Opinion
C081976
09-27-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MICHAEL NIX et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. F14000355A/F14000355B)
Defendants Christopher Michael Nix and Scott Thomas Hollingshead ambushed victim Brian Spalding in Spalding's driveway late at night when Spalding arrived home from his weekly poker game. Defendants shot and stomped on Spalding until he was dead. Convicted of first degree murder with a lying-in-wait special circumstance and shooting at an occupied vehicle, along with true findings on enhancement allegations, the trial court sentenced Hollingshead to an aggregate term of life without the possibility of parole plus 25 years to life, and it sentenced Nix to an aggregate term of life without the possibility of parole plus one year.
Defendants now contend (1) there was insufficient evidence to support the lying-in-wait elements of the first degree murder conviction and the special circumstance finding, (2) the lying-in-wait special circumstance was unconstitutionally applied, (3) the trial court failed to hold an evidentiary hearing on the scientific expert testimony concerning the firearm evidence, and (4), as to Hollingshead only, the matter must be remanded to give the trial court an opportunity to exercise its new discretion concerning whether to strike or dismiss the firearm enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d).
Undesignated statutory references are to the Penal Code.
We conclude (1) the evidence is sufficient to support the jury's lying-in-wait findings, (2) the California Supreme Court has rejected defendants' constitutional argument regarding lying-in-wait, (3) the trial court was not required to hold an evidentiary hearing on the expert firearm evidence, and (4) as to Hollingshead, we will remand the matter to give the trial court an opportunity to exercise its new discretion concerning whether to strike or dismiss the firearm enhancement.
Except for the limited remand as to Hollingshead, we will affirm the judgments.
BACKGROUND
Hollingshead and Nix are brothers. In November 2013, Hollingshead's wife Jessicca got drunk and spent the night with Spalding. Looking for her, Hollingshead called the last phone number Jessicca had called and got Spalding's voicemail. Hollingshead found Spalding's address and drove there, honking his horn and calling Jessicca's name, but no one responded. The next day Hollingshead asked Jessicca about Spalding, and she admitted spending the night with him.
Hollingshead sent the following text message to Spalding: "Brian, this is jessicca's husband. What kind of piece of shit are you? What kind of man takes a drunk married woman half his age to a fucking motel room... Twice even. You don't know her or anything about either of us you homewrecking fuck. You need to stay away from my fucking wife, dont call her, lose her number and forget you ever met her. You will not come between us and you are a stupid motherfucker if you think you are. I have fought for her for almost half my life and some old fat fuck will not damage that. Do the smart thing and find someone else to take advantage of, but do not come near my fucking wife again you dickless fucking coward. Do not call her, dont even fucking think about her. She is mine and you do not know her anymore. I wish you misery you fucking piece of shit, do yourself a favor and find a nice place to lay down and die. Feel free to call me man to man if ever your little balls ever drop."
A few months later, Hollingshead texted Jessicca saying he would kill anyone who came between them. He also texted his cousin, suggesting that his cousin had a relationship with Jessicca. Hollingshead testified at trial that he worked long hours and had no way of knowing what Jessicca was doing. The following month he sent texts to Jessicca such as "How's about you remember your vows all of which you have stomped on"; "How about you think everything that I have done for you, for us and how you are continuously shitting on our marriage and throwing everything away"; and "Eight years you are okay wasting for a drunken night."
Spalding regularly played Monday-night poker with friends at a home near Hollingshead's home. Typically, they played until about 11 p.m. On Monday, April 14, 2014, they played until about 10:45 p.m. That same day, Hollingshead and Jessicca argued about her drinking, and she pushed him.
Around 11 p.m., Spalding drove into the driveway of his home where he lived with his mother Angeline. Angeline heard "tapping" and then a horn honking in the driveway. She looked out the window and saw two people attacking Spalding, who was still seated in his car. The attackers wore dark clothing, hooded sweatshirts, and white gloves. One attacker was on the driver's side of the car and the other on the passenger side. They were punching Spalding and trying to drag him out of the car. The driver's side door was open and Spalding was kicking at an attacker. Spalding yelled for Angeline to call the police.
Angeline called 911 and went out to the porch. She flicked the light on and off and yelled at the attackers to stop. At that point Spalding was lying faceup on the driveway with his feet still in the car, and an attacker was repeatedly kicking Spalding in the face. Angeline yelled that the police were coming and the attackers ran away.
Jennifer and Kyle L. lived across the street from Spalding. Jennifer was awakened that night by a loud sound like a car door slamming or a gunshot. She woke Kyle and heard a woman screaming. She looked through her French doors and saw fighting in Spalding's driveway. Someone was lying on the ground, and others were standing around him. She called 911, and the dispatcher said they were already aware of the incident. Jennifer also saw a car stopped on a nearby crossroad with its lights on and engine running. When the commotion ended, Jennifer saw that the car on the crossroad was gone. Kyle observed that after failed attempts to pull a person out of the car, an attacker succeeded in pulling the person out of the car. Kyle went to find his phone and call 911. When he looked across the street again, the person who had been inside the car was lying on the driveway, partially out of the car. The attackers were stomping on the head of the person lying on the driveway. Like Jennifer, Kyle saw the car parked on the crossroad with its lights on and engine running.
Spalding was deceased when a deputy sheriff and first responders arrived. He lay in a large pool of blood and brain matter around his head. There were shell casings and pieces of latex glove in the driveway. An autopsy revealed Spalding died from blunt force trauma to the head. His face was caved in. Spalding had been shot six times in the torso, right arm, and left hand, but the bullets missed major organs and did not produce significant bleeding. The gunshots were significant injuries but did not contribute to the cause of death.
Investigating officers went to Hollingshead's home and Jessicca let them in. Hollingshead had a large bandage on his left thumb and numerous abrasions on his forehead and cheeks. A search of Hollingshead's home revealed recently washed items in the washing machine, including towels, two pairs of men's underwear, two pairs of men's pants, and two dark hooded sweatshirts.
Investigators also went to Nix's home and saw a Chevy Prism parked in the driveway with blood stains inside and outside the car and a trail of blood drops from the car to the front door of the home.
A forensic expert testified it is possible to match a firearm with bullets fired from the firearm because the grooves in the barrel of the gun leave unique "tool marks" on the bullet. The expert determined that the bullets recovered from Spalding's body were shot by a gun found near the crime scene on April 16, 2014. The expert also compared casings found in the Spalding driveway to casings test fired from the recovered gun and concluded the casings were marked during firing by the same gun.
Nix's DNA was on one of the latex-glove pieces found at the scene of the homicide. On another glove piece, Nix could not be excluded as a major contributor of DNA, and two of three DNA profiles on the exterior of the glove piece were consistent with the DNA of Nix and Spalding. Hollingshead's DNA was in blood found on the inside of Nix's Chevy Prism and on the gun recovered on April 16, 2014. Blood stains on Nix's Chevy Prism contained Spalding's DNA.
Hollingshead testified at trial and denied involvement in Spalding's killing. Nix did not testify at trial. The trial court instructed the jury that a murder committed while lying in wait is first degree murder. (§ 189, subd. (a).)
The jury convicted defendants of first degree murder with a lying-in-wait special circumstance (§§ 187, 189, subd. (a), 190.2, subd. (a)(15)) and shooting at an occupied vehicle (§ 246). As to each count, the jury found Hollingshead intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and as to the count charging shooting at an occupied vehicle, the jury found Hollingshead was involved in the commission of a felony in which a principal was armed with a firearm (§ 12022, subd. (a)(1)). Also as to each count, the jury found Nix was involved in a felony in which a principal was armed with a firearm (§ 12022, subd. (a)(1)).
The trial court sentenced Hollingshead to life without the possibility of parole for the special circumstance first degree murder, with a consecutive term of 25 years to life for the firearm discharge finding. On the shooting at an occupied vehicle count, the trial court sentenced Hollingshead to the upper term of seven years, with a consecutive term of 25 years to life for the firearm discharge finding, but it stayed the sentence on the shooting at an occupied vehicle count. As to both counts, the trial court imposed but stayed a one-year term for committing a felony in which a principal was armed with a firearm. The aggregate term of imprisonment imposed on Hollingshead was life without the possibility of parole plus 25 years to life.
The trial court sentenced Nix to life without the possibility of parole for the special circumstance first degree murder, with a consecutive term of one year for the finding that a principal was armed with a firearm. On the shooting at an occupied vehicle count, the trial court sentenced Nix to the upper term of seven years plus a consecutive term of one year for the finding that a principal was armed with a firearm, but it stayed the sentence on the shooting at an occupied vehicle count. The aggregate term of imprisonment imposed on Nix was life without the possibility of parole plus one year.
DISCUSSION
I
Defendants contend there was insufficient evidence to support the lying-in-wait elements of the first degree murder conviction and the special circumstance finding. Specifically, they claim there was insufficient evidence of (A) a substantial period of waiting, (B) concealment of purpose, and (C) concealment of their persons resulting in a surprise attack. They further claim that conviction of first degree murder and the finding of the special circumstance violated their due process rights because the conviction and finding were based on insufficient evidence.
When reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) We do not reweigh the evidence or reassess the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Ibid.)
"[T]he lying-in-wait special circumstance requires proof of an intentional murder committed under circumstances that include (1) concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and, (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (§ 190.2, subd. (a)(15); People v. Bonilla (2007) 41 Cal.4th 313, 330.) Concealment of the killer's presence, as distinct from his or her purpose, is not required ([People v.] Carpenter [(1997)] 15 Cal.4th [312,] 388), and the period of watching and waiting 'need not continue for any particular length " 'of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.' " ' ([People v.] Stevens [(2007)] 41 Cal.4th [182,] 202, quoting [People v.] Sims [(1993)] 5 Cal.4th [405,] 433-434.)" (People v. Casares (2016) 62 Cal.4th 808, 848-849, disapproved on other grounds in People v. Dalton (2019) 7 Cal.5th 166, 214.)
A
Defendants assert the evidence was insufficient to establish there was a substantial period of waiting before they attacked and killed Spalding. They base this assertion on the prosecutor's closing argument. Among other things, the prosecutor argued Hollingshead knew that Spalding regularly played poker on Monday nights at a nearby home. Defendants counter that there was no evidence of the distance between the poker game and Hollingshead's home, whether Hollingshead could see the house where the game was played or who attended, whether Hollingshead knew what Spalding looked like, or whether Hollingshead was home on prior poker nights.
But as the trial court instructed the jury, an attorney's argument does not constitute evidence. Rather, substantial evidence indicated defendants had been waiting for Spalding when he got home even if they did not know where he had been. Hollingshead knew Spalding's address and had been to his home before. He had previously texted Spalding that he wished him misery. He texted Jessicca that he would kill anyone who came between them. The record shows that on the night of the ambush, defendants dressed in dark clothing with hoods, put on gloves, armed themselves, went to Spalding's home, and left Nix's Chevy Prism on a nearby crossroad with the engine running. When Spalding arrived in his driveway, but before he could get out of the car, defendants attacked him. From this evidence the jury could reasonably infer that defendants had been waiting for Spalding to arrive home so they could attack him while he was vulnerable.
B
Defendants argue there was no concealment of purpose because Hollingshead had previously threatened Spalding. But the texted threat had been sent months earlier, and it included an invitation for a man-to-man call. There is no evidence of continuing confrontation between Hollingshead and Spalding, and no evidence defendants gave Spalding any warning of their specific ambush plan. On this record, the jury could reasonably infer that Spalding had no sense he would be ambushed on the night in question. While concealment of presence is not necessary for concealment of purpose, it can be reasonably inferred from the evidence that defendants in this case concealed their purpose by concealing their presence and successfully surprising their victim while he was vulnerable.
C
Defendants assert that because Nix's car lights were on and the engine was running, the jury could not infer that defendants concealed their persons and executed a surprise attack. But defendants did not park Nix's car in Spalding's driveway or in front of his house, like regular visitors might; they left the car on a crossroad around the corner. The jury could reasonably infer that Spalding did not notice the car on the crossroad and did not know defendants were on his property until he was attacked.
Because there was sufficient evidence to support the first degree murder conviction and the special circumstance finding with respect to lying-in-wait, defendants' due process argument asserting insufficient evidence also lacks merit. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
II
Acknowledging that the California Supreme Court has already repeatedly rejected their next argument, defendants nevertheless assert it for future federal review. They contend the lying-in-wait special circumstance is unconstitutional because it fails to narrow the class of those eligible for sentences of life without possibility of parole. They claim that, because the statute designating a lying-in-wait murder as first degree murder (§ 189, subd. (a)) and the statute authorizing a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) define lying-in-wait the same way, there is no valid way to distinguish between those merely convicted of lying-in-wait first degree murder and those who receive the greater penalty of life without the possibility of parole because of a lying-in-wait special circumstance finding. They assert this failure of the special circumstance statute to limit cases to which the special circumstance applies violates the Eighth Amendment.
Because the California Supreme Court has rejected this constitutional argument (see People v. Cage (2015) 62 Cal.4th 256, 281 and cases cited therein; People v. Johnson (2016) 62 Cal.4th 600, 634-637), we are bound to reject it too. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
Defendants next claim the trial court failed to fulfill its gatekeeper role by holding an evidentiary hearing with respect to the scientific expert witness testimony concerning the firearm evidence.
The prosecution filed a pretrial motion to admit firearm tool mark evidence. According to the prosecutor's motion, no Evidence Code section 402 hearing was necessary. Under the Kelly-Frye standard (People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014), tool mark evidence is admissible because a prior California Supreme Court case upheld the admissibility of such evidence. (People v. Cowan (2010) 50 Cal.4th 401, 470.) Once a published appellate decision has upheld the admissibility of evidence under the Kelly-Frye standard, there is no need to conduct a hearing on reliability unless prevailing scientific opinion has materially changed. (People v. Venegas (1998) 18 Cal.4th 47, 53.)
Defendants opposed the prosecution's pretrial motion. They acknowledged that tool mark evidence is generally admissible under the Kelly-Frye standard, but they argued the trial court was required to hold an evidentiary hearing under Evidence Code section 402 to determine whether the tool mark identification techniques used in this case were consistent with the techniques generally accepted in the scientific community. They added: "There are also general rules of admissibility which require a determination of the relevance and reliability of the proffered evidence," referring to Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon). Defendants cited a 2009 study of the National Academy of Sciences, along with other newspaper articles and press releases, for the proposition that forensic sciences often produce erroneous testimony in criminal cases. With respect to tool mark evidence, the National Academy of Sciences study suggested that comparison of tool mark evidence was, in defendants' words, "always a subjective determination, based on the expert's training and experience," and the uniqueness and reproducibility of tool marks has not been fully demonstrated.
At a hearing on the prosecution's motion, defendants argued the evidentiary hearing was required to prevent the prosecution from admitting the expert conclusion that the gun found near the crime scene was the gun that fired the bullets at Spalding, unless a proper foundation was laid for admission of the evidence. The trial court granted the prosecution's motion to admit the tool mark evidence and denied defendants' request for an evidentiary hearing. The trial court noted that it would be necessary for the prosecution to lay a proper foundation for admission of the expert's conclusions before the expert would be allowed to state the conclusions.
On appeal, defendants again acknowledge tool mark evidence is generally admissible under the Kelly-Frye standard, and they do not claim the tool mark expert in this case used techniques inconsistent with the techniques generally accepted in the scientific community. Nevertheless, defendants contend the trial court did not sufficiently perform its role as gatekeeper of expert testimony because the trial court rejected defendants' argument that it was necessary to hold an Evidence Code section 402 hearing concerning the relevance and reliability of the tool mark evidence. They base this contention on the requirements of Sargon.
In Sargon, a civil case, a small dental implant company sued the University of Southern California for breach of a contract that required the university to clinically test a new implant Sargon had patented. Although Sargon had net profits of only $101,000 in 1998, it sought damages for lost profits ranging from $200 million to over $1 billion beginning in 1998. Following an evidentiary hearing, the trial court excluded as speculative the proffered testimony of an expert regarding Sargon's potential lost profits. (Sargon, supra, 55 Cal.4th at p. 753.) The California Supreme Court upheld the trial court's exercise of discretion, holding the trial court properly exercises a role as gatekeeper of expert opinion testimony and must exclude such testimony "that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Id. at pp. 771-772.)
Defendants argue that, even if the tool mark evidence was admissible under California law as it stood before Sargon, the trial court was required to hold a hearing and apply the requirements of Sargon to determine the admissibility of the tool mark evidence. The argument is without merit because Sargon did not replace the Kelly-Frye standard for determining the admissibility of tool mark evidence.
The California Supreme Court has rejected a similar attempt to replace the Kelly-Frye standard with a Sargon-like analysis. (People v. Lucas (2014) 60 Cal.4th 153, 245, fn. 36.) In that case, the court wrote: "Defendant also attacks the first prong of Kelly itself, claiming that this aspect of our analysis violates federal due process by undermining the trial court's gatekeeping function and barring relevant evidence at the pretrial stage. Essentially, defendant argues that the first prong of Kelly improperly relies upon what the scientific community accepts as to the reliability of a technique, thereby supplanting the trial court's independent determination of reliability as required by Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 . But we have previously rejected such claims, and defendant offers no persuasive reason for reconsideration of our conclusion. (People v. Leahy (1994) 8 Cal.4th 587, 593-604 [holding that the Kelly prongs survived Daubert in this state].) In addition, our opinion in [Sargon] did not, by using the term 'gatekeeper,' indicate any move away from the Kelly test toward the federal Daubert standard. ([Sargon], supra, 55 Cal.4th at p. 772, fn. 6.)" (Lucas, at p. 245, fn. 36.)
Because tool mark evidence is admissible under the Kelly-Frye standard, we reject defendants' contention the trial court was required to hold an evidentiary hearing under Evidence Code section 402 to determine the reliability of tool mark evidence under the Sargon standard.
But even if we were to conclude that the trial court erred by admitting the tool mark evidence without holding an evidentiary hearing, it is not reasonably probable defendants would have obtained a more favorable result if the evidence had not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Despite Hollingshead's denial in his testimony at trial, the evidence that defendants were the assailants who killed Spalding was overwhelming. They would have been convicted with or without the tool mark evidence.
IV
Hollingshead claims the matter must remanded to give the trial court an opportunity to exercise its new discretion concerning whether to strike or dismiss the firearm enhancement imposed on Hollingshead pursuant to section 12022.53, subdivision (d).
In addition to the indeterminate sentence of life without possibility of parole, the trial court sentenced Hollingshead to a consecutive term of 25 years to life under section 12022.53, subdivision (d) for the firearm discharge enhancement. After Hollingshead's sentencing, the Legislature amended section 12022.53 to allow a sentencing court to strike or dismiss the enhancement in the interest of justice. (Stats. 2017, ch. 682, § 2 (Senate Bill No. 620 (2017-2018 Reg. Sess.)), effective January 1, 2018; § 12022.53, subd. (h).) Hollingshead contends we must remand for the trial court to exercise its newly enacted discretion.
In People v. Woods (2018) 19 Cal.App.5th 1080, this court decided that the amendments to the firearm enhancement statutes in Senate Bill No. 620 giving the trial court discretion to strike those enhancements is retroactively applicable to all cases not yet final. (Id. at p. 1090.) However, we need not remand if doing so would be futile. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez).)
The Attorney General argues that remand would be futile under Gutierrez because no reasonable trial court would exercise its discretion to strike or dismiss the firearm discharge enhancements under the circumstances of this case. The Attorney General notes that Hollingshead played the lead role in killing Spalding and has not acknowledged responsibility.
Notwithstanding the gravity of the crimes in this case, we cannot say that remand is futile. The trial court made no statement concerning what it would have done if it knew it had discretion to strike or dismiss the firearm discharge enhancements, which added a consecutive 25 years to life to the sentence. Remanding for the trial court to exercise its discretion in the first instance would give Hollingshead and the prosecutor the opportunity to argue the merits of whether to strike the firearm discharge enhancements.
We express no opinion as to how the trial court should exercise its newly enacted discretion on remand. We only conclude that the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)
DISPOSITION
The judgments are affirmed. The matter is remanded as to Hollingshead only for the limited purpose to permit the trial court to exercise its discretion regarding the section 12022.53 firearm enhancements.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MURRAY, J.