Opinion
C041602.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. DENNIS MICHAEL DAVIS, Defendant and Appellant.
Convicted of first degree murder, second degree robbery, and unlawful taking of a vehicle and sentenced to a determinate term in state prison of 17 years 4 months and an indeterminate term of life without possibility of parole, defendant appeals. He contends the trial court erred by (1) excluding parts of an accomplices out-of-court statements, (2) not compelling the accomplice to testify, (3) refusing to give a heat of passion voluntary manslaughter instruction, and (4) imposing unstayed, consecutive sentences for all three crimes. We affirm.
PROCEDURE
The district attorney charged defendant, by way of information, with murder of Don McElroy, robbery, and unlawful taking of a vehicle, also alleging prior convictions. Additionally, the information alleged the murder was committed during a robbery and that, as to the murder and robbery counts, defendant personally used a deadly weapon. A jury found defendant guilty of first degree murder with the special circumstance that he committed the murder in the commission of a robbery, second degree robbery, and unlawful taking of a vehicle. The jury found not true the allegations defendant personally used a deadly weapon. The court found the prior conviction allegations true. After a penalty phase, the jury fixed the penalty at life without possibility of parole.
The trial court imposed, under the "Three Strikes" law, a determinate term of 16 years for the robbery and a consecutive 1 year and 4 months for unlawful taking of a vehicle, for a total determinate term of 17 years 4 months. It also imposed a consecutive indeterminate sentence of life without possibility of parole for the murder.
FACTS
On March 14, 1999, defendant and Michael Wilson drank beer with others on a hill behind a store called the Fishen Hole in Shasta Lake City. When the beer ran low, they went into the store. Before they left, the store clerk, Don McElroy, had sustained fatal injuries, inflicted with the use of a metal bar. One witness inside the store saw Wilson push McElroy. He heard a loud crash and turned around to see McElroy on the floor, with defendant and Wilson standing over him. A customer attempted to enter the store, but someone closed the door. He pushed on the door but observed defendant, holding beer, pushing on the door from the inside. Defendant told him the store was closed.
Defendant and Wilson took two or three cases of beer. They left in McElroys car. Approximately $200 to $250 was gone from the cash register. McElroys hip pocket was torn away and his wallet was on the floor next to him with the contents removed.
Defendant and Wilson arrived at the home of Teena Davis later that morning in McElroys car. Wilson had blood on his hands, and they told her that they had just robbed and killed the store clerk at the Fishen Hole. They counted some money. Wilson changed out of the bloody clothes and burned them. They left in McElroys car.
McElroy died as a result of both sharp force and blunt force injuries. A strand of defendants hair was found in one of McElroys wounds. At the time of death, two drugs were present in McElroys blood: a barbiturate and methamphetamine. The pathologist testified that these two drugs cancel out each others effects. A defense expert, however, testified that the combination of these drugs could produce poor social judgment and aggression.
When interviewed two days after McElroy was killed, defendant admitted he was at the Fishen Hole when the homicide occurred, but he claimed he did not kill McElroy. He told investigators McElroy was disrespectful and refused to sell him beer on credit. Defendant said he assisted Wilson by holding the door closed and preventing another customer from entering the store. After what he referred to as "chaos" occurred, he took some beer and McElroys car and left.
A defense investigator, Joe Barthel, interviewed Michael Wilson in state prison after Wilson was convicted and sentenced in connection with these crimes. Wilson told Barthel he killed McElroy. He disliked McElroy and went to the store to give him a hard time. When McElroy "bad-mouthed" Wilson, in Wilsons words, "it kicked off." Wilson lost his temper, grabbed a piece of metal, and hit and stabbed McElroy.
DISCUSSION
I
Exclusion of Accomplice Statement
Defendant raises two issues concerning his accomplice, Michael Wilson. First, defendant asserts the trial court erred in excluding part of the statement Wilson gave to Joe Barthel, the defense investigator. And second, he asserts the trial court erred in allowing Wilson to refuse to testify based on a claim of his Fifth Amendment privilege against self-incrimination. After some background on these issues, we discuss the first issue in this part of the Discussion and the second issue in part II.
Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected [the declarant] to the risk of civil or criminal liability, or so far tended to render invalid a claim by [the declarant] against another, or created such a risk of making [the declarant] an object of hatred, ridicule, or social disgrace in the community, that a reasonable [person] in [the declarants] position would not have made the statement unless [the person] believed it to be true."
Wilson pled guilty to the murder of Don McElroy and, in connection with that guilty plea, he waived his right to appeal except as to sentencing issues. Sentenced to an indeterminate term of 26 years to life, Wilson filed a notice of appeal. Defense investigator Joe Barthel, working on the current case, went to visit Wilson in prison after Wilsons sentencing. During their conversation, Wilson admitted he, not defendant, was responsible for killing McElroy. Before the visit ended, Barthel wrote out and Wilson signed a statement, as follows: "I, Michael Wilson, did the killing of McElroy at the Fishen Hole in Shasta Lake City. [¶] It is all on me, [defendant] did not do anything until it was over. I hated McElroy for the hassles he has given me over the years. I went in there to give him a hard time, he bad-mouthed me, and it kicked off. I lost my temper and hit him. He fell and I just grabbed a piece of metal that was there, and went after him. I stabbed him a lot of times, but I dont remember how many. I just lost it. [Defendant] did not do this. I killed the guy by myself. I am not bragging about it, or trying to disguise it. It just happened. This is true." (Excluded portions in italics.)
In the course of the trial, the court considered whether the defense would be allowed to use Wilsons statement to Barthel. After considerable discussion and testimony from Barthel without the jury, the court ruled that it would allow admission of Wilsons statement as a statement against penal interest, pursuant to Evidence Code section 1230. The court excluded, however, those parts of the statement which tended to exculpate defendant without further inculpating Wilson. Thus, it excluded the following portions: "It is all on me, [defendant] did not do anything until it was over." And "[defendant] did not do this. I killed the guy by myself." Because the trial court would not allow the jury to see the written statement, even with the excluded language redacted, the defense opted instead to have Barthel testify concerning what Wilson said, without mentioning the parts excluded by the court, or read the statement to the jury as redacted.
"Under one of the statutory exceptions to the hearsay rule, a party may introduce in evidence, for the truth of the matter stated, an out-of-court statement by a declarant who is unavailable as a witness at trial if the statement, when made, was against the declarants penal, pecuniary, proprietary, or social interest. A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarants penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court `may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarants relationship to the defendant. [Citation.] On appeal, the trial courts determination on this issue is reviewed for abuse of discretion. [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 606-607, fn. and italics omitted.) "The trustworthiness of a statement against penal interest lies in the assumption that the declaration is so contrary to the declarants penal interest that the statement would not be made by a reasonable person unless true. [Citation.]" (People v. Hayes (1999) 21 Cal.4th 1211, 1257, fn. 8.)
Defendant asserts the trial court abused its discretion in excluding those parts of Wilsons statement that would, if believed, have exculpated defendant.[] We disagree.
The Attorney General weakly asserts defendant cannot raise this issue on appeal because he did not object in the trial court. To the contrary, defendant sought admission of Wilsons full statement to Barthel.
Defendant curtly asserts the redacted portions of the statement were reliable because "portions were admitted." The fact the trial court admitted portions of the statement does not establish that the redacted portions were also reliable. Logically, the trial court could have concluded the redacted portions, besides being cumulative as to Wilsons guilt, were not trustworthy because Wilson could have been trying to keep his friend out of trouble, despite the fact Wilson was not denying his own culpability, after he had pled guilty. Since there was a basis for the court to find the redacted portions untrustworthy, it did not abuse its discretion in excluding them. (People v. Cudjo, supra, 6 Cal.4th at p. 607.)
Moreover, the trial court did not abuse its discretion in concluding the redacted portions of Wilsons statement were not against his penal interest. Wilson had already asserted he was fully culpable when he added that defendant was not culpable. Defendant asserts the redacted portions were against Wilsons penal interest because they stated Wilson alone was responsible and not that he was merely complicit. Having already admitted his involvement and pled guilty, Wilsons statement that defendant was not involved was not against Wilsons penal interest.
Since there was a basis for finding the redacted portions were untrustworthy and not against Wilsons penal interest, the trial court did not abuse its discretion in excluding those portions under the hearsay rule. Proper exclusion of evidence under the well-established hearsay rule does not violate a defendants constitutional rights. (See People v. Smithey (1999) 20 Cal.4th 936, 995.)
II
Allowing Accomplice to Refuse to Testify
As noted, Wilson had already been sentenced on his guilty plea when this trial began. His appeal, however, was still pending in this court. Several months after defendants trial, this court affirmed Wilsons judgment and sentence, ordering a correction to the abstract of judgment. (People v. Wilson (July 12, 2002, C039543) [nonpub. opn.].) While the trial court and parties in this trial could not, during trial, have been aware of the eventual outcome of Wilsons appeal, they were aware that Wilson had pled guilty and waived his right to appeal except as to sentencing issues and that he wished to claim his Fifth Amendment privilege because of the potential of obtaining habeas corpus relief for ineffective assistance of counsel.
During his interview with Barthel at the prison, Wilson expressed dissatisfaction with trial counsels representation. He expressed concern that other inmates might consider him a snitch for talking to Barthel or testifying at defendants trial, even if it favored defendant. Called by the defense outside the presence of the jury, Wilson asserted his Fifth Amendment privilege not to testify. The trial court accepted the assertion of privilege and did not compel Wilson to testify. The trial court refused to compel Wilson to testify because it opined there was a chance, with an appeal pending, that the appellate court could reverse as to sentencing and Wilson might be subject to discretionary sentencing choices that could be affected by what he might say during his testimony in this trial.
A witness retains the Fifth Amendment privilege against self-incrimination during the pendency of an appeal after the conviction. (People v. Lopez (1980) 110 Cal.App.3d 1010, 1021, cited by In re Strick (1983) 34 Cal.3d 891, 899.) Here, Wilsons appeal was pending when he was called to testify in this trial.
On appeal, defendant asserts there remained for Wilson no discretionary sentencing decision to be made because he pled guilty in exchange for an agreed term of 26 years to life. Defendant adds that Wilsons appeal could not challenge the validity of his plea (see Pen. Code, §§ 187, subd. (a); 12022, subd. (b)) and the sentence of 26 years to life is the only sentence that can be imposed for first degree murder and personal use of a deadly weapon. Therefore, defendant argues, Wilson could not further incriminate himself because Wilson had pled guilty and no discretionary sentencing decision remained.
We reject this argument because defendant did not present it at trial. Counsel for defendant did not know until the day he intended to call Wilson to testify that Wilson had filed a notice of appeal. It appears counsel simply called Wilson as a witness and did not argue against the trial courts conclusion Wilson could assert his Fifth Amendment privilege. Having failed to assert in the trial court that Wilson should be compelled to testify, defendant cannot make that assertion for the first time on appeal. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [requiring the parties to present in trial court all evidence and legal theories concerning admission of evidence].)
In any event, the record does not support defendants argument that, given Wilsons guilty plea, there was only one possible sentence. Defendant does not cite to anything in the record showing exactly the crimes and enhancements of which Wilson was convicted. His assertion that Wilson was convicted of first degree murder with a deadly weapon personal use enhancement may be simply a guess from the facts presented here.[]
This courts unpublished opinion in Wilsons case, decided after defendants trial, reflects that Wilson pled guilty to first degree murder (with personal use of a deadly weapon) and unlawful driving or taking a vehicle. (People v. Wilson, supra, C039543.) Of course, the trial court in this case did not have this opinion.
Furthermore, defendant cites no authority, and we know of none, requiring a trial court to determine the merits of a witnesss appeal before determining whether that witness may claim the privilege against self-incrimination. While, because of defendants failure to preserve the issue for appeal, the issue is not before us, it appears, at first blush, that it would impose an unbearable burden on the trial court to attempt to determine the validity of a witnesss appeal before determining whether the witness may remain silent. In the trial court, however, defendant made no argument concerning Wilsons probability or possibility of success on appeal.
Accordingly, defendants contention on appeal that the trial court should have compelled Wilson to testify is without merit.
III
Heat of Passion Voluntary Manslaughter
During a conference concerning jury instructions, the defense proposed a voluntary manslaughter instruction based on heat of passion. The theory was that Wilson killed McElroy in a heat of passion and defendant aided and abetted the homicide by holding the door closed. The trial court refused to instruct the jury on this theory, concluding the evidence was insufficient to support that instruction. Defendant asserts the failure to give a heat of passion voluntary manslaughter instruction constituted prejudicial error. We disagree.
"In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (Ibid.) The trial court must so instruct even when, as a matter of trial tactics, a defendant not only fails to request the instruction, but expressly objects to its being given. (Ibid.; see also People v. Barton (1995) 12 Cal.4th 186, 196, 199-203 [trial court must instruct on heat-of-passion and unreasonable self-defense theories of manslaughter, if supported by evidence, even when defendant objects on the basis that such instructions would conflict with his defense].)" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.)
CALJIC No. 8.42 states in pertinent part: "The heat of passion which will reduce an attempted homicide to attempted manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct or to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation. . . ."
Defendant asserts the following evidence made it necessary for the trial court to instruct concerning heat of passion voluntary manslaughter: Wilson held a grudge against McElroy and went to the store to give McElroy a hard time. McElroy was under the influence of two drugs which, in combination, may produce aggressive behavior. McElroy bad-mouthed Wilson, who responded by killing him.
That Wilson went to the Fishen Hole to give McElroy a hard time because he did not like McElroy does not contribute to a finding that the killing was on a sudden heat of passion. To the contrary, it tends to show Wilson went to the Fishen Hole with the intent to threaten, intimidate, or harm McElroy. Although evidence concerning the effect of the drugs found in McElroys system conflicted, one doctor testified the combination could result in aggressive behavior. However, the only evidence of what McElroy did with respect to Wilson is that he "bad-mouthed" him, according to Wilson. Wilson then killed McElroy.
Although, as defendant observes, verbal insults alone may furnish sufficient provocation to support a heat of passion finding if the insults were sufficient to provoke an ordinarily reasonable person under the circumstances (see People v. Berry (1976) 18 Cal.3d 509, 515), the generic statement that McElroy "bad-mouthed" Wilson is not substantial evidence that McElroys conduct provoked Wilson. The best that can be said is that, because of the drugs he was taking, McElroy may have said something in his "bad-mouthing" that provoked Wilson and would have provoked an ordinarily reasonable person. This is simply speculation. As the trial court ruled, there was insufficient evidence for the jury to conclude that an ordinarily reasonable person would have been provoked to killing by what McElroy said. Hence, it was unnecessary to give the heat of passion instruction.
IV
Multiple Punishment
Defendant asserts his unstayed, consecutive sentences for murder, robbery, and unlawful taking of a vehicle violated Penal Code section 654, the prohibition on multiple punishment for the same act. The assertion fails.
Here, the jury was presented with both felony murder and premeditated murder theories and the jury returned a verdict of guilty of first degree murder without revealing the theory upon which it rested its verdict.[] When a jury finds a defendant guilty of first degree murder under a felony-murder theory, the sentencing court cannot impose unstayed prison terms for both the murder and the underlying felony. (People v. Wader (1993) 5 Cal.4th 610, 670; People v. Mulqueen (1970) 9 Cal.App.3d 532, 547.) Defendant argues that the trial court also was prohibited from sentencing him to unstayed terms for the robbery and unlawful taking of a vehicle, even if the jury based its verdict on premeditated murder, because the three crimes were all pursuant to one objective. We disagree.[]
While the jury found true the special circumstance of murder during the commission of robbery, it made that finding only after it found defendant guilty of first degree murder.
Defendant does not raise the question left open in People v. Osband (1996) 13 Cal.4th 622 at pages 730 and 731, concerning whether, when it is unclear if the jury has based a verdict of guilty of first degree murder on a felony-murder theory or premeditated murder theory, the trial court is precluded from imposing an unstayed sentence on the non-murder felony count because of the possibility the jury based its verdict on the felony-murder rule.
Morrison, J.
I concur in affirming the conviction, but I write separately because I would analyze the evidentiary issue differently.
After the codefendant pleaded guilty and went to prison, he gave a statement to a defense investigator, assuming all blame for the crime. The trial court admitted the parts of this statement which inculpated the codefendant, but excluded the parts which exculpated defendant. On appeal, defendant contends the trial court erred in redacting the statement.
In my view the redaction warped the meaning of the statement, but I do not believe the statement was trustworthy enough to come in at all. In other words, the error is not that the trial court let in too little of the statement, but rather that it let in any of it.
In another context, I have pointed out the dangers of redaction generally, which is appropriate to relate here:
"The facts . . . . were redacted to a point that the jury must have come away with a misleading impression of what happened, and this process of rewriting the facts, although it is at times necessary to further justice, is itself troubling. A trial is a search for truth. [Citations.] To the extent possible, jurors must be told the truth if they are to find the truth." (People v. Harris (1998) 60 Cal.App.4th 727, 733.)
Here, the declarant suffered no exposure to additional punishment or social obloquy by his statement that he beat the victim to death, because the declarant had already pleaded guilty to murder and was serving a prison sentence. Therefore, how can it be said that the statement "so far subjected [the declarant] to the risk of civil or criminal liability, or . . . created such a risk of making [the declarant] an object of hatred, ridicule, or social disgrace in the community" that a reasonable person would not have made the statement unless true? (Evid. Code, § 1230.) Although he had filed a notice of appeal, he had waived his appellate rights as part of his plea bargain except as to sentencing issues. The possibility that he might obtain habeas corpus relief and later be incriminated by his statement is so tenuous that I do not believe it makes his statement trustworthy at all. Instead, the statement was a gratuitous effort to help his friend.
I agree with the majority that the portions exculpating defendant did not tend to expose the declarant to penal or social harm. However, in my view the trial courts decision to admit any of the statement was wrong because nothing makes the statement trustworthy in the first place: It was defendants burden, as the proponent of the declaration, to show it was reliable. (People v. Lucas (1995) 12 Cal.4th 415, 462.) In People v. Duarte (2000) 24 Cal.4th 603, discussed by defendant, the California Supreme Court addressed the issue of "mixed" statements, that is, partly inculpatory and partly exculpatory. The court cautioned that just because a statement appears partly inculpatory does not mean it is not an effort to achieve some gain, e.g., to "`curry favor." (Id. at pp. 611-612; see
1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 150, pp. 861-862 (Witkin).)
If we assume the trial court was correct to let in some of the statement, I still think it was wrong to redact it. Defendant concedes that "collateral assertions" in a declaration against interest may be excluded, and therefore concedes redaction is not inherently improper. I agree with the trial courts view that only those parts "specifically disserving" to the declarant were potentially admissible. (People v. Leach (1975) 15 Cal.3d 419, 441.) But I disagree that the statement in this case was capable of being parsed so finely as was done.
In this respect Evidence Code section 356, the codification of the res gestae rule, should be considered. The rule is designed to prevent redactions (whether by a court ruling or by a partys incomplete presentation of evidence) which alter the substance of a statement or writing. (Witkin, supra, Circumstantial Evidence, § 36, p. 368 ["The obvious purpose . . . is to avoid distortion of acts or statements that should be viewed in their proper context"].) Again, although this does not mean redaction is never improper (id., § 37, p. 369), it does mean that redaction which changes the tenor of a statement is generally improper.
At bottom, the purportedly exculpatory portions of the declaration were part and parcel of the declarants story and by excerpting those portions, the whole tenor of the statement was changed. When the true meaning of the statement comes through, it is clear that it was not designed to confess guilt by the declarant so much as absolve the defendant from liability and for that reason the whole declaration should have been excluded as untrustworthy. (See People v. Duarte, supra, 24 Cal.4th at pp. 614-615 [trial courts must apply a practical understanding of human nature in assessing true purpose of declaration].)
As the California Supreme Court said: "While redaction, when properly employed, can help ensure that only the `specifically disserving [citation] and, hence, most reliable, portions of a particular hearsay declaration are actually admitted into evidence, redaction cannot enhance the underlying or general trustworthiness of a declaration as a whole. By its nature an after-the-fact process employed with respect to a previously existing declaration, redaction as a logical matter simply cannot bear on, let alone alter, the declarants motives or any other circumstance that might affect a given declarations fundamental reliability and inform a courts assessment thereof." (People v. Duarte, supra, 24 Cal.4th at p. 614, italics added.)
Because the trial courts redaction here had the effect of masking the untrustworthiness of the statement, and by changing its meaning, it committed the vice identified in People v. Duarte, supra, 24th Cal.4th 603. However, under no circumstances would I find the error prejudicial on these facts.
Accordingly, I concur in the judgment.
"`[Penal Code] Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. [Citation.] [Citation.] `The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citation.] `The defendants intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.] [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162.)
During sentencing, the trial court stated the crimes and their objectives were predominantly independent of each other. In finding the robbery special circumstance true, the jury found the murder was committed while defendant was engaged in the commission of a robbery and the murder was committed to advance the commission of the robbery.
Construing the evidence in favor of the trial courts determination that the objectives of the crimes were independent of each other, we conclude the evidence supports that determination. They entered the store intending to take beer by force. In applying force to McElroy, however, their intent and objective constituted premeditation and deliberation. After McElroy was debilitated, their greed prompted them to embark on a new course. They saw the opportunity to take money from McElroys wallet and to empty the cash register. They applied force anew by ripping away McElroys pocket to access the wallet. Later, they seized the opportunity to take McElroys car. These latter two instances presented crimes of opportunity after the objectives of stealing the beer and killing McElroy had been achieved. After they attacked McElroy, the decisions to take McElroys possessions from his wallet and to take the car were made separately and for separate reasons. There was no unifying intent or objective.
Defendant asserts the robbery was still taking place when defendant and Wilson took McElroys car because they had not yet reached a point of safety. (See People v. Cooper (1991) 53 Cal.3d 1158, 1165.) While we agree the asportation element of robbery had not yet ended when defendant and Wilson took McElroys car, that does not necessarily establish the two crimes were pursuant to one intent and objective. Here, construing the facts favorably to the courts sentencing determination, there were two robberies — one involving beer and supporting the robbery special circumstance and one involving McElroys wallet and supporting the robbery conviction.
We conclude the evidence supports the trial courts determination that the intent and objective of each crime was independent of the intent and objective of the other crimes. Therefore, the trial court did not err in imposing unstayed, consecutive sentences for robbery and unlawful taking of a vehicle.
DISPOSITION
The judgment is affirmed.
I concur: HULL, J.