.) majority concedes as much. opinion (Maj. opn., p. concedes, must, The this obtaining also as it that majority opinion .” opn., evidence than is . (Maj. “from sources other court misconduct. ante, 255.) p.
Thus, jury evidence of opinion presented the concedes Von Villas majority misconduct, received, deter- the trial court evidence properly mined it truthful. to be opinion juror prejudicial.
The the majority concedes misconduct was concedes, having The misconduct been opinion juror proved, majority Further, ante, 255.) as the majority is prejudice presumed. (Maj. opn., p.
263 either disprove states: “The . . no evidence to opinion prosecutor. produced if it allegation or to there was misconduct jury prove misconduct ante, 253.) no (Maj. caused to Von Villas.” prejudice opn., p. Apart juror
That misconduct was is from prejudicial beyond dispute. conduct, imagine one bribery comparable felony hardly can misconduct just more than one has convicted prejudicial jury discovering jury another its accomplice of defendant. majority The opinion requires concedes that a prejudicial jury misconduct new trial.
Our Court held Supreme has that if a defendant proves prejudicial juror misconduct “the state then must rebut the or lose the verdict.” presumption Marshall, (People added]; supra, 50 Cal.3d also 949 see [italics People v. (1983) Andrews 149 Cal.App.3d Cal.Rptr. [196 ante, 1.) The A.L.R.4th (Maj. concedes the rule. majority opinion opn., p. 255 the prosecution does “the prejudice [If not rebut presumption defendant is added.) entitled to a new Italics trial.”] Creating out whole cloth new rule irreconcilable with stare decisis.
The majority opinion avoids conclusion its concessions require—the ordering of a new out of cloth new rule trial—by creating whole irrecon- with cilable stare only decisis. new rule testimony is that live apparently counts. Otherwise there bewill “an untenable situation for trial judge.” ante, convinced,” states, (Maj. opn., 257.) p. “We are the majority opinion ‘that the trial be judge must allowed the least test opportunity ante, credibility of 258.) Juror Comick (Maj. . . .” opn., p. [] No is cited for authority People (1992) this new rule. v. Perez 141], Cal.App.4th 893 Cal.Rptr.2d some reason unexplained discussed majority opinion, is—in the words of the majority opinion—“quite ante, different” from the 259.) instant case. (Maj. opn., p.
That this rule abrogates (“ Evidence Code 140 ‘Evidence’ means section testimony, writings, material other objects, things presented to the senses prove are to the existence or a nonexistence Italics offered fact.” added.) is not considered by majority opinion.
That this rule is irreconcilable with stare is not decisis also considered (See majority (1970) In re 1 opinion. Mosley Cal.3d CaLRptr. 913 [83 264 viz., testimony, consisted of to stipulated 464 P.2d entire trial 473] [the (1970) Cal.App.3d v. 10 People Hobbs hearing transcript]; preliminary 123]; (1971) 15 269 People Cal.App.3d v. Moreland [92
831 Cal.Rptr. [89 563]; 1015 People (1971) Cal.Rptr. v. West 15 Cal.App.3d [93 Cal.Rptr. 364]; 496]; People (1971) People Cal.Rptr. v. Neder 16 846 Cal.App.3d [94 421]; People v. Cook (1971) v. Johnson 18 959 Cal.App.3d Cal.Rptr. [96 860]; (1971) 21 (1971) v. Guerra People 19 405 Cal.App.3d Cal.Rptr. [96 627]; (1971) 22 534 Soranno People Cal.App.3d v. Cal.App.3d Cal.Rptr. [98 235]; (1972) 24 664 People 312 v. Cal.Rptr. Cal.App.3d [101 [99 Sanchez 193]; (1972) People Dorsey Cal.Rptr. v. 25 366 Cal.Rptr. Cal.App.3d [101 748]; 826]; People (1973) Howell 228 Cal.App.3d Cal.Rptr. v. 30 [105 (1973) trials People Phillips Cal.Rptr. v. 31 483 Cal.App.3d 386] [all [107 10,000 Angeles some of the more than such trials Los stipulation, just al., Defend- (Greenwood Felony et Prosecution of Adult County during 1970. xxiii, (1976) 125)]; (1979) People Cal.App.3d ants v. Hall 95 pp. evidence 314-316 evidence included the Cal.Rptr. stipulated [157 107] [trial witness]; (1985) People Phillips Cal.Rptr. of a 172 670 Cal.App.3d [218 live Peo- testimony]; to [stipulated preliminary hearing transcript plus 524] (1971) to ple v. Townsend 20 919 Cal.App.3d Cal.Rptr. [stipulation [98 8] People v. hearing]; doctors’ at a disordered sex offender reports mentally (1983) Wells to Cal.App.3d Cal.Rptr. [stipulation prelim- 149 497 608] [195 (1986) re inary hearing and In Michael V. 178 transcript police reports]; a 159 trial consisted of Cal.App.3d Cal.Rptr. stipulation [223 503] [entire ]; (1982) In re Steven H. 130 449 police reports Cal.App.3d Cal.Rptr. [181 People v. hearing testimony]; consisted of stipulated suppression 719] [trial (1985) consisted Drieslein 591 Cal.App.3d Cal.Rptr. [216 244] [trial of a “live” and and hearing suppres- witness to the stipulations preliminary (1992) sion hearing transcripts]; People Cal.App.4th v. Imler trial of a [by police report, tape consisted Cal.Rptr.2d stipulation, 915] memorandum, briefs, witness.]) trial of one recording, testimony Fundamentally distorting appellate court function. case,
When an tell how how appellate try court attempts parties offered, called, evidence is to be what must be what stipulations witnesses cannot be to—it ceases be an court. Our function is to agreed appellate trials, review them. The vio- hearings majority opinion orchestrate lates this fundamental precept.
Conclusion. it, is one has the majority opinion fundamentally Reading flawed. required bring that its author knows reversal is but can’t impression just *80 father, So, himself like a refereeing so. his say defeated son’s tennis match, the that the last be majority opinion requires point replayed.
Such a many things. be called is disposition may Justice not one of them. 3, 1992, Petitions for a were denied rehearing December December Woods, J., 1992. was of the that the filed opinion petition December 1992, should be granted. Appellants’ petition for review the Supreme J., Court was denied February George, 1993. did not therein. participate Baxter, J., was that the opinion petition granted. should be