Opinion
D073277
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES L. FRANKLIN, Defendant and Appellant.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FBA1200690) APPEAL from a judgment of the Superior Court of San Bernardino County, Debra Harris, Judge. Affirmed as modified. Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant James L. Franklin appeals from a judgment of conviction after a jury trial. A jury convicted Franklin of two counts of first degree murder and one count of conspiracy to commit murder. The jury also found true the allegation that the murders were committed during the commission of a robbery.
The bodies of the two victims were never found, and the People brought the case against Franklin almost two decades after the men went missing. The evidence presented at trial demonstrated that the victims were planning to meet with a friend of Franklin's to purchase a barrel of ephedrine to use to make methamphetamine. The evidence further demonstrated that the ephedrine never existed, and that the two men were lured to the fake deal to be robbed and murdered. Franklin eventually admitted to police that he had moved one of the victim's cars, but contended that he did so at the behest of a friend of his, and only after his friend had committed the robbery and murders.
On appeal, Franklin sets forth nine grounds for reversal of his conviction. He also raises two issues with respect to his sentence as reflected in the judgment and abstract of judgment.
We agree with Franklin that the trial court erred in admitting portions of the testimony of two witnesses. After deliberate consideration of the nature of the errors and the record in this case, we conclude that these errors, although not insignificant, were not sufficiently prejudicial to require reversal, either individually or cumulatively. We therefore affirm Franklin's convictions.
The People concede the two errors related to sentencing and the abstract of judgment. We accept the concessions and modify the judgment, direct the trial court to correct the abstract of judgment, and affirm the judgment as so modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
The evidence elicited at trial demonstrated that in 1995 Mark Adamson and Joe Riley were lured by a man named Chris Bunty to a transaction to purchase a barrel of ephedrine, which Adamson was planning to use to manufacture methamphetamine. The prosecution presented evidence that Bunty did not in fact possess the ephedrine, and that he instead planned to rob and kill the two victims. The prosecution also presented evidence that Franklin assisted Bunty in executing this plan. No one saw either Adamson or Riley after July 8, 1995, though their bodies were never found. As we describe below, a number of witnesses testified regarding their knowledge of certain relevant events surrounding the disappearance of Adamson and Riley in July 1995.
1. Robert Roark
Robert Roark was living in Barstow in 1995. At that time, he had known Adamson for approximately four years. In 1995, Adamson was manufacturing methamphetamine in or around the Barstow area. On the morning of July 8, 1995, Adamson went to Roark's house to pick up between $4,000 and $5,000 that Roark had been holding for Adamson. Adamson told Roark that he was going to a nearby Wal-Mart parking lot to purchase ephedrine. Adamson planned to pick up Joe Riley to accompany him. Riley apparently knew the person from whom Adamson planned to buy the ephedrine, and was acting as "the go between."
Roark expected Adamson to return after Adamson and Riley completed the transaction, but Adamson did not return. Roark went looking for Adamson and saw Adamson's car in the Wal-Mart parking lot on the afternoon of July 8, 1995. Adamson had left many of his personal belongings, including a backpack that held paperwork and a scale for measuring methamphetamine, at Adamson's house. Roark went to Adamson's place to "try to get things out of it that could [have] been incriminating for him," such as "his cookware for making dope." Roark never heard from Adamson again after July 8, 1995. The last time that Roark had seen Riley was a couple days prior to July 8, 1995.
Roark testified that he went to the Wal-Mart parking lot the following day, July 9, and Adamson's car was gone.
2. David Reeck
David Reeck testified that he lived in Barstow in 1995 and was friends with Adamson. Reeck did not know Riley, Franklin, or Bunty. The last time that Reeck saw Adamson, Adamson had come to Reeck's house to pick up some of Adamson's money that he had been keeping at Reeck's house. Reeck believed that the amount of money that Adamson had kept at Reeck's house was between $5,000 and $10,000. Reeck testified that Adamson had not told him what he was going to do with the money, but Adamson had "mentioned something about there was some ephedrine around," and that he was trying to purchase it.
Reeck accompanied Adamson to a trailer park one day in late June or early July 1995, but Reeck drove separately to the location and parked behind a warehouse business that was next to the trailer park. Reeck was holding money for Adamson because Adamson was worried that something might go wrong. Reeck testified that although Adamson had not specifically told him that he was going to purchase something drug-related, Reeck believed that the deal involved drugs and was illegal, given Adamson's concern "about something going wrong."
At this point in his testimony, Reeck did not again mention that Adamson had discussed there being "some ephedrine around" or that Adamson had said "he was trying to" purchase ephedrine.
Adamson came out of the trailer park and told Reeck to leave. Reeck left with Adamson's money. According to Reeck, no deal had taken place. At some later point in time, Adamson picked up the money from Reeck at Reeck's home.
At trial, Reeck said that he did not remember telling a detective that Adamson had told Reeck that he went to meet Bunty at the trailer park. Reeck testified that Adamson had not mentioned any names to Reeck. According to Reeck, if he had told the detective that Adamson went to meet Bunty, it was because Reeck had assumed that was who Adamson went to meet. Reeck claimed that when he told detectives that Bunty had called Adamson at Reeck's house, Reeck was assuming that this was what had happened. Reeck also admitted that he had gone to prison for methamphetamine sales, and further testified that "[n]obody likes snitches," explaining that a "snitch" is "[s]omebody who tells on somebody."
3. Harold Thomas
Harold Thomas lived near the Colonial Trailer Park in July 1995. Thomas knew Kelly Granger, who lived in the Colonial Trailer Park. Thomas had allowed Riley, who was homeless and living in his vehicle, to stay in Thomas's backyard. Thomas believed that Riley was involved in the manufacture of methamphetamine, based on "his actions."
By the time of trial, Kelly Granger's name was Kelly Blackwell. However, witnesses continued to refer to her as Kelly Granger. For consistency and ease, we will refer to her as Kelly Granger.
In July 1995, Thomas knew that Franklin was staying with Granger. On the last day that Thomas saw Riley, Adamson picked up Riley in the morning. When Riley did not return after a few days, Thomas began to look for Riley.
At some point, Franklin told Thomas that he had moved Adamson's car from the Wal-Mart parking lot because it was going to get towed. Franklin informed Thomas that the keys were under the seat, and someone had told him to move the car to Adamson's apartment. Thomas said that he could not recall whether Franklin had mentioned who had asked him to move the car.
4. Kelly Granger
Granger also lived in the Colonial Trailer park in 1995. In July of 1995, Franklin was living in Granger's home. On the morning of July 8, 1995, Granger arrived at Thomas's house asking for help with the brakes on her truck. Riley helped Granger with the brakes. At that time, Granger told Thomas that Franklin was asleep at her house. Thomas and Franklin had been working on Franklin's car late into the night and early morning.
When Granger spoke with Riley at Thomas's house that day, she asked Riley "not to meet with Mr. Bunty and not to make the deal [i.e., the deal to purchase a 55 gallon drum of ephedrine]." Riley responded "[t]hat everything would be all right," and that "him and Chris [Bunty] went way back and they were really good friends and that he used to date Mr. Bunty's sister." Granger told him "not to go and . . . he just wouldn't listen." Granger testified that she told Riley that "Mr. Bunty had planned on robbing him and killing him, him and Mr. Adamson." She knew of this plan because Franklin had told her that was the plan approximately three days prior to her conversation with Riley at Thomas's home.
Granger explained at trial that Franklin had told her of the plan to rob and murder Riley after she asked him about a telephone call between Franklin and Bunty that she had overheard. According to Granger, she had picked up a telephone at her home while Franklin, who was staying with her at the time, was on another phone extension talking with Bunty. She overheard Bunty ask Franklin to move a car. Granger later asked Franklin about that telephone call and the vehicle that he was supposed to move. Granger testified: "And he told me, you know, a little more about it and then everything. And I asked him if he was, you know, concerned with his own safety if that's why he was telling me and he didn't really say." She then explained that Franklin had told her "[t]hat Joe and Mark were supposed to meet with Chris, Mr. Bunty, to purchase ephedrine and that Mr. Bunty planned on robbing 'em and killing 'em. And that Mr. Franklin was supposed to move Mark Adamson's car from the Wal-mart parking lot to what location I don't remember and that was all." Franklin had explained that Bunty did not have any ephedrine to sell, and that Bunty "planned to take [Adamson and Riley's] money and shoot them." Granger stated that "Mr. Franklin told [her] that his role was to move the car." She said that at a later point, Franklin told her that Bunty was going to pay Franklin to move the car.
After Granger had not seen Riley for approximately two weeks or so, she "assumed that what Mr. Franklin had told [her] . . . was going to happen to [Riley] and [Adamson] had happened." She asked Franklin whether he had seen Riley or Adamson, and he said that he had not. Although at trial she testified that she did not recall Franklin saying anything else to her, the prosecutor refreshed her memory with her testimony from a prior proceeding, after which she indicated that Franklin also told her at that time "to not worry about it."
When Granger was first approached by law enforcement officers about the disappearance of Adamson and Riley, approximately four weeks after they were last seen, she was concerned about Riley, but also about Franklin, who continued to stay with her on and off. She acknowledged that she had mentioned Franklin's role in moving a vehicle, but had not told investigators what Franklin knew about a plan to rob and kill Adamson and Riley.
Granger stated that in the conversation between Bunty and Franklin that she overheard, Bunty asked Franklin to "pull the trigger," and Franklin responded, "Absolutely not." She testified that she asked Franklin if he was going to do "it" and she said he told her, "Hell no, I'm not gonna do it."
Granger testified that as far as she knew, Franklin was not "supposed to be present" when the victims were robbed and killed. She further stated that his participation was "[o]nly to move the vehicle," but conceded that she did not know when the vehicle was to be moved, i.e., whether it would be moved "after the transaction" or before. She described Franklin's "role" in the plan to rob Adamson and Riley as "[t]o move a car from the Wal-Mart parking lot . . . ."
It is not clear what "transaction" defense counsel was referring while questioning Granger at trial. Granger had testified that the plan she had heard about was to trick the victims into believing that there was a barrel of ephedrine. If that was the case, no sales transaction could have ever occurred. It remains ambiguous, therefore, as to whether defense counsel was referring to the fake drug deal or to the robbery and murder when he referred to the "transaction."
According to Granger, although Franklin had been at her home and "always with [her]" generally, she did not see Franklin in the two or three days after the last time she saw Riley.
Granger admitted that when police had come looking for Franklin, while he was staying with her and was present in the home, she lied to them and told them that he was not there. She explained that she did that because Franklin "didn't want to speak with them." She also admitted that in her initial interviews with detectives—in 1995, 1996, 1997, and 1998—she never mentioned anything about Franklin picking up a car at Wal-Mart.
Granger was asked about a "warning" that she had received from a friend, Albert DiNapoli. According to Granger, DiNapoli "relate[d] to [her] information that he said he learned from Mr. Franklin," and "told [her] to stay away from [Franklin] because [Franklin] told [DiNapoli] that he did shoot [Riley] and [Adamson] and that [she] was a loose end." After this warning, Granger began to reconsider her friendship with Franklin.
As we relate later in the opinion, DiNapoli had testified prior to this portion of Granger's testimony and denied that he had told Granger about Franklin admitting to a role in the murders and also denied that he had warned Granger about Franklin.
5. Barry Oloizia
Another witness, Barry Oloizia, testified that in 1995, he was living in Barstow with his "[c]ommon law" wife and their five children. He knew Riley, Adamson, Bunty, Franklin and Granger. Oloizia testified that while he was living in Barstow, he was "all strung out." He had done "dope" with Riley, and knew Granger as a "friend [he] hung around with and did dope with." At some point, Oloizia's wife kicked him out of the house. He was upset and talked with various people about the situation. He was particularly distressed because he believed that Adamson and Riley had been supplying his wife with drugs, and that after she kicked Oloizia out of the house, Adamson and Riley had moved in. One of the people with whom he spoke was Granger. Granger suggested that he speak with Franklin.
Although it appears from Oloizia's testimony that he was not married to the person about whom he was speaking, he testified that she was his "[c]ommon law" wife and referred to her as his "wife" throughout his testimony. For ease of discussion, we will also refer to her as his wife.
Oloizia and Franklin had a conversation in a room in Granger's home during which Franklin told Oloizia "not to worry about it no more." Oloizia testified that when Oloizia asked Franklin why he didn't have to worry anymore, Franklin told him about what had happened to Adamson and Riley. Oloizia testified that Franklin told him, "[T]hose guys [Adamson and Riley] already messed up." Franklin also told Oloizia that Franklin "had some kind of deal going on, him and Chris Bunty, and they met up in the desert somewhere and they had a hole out there already, and somebody shot them, threw a piece of plywood over it and buried it up and told me not to worry about it because no bodies, nobody got busted." According to Oloizia, Franklin had said that "someone else pulled the trigger," but Franklin also told Oloizia "[s]mall fragments [about the shooting] like somebody was begging for their life and they reloaded and shot 'em." Oloizia admitted that he did not immediately go to the police to tell them what Franklin had told him. Rather, it was not until a year or a couple of years later, when investigators came to him, that Oloizia told anyone what Franklin had said. At that time, he indicated that Franklin had told him that Franklin was not present when the victims were shot. By the time of trial, however, Oloizia said that he did not recall Franklin having told him that he was not present.
Detectives spoke with Oloizia after he told his wife that he had done something to Adamson and Riley. Oloizia admitted that a couple weeks after the victims went missing, he went to his wife's house and she "got in [his] face," asking him what he had done to Adamson and Riley. He told her that he "took them out, chopped them up and threw them out in the desert," because "[i]n the heat of the moment I had to say something," given that he had been given the impression that "they[ were] gone." His wife "freaked out and called these guys [i.e., the detectives on the case]." Detectives then spoke with Oloizia. A detective asked Oloizia to wear a wire and talk with Franklin, but Oloizia declined to do so.
Oloizia testified that he believed Franklin was Bunty's "backup," by which he meant that "[w]hen [Bunty] was doing whatever he had to do, if anything ever happened, [Franklin] had his back, whether a fight on the street or in the store shopping." Although during much of his testimony, Oloizia claimed that he had not been scared to wear a wire, and that the reason he did not immediately go to the police to report what he had heard from Franklin was not because he was scared, he eventually admitted that he "wasn't sure what these guys were capable of," meaning he was not sure what Franklin and Bunty might be capable of, after he heard "the story [Franklin] told" him.
6. Albert DiNapoli
Albert DiNapoli testified that he was living in Barstow, California in 1995. He was friends with Franklin, and knew Bunty. DiNapoli also knew Riley, whom he met for the first time at Granger's house.
DiNapoli was interviewed by detectives in 1998 regarding the disappearance of Adamson and Riley. At trial, DiNapoli was asked multiple questions about whether he had provided information regarding Franklin to detectives. He repeatedly denied having told detectives any of the things that the prosecutor asked him about. For example, he denied having told detectives that Franklin told him that Franklin and Bunty had killed Adamson and Riley and buried their bodies in the desert.
DiNapoli acknowledged that he had had a conversation with Granger about Adamson and Riley's disappearance. However, he denied having "warn[ed]" Granger about her association with Franklin during that discussion. He also denied having told Granger that Franklin had confessed to his role in the victims' disappearance, or that Granger had made any statements to him regarding Franklin's involvement in the murder. In response to questions posed by the prosecutor, DiNapoli further denied having told Detective Espinoza that Granger had told him that Franklin had gone to get "Joe's car" from the Wal-Mart, or that he had received information that Riley "would not die" after being shot, that Riley "kept saying no," or that "the individuals involved in this had to shoot him multiple times" in order to kill him.
The question posed to DiNapoli, which he denied, was whether he had told Espinoza that Granger had told him that Franklin had gone to get "Joe's car." There was no testimony at trial, however, to support the idea that Adamson and Riley had used Riley's car to go meet Bunty. We assume that the prosecutor simply erred in referring to the vehicle as being "Joe's," rather than Adamson's, in asking DiNapoli this question.
DiNapoli also denied having told Detective Libby that Franklin had told him that "things did not go right with the deal," or that Franklin was "talking about [Adamson] and [Riley]" and that "it seemed like the defendant wanted to clear his conscious [sic] when he came and told [DiNapoli] that the deal went bad."
DiNapoli also denied, at trial, having told Detective Libby that he had been involved with Franklin and Bunty in a fake "FBI drug raid activity."
Finally, DiNapoli specifically denied telling Detective Espinoza that Granger had been "covering for James Franklin."
7. Steven Dondero
Steven Dondero is Franklin's nephew. In 1995, Dondero lived in Lancaster, California. At some point during that year, Franklin introduced Dondero to Bunty. Dondero knew Franklin and Bunty to be friends. Dondero was approximately 18 or 19 years old at the time.
Dondero testified that sometime in 1995, he "was invited" to participate in a plan with Franklin and Bunty to "rob drug dealers." Dondero admitted that he was arrested in relation to this plan in October 1995. Dondero said that he did not know who had come up with the plan, but testified that the plan involved "rob[bing] drug dealers with the FBI jackets and tak[ing] their drugs and money." Dondero had not been made aware of the location of any of the planned robberies or other specifics, but he agreed to take part in the plan. According to Dondero, he learned from Franklin that "[s]upposedly [Bunty] had it all mapped out," and "already had people in place that knew that these guys [i.e., the targets] were drug dealers."
The three men were never able to carry out any of the planned robberies because they were arrested before they could do so. While they were at "Barstow College" and "changing into [their] suits and [their] stuff" in preparation to execute a robbery, Bunty told Franklin and Dondero that he had to go home to get a "flack jacket." As soon as Bunty left the scene, "a whole bunch of police came out of nowhere and arrested us [i.e., Franklin and Dondero]." Franklin and Dondero were in possession of weapons. According to Dondero, while he was in the restroom changing, Bunty had brought him "a .38 wrapped up in a shoulder holster and put it in [Dondero's] bag." Franklin had a .44 in his possession, also in a shoulder holster. In addition, there was a shotgun in the trunk of the rental car the men had rented. The men also had "FBI regalia," flack jackets, and bullet proof vests in their possession, in the trunk of the rental car, all of which were "part of the plan." Dondero explained at trial that they were planning to dress up in suits, apparently in order to look like FBI agents. Franklin had told Dondero that Bunty "was the mastermind" of the entire plan.
Dondero admitted at trial that upon being arrested, Dondero initially did not tell police the truth about the plan. Dondero said that he had pleaded guilty to attempted impersonation of a peace officer. He further admitted that later, in 2004, he was convicted of unrelated felonies, including inflicting corporal injury on a spouse and criminal threats.
Dondero stated at trial that shortly after he was arrested for the FBI plan, Franklin told him what had happened to Adamson and Riley. Franklin provided this information over the course of multiple "sporadic" conversations. Essentially, Franklin told Dondero that Adamson and Riley "were shot to death." Dondero believed that Franklin told Dondero this information because "the gun supposedly that was put in my bag [i.e., the .38] was a murder weapon."
Dondero testified that Franklin told Dondero that Bunty shot Adamson and Riley, and that Bunty had to reload his weapon because they did not die immediately. Franklin told Dondero that the bodies were "[i]n the desert," and that the graves had been dug, and lined with a tarp, and that "lime was put on the bodies to help deteriorate [them]." The purpose of the tarp, Dondero was told, was "[t]o hold the lime in there with the bodies so it would deteriorate them." According to Dondero, Franklin specifically told him that Franklin had "dug the holes prior to this shooting," and that he had also "moved the victim's vehicle, and took the radio out of it, to some apartment to throw the cops off." Franklin told Dondero that the bodies were located approximately 30 miles down a dirt road from Granger's house, south-southeast, in the direction of a marine base.
Dondero testified that Franklin had also told him about at least one other robbery that Bunty and Franklin had planned and attempted to execute. The plan involved Bunty and Franklin robbing "some drug dealers for some marijuana at [Bunty's] house." However, "something had gone wrong and a gun was fired off and [Franklin] got shot through a shirt, and that it hit -- the bullet hit a bicycle seat post, didn't hit some welding tanks." Franklin and Bunty ultimately did not rob the two intended victims and the men left.
Apparently the reference to "welding tanks" involved Dondero explaining that if the welding tanks had been hit, there might have been an explosion.
Detectives approached Dondero in 1998 to ask about Adamson and Riley. At that time Dondero told them that he did not know anything. He was worried about his uncle. At trial, Dondero explained that, when questioned by detectives in 1998, he was a "knucklehead." He said that the detectives "went at [him] pretty hard," and told him that he was under arrest for murder, and that he would "never see [his] kids again if [he] wasn't truthful." The following day, detectives arrested Dondero, and that is when he began to change his story and started to explain what Franklin had told him about Adamson and Riley's disappearance.
Testimony at trial did not explain why Dondero was released in 1998 and what he had been doing in the intervening years. However, Dondero admitted that he was arrested again in 2012 or 2013 for the murder of Adamson and Riley, and he entered into a plea agreement pursuant to which he pled guilty to being an accessory after the fact. According to Dondero, the plea agreement meant that "if I'm honest, and I tell the truth, that I'll get time served and I'll be able to go home. If I bullshit and lie, excuse my language, then I will be charged with murder as well." Dondero's guilty plea was based on the fact that he had initially lied to law enforcement officers regarding what he knew about the murders. Dondero testified that he was telling the truth about what his uncle had told him.
8. Detective Keith Libby
Keith Libby is a detective with the City of Barstow Police Department. In 1995, he was assigned to the missing person case concerning Adamson and Riley. The first party to report Adamson missing was a man who was Adamson's roommate at the time. Detective Libby went to the apartment complex where Adamson had been living and saw Adamson's vehicle parked in the parking lot of the complex. The car's radio was missing. Early in the case, Libby entered both Adamson and Riley into the National Crime Information Center database for missing persons. He also sent out "BOLOs," which stands for "[b]e on the lookout" bulletins, to "agencies throughout the United States," and posted fliers offering a reward for information leading to the discovery of Adamson and Riley. Libby had learned that prior to Adamson's disappearance, he had been arrested for manufacturing drugs.
Detective Libby testified that he had maintained regular contact with Dorothy Riley, Riley's mother, for 20 years. Libby received no information in those 20 years regarding the whereabouts of either Adamson or Riley. Libby also testified that there had been no law enforcement contacts with either man during that time period, and that credit searches and public record searches on both men had revealed nothing as to either since July 1995.
With respect to the investigation, multiple police officers and detectives had interviewed more than 250 people related to the disappearance of the two men; many of the individuals were interviewed more than once. Officers executed a search warrant at Chris Bunty's home; the warrant included a search of his house as well as excavation of his backyard. Officers did not find any bodies at Bunty's home.
Detective Libby testified that Bunty was on probation as a result of his arrest related to the October 1995 FBI impersonation incident. With respect to that incident, Libby helped investigate after officers received a report of individuals located at the Barstow College ball fields who appeared to be in unmarked police cars, wearing suits and in possession of handguns. Officers detained Dondero and Franklin at that location. There was a rental agreement with Chris Bunty's name on it in the car. Officers found Kevlar jackets, flack jackets, a bullet proof vest and a shotgun in the car. Franklin had a .44 caliber revolver in his possession, and Dondero had a .38 caliber revolver.
Detective Libby interviewed Franklin regarding the FBI impersonation matter on two occasions. In his first interview, Franklin claimed that he, Dondero, and Bunty were there at the behest of a woman who had lost her son to drugs, and that the plan was to kidnap the person who had supplied her son with the drugs. In the second interview, Franklin admitted that there was no woman involved, and that the plan was for Franklin, Dondero, and Bunty "to pose as FBI agents and do a bogus drug raid at a known drug house in the City of Victorville area."
Detective Libby testified that Granger told him in August 1995 that Riley had told her about Adamson trying to make a deal to purchase ephedrine from Bunty for $9,000. She also told Libby that she had had a conversation with Franklin in which he told her that Bunty had shot Adamson and Riley and that Bunty "had wished that he used a larger caliber handgun because one of them wouldn't die." Granger told Libby that Franklin had not gone to the police because he "was such a good friend of Chris Bunty's."
Libby testified that although Granger had told him about a telephone call between Bunty and Franklin that she had overheard regarding Bunty shooting Adamson and Riley, when Libby asked Franklin whether he had any information about, or had had a conversation concerning, the disappearance of Adamson and Riley, Franklin said that he did not have any information. Franklin maintained that Bunty "never told him anything about the disappearance of [Adamson] and [Riley]." When confronted about Granger's statement regarding the telephone call, Franklin admitted that Bunty had told him that he'd "taken care of the loud mouths." At that point, however, Franklin did not mention that he had moved Adamson's car. It was not until three years later, after Dondero had been arrested for the crime, that Franklin mentioned that he had moved Adamson's car.
When asked why it had taken so long for charges to be filed in this case, Detective Libby explained that it was only when a different investigator took over the case that investigators "were able to more clearly link the FBI situation with this homicide investigation in terms of Mr. Franklin's involvement and Mr. Dondero's involvement and Mr. Bunty's involvement, so that's why."
On cross-examination, Libby admitted that Dondero had made incriminating statements about Franklin's role in the case in 1998.
9. Detective Andrew Espinoza
By the time of trial, Detective Espinoza was retired from the Barstow Police Department, where he had worked for 36 years. In 1997, he was assigned to be the lead investigator in the missing persons case of Adamson and Riley.
Espinoza interviewed a number of witnesses. In 1997, he spoke with Reeck, who informed Espinoza at that time that Adamson had been at Reeck's house prior to going to the Wal-Mart store to do a "deal, some kind of narcotics deal." Reeck also told Espinoza that Adamson was planning "to meet a man by the name of Chris Bunty." Adamson had asked Reeck to hold approximately $8,000 for him prior to making the deal. Espinoza interviewed Reeck again in July 1998, and at that time, Reeck told Espinoza that "the deal was for some high grade ephedrine." Reeck also said that Adamson was a little concerned about the meeting with Bunty. Reeck explained that he had helped Adamson by holding onto the money; when the "deal was made" Reeck would bring Adamson the money. Reeck followed Adamson to a "house in the Colonial Trailer Park." Adamson was planning to give Reeck a signal to bring the money. The deal did not happen because "everyone in the house apparently was concerned about the -- about Reeck parked outside the house in the car."
Detective Espinoza also testified that he interviewed DiNapoli in 1998. During that interview, DiNapoli told Espinoza that he and Franklin "were tight," that they had known each other for many years, and that Franklin had told DiNapoli that "he and Chris Bunty shot and killed [Riley] and [Adamson], and . . . buried them in the desert somewhere."
Espinoza also discussed his multiple interviews with Granger that took place in February 1997, March 1998, April 1998, June 1998, July 1998, and August 1998. In 1997, Granger provided information that she had overheard a telephone conversation between Bunty and Franklin, but said that the telephone conversation she had overheard occurred approximately a week after the last time she saw Riley. She indicated that after she overheard that call, Franklin had told her that "Chris Bunty shot them 'cause they were talking too much." Granger said that Bunty was supposed to sell Adamson and Riley a "55-gallon drum of ephedrine."
In March 1998, Granger said that she had overheard another man bragging about having been present when Adamson and Riley were killed, and that a different man was also present and had "taken the gun from Chris Bunty and shot [Riley]."
When Espinoza contacted Granger in June 1998, he was looking for Franklin and noticed Franklin's vehicle at Granger's home. Granger told Espinoza that Franklin had gone down the street to Thomas's house. Espinoza went to Thomas's house, but did not find Franklin there. Espinoza returned to Granger's house. Granger then told Espinoza that Franklin was "hiding" at the house.
In July 1998, Granger told Espinoza that Franklin was not involved in the killing of Adamson and Riley. At that point, she said that Bunty "had telephoned Franklin and . . . Bunty wanted Franklin to help Bunty kill [Adamson] and [Riley]."
In August 1998, Granger was interviewed at the police station. During that interview, she told Espinoza that she had spoken with Riley on the day that Adamson and Riley were supposed to meet Bunty. She told Riley to "be careful of Chris Bunty," and warned him that "Bunty was angry at [Riley] and wanted to kill him." Granger explained that the reason she had done this was because she had overheard a telephone conversation between Bunty and Franklin
Prior interviews had taken place at her residence.
Espinoza also testified that Dondero told Espinoza that Franklin and Bunty had used "Red Devil Lye" in disposing of the bodies.
In August 1998, after Espinoza interviewed Dondero and arrested him, Espinoza made contact with Franklin. Franklin acknowledged that Dondero had informed him about his contact with police and told Espinoza, "Andy, you got nothing. You haven't got the bodies. You've got nothing. You've got nothing." The following month, Espinoza and Libby both met with Franklin. At that point, Franklin said that he would tell the truth, and said that all he had done was "got rid of the car."
In June 1998, Franklin told Espinoza that he was with Bunty, after Adamson and Riley had gone missing, when Bunty purchased a shovel. Franklin said that "they were going to rob other individuals, not [Adamson] and [Joe]." Franklin told Espinoza that Bunty had a "connection in Arizona" who was "gonna sell him approximately 250 pounds of marijuana." The deal was going to go down in Bunty's garage, and the lights went out, Bunty pulled a gun, and "there was a shot fired, a bullet went through [Franklin's] shirt, and when the lights came back on [Franklin] had his gun out." Ultimately no one was injured, and Franklin "made up a story to convince the two Arizona guys that it was an accident" and that "everything was okay." Franklin admitted to Espinoza that Bunty and Franklin's plan was to "jack them," i.e., "[t]o rob" the men. Franklin also stated that Bunty had "tried to convince [Franklin] to kill these people, these people from Arizona." During that same conversation, Franklin did not disclose that he had moved Adamson's car. He disclosed that fact two or three months later.
Espinoza testified that two different witnesses, Dondero and Oloizia, mentioned to officers that Franklin had told them that the .38 that was found in Dondero's possession when he was arrested for the FBI impersonation case was the same gun that was used to kill Adamson and Riley. Dondero and Oloizia each told police that they did not know each other. Oloizia and Dondero also had both independently told police that Riley "wouldn't die," and that "they had to reload" in order to kill him. In addition, Franklin told police that the gun that police had recovered in the FBI impersonation case was "the gun that killed [Riley] and that the gun had to be reloaded at the time of the killing or shooting." According to Espinoza, although Franklin told Espinoza that the gun was the one used to kill Adamson and Riley, Franklin "never admitted" that he was present when the men were shot. B. Procedural background
The San Bernardino County District Attorney charged Franklin with two counts of murder (Pen. Code, § 187, subd. (a); counts 1 & 2), and with one count of conspiracy to commit murder (§ 182, subd. (a)(1); count 3.) With respect to the murder charges, the charging document alleged special circumstance that there were multiple victims and that the murders occurred during the commission of a robbery (§ 190.2, subds. (a)(3) & (a)(17)(A). With respect to all three counts, it was alleged that Franklin had suffered a serious or violent prior felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Further statutory references are to the Penal Code unless otherwise indicated.
The case proceeded to trial before a jury. The jury convicted Franklin on all three counts, and found true the special circumstances. The trial court granted the prosecution's motion to dismiss the prior felony enhancement allegation.
The trial court sentenced Franklin to two consecutive terms of life without parole on counts 1 and 2, and an additional term of 25 years to life, stayed, on count 3.
Franklin filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court's conspiracy instructions were proper
Franklin contends that the trial court's instructions to the jury with respect to conspiracy to rob and conspiracy to murder the victims were erroneous because those instructions informed the jury that moving Adamson's car could be an overt act undertaken in furtherance of the conspiracy. According to Franklin, the moving of the car could not be an overt act in furtherance of any conspiracy because, he contends, the evidence demonstrated that the car was moved after the completion of the conspiracy—i.e., after the victims were robbed and murdered.
1. Additional background
The prosecutor presented two theories regarding Franklin's liability for first degree murder. One involved the theory that the victims were killed during the commission of a felony (robbery) that Franklin aided and abetted or in which he conspired—i.e., a felony murder theory. The second theory was that Franklin conspired to commit the murder of the two victims—i.e., he premeditated their murder. He was thus also charged with conspiracy to commit murder.
The trial court instructed the jury with modified instructions regarding the law of conspiracy—CALCRIM No. 415 (conspiracy generally); CALCRIM No. 416 (evidence of uncharged conspiracy with respect to the robbery); and CALCRIM No. 563 (conspiracy to commit murder). In these instructions, the court informed the jury that Franklin was a coconspirator if (1) he "intended to agree and did agree with one or more of the coparticipants to commit" the target offense (either robbery or murder, in this case), (2) he "intended that one or more of them would commit" the target offense, (3) either he or Bunty committed any of the identified overt acts to accomplish the identified target offense (arranging a drug deal, digging a hole for burying the victims, driving the victims to the desert, or moving Adamson's car from the Wal-Mart parking lot and taking the radio), and (4) at least one of the overt acts was committed in California. The conspiracy instructions also included a specific explanation regarding the meaning of an "overt act": "An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself."
Both parties agree that the trial court should not have instructed the jury with CALCRIM No. 415, since the only charged conspiracy was conspiracy to commit murder and the conspiracy to commit robbery was an uncharged conspiracy. (See Bench Notes, CALCRIM No. 415 ["If the defendant is charged with conspiracy to commit murder, do not give this instruction. Give CALCRIM No. 563, Conspiracy to Commit Murder. If the defendant is not charged with conspiracy but evidence of a conspiracy has been admitted for another purpose, do not give this instruction. Give CALCRIM No. 416, Evidence of Uncharged Conspiracy"].) The trial court instructed the jury with the instructions identified in the CALCRIM No. 415 Bench Notes, and Franklin does not base any claim of error on the giving of this additional instruction.
2. Legal standards on review from a claim of instructional error
Alleged instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
"When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1229.) In that context, we must then "determine whether it is reasonably likely the jurors understood the instruction[s] as [defendant] suggests. [Citation.] In making that determination, we must consider several factors including the language of the instruction[s] in question [citation], the record of the trial [citation], and the arguments of counsel." (People v. Nem (2003) 114 Cal.App.4th 160, 165.) We presume the jurors are "intelligent and capable of understanding and applying the court's instructions. [Citation.]" (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
3. Analysis
"A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416; accord, People v. Russo (2001) 25 Cal.4th 1124, 1131 (Russo).) "Disagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy." (Id. at p. 1135.)
As an initial matter, the People point out that defense counsel did not object to the conspiracy instructions provided to the jury. The court and the parties reviewed the proposed instructions off the record. After doing so, defense counsel raised no objection on the record regarding the inclusion of moving the car as a possible overt act done in furtherance of a conspiracy. Defense counsel also did not object when the prosecutor alluded to the moving of the car in his closing argument. A "[d]efendant's failure to object to the instruction below, or the prosecutor's argument, forfeits the claim on appeal." (People v. Virgil (2011) 51 Cal.4th 1210, 1260.)
However, even on the merits this contention fails. Section 184 provides that no agreement to commit a crime amounts to a conspiracy unless some act in addition to the agreement is committed to effect the object of the agreement. " 'A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act "by one or more of the parties to such agreement" in furtherance of the conspiracy.' " (People v. Jurado (2006) 38 Cal.4th 72, 120 (Jurado).)
The purpose of the overt act requirement is to allow the conspirators the opportunity to reconsider and withdraw their agreement. (People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8.) In Zamora the Supreme Court held, in the context of a statute of limitations issue, that "acts committed by conspirators subsequent to the completion of the crime which is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy." (Id. at p. 560.) Requiring that the overt act precede the accomplishment of primary object of the conspiracy is consistent with the statutory language, which states that an agreement to commit a crime becomes punishable only upon the doing of an act "to effect" the object of the agreement. (§ 184.) The object of a punishable conspiracy is the commission of a particular crime. (§ 182, subd. (a)(1).) "The general rule is that a 'conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated.' " (People v. Hardy (1992) 2 Cal.4th 86, 143.) " 'It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended.' " (Ibid.)
Thus, a defendant's conviction was reversed where the verdict form demonstrated that the jury relied solely on a single overt act, the sharing of the proceeds of a robbery, as the basis for convicting the defendant of conspiracy to commit robbery; because even when viewed in the light most favorable to the judgment, the evidence demonstrated that by the time the defendant and codefendants divided up the proceeds, the object of the conspiracy—i.e., the robbery—had been fully completed. (People v. Brown (1991) 226 Cal.App.3d 1361, 1369 (Brown).) However, before reversing the defendant's conviction in Brown, the court considered whether the evidence could have supported a finding that the defendants had divided the money "while the robbery was still in progress." If the evidence had been capable of supporting such a finding, reversal would not have been required. The Brown court concluded, however, that the record could not support such a finding. (Brown, supra, at p. 1370.)
In Brown, the jury had been asked to make specific findings with respect to three alleged overt acts. The jury made "not true" findings as to two of the proffered overt acts, and found true only the allegation that the defendant had " 'share[d] in proceeds of the robbery.' " (Brown, supra, 226 Cal.App.3d at p. 1367, fn. 2.)
Unlike in Brown, the evidence in this case can support a finding that the act of moving the car occurred prior to the completion of the robbery and murders, despite Franklin's assertion that moving the car "was perpetrated after the robbery murders." In fact, even Franklin's recitation of the facts—a recitation that is in the light most favorable to him as opposed to the light most favorable to the judgment—fails to demonstrate that the evidence was insufficient to support a finding that the moving of the car occurred prior to or during the robbery and murders. Specifically, Franklin contends on appeal that "[t]he car had to be moved after Bunty met Adamson, because the car was still at the Wal Mart in the afternoon of July 8, and Adamson picked up Riley before noon. And Bunty would have had to obtain the keys from Adamson before the car was moved, requiring threats or the use of some force." Franklin also relies on the fact that he told police that he met Bunty at a liquor store, which is where Bunty gave Franklin the keys, and that Franklin then moved the car. He further contends that his own statements to police, i.e., that he moved the car to throw off the police, is consistent with "an act to evade detection after the murder."
The evidence that Franklin cites does not establish that the only reasonable conclusion is that the car was moved only after the robbery and murders were completed. The testimony at trial did not establish a precise timeline as to when any of the acts alleged, or admitted, took place. However, there was evidence that Franklin was aware of the plan to rob and kill the victims prior to the date on which the victims were planning to meet with Bunty, and that he had agreed to move Adamson's car prior to the date of the planned fake drug deal. The evidence demonstrates that the car was in the Wal-Mart parking lot on the day Adamson and Riley went missing, and that it was not there the following day. The evidence further demonstrates that at some point after Adamson and Riley were to meet Bunty, Bunty met with Franklin and gave him the keys to the car. The evidence does not establish when, in relation to the giving of the keys, the robbery and murders were completed. Based on this evidence, the jury could reach a number of equally plausible conclusions with respect to the timing of the various events. At a minimum, the evidence could support a finding that Bunty gave the keys to Franklin on his way out of town before he drove out of the desert to complete the robbery and murder the victims, and that Franklin moved the car prior to or during the time that Bunty was taking the victims to the location where he killed them.
Franklin suggests that even if the evidence supports the theory that he moved the car while Bunty was taking Adamson and Riley out to the desert to kill them, the "act of moving the car was not done in furtherance of the conspiracy." We disagree. Although it may be true that an act done to help a coconspirator evade detection after the object of the conspiracy has been accomplished cannot be said to have been done in furtherance of the object of the conspiracy, the same cannot be said of an act done to help the participants of a conspiracy evade detection while the conspiracy is ongoing. If the goal of the conspiracy is to accomplish a particular crime, then acts undertaken by the participants of the conspiracy to ensure that that crime occurs, including acts taken to prevent law enforcement from catching on to the existence of the conspiracy or from being able to interrupt the conspiracy before the criminal object can be completed, are acts done in furtherance of the conspiracy.
Because the evidence could support the conclusion that the car was moved prior to the completion of the robbery and murders, the trial court did not err in instructing the jury that it could rely on the moving of the car as an overt act in furtherance of a conspiracy to commit robbery and/or murder. There is no contention that the trial court erred in instructing the jury that an overt act had to be one done in order to accomplish the criminal offense that was the object of the conspiracy. Again, the jury was specifically instructed that "[a]n overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime." (Italics added.) This presupposes that the act must be undertaken before the agreed upon crime is finally accomplished.
Given that the instruction as provided was a correct statement of the law, if Franklin wanted to expand on the standard instruction or modify it to address his contention that the evidence could also support the conclusion that he moved the car after the object of the conspiracy was accomplished and that such an overt act would not be one done in furtherance of the object of the conspiracy, it was incumbent on him to request a pinpoint clarifying instruction. (See People v. Dennis (1998) 17 Cal.4th 468, 514 [a defendant may request instructions that elaborate or "pinpoint" his or her theory of the case].) A defendant's failure to request a clarifying or amplifying instruction at trial forfeits any argument on appeal that the instruction given was ambiguous or incomplete. (People v. Cole (2004) 33 Cal.4th 1158, 1211.)
In any event, even if we were to conclude that the trial court erred in failing to inform the jury that it could rely on the moving of the vehicle as an overt act in furtherance of the conspiracy only if it found that Franklin moved the vehicle before the robbery and murders were completed, it is apparent that no prejudice resulted from such a failure. To find any assumed instructional error harmless, "a reviewing court must conclude, beyond a reasonable doubt, that the jury based its verdict on a legally valid theory." (People v. Chun (2009) 45 Cal.4th 1172, 1201-1203.) A court may do so not only where " 'the jury verdict on other points effectively embraces' " the one at issue but also where " 'it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.' " (Id. at p. 1204, italics in original.) Here, it would have been impossible for the jury to have found Franklin guilty of murder, as it did in counts 1 and 2, without necessarily finding true that the victims were, ultimately, murdered—i.e., that the target offense of the conspiracy to commit murder had been accomplished.
"Commission of the target offense in furtherance of the conspiracy satisfies the overt act requirement." (Jurado, supra, 38 Cal.4th at p. 121.) It would be logically impossible for the jury to have relied on the moving of Adamson's car after the completion of the target of the conspiracy to commit murder as the basis for convicting Franklin of conspiracy to commit murder without having also determined (1) that Franklin agreed to commit murders, (2) that he intended to commit the murders, and (3) that either he or his coconspirator actually completed the murders. As a result, the jury necessarily found true all of the elements of the offense of conspiracy to commit murder pursuant to a legally valid theory. B. The trial court responded appropriately to the jury's questions regarding conspiracy to commit robbery
This conspiracy was not stopped prior to its accomplishment. Thus, the only way that the moving of the car could have occurred after the conspiracy had come to an end would have been if the object of the conspiracy had been accomplished—i.e., that either a robbery or a murder had been effectuated. If the jury determined that either of those things occurred, then it would necessarily have found that another act satisfying the overt act requirement had taken place.
During deliberations, the jury posed two questions regarding Franklin's potential liability under a theory of felony murder based on a conspiracy to commit robbery. Franklin contends that the trial court's response, which was to direct the jury to the specific instructions for conspiracy and robbery, was erroneous because it did not sufficiently respond to the jury's questions.
1. Additional background
On the afternoon of the jury's second day of deliberations, the jury sent the court the following note:
"We, the jury, request clarification in regards to intent to commit robbery. Meaning, if the defendant is aware of the conspiracy, but does not agree to be a part of it, is he still responsible? If the defendant acquiesces to do something at the request of the perpetrator (i.e., move a car), is the defendant responsible?"
After the court informed the jurors that it would take some time for the court to develop a response, the court let the jurors go home early. The court and attorneys convened the following morning to discuss how to respond to the jury's question. The prosecutor suggested referring the jury to the instruction on conspiracy. The court inquired about also instructing on robbery. The attorneys then discussed the matter off the record while the court attended to other matters. Upon returning to discuss the matter on the record, the attorneys stated that they were in agreement that the jury should be directed to CALCRIM Nos. 415 (conspiracy) and 1600 (robbery).
The court wrote a note to the jury stating, "I direct your attention to Jury instructions #29, Calcrim 1600 and #30, Calcrim #415."
The jury asked no further questions, and returned a verdict of guilty on all three charges, and also found true both of the special circumstance allegations.
2. Legal standards
In criminal cases, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985 (Smithey).) Section 1138 provides: "After the jury have retired for deliberation, if . . . they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
We review a trial court's response to a jury question, including the court's decision to further instruct or not instruct, for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
3. Analysis
As the People point out, Franklin has failed to preserve this issue by not objecting to the trial court's proposed response to the jury's questions. (See People v. Boyette (2002) 29 Cal.4th 381, 430 [a party must object to the trial court's response to a jury question to preserve the issue on appeal].) Not only did Franklin not object to the court's proposed response, but his counsel agreed with the prosecutor as to the specific instructions to which the court should direct the jury's attention. "The doctrine of invited error bars a defendant from challenging a jury instruction given by the trial court when the defendant has requested the instruction based on a ' " ' "conscious and deliberate tactical choice." ' " ' [Citation.]" (People v. DeHoyos (2013) 57 Cal.4th 79, 138.) The record reflects that defense counsel and the prosecutor agreed as to how the court should respond to the jury's questions. Any error in the instruction was thus invited.
However, even if Franklin had properly preserved the issue, we would conclude that the trial court's response to the jury's questions was not erroneous or an abuse of discretion. Again, while the court has "an obligation to rectify any confusion expressed by the jury regarding instructions," it also has discretion to determine "what additional explanations are sufficient to satisfy the jury's request for information." (Smithey, supra, 20 Cal.4th at p. 1009.)
After being presented with a voluminous packet of jury instructions, comprising more than 100 pages, the jury sought assistance in understanding whether it could hold Franklin "responsible" for conspiracy to commit robbery if he "does not agree to be a part of it." The second question elaborated on this idea, asking whether Franklin could be held "responsible" for the robbery if he merely "acquiesce[d]" to doing something to help the direct perpetrator, like moving a car. In response, the court directed the jury to the precise instruction that made it clear that a defendant may be determined to be guilty of a conspiracy to commit robbery only if he "did agree with one or more of the coparticipants to commit [r]obbery" and if he "and one or more of the other alleged members of the conspiracy intended that one or more of them would commit [r]obbery." (Italics added.) Further, the instruction that the court guided the jury to also specifically told the jury that "[s]omeone . . . who does not intend to commit the crime is not a member of the conspiracy" (italics added), and that "[e]vidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy." Thus, the court directed the jury to an instruction that clearly told them not only that the defendant must have first agreed to be a part of the conspiracy to commit a robbery, but that he must have intended for the robbery to occur. By doing so, the court properly responded to the jury's questions and ensured that the jury was instructed that it could not find Franklin guilty of a conspiracy to commit robbery based on a finding that he merely acquiesced to do some act that would have been helpful to Bunty, without also agreeing to be part of the conspiracy or intending that the robbery occur.
Because the CALCRIM No. 415 instruction was responsive to the jury's questions, and indeed, rejected the idea that Franklin could be found guilty simply as a result of his moving the car, the trial court had no need to elaborate or stray from the standard instruction. The court did not abuse its discretion in failing to provide a different response or additional instruction. C. Defense counsel did not render ineffective assistance in not objecting to the prosecutor's closing argument and in not moving for a mistrial after Dondero mentioned having taken a polygraph test
Franklin contends that his trial counsel rendered ineffective assistance with respect to two issues that arose during trial. He first argues that his attorney should have objected to one portion of the prosecutor's closing argument because, he asserts, the prosecutor misstated the law. He also argues that his attorney should have moved for a mistrial after Dondero referred to having submitted to a polygraph examination.
1. Legal standards for ineffective assistance of counsel claims
To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient in that it "fell below an objective standard of reasonableness," evaluated "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 675.)
If counsel's performance has been shown to be deficient, the defendant is entitled to relief only if he can also establish that he was prejudiced by counsel's ineffectiveness. (Strickland, supra, 466 U.S. at pp. 691-692; accord, Ledesma, supra, 43 Cal.3d at p. 217.)
2. Prosecutor's closing argument
During closing arguments, the prosecutor was discussing the various ways that a defendant could be found guilty of murder, and said the following:
"Well, what does all of this mean? We have the law [that] breaks things down into direct perpetrator, coconspirator and an aider and abettor.
"The law says that you can be guilty of [a] crime actually in three ways. . . . If you directly commit the crime, if you aid and abet or help, there's a definition of what that means, or if you enter into a conspiracy. You're equally guilty as the person who actually pulled the trigger.
"So we had all of that discussion about Miss Granger, you said the defendant said he wouldn't do it. Yes, he did say he wouldn't do it.
"Well, what is 'it'? Pulling the trigger? He might have said that. But that doesn't matter. Because if he's in the conspiracy, he's a member of the conspiracy, he knows about it, he has that intent, and he's in it with Chris Bunty and he moves the car, he's liable for murder. If he knows there's a robbery, he knows that intent, he's a member of that group, he's liable for murder. He digs the hole the day before, the week before, however long before, knowing that that's what's going to happen, he's on the hook."
Defense counsel did not object to this portion of the prosecutor's closing argument.
On appeal, Franklin argues that the prosecutor misstated the law, contending that the prosecutor "argu[ed] that appellant could be found guilty of murder on a conspiracy theory if he was aware of the conspiracy and moved the car." This is not a fair reading of what the prosecutor said. Specifically, the prosecutor said, "[I]f he's in the conspiracy, he's a member of the conspiracy, he knows about it, he has that intent, and he's in it with Chris Bunty and he moves the car, he's liable for murder." (Italics added.) The prosecutor's comment told the jury that Franklin had to do more than just know about the plan and move the car; rather, the statement indicated that Franklin had to be in the conspiracy and have the intent to commit the object of the conspiracy, as well. The prosecutor's statement cannot fairly be read as leaving out the intent and agreement requirements for being found guilty of conspiracy. Given that the prosecutor did not misstate the law, defense counsel's decision not to object cannot have constituted deficient performance. (See People v. Cunningham (2001) 25 Cal.4th 926, 1038 [no ineffective assistance where defense counsel did not object to claimed prosecutorial misconduct that did not amount to misconduct].)
Defense counsel's explanation was not materially different from the prosecutor's, in that defense counsel told the jury that Franklin had to "move the car after agreeing -- remember, he has to agree to be the participant -- knowingly to kill these men."
3. Dondero's reference to having submitted to a polygraph test
During the prosecution's case-in-chief, the prosecutor called Franklin's nephew, Dondero, to testify regarding his role in the FBI impersonation robbery scheme, as well as what Franklin had told him about Franklin's role in the disappearance of Adamson and Riley. While testifying, Dondero acknowledged that when he first spoke with police, after being arrested while preparing for the FBI impersonation robbery, he denied knowing anything about Adamson and Riley. When asked by the prosecutor, "[W]ell, where did they [the police] contact you at?" Dondero responded, "They contacted me at my -- I believe they went to [B]ishop and left a card for me, and then I called them and they wanted to come down. I was in Huntington Beach. They wanted to come down and give me an interview, so I invited them down to do so. They gave me a ride to the Huntington Beach police station where the interview took place. They gave me a polygraph test, asked me a series of questions, and I guess I showed inception [sic]." The prosecutor immediately moved to strike Dondero's reference to the polygraph, and the court ordered it stricken.
Franklin contends that defense counsel should have requested a mistrial once Dondero mentioned that he had submitted to a polygraph examination. He further asserts that if his attorney had moved for a mistrial on this ground, "the court would have been compelled to grant the motion." We disagree with Franklin's contentions.
Absent the stipulation of the parties, any reference to a polygraph examination is inadmissible. (Evid. Code, § 351.1, subd. (a).) However, the trial court did not admit testimony about Dondero's polygraph examination, and specifically struck his statement. In addition, Dondero's testimony did not include any reference to what he said during the polygraph test that was deemed to be potentially deceptive. Absent any additional context about what Dondero said, his mere reference to having been subjected to a polygraph test was virtually meaningless and could not have prejudiced Franklin. Franklin's trial counsel's decision not to move for a mistrial based on Dondero's mentioning having submitted to a polygraph examination was reasonable for this reason, alone.
Further, a trial court has " ' "considerable discretion" ' " in deciding whether to grant a motion for mistrial. (People v. Cox (2003) 30 Cal.4th 916, 953 (Cox), disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390.) "A motion for mistrial is directed to the sound discretion of the trial court. We have explained that '[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Jenkins (2000) 22 Cal.4th 900, 985-986 (Jenkins).)
Despite the broad discretion granted a trial court in deciding how to address a motion for mistrial, Franklin relies on People v. Basuta (2001) 94 Cal.App.4th 370 (Basuta), to argue that the trial court would have "been compelled to grant" a motion for mistrial in this instance. Although the appellate court in Basuta reversed the defendant's conviction as a result of the jury learning that the key prosecution witness had submitted to a polygraph examination, the Supreme Court has noted that not every case in which a polygraph is mentioned involves the unique circumstances that were present in Basuta and compelled reversal in that case. (Cox, supra, 30 Cal.4th at p. 953.) As the Cox court explained, Basuta involved the prosecutor violating a preexisting court order prohibiting the introduction of polygraph evidence, in an attempt to rehabilitate the sole witness and bolster her credibility by mentioning that the witness had taken a polygraph test. (Ibid.) It was "this error, in combination with another, more serious error by the trial court (excluding evidence that the baby's mother was physically violent to the baby, which might have been the proximate cause of the baby's death)" that caused the defendant prejudice. (Id. at pp. 953-954.)
In this case, the trial court immediately struck Dondero's statement in which he referenced having been given a polygraph test. In addition, at multiple points during the trial the court admonished the jury that it was not to consider testimony that the court had stricken. Given this, the court would have acted well within its discretion in denying a mistrial motion based on Dondero's mentioning having submitted to a polygraph examination. Because the trial court would not have been required to grant a motion for mistrial under these circumstances, and given the fact that the court struck Dondero's reference to the polygraph and admonished the jury that it was to completely disregard stricken testimony, defense counsel's decision not to move for a mistrial as a result of Dondero's brief and nonresponsive reference to having taken a polygraph examination cannot be considered to constitute ineffective assistance of counsel. D. The trial court erred in allowing Detective Libby to opine that he believed Franklin and Bunty murdered the victims, but did not err in permitting Libby to explain that the reason he used particular interrogation tactics was because he disbelieved what Franklin and Dondero initially told him
Franklin contends that the trial court erred in admitting a detective's testimony that it was his opinion that Adamson and Riley had been murdered and that Franklin and Bunty were responsible for the murders. He further contends that the court erred in allowing the detective to state that he doubted the veracity of what Franklin and Dondero told him early in the investigation.
1. Additional background
Dondero testified that after he initially told police that he did not know anything about Adamson and Riley, detectives arrested him and interrogated him "really hard." The prosecutor later called Detective Libby as a witness to testify about his investigation of this case, and about his multiple interviews with Dondero and Franklin after they were arrested in the FBI impersonation case.
Detective Libby testified that he put pressure on Dondero. The prosecutor asked Libby why he had done so, and Libby replied, "The information that [Dondero] was providing to us was, in our opinions, obviously inconsistent." Defense counsel objected that Libby was testifying as to the opinions of others, at which point Libby clarified that it was his own opinion that Dondero's "statements were inconsistent and he was not being truthful." Libby continued, "I think -- I would -- I talked to him basically the same way I would talk to my sons who are adults now, and if I'm gonna --" At that point, defense counsel objected to what Libby was saying, on relevance grounds. The trial court overruled the objection and stated that Libby was "answering the question in his own manner." Libby then provided the following testimony:
"If this young man is sitting there obviously giving me inconsistent statements that I know is going to affect his future and affect our ability to find the victims of a murder, their bodies, yeah, I'm gonna turn the pressure up. I'm gonna let them know that what they're doing is wrong and it's gonna cost them, and it's what I've done with pretty much every case I've ever handled."
The following colloquy then occurred:
"Q (BY [THE PROSECUTOR]:) In fact with regard to Mr. Franklin, in December of 1995, when [he] initially said he didn't have any information about the disappearance, didn't you tell him, look, Mr. Franklin, you've lied to me before?
"A Well, yes, yeah.
"[DEFENSE COUNSEL]: Objection, your Honor.
"THE COURT: Basis[?]
"[DEFENSE COUNSEL]: Relevance.
"THE COURT: Overruled.
"Q (BY [THE PROSECUTOR]:) And he, in fact, did in the FBI case; is that right?
"A That's right.
"[DEFENSE COUNSE]: [Section] 352, your Honor.
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: And it's opinion.
"THE COURT: Pardon?
"[DEFENSE COUNSEL]: Object to the opinion of my client lying.
"THE COURT: That was -- you're testifying as to your opinion?
"THE WITNESS: My opinion and Mr. Franklin's admissions.
"THE COURT: Overruled.
"Q (BY [THE PROSECUTOR]:) So you told him that in December of '95?
"A Yes.
"Q Okay. But still in December of '95 he never said anything about moving Mark Adamson's car, did he?
"A Correct."
Later, during defense counsel's cross-examination of Detective Libby, counsel asked Libby whether he was familiar with the Whitey Bulger case, a case in which Bulger, a notorious wanted criminal, was found many years after having gone into hiding. On redirect examination, the prosecutor asked Detective Libby about differences between the evidence that had been available in the Bulger case and the evidence in this case. The prosecutor asked Libby if he had an opinion as to whether it might not make sense that Adamson and Riley had disappeared of their own accord, as Bulger had. Libby mentioned that among other things distinguishing the two cases, prior to July 8, 1995, Riley had regular contact with his mother every Sunday, but after that date, she never heard from him again. When defense counsel started to object to Detective Libby giving his reasons as to why this case was different from that of Whitey Bulger, the court, at a side-bar discussion, said, "First, you brought this up [i.e., that the potential the victims disappeared like Whitey Bulger]." After some discussion, the trial court overruled defense counsel's objection to Libby's testimony distinguishing this case from the Whitey Bulger disappearance. The following colloquy then occurred:
"Q (BY [THE PROSECUTOR]): Whitey Bulger was found after 15 years, that's your understanding?
"A Yes.
"Q Is it your understanding?
"A Yes.
"Q Okay. And in your opinion, with regard to Mark Adamson and Joe Riley, what is your opinion about their demise based on your investigation?
"[DEFENSE COUNSEL]: Objection. Lacks foundation.
"THE COURT: Overruled.
"THE WITNESS: That they were --
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: Overruled.
"THE WITNESS: That they were murdered, and that James Franklin and Chris Bunty were involved in that murder and that their bodies were disposed of at a location and in a manner that we are unable to determine.
"Q (By [THE PROSECUTOR]:) Do you think they'll come walking in the door in the next 20 years?
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: Overruled.
"THE WITNESS: Absolutely not.
"[THE PROSECUTOR]: I have nothing further."
2. Analysis
a. Detective Libby's "opinions" that Dondero was not being truthful and that Franklin had lied to him
Franklin contends that because "opinions regarding the veracity of witnesses are inadmissible," the trial court should have excluded Libby's opinions regarding the veracity of Dondero and Franklin's initial statements to him.
Generally, a witness's opinion about the veracity of another person's statement is inadmissible. (People v. Melton (1988) 44 Cal.3d 713, 744.) However, an officer's testimony with respect to whether he believed a witness may be admitted to "assist[ ] the jury in understanding the actions of the police." (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.) In this case, the line of questioning from the prosecutor demonstrated that he was asking Detective Libby why he had engaged in high-pressure interrogation tactics with Dondero, given that Libby had just conceded that he had put pressure on Dondero while questioning him. Libby explained that he had used that tactic because he believed that Dondero had not been truthful with him about what he knew. It was thus clear from the testimony that Libby was not offering an opinion "for direct jury consideration on the issue of [an individual's] credibility," but rather, was explaining what had occurred during a somewhat lengthy interrogation. (People v. Stitely (2005) 35 Cal.4th 514, 546-547 (Stitely) [testimony by detective that defendant had changed his story during lengthy interrogation, including statements that interrogation had exposed defendant's " 'lies' " did not indicate that detective was offering an opinion for jury's consideration of issue of defendant's credibility, but was instead a description of "twists and turns" of interrogation].) To the extent that an instruction may have been warranted limiting the use of Libby's testimony for this purpose, it was incumbent on Franklin to request such an instruction. "When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355.) The failure to request a limiting instruction when a party is entitled to one forfeits the issue on appeal. (People v. Sanchez (2016) 63 Cal.4th 411, 460.)
Dondero had also earlier testified about the pressure he had felt when interrogated by detectives.
Further, Libby's comments about his views pertaining to Dondero's initial statements to him, as well as his admission that he utilized an interrogation tactic on Franklin in which he directly accused Franklin of lying to him, effectively mirrored what both Dondero and Franklin eventually told police—i.e., both men changed their stories with police over time and eventually admitted that they had not initially told the truth. (See Stitely, supra, 35 Cal.4th at p. 547 [further reason to reject defendant's argument that detective's testimony was improper opinion on the issue of defendant's credibility was that detective's "testimony mirrored the interview heard by the jury, including defendant's own admissions about lying and changing his account"].)
We therefore conclude that the trial court did not err in overruling Franklin's objections to the portions of Libby's testimony in which Libby explained some of his interrogation techniques, as well as his reasons for using them, with respect to Dondero and Franklin, even though he stated during this testimony that at times, he did not believe what either of the two men had told him.
b. The trial court should not have permitted Detective Libby to opine that the victims were murdered and that Bunty and Franklin were responsible for their murders
The People do not attempt to argue that there was any valid basis for the trial court's decision not to exclude Detective Libby's testimony that it was his opinion that the victims had been murdered, and that he believed that Franklin and Bunty had committed the murders. Rather, they concede the error and argue that the error was ultimately not prejudicial.
We agree that the admission of this testimony was clear error. "A witness may not express an opinion on a defendant's guilt." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman).) It is wholly improper for a police investigator to provide an opinion regarding the defendant's guilt, and the trial court should not have permitted the prosecutor to elicit this opinion from Libby. (See People v. Riggs (2008) 44 Cal.4th 248, 300 (Riggs) [assuming that police investigator providing opinion on defendant's guilt numerous times was error].)
We therefore consider whether Libby's testimony that he believed that the victims had been murdered and that Franklin and Bunty were responsible for the murders, was prejudicial. A claim that a witness was permitted to give impermissible opinion testimony on the question of the defendant's guilt is, at its core, a claim of erroneous admission of evidence and is subject to the state law standard of review for state law error. (Coffman, supra, 34 Cal.4th at p. 76; Riggs, supra, 44 Cal.4th at p. 301 [declining to conclude that introduction of investigator's opinion that defendant was guilty rendered trial so unfair as to result in a denial of due process and applying the state standard for assessing prejudice with respect to the error].) Citing federal authority, Franklin contends that the opinion testimony in this case should be subject to the standard for constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24. This contention is incompatible with the authority of Coffman and Riggs. We rely on those authorities to conclude that the error about which Franklin complains was not of the type that rendered his trial fundamentally unfair, such that the federal standard for prejudice would apply. (Compare People v. Albarran (2007) 149 Cal.App.4th 214, 230 [where certain gang evidence "was extremely and uniquely inflammatory," its admission rendered trial so unfair as to be a violation of due process and required application of federal prejudice standard].) We therefore apply the rule that a violation of state law does not require reversal unless it is reasonably probable that, in the absence of the error, the defendant would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
In Riggs, an investigator made numerous statements reflecting his opinion that the defendant was guilty. The Supreme Court concluded that the error was harmless. The Riggs court stated, "Investigator Pina's testimony that he believed defendant was guilty as charged and was untruthful when he denied responsibility for the crimes did not present any evidence to the jury that it would not have already inferred from the fact that Pina had investigated the case and that defendant had been charged with the crimes. There was no implication from the questions or answers that Pina's opinions were based upon evidence that had not been presented to the jury. [Citation.] In addition, we see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide the issues of credibility and guilt based upon its own assessment of the evidence, not the opinions of any witness." (Riggs, supra, 44 Cal.4th at pp. 300-301, italics added.) Similarly here, the jury was instructed on its duty to determine the facts according to the evidence. Detective Libby explained the basis for his opinion and gave no indication that his opinions were based on evidence that was not presented to the jury; in other words, the jury could reach its own conclusion from the evidence, and had no reason to think that Detective Libby possessed insider knowledge that made his opinion more authoritative on the issue of guilt than the opinion of the jury. The jury was not likely to be surprised that one of the investigating officers believed that Franklin was responsible for the victims' deaths, along with Bunty, given that Franklin was on trial for their murders.
Franklin argues that the evidence in Riggs was "overwhelming," while the evidence in this case is not. Although we agree that the evidence in this case cannot be described as "overwhelming," it was strong. We simply cannot conclude that Franklin would have obtained a more favorable result if the prosecutor had not been permitted to elicit Detective Libby's opinion about Franklin's guilt. Further, the Riggs court relied most heavily on the fact that the investigator's opinion was insignificant; the court reasoned that the jury could not have been surprised that the investigator believed the defendant was guilty given that the defendant was arrested and put on trial for the crime. The court noted, almost as an afterthought, that this was "especially" true in light of the overwhelming evidence against the defendant in that case. (Riggs, supra, 44 Cal.4th at p. 301.) The Riggs court did not say that only in cases in which the evidence against the defendant is "overwhelming" may a court conclude that the erroneous admission of an officer's opinion as to the defendant's guilt was harmless. In light of all of the evidence presented at trial demonstrating Franklin's involvement in other drug-related robbery plans with Bunty, his knowledge about the intricacies of what would happen to Adamson and Riley prior to their disappearance, and his admission that he was involved in at least part of the plan, Detective Libby's opinion that Franklin was guilty of the crime added so little to the prosecution's case that it is not reasonably probable that if that testimony had been omitted, Franklin would have obtained a more favorable result. E. The trial court did not abuse its discretion in denying a mistrial on the ground that the court initially admitted testimony that DiNapoli told police that Granger was "covering for" Franklin, but ultimately excluded the testimony and instructed the jury to disregard it
Franklin contends that the trial court abused its discretion in denying his motion for mistrial after the court initially admitted DiNapoli's statements to police to the effect that Granger was "covering for" Franklin, but subsequently excluded that statement and admonished the jury to disregard it.
1. Additional background
During the prosecutor's examination of Detective Espinoza, the prosecutor asked Espinoza what DiNapoli had told him about DiNapoli's warning to Granger. Espinoza answered, "He [DiNapoli] told me that Kelly Granger, close friend of [Franklin], was covering, was covering up for [Franklin], and that he warned Kelly not to get too close to [Franklin] and never to be alone with him, not to trust him, basically." When asked whether DiNapoli had told Espinoza that Granger had "lied to police," Espinoza responded, "Yes, he did." Defense counsel objected on the grounds of "[s]peculation" and "[n]o foundation." The trial court overruled the objections. When asked what DiNapoli had told Espinoza, Espinoza responded, "He told me that Kelly Granger had lied for [Franklin], that she was covering for [Franklin], and that she and [Franklin] had both lied to police to take the suspicion away from [Franklin]." At that point, defense counsel renewed his objections. The court requested that the attorneys approach the bench; once at sidebar, defense counsel added Evidence Code section 352 as an additional ground for his objection. After some discussion, the court asked the prosecutor whether there was "another area [he] could go in[to] and then when we take our break," defense counsel could be heard further.
Granger had testified that although she had been friends with Franklin for many years, after receiving a warning from DiNapoli, she began to question that friendship. DiNapoli testified that he never warned Granger about Franklin.
The following day, the attorneys and the court discussed this testimony. Defense counsel made clear that he was objecting to Espinoza testifying that DiNapoli had told him that Granger had been "covering for" Franklin and that she had lied. The court ultimately sustained defense counsel's objection under Evidence Code section 352 and struck Espinoza's statements regarding the fact that DiNapoli had told him that Granger had lied and was covering for Franklin. At that point, defense counsel moved for a mistrial, stating "the bell has been rung." The court denied the motion, stating, "I expect that the jury will do exactly what I tell them to do. Once an answer is stricken, it's stricken."
Later, the trial court specifically instructed the jury as follows: " 'Mr. Espinoza testified that Albert DiNapoli told him that Kelly Granger was lying to the police officer and covering for James Franklin. The Court sustained an objection to that testimony and struck the testimony. You are not to consider that testimony for any reason.' "
2. Analysis
As set forth in part III.C.3, post, a trial court has " ' "considerable discretion" ' " in deciding whether to grant a motion for mistrial. (Cox, supra, 30 Cal.4th at p. 953.) " 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]' " (Jenkins, supra, 22 Cal.4th at p. 985-986, italics added.)
We cannot conclude that the trial court abused its discretion in determining that an admonition would be sufficient to cure any prejudice from the jury's having heard testimony that DiNapoli told Detective Espinoza that Kelly Granger had been lying and "covering for" Franklin. "Jurors are presumed . . . to have followed the court's instructions" (People v. Sanchez (2001) 26 Cal.4th 834, 852). This presumption holds equally true with respect to a jury that has been admonished to disregard certain evidence (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404). It is only in an exceptional case that the prejudicial effect from improper witness testimony may be incurable by jury admonishment or instructions. (Ibid.) The excluded testimony about what DiNapoli may have told detectives about Granger's lack of honesty in her dealings with police was not so prejudicial that the court's admonishment to ignore Espinoza's statements could not cure the potential prejudice. The trial court thus acted within its discretion in concluding that an admonition was sufficient and that granting the motion for mistrial was not necessary. F. The trial court erred in admitting evidence that Adamson told Reeck, who later told police, that Bunty had introduced "James" (i.e., Franklin) as his "shooter," but the error does not require reversal
Over defense counsel's objection, the trial court permitted Detective Espinoza to testify that Reeck had told Espinoza that after the unconsummated ephedrine deal at the Colonial Trailer Park, Adamson told Reeck that Bunty had introduced Adamson to someone named "James" and had referred to James as his "shooter." As the trial court and the prosecutor acknowledged, there were three levels of hearsay at work in Espinoza's testimony. On appeal, Franklin argues that there is no exception to the hearsay rule with respect to the second level of hearsay, and that the statement therefore should not have been admitted. The People essentially concede that the admission of this statement was error, but contend that the error was not prejudicial.
1. Additional background
During Detective Espinoza's testimony on direct examination, the prosecutor questioned Espinoza about what Reeck had told him regarding Adamson's unsuccessful attempt to purchase ephedrine from Bunty shortly before Adamson and Riley disappeared. The following colloquy occurred:
"Q Did [Reeck] tell you that Mr. Adamson made any statements to him about what had happened --
"A Yes.
"Q -- when he attempted to make this deal?
"A Yes, he did."
At that point, the prosecutor asked to approach the bench, and the attorneys and the court discussed the matter at sidebar. The prosecutor stated that he was "presupposing an objection" and noted that the testimony was admissible "under the hearsay exception of coconspirator's statement, they were conspiring to do this drug deal, and the statement was made by a member of that conspiracy, Mr. Adamson." There was discussion regarding whether Reeck had been asked about making this statement, and therefore, whether it was a proper subject of impeachment. The trial court then noted that "it's triple layers almost of hearsay." The prosecutor asserted that all of the layers were "[s]ubject to exceptions," and argued that the level of hearsay from Adamson to Reeck "will fall under coconspirator exception for the statements of conspiracy," and that the "[s]tatement from David Reeck to Detective Espinoza is [sic] going to be an inconsistent statement." In addition, the prosecutor proffered that the statement made by Bunty to Adamson was "also [a] statement of further conspiracy." Defense counsel stated, "I object on the record." The trial court made no formal ruling, but said, "Okay" and permitted the prosecutor to elicit from Espinoza that Reeck had told him that after he and Adamson went to the Colonial Trailer Park, Adamson told Reeck that he had met Bunty and one of Bunty's friends, whom Bunty identified as "James," and that Bunty had said that "James was his shooter."
2. Analysis
Hearsay evidence is inadmissible unless subject to an exception. (Evid. Code, § 1200, subd. (b); People v. McCurdy (2014) 59 Cal.4th 1063, 1108 ["Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible"].) Although the People offer that Evidence Code section 1223 provides an exception to the hearsay rule for statements made by a coconspirator "while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy" if the statement was made "prior to or during the time that the party was participating in that conspiracy," the People fail to acknowledge that the exception provided for in Evidence Code section 1223 could not have applied to the statement that Adamson purportedly made to Reeck. In order for the coconspirator statement exception to apply, " 'independent proof of a conspiracy [must have] been shown," and " 'three preliminary facts must be established: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy." ' " (People v. Thompson (2016) 1 Cal.5th 1043, 1108 (Thompson), italics added.)
In this situation, there were multiple levels of hearsay, and each level would either have to be offered not for its truth, or would have to fall within an exception to the hearsay rule. At a minimum, there is no evidentiary principle that would render Adamson's statement to Reeck (about what Bunty had said about Franklin) admissible. First, Adamson's statement to Reeck is not purported to have been made by a coconspirator of the party against whom the evidence was being offered—i.e., a coconspirator of Franklin's. As Franklin points out, there is simply no basis for concluding that Adamson was a coconspirator in the charged conspiracy between Franklin and Bunty to commit murder, or in the uncharged conspiracy between them to commit robbery, given that Adamson was the intended victim of those conspiracies. Further, to the extent that it could be argued that the prosecutor was contending that Adamson was involved in conspiracy with Bunty and Franklin to complete a drug transaction, the court did not make any determination that Adamson was a participant in such a conspiracy, or that Adamson's statement to Reeck was made in furtherance of the object of such a conspiracy—both of which are preliminary facts that must be established before a hearsay statement may be admitted pursuant to the statement made by a coconspirator exception. (See Thompson, supra, 1 Cal.5th at p. 1108.). The People assert that it is possible that Adamson and Reeck were in "a conspiracy to buy ephedrine," and that Adamson "could . . . have said this to ensure Reeck's continued cooperation in the ephedrine deal and to prevent him from telling someone about it." However, this argument does not provide a viable route for making the level of hearsay between Adamson and Reeck admissible against Franklin. Under this theory, Adamson would be a coconspirator of Reeck, but not of Franklin, the party against whom the evidence of the statement was being offered. As a result, Adamson's statement could not have been admitted as a coconspirator's statement. We also question whether Adamson's telling Reeck that he had met someone whom Bunty introduced as his "shooter" was a declaration made in furtherance of the objective of any theoretical but unestablished conspiracy between Adamson and Reeck to purchase ephedrine.
Although the People do not expressly concede that the coconspirator exception does not support the admissibility of the second-level hearsay in the statement at issue, the People's argument in its briefing on appeal does little to try to convince this court that the trial court's ruling was correct. Instead, the People focus on "the question . . . whether the error was prejudicial under Watson[]." We agree that this is the crux of the matter, because it is clear that the trial court erred in permitting the prosecutor to elicit this statement.
Watson, supra, 46 Cal.2d 818.
The Watson standard of prejudice review is applicable to the erroneous admission of nontestimonial hearsay evidence. (People v. Harris (2005) 37 Cal.4th 310, 336.) Under that standard, reversal is not warranted unless it is reasonably probable that the defendant would have obtained a more favorable outcome had the inadmissible hearsay been excluded. (Watson, supra, 46 Cal.2d at p. 836.)
The admission of the statement at issue is troubling, in that Bunty's reference to Franklin as his "shooter" gave the impression that Franklin was the type of person who could be violent, or could even be a murderer. In addition, even if not offered for the truth of the matter asserted, i.e., that Franklin was Bunty's "shooter" (but necessarily being offered for the truth of the fact that Bunty made such an introduction to Adamson at the failed drug deal), the statement provided evidence that Franklin was involved not only in moving Adamson's car after-the-fact, but that he was present at the time the original drug deal was to take place. A reasonable inference from Franklin's presence at this meeting is that he not only knew about Bunty's plan to offer a nonexistent batch of ephedrine to Adamson so that Bunty could rob Adamson, but that Franklin was present for, and participated in, the plan to rob Adamson. The statement was thus a particularly harmful one to admit in error.
Nevertheless, we conclude that it is not reasonably probable that Franklin would have obtained a more favorable outcome if the statement had been excluded. First, there was other admissible evidence from which one could reasonably infer that Franklin and Bunty were very close friends, and that Bunty relied on Franklin as his "backup," as Oloizia testified. There was significant evidence that Bunty and Franklin had used weapons in multiple attempts to rob other drug dealers, indicating the nature of their relationship as well the nature of the activities they engaged in together. In other words, the jury was well aware that both Franklin and Bunty had a history of possessing and using firearms. In addition, there was other evidence from which the jury could have concluded that Franklin was present at the initial thwarted deal—specifically, the fact that it took place at the Colonial Trailer Park, where Franklin, and not Bunty, was living at the time. Further, Granger testified that days before the fake drug deal was to occur, she knew, because Franklin had told her, that there was a plan in place to rob and kill Adamson and Riley, and that Franklin's "role" was to move Adamson's car. The only testimony as to which the jury asked for a read-back was Granger's testimony concerning what Franklin had said about the plan in the days leading up to the victims' disappearance. In addition, there were three witnesses, witnesses who did not necessarily know each other—Dondero, Oloizia, and DiNapoli—who told police that Franklin had told them that he had helped Bunty dig the holes where the victims' bodies would be placed. In addition, each of these witnesses provided additional details about the killings that were strikingly similar. Given the state of this evidence, it is not reasonably probable that Franklin would have obtained a more favorable outcome if the trial court had properly excluded Reeck's statement to Espinoza regarding what Adamson had purportedly told him about Bunty's having introduced Franklin to Adamson as Bunty's "shooter." G. The cumulative error that occurred in this trial makes this a close case on appeal, but we ultimately conclude that reversal is not warranted
Franklin contends that the various errors that he has identified are cumulatively prejudicial. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' [Citation.]" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
"Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844, italics added.) "Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Ibid.)
We have determined that the trial court made two errors with respect to evidence that should not have been admitted: (1) the court permitting the prosecutor to elicit from Detective Libby his opinion that the victims had been murdered and that Franklin and Bunty were responsible for the murders, and (2) the court admitted testimony that Reeck told Espinoza that Adamson had told him that Bunty had introduced Adamson to someone named "James" and had stated that James was his "shooter." For purposes of weighing the possible prejudicial effect of cumulative error, we also consider the fact that the jury was exposed to other testimony that was not admissible, though the court addressed the testimony in question at the time it was elicited and no error resulted. Specifically, we consider the fact that the jury was exposed to Dondero's reference to having submitted to a polygraph examination, as well as the initial admission of DiNapoli's statements to police to the effect that Granger was "covering for" Franklin. The trial court struck the reference to the polygraph test, and ultimately decided to exclude DiNapoli's "covering for" statement and admonished the jury to disregard it.
Again, Franklin's contentions on appeal were not that the court erred in admitting either Dondero's statement about having submitted to a polygraph examination or DiNapoli's statement that Granger was "covering for" Franklin—likely because the court excluded the former immediately and ultimately excluded the latter as well—but that his trial counsel was ineffective in failing to move for a mistrial after the polygraph statement was made and stricken, and that the trial court erred in not granting a mistrial after initially admitting and then excluding the "covering for" statement. --------
We recognize that the errors that occurred are not insignificant, and that the jury was exposed to statements that it should not have heard. We further acknowledge that the evidence against Franklin was not overwhelming. All of this makes the question of whether cumulative error was prejudicial a close one, in our view. We have reviewed the record and have considered and assessed the strength of the evidence and the potential unfairness resulting from the errors that we have identified. Ultimately, although we agree that the errors were not insignificant, and that the jury heard statements that it ideally should not have heard (as opposed to having heard and then been instructed to disregard), we cannot conclude that the combination of errors and the jury's exposure to the stricken statements requires reversal. We simply cannot conclude that it is reasonably probable that the jury would have reached a result more favorable to Franklin if the evidence had not been erroneously admitted and the jury had not been exposed to, and instructed to disregard, additional inadmissible testimony that was elicited at trial. We further conclude that the combination of these errors and the jury's exposure to the two inadmissible and stricken/excluded statements did not render Franklin's trial unfair. H. The People concede that the two sentencing errors that Franklin identifies should be corrected
1. The parole revocation restitution fine must be stricken
The trial court sentenced Franklin to consecutive terms of life without the possibility of parole. However, the court also imposed a $10,000 parole revocation restitution fine, pursuant to section 1202.45. The parole revocation restitution fine applies only in cases where the "sentence includes a period of parole." (§ 1202.45, subd. (a).) As the People concede, imposition of the parole revocation restitution fine was inappropriate, and the fine should be stricken. (See People v. McWhorter (2009) 47 Cal.4th 318, 380.) We therefore order the fine stricken and the judgment so modified.
2. The abstract of judgment should be corrected to reflect the sentence imposed
The trial court sentenced Franklin to a term of 25 years to life on count 3, for conspiracy to commit murder. As Franklin points out, although the abstract of judgment correctly reflects the sentences imposed with respect to counts 1 and 2—consecutive sentences of life without the possibility of parole—the abstract states that Franklin was also sentenced to a term of "40 years to [l]ife," without specifying the count to which that sentence is related. The People concede that this appears to be a clerical error in the abstract of judgment. They further concede that this clerical error should be corrected. We therefore direct the trial court to issue a corrected abstract of judgment to reflect a sentence of 25 years to life, stayed, with respect to count 3, and to delete the reference to a term of "40 years to [l]ife" on an unidentified count.
IV.
DISPOSITION
The judgment is modified to reflect the striking of the parole revocation restitution fine imposed pursuant to section 1202.45. The trial court is directed to prepare a corrected abstract of judgment to reflect the striking of the parole revocation restitution fine, and to reflect a sentence of 25 years to life, stayed, with respect to count 3 and to delete the reference to a term of "40 years to [l]ife" on an unidentified count. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. IRION, J.