Opinion
F072494
11-16-2017
THE PEOPLE, Plaintiff and Respondent, v. THERON DALE AUSBIE, Defendant and Appellant.
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF148567A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Theron Dale Ausbie was convicted at the conclusion of a jury trial on September 30, 2015, of first degree murder (Pen. Code, § 187, subd. (a); count 1), second degree robbery (§ 212.5, subd. (c); count 2), and first degree burglary (§ 460, subd. (a); count 3). The jury found true special circumstances alleged in count 1 for robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2, subd. (a)(17)(G)). The court sentenced defendant to prison for a term of life without the possibility of parole. The court's sentences on counts 2 and 3 were stayed pursuant to section 654.
Unless otherwise designated, all statutory references are to the Penal Code.
On appeal, defendant contends he was denied a right to defend himself through the statements of a codefendant who both inculpated himself and gave exculpatory statements regarding defendant. Defendant contends the trial court erred in failing to instruct the jury on lesser included offenses to first degree murder. Defendant argues there were errors in the transcript of his confession, which was given to the jury during its deliberations over his trial counsel's objection that the transcript was inadmissible. Defendant further argues the discrepancies between the transcript and the audio recording of his confession were material and prejudicial. We find merit to these contentions and reverse the judgment.
FACTS
Events Leading to Kelly Gill's Death
Anthony and Dickey Martinez lived with their children, Sandy and David Martinez, and Kelly Gill, Dickey Martinez's brother. There were also a number of roommates living in the home, among which were D.J. Parks and defendant. Gill suffered from Wilson's disease, which resulted in too much copper in his blood. This condition caused Gill fatigue and the loss of function in his arms and legs. Lack of sleep, stress, and ingesting alcohol made the condition worse. Gill received disability benefits for his condition, which the he used to pay rent and help with bills. Gill had his own area in the residence that included a bedroom, kitchen, living room, and bathroom. Defendant also had his own room in the residence.
On May 18, 2013, Gill was drinking and playing pool with defendant and Parks. Dickey Martinez explained her brother was a lightweight drinker but he was drinking both beer and hard liquor that evening. Sandy Martinez said her father took a beer and went back to his bedroom with her mother.
Dickey Martinez went to Gill's room the next morning before she went to church. When she knocked on the door and called Gill's name, there was no response and the door was locked. When she returned from church, Gill still did not respond. Anthony Martinez and someone else crawled through Gill's kitchen window and unlocked his door. Although Gill was not there, his hat and cane were still in the room, and these were items Gill would not leave behind.
Defendant acted strangely that day. He would not let anyone in his room, saying it was a mess. Defendant asked the family not to mention him to the police. Defendant left the house suddenly with a shoe box under his arm and said he was spending the night somewhere else. Defendant returned with a car he had just purchased.
Dickey Martinez confirmed that her husband Anthony Martinez did not like her brother because Anthony thought Gill was not contributing toward the household. Dickey confirmed she had witnessed a physical altercation between Gill and her son David Martinez about a week prior to this incident. She related how David had grabbed Gill by the throat, putting his arm around Gill's throat in a headlock. Dickey confirmed that Anthony did not have a job but helped pay the rent by assisting their landlord with renting out apartments and evicting tenants. Anthony had a dispute with Gill because he felt Gill was not contributing toward household expenses. According to Dickey, defendant sold marijuana but also got food stamps and gave them to her to contribute toward household expenses and to stay in the house.
L.O., a long-time acquaintance of defendant's, testified defendant never threatened her. L.O. never heard defendant discuss taking money from Gill. L.O. could not remember making a statement to police concerning statements defendant allegedly said to her. L.O.'s mother took L.O. to talk to the police because she had heard rumors about what happened. L.O. could not remember if what she told the police was true. L.O. admitted she used methamphetamine and was under the influence when she talked to the police. L.O. told the police Parks threatened to kill others, including her, if they told anyone what happened.
An investigator for the prosecutor said L.O. indicated to him she was afraid of defendant. Sergeant Marcela Garcia testified L.O. told her defendant and Parks planned to get Gill drunk and rob him. Defendant told L.O. they accidentally suffocated Gill and put the body in his closet. Defendant also told L.O. they got $1,800 from Gill, and he was going to use the money to buy a car to get rid of Gill's body.
When the police searched the residence on May 20, they found Gill's body wrapped in blankets and clothing in the closet of defendant's room. There were laundry hampers on top of Gill's body. An autopsy showed Gill died from neck compression, like that used in a chokehold. The medical examiner testified that for a neck compression to cause death, it would be necessary to maintain the compression for several minutes. Gill also had signs of blunt force trauma to his head, as well as small abrasions on his biceps, elbow, wrist, and pelvis. The abrasions were fresh and showed no signs of healing.
Defendant's Interrogation
Defendant told the officers Parks, Gill, and the others were all drinking. Defendant played pool and drank with Gill. Gill was drunk and his muscles locked up from his condition, so defendant carried Gill to Gill's room. Defendant described himself as drunk and did not mean to hurt Gill.
When defendant was asked if he was the only person to take Gill back to his room, the transcription of the interrogation indicates his response was, "Uh-huh." The parties disagree as to what defendant said. Defendant's counsel argues defendant said "No" in response to whether he took Gill back to his room alone. The Attorney General argues the recording sounds like "Uh-huh." In our review of the recording, it sounds like defendant's reply to the question was a more ambiguous, "Nuh-huh."
Defendant explained how Gill tried to grab his throat. Defendant pushed Gill back, not intending to hurt him. Defendant explained, "I know I pushed him. I can't really remember what happened." Defendant said Gill "tried to do the same shit." The transcript states defendant's next statement was unintelligible, but in the recording defendant clearly states Gill was trying to do the same shit "that he did to his nephew, David" Martinez. The transcript indicates defendant said Gill tried to grab him by the throat, and he "pushed cuz, and I caught him by his throat." The recording states defendant pushed back because "we caught him by the throat."
Defendant said Gill tried to grab him by the throat, defendant pushed, catching Gill by the throat, but defendant did not try to hurt Gill. Defendant could not remember if he put both of his hands on Gill's throat. Defendant said he knew he hurt Gill but did not mean to hurt anyone. Defendant explained he choked Gill to restrain him because Gill was trying to put his hands around defendant's neck. Although the transcript indicates the following statement is unintelligible, in the recording defendant states Gill had his hands around defendant's neck "like how he did towards David" Martinez. Defendant could not remember if Gill was choking though defendant "probably" choked Gill. Defendant admitted he did have both hands around Gill's neck.
Defendant said Gill tried to attack him first but they were both drunk. Gill "said something," but he always said "shit like that." Defendant got mad because they were drinking and Gill had tried to put his hands on defendant. Defendant "just choked [Gill's] ass kinda like right there." When asked if Gill just went limp or fell, defendant replied, "Yeah." Gill tried to fight defendant but defendant was only trying to hold Gill back and was not trying to hurt him. Defendant said he was the only one in the room with Gill. Defendant thought Parks was passed out on a couch. Once Gill was on the floor, defendant tried to find a pulse or a heartbeat but could not find one.
Defendant was asked if he covered Gill. The transcript of the interrogation indicates defendant said "Yes." In the recording of the interrogation, defendant responded to the question with "I guess." Defendant said he used a sheet or something to cover Gill. When defendant woke up, Gill's body was in defendant's closet and he started to "freak[] out." Defendant barely remembered anything happening that evening and did not remember killing Gill.
Defendant denied taking any property from Gill and explained he did not take Gill's money. Defendant bought a car with his own money. Defendant said he hustled and knew how to save his money. According to defendant, Gill let defendant move him into the bedroom earlier in the evening when his muscles had locked up. Defendant explained that Anthony Martinez had told defendant "to do the fucking shit" six months earlier. Anthony wanted to steal from Gill because Gill never shared his money and was stingy. Anthony believed someone needed to take Gill's money from him, "But, he didn't have the balls to. So, he had my ass do that shit."
Defendant reiterated how he "was tripping" the day after the incident. Defendant did not mean to hurt Gill, and felt "like I don't even deserve to live anymore. 'Cause I took somebody's life without trying to." Anthony Martinez told defendant he needed to get a car to drop off Gill's body. Defendant did not remember putting Gill in his room and said of Anthony, "he probably the mother fucker that put him in there, to keep it real." Defendant said he drank a lot of beers but he was a lightweight drinker. Defendant thought he probably moved Gill into defendant's closet, but said, "I know Anthony did some bullshit. I know he did. On everything. Cuz was probably the one that moved him ...." Defendant's next utterance is unintelligible. Defendant said other people found out what happened because defendant had sobered up and began to "freak out."
Defendant said Anthony Martinez made him "do that shit." Defendant said the car he bought was $1,000. Defendant said Gill only had $1,200. Defendant spent $1,000 on the car and paid off debts he owed to others with $100. Defendant spent the other $100 on a hotel room and food. Defendant said he could not even touch Gill's body because it felt wrong. Defendant added, "'Cause—it's different when it—when you're intentionally trying to hurt somebody, you know? It was an accident." Defendant said he knew what he did was not right and "I know how God works." Defendant described Gill as a man of God, adding, "So, I already knew I was gonna be punished."
DISCUSSION
I. Codefendant's Statements Exculpating Defendant
During his interrogation by police, codefendant David Martinez made statements that both inculpated himself and exculpated defendant. Some of these statements were challenged and excluded because the People contended they were not declarations against penal interest under Evidence Code section 1230 and constituted untrustworthy hearsay. Defendant argues the statements included declarations against Martinez's penal interests, making them admissible. Defendant further contends the statements were admissible as exculpating him. We agree with defendant's analysis and find the error requires a reversal of the judgment.
A. Codefendant Martinez's Interrogation
In his statements to police during his interrogation, David Martinez gave a different version of events than defendant's account. Martinez made some statements that inculpated defendant as a participant in a plan to rob Gill of his money. As noted post, the parties agreed statements by Martinez inculpating defendant were inadmissible. Martinez, however, made several statements inculpating himself, his father, and Parks, as well as making statements exculpating defendant. Except as noted, many of Martinez's inculpatory statements were not directed toward defendant and were excluded. All of Martinez's exculpatory statements directed toward defendant were excluded.
David Martinez told the police he wanted "these people" to move out of his home because Martinez could not stop using drugs while they were there, but the people needed money to be able to move. Martinez planned to steal Gill's wallet and walk away. Martinez described his father and Parks as also struggling with Gill. After Gill became drunk, Martinez took Gill's wallet. Gill chased Martinez and struggled with him. Martinez believed his own fingerprints were on Gill's neck. Parks also struggled with Gill. Martinez explained twice that defendant tried to stop Martinez and Parks by pulling one or both of them off Gill. A third time Martinez said of defendant: "I know he was trying to stop that. He's not like that."
Martinez explained that although Gill had been choked and was unconscious, he was not dead and would have been fine. Parks made a comment that he wanted to know what it was like to take a life. Martinez told the officers multiple times that Parks made him "finish off" Gill.
When the officers suggested both Martinez and defendant placed their hands around Gill's neck, Martinez replied, "That's odd." Martinez seemed surprised by this idea and appeared confused about events and his story, suggesting he could not trust his memory. Throughout the interrogation, most of the inculpatory statements implicating defendant are made through the officers' questions to Martinez rather than directly by Martinez himself.
B. Trial Court's Exclusion of Martinez's Statements Exculpating Defendant
The parties anticipated that David Martinez would not testify based on indications from his trial counsel that Martinez would invoke his Fifth Amendment privilege against self-incrimination. The prosecutor reserved the right to research the issue of whether statements inculpating defendant could be redacted but those exculpating him would remain. The prosecutor filed an electronic motion, which was not filed with the court clerk, to exclude Martinez's statements exculpating defendant. Pursuant to Aranda-Bruton, defense counsel sought to excise statements by Martinez about defendant that inculpated defendant. Defense counsel, however, sought to have statements inculpating Martinez, Martinez's father, and Parks admitted into evidence. Defense counsel argued exclusion of these statements would mislead the jury and deny defendant due process and a fair trial.
People v. Aranda (1965) 63 Cal.2d 518, Bruton v. United States (1968) 391 U.S. 123.
The trial court observed there were statements by David Martinez in the interrogation that inculpated him in the crime. The court asked the prosecutor why these statements should not come into evidence. The prosecutor explained there was a statement by Martinez that did not inculpate himself but exculpated defendant because Martinez said defendant "tried to stop it." The prosecutor argued this statement and others like it had to be excluded under Evidence Code section 1230 because Martinez did not specifically inculpate himself when he referred to defendant. The prosecutor conceded the crime appeared from Martinez's statement to be a group effort, and Martinez inculpated himself rather than defendant as the agent of Gill's death.
Defense counsel argued defendant was entitled to present alternative theories as to who acted as the actual perpetrator of the murder. Defense counsel noted the evidence pointing to the actual perpetrator of the murder was circumstantial, and presenting David Martinez's statements that were exculpatory of defendant would not mislead the jury.
The court took the matter under consideration and later ruled that should David Martinez invoke his Fifth Amendment right not to testify, he would be an unavailable witness. The court would then allowed a redacted version of Martinez's statement to the effect that when Martinez put his hands around Gill's neck, he was not yet dead. Other people were there and were involved. Other people had their hands around the victim's neck as well. Martinez gave different versions of the events and may have been under the influence when he was interrogated. Martinez indicated he thought or believed he had dreamt something along these lines. There would be no reference to defendant by name. Defense counsel noted for the record that entire sections of Martinez's interrogation, including statements inculpating Martinez himself, were redacted.
David Martinez refused to answer questions when called as a witness by asserting his right against self-incrimination. Martinez specifically refused to answer defense counsel's question of whether he confessed to killing Gill. During cross-examination of Officer Marcela Garcia, defense counsel questioned Garcia concerning Martinez's interrogation. When asked if Martinez admitted he actually strangled Gill, Garcia replied that Martinez said he was involved. Garcia clarified that Martinez never used the word strangle. Martinez admitted he "finished ... off" the victim and indicated other persons may have been involved. Garcia said Martinez appeared to be confused during the interrogation and made some inconsistent statements. Martinez was brought into custody in connection with the homicide.
C. Analysis
A trial court's decision whether a statement is admissible is reviewed under Evidence Code section 1230 for abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711.) "Whether a trial court has correctly construed Evidence Code section 1230 is, however, a question of law that we review de novo." (Id. at p. 712.) In the context of coconspirators, a confession inculpating another defendant rather than the confessor has been held inherently untrustworthy. (Id. at p. 713, citing People v. Leach (1975) 15 Cal.3d 419, 439-439.) Also, this limitation is in accordance with general Aranda-Bruton procedure. (Grimes, supra, at p. 713.)
Although hearsay statements are generally inadmissible (Evid. Code, § 1200, subd. (b)), the rule has a number of exceptions. (People v. Grimes, supra, 1 Cal.5th at p. 710.) For example, the hearsay rule does not bar a statement that when made exposed the declarant to the risk of criminal liability so "that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) To be admissible, the declarant must be unavailable as a witness. (Ibid.) The rationale for this hearsay exception is the reasonable assurance of the statement's veracity in light of the criminal implications. (Grimes, at p. 711.) The proponent of such evidence bears the burden of establishing (1) the declarant's unavailability, (2) that the declaration was against the declarant's penal interest when made, and (3) that the declaration was sufficiently reliable to warrant admission. (Id. at p. 711.)
Our Supreme Court in Grimes endorsed a contextual approach in evaluating statements offered under the against-interest exception. This approach permits admission even of collateral statements that, though not independently inculpatory, are inextricably tied to a more general statement by the declarant against his or her penal interest. (People v. Grimes, supra, 1 Cal.5th at pp. 715-716.) Grimes reasoned that
"the nature and purpose of the against-interest exception does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not 'further incriminate' the declarant. Ultimately, courts must consider each statement in context in order to answer the ultimate question under Evidence Code section 1230: Whether the statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant's interest, such that 'a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true.'" (Id. at p. 716.)
The prosecutor successfully moved the trial court to treat David Martinez's statements during his interrogation as discrete and individual comments separate from his general comments admitting guilt. Unless every comment by Martinez was self-inculpatory, the trial court found it was inadmissible as a statement against penal interest and did not fit within the Evidence Code section 1230 exception to the hearsay rule. The trial court, therefore, failed to take a contextual approach to Martinez's confession.
David Martinez consistently implicated himself during his interrogation. Martinez even implicated himself as strangling Gill when he told police that defendant pulled him away from Gill. As defendant now argues, this admission only increased Martinez's culpability. Martinez later said defendant pulled Parks away from Gill while Parks was strangling Gill. Martinez admitted following Parks's instruction to finish killing Gill, who, according to Martinez, was still alive. Viewed contextually and as a whole, Martinez's statements to the police were inculpatory. Even viewing Martinez's exculpatory statements discretely, Martinez was implicating himself two of the three times he stated defendant pulled him away from Gill, making Martinez's statements declarations against interest within the meaning of Evidence Code section 1230. (People v. Grimes, supra, 1 Cal.5th at pp. 716-717.)
D. Constitutional Issues and Reliability of Statement
Defendant was further entitled to the introduction of the exculpatory statements pursuant to his federal constitutional rights to due process, to compulsory process, and to confront witnesses. In Chambers v. Mississippi (1973) 410 U.S. 284, 302, the United States Supreme Court held the due process clause of the Fourteenth Amendment establishes the right of a defendant to present a complete defense over the mechanistic application of the hearsay rule, which cannot be employed to defeat the ends of justice. The defendant's right to compulsory process and confrontation are also components in his or her right to a meaningful opportunity to present a complete defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 323-326 [improper exclusion of evidence a third-party was guilty]; Crane v. Kentucky (1986) 476 U.S. 683, 690.) The statements were critical to defendant's defense and should have been admitted as a matter of due process.
The People argue David Martinez's statement was unreliable, relying on People v. Dixon (2007) 153 Cal.App.4th 985, a case from this court. In Dixon, Wallace, the codefendant in a bank robbery, provided a declaration for Dixon's trial exonerating Dixon. The trial court excluded the declaration from evidence. Our court found Wallace's statement unreliable, noting the statement was anything but spontaneous because it was a written declaration obtained by Dixon's private investigator. It was clear the investigator and Wallace had time to confer about the declaration. Wallace was terminally ill and had known Dixon for a long time. Also, Dixon and Wallace were housed in the same jail and Dixon knew in advance Wallace would sign the declaration. Wallace's statement was not repeated to law enforcement several times. Furthermore, Wallace also knew Dixon faced a much longer sentence given Dixon's prior strike convictions, giving Wallace a motive to lie. We found the holding in Chambers v. Mississippi was premised on the conclusion the evidence was reliable and the trial court, therefore, did not err in excluding the exculpatory evidence. (People v. Dixon, supra, at pp. 999-1000.)
The facts forming the basis of our holding in People v. Dixon are completely inapposite to those in the instant action, as noted above. David Martinez's confession included inculpatory statements mixed with statements exculpating defendant; his confession was given spontaneously during police interrogation; nothing in the record indicates defendant had preknowledge of Martinez's statement. We find our holding in Dixon is not applicable to this case.
There is nothing about David Martinez's exculpatory statements about defendant's conduct that make them unreliable. Martinez would not have made the statements unless he believed them to be true. There was no evidence that Martinez had a motive to protect defendant. Martinez made his statements on his own initiative without police coercion. Although Martinez was purportedly under the influence of an intoxicating substance, there is no indication in the record to suggest his intoxication by itself rendered his statements false or untrustworthy. (See People v. Grimes, supra, 1 Cal.5th at pp. 718-719.)
In Dixon, our court noted that in Chambers and other federal cases, the declarant made statements to the effect that the defendant did not commit the crime while admitting to himself committing the crime. (See Chambers v. Mississippi, supra, 410 U.S. at pp 302-303; Green v. Georgia (1979) 442 U.S. 95, 96-99 [testimony excluded on hearsay grounds that coperpetrator shot victim after sending defendant away on an errand]; Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 1003-1005 [coperpetrator's statements to investigators that defendant was not involved in an undercover drug deal leading to deaths of two officers and other perpetrators excluded].) Such statements exclude the defendant as the guilty party and are done so spontaneously and without other motive to inculpate or exonerate a coconspirator. (People v. Dixon, supra, 153 Cal.App.4th at p. 999.)
Considered in context, David Martinez's statements are very similar, if not identical, to those made in Chambers v. Mississippi and its progeny. It was error for the trial court to exclude evidence that was not untrustworthy as was the allegedly exculpatory declaration in Dixon. The exclusion of this evidence negatively impacted defendant's federal constitutional rights to due process, compulsory process, and to confront witnesses.
E. Prejudice
The trial court erred in denying defendant's motion to include David Martinez's exculpatory statements to the jury and in granting the prosecutor's motion to exclude them. Grimes found that the proffered evidence created a reasonable possibility the jury would have rendered a different verdict, using the standard of review in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Grimes, supra, 1 Cal.5th at pp. 719-723.) We find defendant's situation to be similar, even though he confessed to the crimes. As noted below, the transcript of defendant's confession during his interrogation had inaccuracies. Although it did not constitute evidence, the transcript was given to the jury.
The version of events presented to the jury from David Martinez's interrogation failed to include Martinez's exculpatory statements that defendant tried to stop the attacks on Gill by pulling Martinez and/or Parks away from their strangulation of the victim. To make matters worse, the jury heard that others had their hands around Gill's neck without specifying who those others were. The jury was told Martinez admitted to finishing off Gill, but did not hear his admission that he stole Gill's wallet and initiated the struggle with Gill over control of the wallet. The jury did not hear other inculpatory comments by Martinez linking him directly to Gill's death. Most of Martinez's inculpatory statements were either not presented to the jury or they were presented out of context, giving the jury a very skewed picture of Martinez's account.
Although the jury received aiding and abetting instructions, the jury's inability to hear that defendant pulled David Martinez and/or Parks away from Gill to prevent harm was directly relevant to his potential liability as an aider and abettor because it indicated defendant did not share the intent of the perpetrators. It also potentially showed that even if defendant shared the perpetrator's original intent to steal Gill's wallet, he withdrew from participation in the crime. Had the jury been aware of Martinez's exculpatory statements concerning defendant, it may have viewed defendant's confession differently, especially his many assertions he was so drunk he was not sure what happened. Defendant's statements could have been interpreted by the jury as the product of what he had been told rather than what he remembered, undermining the conclusion he was the actual killer, had the intent to kill, or acted with reckless disregard for human life.
The limited presentation of David Martinez's statement coupled with the omission of references to Parks's role in the crime left the jury with the misleading impression that it was defendant who forced Martinez to strangle Gill. The record supported the assertion that Parks was dangerous and had threatened to kill others, including L.O., if they told the police what they knew. Martinez's admission during his interrogation that he finished off Gill, strangling him one last time, could have occurred after defendant's struggle with Gill. Defendant's confession that Gill had no pulse or heartbeat after their encounter could have been distorted by his own intoxication at the time. Defendant is not a doctor. The jury should have been presented with Martinez's statements exculpating defendant.
There were two significant defects in how the jury was presented with David Martinez's statement to police. First, many of his important inculpatory statements were not presented to the jury. Second, all of his exculpatory statements concerning defendant were not presented to the jury. In addition, there were some material errors in the transcript of defendant's confession. Finally, as we discuss in the next part, the trial court erred in failing to give the jury instructions on lesser included offenses. We find that had the jury heard the excluded evidence, not reviewed errors in the transcript of defendant's confession, and received instructions on lesser included offenses, there is a reasonable possibility it would have reached a different verdict. (People v. Grimes, supra, 1 Cal.5th at pp. 719-723.)
II. Instructional Error
Defendant contends the trial court erred in failing to give the jury instructions on lesser included offenses to murder. The People argue no such instructions were necessary because the prosecutor proceeded on a theory of felony murder. We find error.
The trial court must instruct on the general principles of law relevant to the issues raised by the evidence. This obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (People v. Banks (2014) 59 Cal.4th 1113, 1159, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 386-392.)
The rule that juries must be instructed on lesser included offenses prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense or complete acquittal. The rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than merited by the evidence. Because instructing on lesser included offenses serves to increase the accuracy of verdicts, the requirement to do so applies even when a defendant not only fails to request the instruction as a matter of trial tactics but expressly objects to the instruction being given. (People v. Banks, supra, 59 Cal.4th at pp. 1159-1160.) Appellate courts independently review the question of whether the trial court improperly failed to instruct on a lesser included offense. (Id. at p. 1160.)
For purposes of determining if a trial court has met its instructional duties, we apply two tests. A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all of the elements of the lesser offense. In other words, if the greater offense cannot be committed without also committing the lesser offense, the instruction is required. When applying the accusatory pleading test, the trial court must examine the accusatory pleading. If the prosecution has chosen to allege a way of committing a greater offense that necessarily subsumes a lesser offense, and if there is substantial evidence the defendant committed the lesser offense without also committing the greater offense, the trial court must instruct on the lesser included offense. (People v. Banks, supra, 59 Cal.4th at p. 1160; see People v. Campbell (2015) 233 Cal.App.4th 148, 158-162 (Campbell).)
In the instant action, defendant was charged in the information with willfully, unlawfully, deliberately, and with premeditation and malice aforethought murdering Kelly Gill, a human being. The information alleged special circumstances for robbery and burglary. The jury was instructed on direct perpetrator and aiding and abetting liability (CALCRIM No. 400), homicide (CALCRIM No. 500), felony murder while committing a robbery and/or burglary (CALCRIM No. 540A), and the requirement to find the special circumstances allegations true (CALCRIM No. 700). The jury was not instructed on simple willful malice first degree murder, second degree murder, or manslaughter. In Banks, the defendant was also charged on the felony-murder theory that he murdered the victim during the course of an attempted robbery. (People v. Banks, supra, 59 Cal.4th at pp. 1158-1159.) Applying the accusatory pleading test, Banks held that although the defendant allegedly committed murder during the course of a robbery, the pleading alleged he did so willfully and maliciously. Accordingly, the trial court was required to instruct the jury on second degree murder so long as there was substantial evidence to support such a finding. (Id. at p. 1160.)
Reviewing the evidence, the court in Banks found there was sufficient evidence to support a finding of second degree murder because the defendant and the victim engaged in an argument at an ATM, and video of the encounter did not show the defendant taking anything from the victim. Although there was a logical inference the defendant was trying to take the victim's money, it was not the only inference. The trial court was therefore obligated to instruct the jury on second degree murder. (People v. Banks, supra, 59 Cal.4th at p. 1161.)
In Campbell, supra, 233 Cal.App.4th 148, Campbell and friends, including codefendant Fort, went to the victim's house to obtain marijuana. After the victim's associate handed Campbell the marijuana, Campbell pulled out a gun and began backing away toward waiting vehicles. Fort, who was standing near the vehicles, fired his gun in the direction of the house. The victim was killed by one of the bullets fired from Fort's gun. Campbell and Fort were convicted of first degree murder with a true finding for a robbery special-circumstance allegation. The jury also convicted the defendants of two counts of robbery based on the taking of the marijuana. (Id. at p. 151.) As in this case, the jury in Campbell only received instructions on first degree felony murder although the information alleged the crime was committed with malice aforethought, premeditation, and deliberation. The prosecution had argued to the trial court that lesser included instructions were not necessary in Campbell because the People's theory was limited to felony first degree murder. (Id. at p. 157.)
Applying the accusatory pleading test and following Banks and People v. Anderson (2006) 141 Cal.App.4th 430, 444-446, the court in Campbell determined defendant Fort was entitled to lesser included instructions on second degree murder and manslaughter. (Campbell, supra, 233 Cal.App.4th at pp. 158-160.) The Campbell court reasoned that allegations of malice murder with deliberation and premeditation on its face gave rise to possible lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter even though the prosecutor was free to try the case on a felony-murder theory. The defendant was nonetheless entitled under the accusatory pleading test to jury instructions on the lesser included offenses of first degree malice murder, provided there was substantial evidence to support the commission of the lesser offenses but not the greater. (Campbell, supra, at pp. 159-160, citing People v. Banks, supra, 59 Cal.4th at p. 1160.)
The People argue the jury's true finding of the special circumstances shows there was no way defendant could have been found guilty of second degree murder. The People rely on a recent appellate decision, People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1379-1380, review granted July 13, 2016, S234377 (Gonzalez), that held a finding of a special circumstance of robbery or attempted robbery necessarily made the error in failing to give lesser included instructions harmless. The Banks court ultimately found the error there harmless because it did not consider the evidence the defendant committed a lesser offense to be compelling. (People v. Banks, supra, 59 Cal.4th at p. 1161.) As defendant points out, Banks did not rely on the jury's special circumstance finding, whereas the linchpin of the court's analysis in Gonzalez was that the jury found the special circumstance allegation true. (Gonzalez, supra, at pp. 1381-1382.) Campbell was decided after applying a careful analysis of Banks to its facts. We find the reasoning in Campbell to be more persuasive than the analysis in Gonzalez and apply its holding here.
The People note the California Supreme Court has not decided whether second degree murder is a lesser included offense of felony murder, citing People v. Taylor (2010) 48 Cal.4th 574, 623.
The effect of failing to give the jury here instructions on the lesser included offenses to first degree malice murder—second degree murder, voluntary manslaughter, and involuntary manslaughter—left the jury with an all-or-nothing choice. The jury could either accept the prosecution's theory of felony murder, or it could acquit defendant of all charges, even though there was excluded exculpatory evidence that he may have committed a lesser offense. The prosecution's allegations of willful malice aforethought gave the People the ability to take advantage of any weakness in evidence supporting the special circumstance allegations by relying on its accusatory pleading. Without lesser included instructions, however, defendant was left with no practical ability to argue he committed a lesser included offense based on the evidence, even though the People had given defendant notice in the information that he and his counsel could make that choice. It was error to not instruct the jury on lesser offenses and leaving it with an all-or-nothing choice.
Applying the Watson standard of review, Banks found any error in the failure to give a lesser included instruction to be harmless. (People v. Banks, supra, 59 Cal.4th at p. 1161.) Like Banks, defendant was charged with committing murder willfully and with malice. The court in Banks found the robbery scenario far more plausible than other theories when it applied the Watson state court error standard of review. (People v. Banks, supra, at p. 1161.) The facts in Banks are distinguishable from those in the instant action because in Banks there was no improper exclusion of exculpatory evidence as occurred here.
The court in Campbell also applied the Watson standard of review to determine whether the failure to give lesser included instructions was harmless error. Campbell found there was substantial evidence to support a jury finding of second degree murder and that defendant Fort did not intend to aid and abet the robbery and did not know the codefendant Campbell intended to commit a robbery, although there was also evidence to support the opposite conclusion. (People v. Campbell, supra, 233 Cal.App.4th at pp. 163-165.) Campbell did not find the instructional error harmless. (Id. at pp. 166-173.) Although Fort was a participant in killing the victim, it was not patently clear Fort intended to aid and abet a robbery with codefendant Campbell. Campbell analyzed the absence of lesser included instructions as follows:
"[T]he jury could have ... found [Fort] guilty of second degree murder or voluntary manslaughter. Nonetheless, because the jury was instructed on felony murder only, the jury was faced with an all-or-nothing proposition: felony murder or acquittal. As instructed, jurors who doubted that Fort aided or abetted a robbery would still understand that convicting Fort of murder meant that they would have to also find him guilty of the underlying felony, robbery. Otherwise, the juror would be left in the seemingly untenable position of voting not guilty as to robbery and allowing an individual who shot and killed another person to walk free. Thus, without the option of convicting Fort of either a lesser offense or of premeditated first degree murder, the jury, if it was to convict Fort at all for the killing of Leyva, was, in essence, compelled to further convict Fort of robbery and find the robbery-murder special circumstance true. Thus, given the facts and instructions presented here, it cannot be said that the jury's true finding on the special circumstance allegation necessarily means that the jury would have found defendant guilty of felony murder if it had been instructed on lesser offenses." (People v. Campbell, supra, 233 Cal.App.4th at pp. 172-173.)
We find the factual circumstances here to be very similar to those in Campbell and apply its analysis of prejudicial error to this case. As in Campbell, there is substantial evidence to support the conclusion reached by the jury in this case. Here, like the circumstances involving defendant Fort in Campbell, it is unclear whether defendant killed Gill with the intent to rob him. Indeed, with the exclusion of David Martinez's exculpatory evidence that defendant tried to pull him away from Gill as Martinez was strangling Gill, it is unclear whether defendant even intended to kill Gill or if he did kill Gill. Martinez further admitted to finishing off Gill. Defendant admitted he was very intoxicated when the incident occurred, which could affect his ability to form specific intent.
There is substantial evidence supporting a range of completely different verdicts on theories ranging from first degree murder without special circumstances, second degree murder, or some form of manslaughter depending on how the jury weighs the totality of the evidence, including the excluded exculpatory evidence and corrections to errors appearing in the transcript of defendant's confession. We therefore find it is reasonably probable the jury could have reached a different verdict had exculpatory evidence not been improperly excluded and had it been instructed on applicable lesser included offenses. Under the Watson standard of review, the failure to give instructions on lesser included instructions was not harmless error and the judgment is reversed.
III. Errors in Written Transcript of Defendant's Confession
A. Introduction
Defendant's interrogation by police had been video and voice recorded and it was played for the jury at trial. The jury was given a written transcript to follow that had errors. The jury was instructed that the transcript was not evidence, only what the jury heard or saw was evidence. After the jury began its deliberations, it requested a transcript of defendant's interrogation. Defense counsel objected to this procedure because the transcript did not constitute evidence and the jury had possession of the video and audio recording of defendant's interrogation. The trial court ruled neither counsel had objected to the accuracy of the transcript and the jury could receive copies of the transcript for its deliberations. Defense counsel reiterated his objection to this procedure because the transcript was not evidence. The trial court sent the jury the transcript with an admonishment that the transcript was not evidence.
Defendant contends the trial court erred in permitting the jury to have an inaccurate transcript of defendant's confession during its deliberations. The People argue the issue was forfeited and any inaccuracies in the transcript were immaterial, making them harmless. We find defense counsel raised a proper objection to the introduction of the transcript, and the trial court erred in allowing the jury to use it during deliberations.
B. Forfeiture
The People argue this issue was forfeited because defense counsel failed to object to any errors in the transcript. We reject this point because defense counsel objected that the transcript was not evidence and should not be considered by the jury during its deliberations.
Generally, a party objecting to evidence must raise a specific objection to preserve the issue for appellate review. Usually, a defendant cannot advance on appeal a different theory—or reason to exclude evidence—from the objection raised to the trial court. (People v. Partida (2005) 37 Cal.4th 428, 434-435.) It serves no useful purpose to decline a claim on appeal that restates the trial court's objection under alternative legal principles otherwise identical to the issue properly preserved. (Id. at p. 436.) The court in Partida found that a due process argument advanced on appeal, but not to the trial court, was sufficiently similar to the Evidence Code section 352 objection lodged to the trial court, and it was not forfeited on appeal. To consider the narrow due process argument added on appeal entailed no unfairness to the parties. (Partida, at p. 436.)
Defense counsel objected to the admission of the transcript of defendant's interrogation on the ground it was not evidence and therefore inadmissible. Although specific objections were not made to alleged inaccuracies in the transcript, the transcript itself was never admitted into evidence and if the trial court had ruled properly, the jury would have viewed none of defendant's transcribed statements, including the allegedly inaccurate ones. Accordingly, we find this case analogous to Partida and hold this issue was preserved for appellate review.
C. Analysis
To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness. A partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape's relevance is destroyed. (People v. Polk (1996) 47 Cal.App.4th 944, 952.) Transcripts of such tape recordings are only prejudicial if it is shown they are so inaccurate, the jury might be misled into convicting an innocent person. (People v. Miley (1984) 158 Cal.App.3d 25, 36; People v. Fujita (1974) 43 Cal.App.3d 454, 472-473.)
A trial court ordinarily does not abuse its discretion in allowing the jury to have a transcript to follow along as an aid to a recording, especially where the trial court admonishes the jury that the transcript is only an aid and not evidence. Reviewing courts, however, "have recommended that trial courts review the recording to ensure that the transcript reasonably reflects the recorded words." (People v. Jones (2017) 3 Cal.5th 583, 611, citing People v. Polk, supra, 47 Cal.App.4th at p. 955; People v. Fujita, supra, 43 Cal.App.3d at pp. 472-473; People v. Miley, supra, 158 Cal.App.3d at p. 36; see U.S. v. Robinson (6th Cir. 1983) 707 F.2d 872, 876-878.) Where the admission of this class of evidence was not an abuse of discretion and did not render the defendant's trial fundamentally unfair or violate the defendant's constitutional rights, there is not a violation of due process or a right to a fair trial. (People v. Jones, supra, at p. 912.)
Defendant did not object to any inaccuracies in the transcript of his interrogation and the transcript is, on the whole, accurate. On appeal, however, the parties concede there were inaccuracies in the transcript of defendant's confession. There is consensus that the transcript indicates some of defendant's statements are unintelligible when in fact he is referring to how Gill struggled with defendant in the same manner as he struggled with David Martinez. At one point, the transcript indicates defendant acted alone when he grabbed Gill's throat during the struggle, but the parties agree defendant used the plural "we" in explaining how Gill's throat was grabbed.
The differences between the transcript and the video and audio recording of defendant's interrogation are subtle, but potentially significant. Defendant usually asserted he acted alone, but during questioning he made references to other actors who struggled with Gill, especially David Martinez. Read in isolation, these subtle differences do not appear to be prejudicial. The differences between the transcript and the recording of defendant's interrogation take on a different light when considered with the erroneous exclusion of Martinez's exculpatory statements.
The parties and the trial court apparently did not carefully compare the recording of defendant's interrogation with the transcript for inaccuracies or to determine whether utterances the transcriber indicated as unintelligible were actually inaudible. Review and comparison of a recording with a transcript for accuracy is considered the preferable procedure for courts to follow. Due to other errors, the case must be remanded for further proceedings. In the event of retrial, the court shall review the transcript of defendant's interrogation, and any other relevant recordings admitted into evidence, and compare the recordings with relevant transcripts for inaccuracies. Any inaccuracies in the transcripts shall be corrected. No transcripts of recordings shall be submitted to the jury in lieu of or with the recordings themselves without a stipulation from defendant.
Defendant further argues imposition of a parole revocation fine was error because his sentence was life without the possibility of parole. Although this argument is currently moot in light of our reversal of defendant's conviction, his point is valid. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.) --------
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent with the views expressed in this opinion.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.