Opinion
B223000
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE BIDDLE, Defendant and Appellant.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA068151)
APPEAL from a judgment of the Superior Court of Los Angeles County. Katherine Mader, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Daniel Lee Biddle of first degree murder (Pen. Code, § 187, subd. (a)) (count 1) and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 2). The jury found that appellant personally and intentionally discharged a firearm causing great bodily injury and death. (§ 12022.53, subd. (d).)
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total term of 50 years to life. The sentence consisted of 25 years to life for the murder (count 1) and 25 years to life for the section 12022.53, subdivision (d) enhancement. The trial court imposed a concurrent term of two years in count 2.
Appellant appeals on the ground that the trial court erred in admitting appellant's extrajudicial statements to prove the predicate crimes on which the felony murder charge rested in the absence of a prima facie showing of the corpus delicti of the predicate crimes.
FACTS
Prosecution Evidence
On June 4, 2008, Patrick Lister acted as a middleman in a drug sale between his friend, Roy Lopez, and appellant. Kara Aves had telephoned Lister that day and said she knew someone who wanted a pound of marijuana. Aves said the buyer was known as J-On, and he was connected to someone she met at a party. J-On, later identified as appellant, telephoned Lister. Lister then contacted Lopez, who said he could obtain the marijuana. At approximately 8:30, appellant said he was ready to meet.
At approximately 9:30 p.m., Lister met with appellant at a Trader Joe's store near Sepulveda Boulevard and Palms Boulevard. Lister saw appellant exit a four-door white car in which there were two African-American males. Appellant introduced himself to Lister as "Daniel," and he showed Lister a wad of cash. Appellant seemed jittery.
Lister noticed a police car parked nearby. He and appellant decided to go elsewhere. Appellant got into Lister's car, and Lister drove to a nearby Winchell's Donuts store. Appellant's friends followed in the white car. Lister gave Lopez their location, and Lopez arrived shortly thereafter. Lopez and appellant discussed the transaction and agreed upon a price of $4,000. Lopez told appellant he needed $300 up front. Lister saw some money change hands. Appellant told Lopez he wanted to complete the transaction "inside the neighborhood" and not in front of Winchell's. Lopez told everyone where they were to meet inside the neighborhood and gave them directions.
Lopez drove away. Lister drove to the new location alone in his car, and the white car occupied by appellant and his friends followed him. Lister parked his car upon arriving at the new location, which was Glendon Avenue. Lopez's car was already there. Appellant's vehicle drove on past Lister's car and stopped near Lopez. Lister began looking through his CD's (compact discs), and looking up at the two cars from time to time. At one point, he looked up and saw the tail lights of appellant's and Lopez's cars going down the hill. He wondered why they were leaving and he began to follow them. After momentarily losing sight of the two cars, Lister saw the white car make a U-turn. Lister did not see Lopez's car, and he kept driving forward. He began looking through his CD's as he slowly drove down the hill, and he then heard approximately three gunshots. As Lister drove toward the bottom of the hill he saw appellant get into the back passenger seat of the white car. He recognized appellant's face and clothing. It seemed that appellant was carrying a dark object in his arms. The white car drove away. Lister saw Lopez's car parked on the right side of the street.
The interior dome light was on in Lopez's car, and the passenger door was open. Lister pulled up next to Lopez's car and saw that his face was bloody. Lister saw Lopez moving his head and rocking back and forth. Lister called 911 and then got out of his car. He walked up to Lopez and saw him breathing hard. Lister told Lopez he was sorry and that he did not know this was going to happen. Lister saw no weapon in Lopez's car. Lopez underwent surgery and died on June 15, 2008. The cause of death was a gunshot wound to the head. He had also been shot in the left thigh.
On the night of the shooting, Bret Newton was in the living room of his home near the intersection of Glendon Avenue and Queensland Street when he heard gunshots. He heard a car and went to the front door. He saw a man jumping into the passenger side of a car, and he saw the car "taking off." It looked like a white sports car. The man was carrying something. Newton called 911. The transcript of his 911 call was played for the jury.
On June 4, 2008, Officer Robin Downey of the Los Angeles Police Department (LAPD) and his partner, Officer Rincon, responded to a call at approximately 10:00 p.m. near the corner of Glendon Avenue and Queensland Street, in the City of Los Angeles. Lister flagged the officers down and said, "Help. Help. This guy needs help." The officers approached a green Nissan Sentra and saw a still-conscious Lopez trying to turn his head toward the officers. Officer Downey saw that Lopez had a gunshot wound in his head that was bleeding profusely.
Jeff Strohm, a custodian of records at Sprint Nextel Telecommunications, testified regarding appellant's cell phone records. Strohm explained that cell phones constantly search for the cell phone tower emitting the strongest signal, which usually comes from the closest cell phone tower. The cell phone records indicate the latitude and longitude of the cell phone tower used in a particular call. A call from appellant's cell phone on June 4, 2008, at 9:23 p.m. used a tower at 3480 Sawtelle Boulevard in Mar Vista, which meant appellant was from two to 10 miles from the tower.
In 2008, Starla Ruffin worked as a caregiver for appellant's stepbrother, Brian, in a home occupied by Brian, appellant, appellant's father, Valerie Patin (appellant's father's companion), and appellant's stepsister, Ashley. One day during the summer of 2008, appellant showed Ruffin and Brian some money. Brian counted it, and the sum was $3,000. Appellant said he had robbed someone for the money and "weed." He said he had shot a Mexican guy in the head, and Ruffin believed it occurred in Santa Monica. Appellant told Ruffin that a mutual friend had hooked him up with this guy. Appellant said there was a "guy in between" who made the connection for appellant to buy the weed. Appellant said he had no money and he intended to rob the guy when he got in the car. Ruffin did not believe appellant until he began burning his clothing in the barbecue pit. Appellant asked Ruffin if police could get DNA from dirty underclothes, because he had some in a bag that fell out while he was running away. When Ruffin went to court on another matter involving appellant's father, she told Detective Robyn Salazar about what appellant had told her.
After an investigation, appellant was arrested on June 20, 2008, at a residence on East 91st Street in Los Angeles. A white Pontiac Grand Am was found nearby. Police found a backpack containing approximately 71 grams of marijuana in the trunk and some marijuana and $20 in the front passenger compartment.
The residence where appellant was found was occupied by James Burns, Ronell Butcher, and Farrell McCullogh. Burns was an armed security guard and kept his weapon in a backpack in his unlocked room when off duty. On June 20, 2008, there were police at Burns's residence when he arrived home. Burns saw Butcher outside in handcuffs. Burns also saw appellant in custody. Burns recognized appellant, who had been at Burns's home once before.
The police asked to see Burns's gun, a revolver. The gun had only two bullets in it. Burns knew that the gun had contained six bullets when it had been inspected at work a month earlier. Burns visited his daughter every Monday, Wednesday, and Friday from approximately 6:30 p.m. to 11:30 p.m., and he did not take his gun with him on these visits. Lopez's shooting took place on a Wednesday. A criminalist with the LAPD determined that a bullet found in the door of Lopez's car was fired from Burns's gun.
Detective Salazar interviewed Lister on June 4, 2008. Lister was nervous and appeared to be frightened. He at first claimed to be a passerby of the shooting scene, but he eventually gave Detective Salazar the details of the drug sale.
Defense Evidence
Appellant's stepsister, Ashley, testified that Ruffin was angry when Patin fired her. Ruffin told Ashley that her "whole family was going to go down." Ruffin said she would make their lives a living hell.
DISCUSSION
I. Appellant's Argument
Appellant contends that People v. Miller (1951) 37 Cal.2d 801 (Miller), which carved out an exception to the corpus-delicti rule and held it did not apply to felony murder, was not well-reasoned and should be reconsidered. Appellant argues that the only evidence that appellant committed a robbery or attempted robbery was the testimony of his stepbrother's disgruntled caretaker, Ruffin.
II. Proceedings Below
Prior to trial, the trial court conducted an Evidence Code section 402 hearing on the corpus delicti rule as it applied to "robbery murder." The trial court noted preliminarily that the case law, particularly People v. Jennings (1991) 53 Cal.3d 334, appeared to support the People's argument that the elements of the predicate crime of robbery did not have to be proved by independent evidence in order to arrive at a charge of felony murder. The trial court nevertheless asked the prosecutor to delineate what inferences could be drawn from the independent evidence.
The prosecutor replied that the evidence would show that there was a deal to buy marijuana for $4,000, and that appellant and two other men showed up to complete the deal. Lopez, the murder victim, left to procure the marijuana and was later seated in his car with appellant when shots were fired. Appellant got out of that car and entered another car and left the scene. No marijuana or weapons were found at the scene. There was a reasonable inference that appellant brought the gun to the scene, since he was the only person who left the victim's car. The trial court ruled that the evidence was sufficient.
III. Relevant Authority
The corpus delicti of a crime consists of the fact of the injury or harm and the fact that a criminal agency caused the harm. (People v. Jennings, supra, 53 Cal.3d at p. 364; see also People v. Zapien (1993) 4 Cal.4th 929, 985-986.) The corpus delicti must be established independently of the defendant's extrajudicial statements. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez); People v. Diaz (1992) 3 Cal.4th 495, 528-529.) This independent proof of the corpus delicti of a crime may consist of circumstantial evidence and need not be beyond a reasonable doubt. Only a slight or prima facie showing permitting a reasonable inference that a crime was committed is necessary. (Alvarez, at p. 1171; People v. Diaz, at p. 529.) The required mental state can be inferred from the circumstances. (Alvarez, at pp. 1183-1184; People v. Ochoa (1998) 19 Cal.4th at p. 451.) "In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]" (Alvarez, at p. 1171.)
IV. Analysis
In the instant case, appellant's jury was instructed on both a felony murder theory predicated on a robbery or attempted robbery and on the theory of premeditated murder. (CALCRIM Nos. 548, 521, 540A.) The record does not reveal upon which theory the jury convicted appellant. The jury heard Lister testify that appellant met with Lopez at the Winchell's shop to buy marijuana and then asked to conduct the transaction further inside the neighborhood. After an initial stop on Glendon Avenue, Lopez and the occupants of the white car drove farther down the street and down a hill. Lister was driving to catch up with Lopez's car and the car in which appellant was riding when he heard shots. He then saw appellant getting in the white car while carrying something. The white car took off. Another witness, Newton, saw a man jump into the white car and drive away. The man was carrying a bag. Lister saw Lopez bleeding from the head, and Newton also saw Lopez bleeding. There was no firearm in Lopez's car. The evidence showed Lopez had been shot twice and that he later died from his head wound. Thus, the evidence was sufficient to establish the corpus delicti for the murder of Lopez.
Assuming appellant was convicted on a felony murder theory, "[t]he corpus delicti of the crime of murder having been established by independent evidence, both reason and authority indicate that the circumstances surrounding the commission of the crime can be shown by the extrajudicial statements of the accused, and that such evidence of the surrounding circumstances may be used to establish the degree of the crime committed." (Miller, supra, 37 Cal.2d at p. 806.) A long line of cases, in addition to the cases already cited, is in accord with Miller. (See, e.g., People v. Weaver (2001) 26 Cal.4th 876, 929-930; People v. Cantrell (1973) 8 Cal.3d 672, 680-681, overruled on other points in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, and People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5; People v. Cooper (1960) 53 Cal.2d 755, 765; People v. Amaya (1952) 40 Cal.2d 70, 80; People v. Martinez (1994) 26 Cal.App.4th 1098, 1104; People v. Scofield (1983) 149 Cal.App.3d 368, 371-372; People v. Scott (1969) 274 Cal.App.2d 905, 907-908; People v. Bolinski (1968) 260 Cal.App.2d 705, 715.)
Appellant nevertheless urges us to hold that the prosecution was required to independently establish the corpus delicti not only for the charged crime of murder, but also for the crime of robbery or attempted robbery as the basis for felony murder, despite Miller's holding to the contrary. Even if we were to disagree with Miller, however, we are bound by the Supreme Court's decision in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Furthermore, Miller is consistent with the corpus delicti rule, since that rule does not require that the necessary mental state for the charged crime be shown by independent evidence. (Alvarez, supra, 27 Cal.4th at p. 1183; People v. Daly (1992) 8 Cal.App.4th 47, 59.) The role of the felony-murder rule is to provide a substitute for malice—the mental state required for murder. (People v. Hansen (1994) 9 Cal.4th 300, 320, disapproved on another point in People v. Chun (2009) 45 Cal.4th 1172, 1199; see also People v. Patterson (1989) 49 Cal.3d 615, 626.) Accordingly, the corpus delicti rule makes no demand that there be independent evidence establishing the crime of robbery— the predicate crime that is the substitute for proof of appellant's mental state—in this case.
Moreover, even if the exception to the corpus delicti rule established by Miller were to be found invalid, and the prosecution were required to prove the corpus delicti of robbery or attempted robbery in this case, the evidence was sufficient. Lister testified about the transaction between Lopez and appellant—a transaction in which he acted as a middleman and of which he had first-hand knowledge. Lopez was his friend, and Lopez told Lister he could obtain the marijuana. Lister was present for the price negotiation. The deal participants moved to Glendon Avenue for the sole purpose of exchanging Lopez's marijuana for appellant's cash. Lister saw appellant carrying something dark when he moved from Lopez's car to the white car. Newton saw that the man getting in the white car was carrying a bag. When appellant was arrested, Detective Reynolds found a backpack containing 71 grams of marijuana in a white Pontiac Grand Am parked near the house where appellant was found. Thus, the inference that appellant shot Lopez while committing or attempting to commit a robbery was reasonable. The inference need not be "'the only, or even the most compelling, one . . . [but need only be] a reasonable one. . . .'" (People v. Jones (1998) 17 Cal.4th 279, 301-302.) Not every element of a crime must be proved in order to establish the corpus of that crime. (Alvarez, supra, 27 Cal.4th at p. 1171.) Here, there was sufficient evidence to show that Lopez was murdered during the commission of a robbery or attempted robbery, and Ruffin's testimony about the statements appellant made to her was therefore properly admitted in accordance with Miller.
Newton told the 911 operator that the white car fleeing the shooting scene had a long nose like a Camaro.
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Appellant's argument is without merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______, P. J.
BOREN
We concur:
_______, J.
DOI TODD
_____, J.
CHAVEZ