Opinion
F061646
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALAN GORE, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Tulare Super. Ct. No. VCF239314)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Anthony Alan Gore appeals from a judgment of conviction of solicitation of murder (Pen. Code, § 653f, subd. (b)) with four prior felony convictions (§ 1203, subd. (e)(4)) and challenges the sufficiency of the evidence and the adequacy of the jury instruction governing the substantive offense. In a separate appeal (No. F061815), appellant challenges the sentence jointly imposed in this case and in an unrelated case involving the unlawful taking of a vehicle and possession of a controlled substance (Super. Ct. Tulare County, 2010, No. VCF233422).
All further statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
On October 15, 2010, the Tulare County District Attorney filed information No. VCF239314 in superior court charging appellant Anthony Alan Gore with one count of solicitation of murder (Pen. Code, § 653f, subd. (b)) with four prior felony convictions (§ 1203.4, subd. (e)(4)).
On October 18, 2010, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
On December 13, 2010, jury trial commenced.
On December 15, 2010, the jury returned a verdict finding appellant guilty of the substantive count.
On January 5, 2011, appellant filed a timely notice of appeal (No. F061646) from the judgment of conviction.
On January 18, 2011, the court conducted a sentencing hearing in this case and case No. VCF233422. The court denied appellant probation and sentenced him to a total term of six years in state prison. The court imposed the middle term of six years on the solicitation of murder count and concurrent two-year middle terms for unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in case No. VCF233422. The court imposed a $1,200 restitution fine (§ 1202.4, subd. (b)) in this case and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court awarded a total of 372 days of custody credits in this case and a total of 286 days of custody credits in case No. VCF233422.
On February 1, 2011, appellant filed a timely notice of appeal in case No. VCF233422 (No. F061815) based upon the sentence or other matters that did not affect the validity of the no contest plea in that case.
On April 8, 2011, this court denied appellant's motion to consolidate the appeals in Case Nos. F061646 and F061815.
STATEMENT OF FACTS
Appellant and his girlfriend, M.L., were together for 14 years, and, although they were not married, they had three children. Appellant physically and emotionally abused M.L. during their relationship. He intimidated and threatened, shoved, and kicked her; and also pulled her hair. These incidents happened when M.L. attempted to leave appellant by calling the police. Appellant knew when M.L. attempted to telephone the police, and he shoved her to take the phone from her.
On one occasion, appellant inserted his sexual organ into M.L.'s mouth while she slept and made a video recording of the incident on his cell phone. Appellant then sent the video to her family members as an attachment to a text message. Appellant also harassed M.L. by sending threatening messages to her via her a social network page.
Appellant and M.L. broke up in 2009, and she obtained a temporary restraining order against him in September of that year. M.L. did not seek to make the order permanent because she became afraid after appellant unexpectedly went to her home, rushed her, and questioned her about the temporary order. In December 2009, M.L. began moving her belongings to her mother's home. M.L. celebrated her birthday in January 2010. On that day, appellant repeatedly called M.L. and asked her who was at the house. Appellant told M.L. he was going to come over and kick in the door. Appellant arrived at the home a short time later. As he ran into the house, M.L. grabbed her two daughters, went to the bedroom, and locked the door. M.L.'s mother tried to stop appellant, but he proceeded to assault M.L.'s friend, Craig U. Appellant believed Craig U. was M.L.'s new boyfriend. Law enforcement officers ultimately arrested appellant for stealing M.L.'s truck.
In February and March 2010, appellant and one Robert Guidi were detained together in Tulare County Jail. They often spoke about their families and at one point Guidi told appellant his late uncle had been in the "Mafia." Guidi said his uncle was "low level" and did collections work for "the mob." Appellant was angry at M.L. and told Guidi he wanted her dead. Appellant asked Guidi to "get somebody to kill" her. Appellant told Guidi his brother would pay the fee for the killing and asked if Guidi had any connections on the east coast who could help him "get rid" of M.L. and her boyfriend. Guidi understood appellant to mean he wanted M.L. "done away with [and] killed." Guidi advised appellant he would need specific information about the woman, including her address and photograph. Appellant told Guidi he could show him a photograph of M.L. on the Internet.
Guidi recounted his jailhouse conversations with appellant in a tape-recorded July 8, 2010, interview with Tulare Police Detective James Kelly. Detective Kelly specifically asked Guidi whether appellant wrote the letters simply to release his anger against Lozano. Guidi answered in the negative and said appellant wanted to find someone to kill his wife before his next court appearance. The prosecution played an audio recording of Kelly's interview with Guidi to the jury. The prosecution supplied a transcript of the interview for the jury to follow along.
After this conversation with Guidi, appellant wrote two letters and gave them to Guidi. Appellant thought Guidi had criminal underworld connections and could "get something done for him." Guidi told appellant he would try to help. Appellant also asked Guidi to tell him if he could not carry out his request because appellant would then get a "northerner" or someone else to do so. Appellant said he wanted Guidi to send the letters to his east coast contacts so they could arrange for someone locally to carry out his request.
Appellant's first letter bore three phone numbers at the top of the front page—the cell and home phone numbers for M.L.'s mother and the number for M.L.'s sister. The letter listed M.L.'s name and address and described the makes, models, and condition of the three cars she used for transportation. The letter also identified the bars she frequented and outlined her weekly schedule, specifically the days and times when she was home alone. The letter included a link to a website and a profile name where someone could view M.L.'s photograph. The back of the letter bore a hand drawn map depicting M.L.'s residence.
The second letter again described M.L.'s cars and her schedule. In the letter, appellant advised that "she may be heard, so try to keep her silent, her new boyfriend will without a doubt scream ...." Appellant further stated in the letter:
"Her mom will take care of my daughter until I get out. No problem with that. Make her think she'll be let go as long as she writes the confession letter saying how she only reported the car stolen[] because she was mad at me, and she should also give me full sole custody of our daughter [J.G.]. I want her to be told, 'I told you not to play with me seeing my kids, and now who has the last laugh you nasty c**t[?]" If she has her braces on her teeth, pull them off and tell her 'I' payed [sic] for them.[] Then I want her front teeth knocked out[.] [Afterwards make sure she knows this is what happens when somebody f***s with my emotions. I want her to beg you for my forgiveness[;] beat her until she's unrecognizable but still awake, and before she is silenced tell her I'll have fun with her sister[]s! If Craig is around I want him beat[en] in front of her and tell them both I'm going to have a great life while they won't ever be found. Make sure they are disposed of in separate places. I want them to spend eternity alone! Don't
forget the letter, and make sure she apologizes to me in the letter! To help with identifying her, she has stars tattooed on her upper left arm and she has '[M.]' tattooed on her wrist and on her right inner for[e]arm she has the Capricorn sign."
This statement is a reference to the unlawful taking of a vehicle charged in Case No. VCF 233422.
According to Guidi, appellant was angry because he had paid for M.L.'s extensive dental work.
When Guidi received the second letter, he asked appellant, "[A]re you sure you want this done?" Appellant told Guidi, "[Y]eah I want her braces ripped out of her mouth, I want her teeth back, and I want [her] to suffer, I want her to send a confession letter that she lied about the truck and all of that, and I want her done away with so I can get my kids too." Guidi gave the two letters to his attorney. On July 8, 2010, Detective James Kelly conducted a tape-recorded interview with Guidi.
At trial, Guidi denied making and/or did not recall making most of his inculpatory statements during the recorded interview with Detective Kelly. Guidi claimed he was coerced into speaking against appellant. He said that, prior to the interview, Detective Kelly insinuated that "Gore was trying to stick me with it." At trial, Detective Kelly said he activated the recording device before Guidi entered the interview room because, "[T]hat way there's no discussion of what was said before, the recorder was turned on or turned off." At trial, Guidi claimed he advised appellant to write down his problems to relieve pressure and stress. Guidi elaborated, "He wrote me a thing on a piece of paper basically describing how he felt, but, you know, when we talked about it, until this day I don't believe he was serious."
Prior to trial, Guidi wrote to the office of the public defender and said he had suggested that appellant relieve his stress by writing the two letters.
Defense Evidence
Appellant testified he dated M.L. for 15 years, and they had three children together. He said M.L.'s mother had guardianship of the two older children and the youngest child was living with him until he was arrested. Appellant said M.L. had cheated on him during the last two years of their relationship. Nevertheless, he thought they were still together as a couple until he arrived at her mother's house in January 2010 to find M.L. with another man, Craig U.
In September 2009, M.L. got a restraining order against appellant but did not obtain a final order because his family was visiting in Tulare County at that time. Appellant explained the underlying reason for the order. He said M.L. came home drunk with their youngest daughter on at least one occasion and wanted to leave again at 2:00 or 3:00 a.m. Appellant did not let her leave and took the car keys to prevent her from driving. M.L. reacted by obtaining the temporary restraining order against appellant. Appellant said he stayed at a friend's house after M.L. obtained the order.
Appellant testified that he repaired an old car, sold that car for $1,000, and then used the proceeds to buy M.L. a vehicle. The vehicle was at their shared home for two months when M.L. reported it stolen. Appellant was unaware that M.L. had reported the vehicle as stolen. Appellant was arrested for the taking of the vehicle and for possessing a baggie with methamphetamine residue.
Appellant met Guidi in the Tulare County Jail in March 2010. They lived in close quarters for four months and became friends. Appellant acknowledged he was "extremely upset" with M.L. at that time. Guidi told appellant that an Army psychiatrist had advised him on how to treat Post Traumatic Stress Disorder (PTSD). The psychiatrist told Guidi to write down "whatever was in his head" and then throw the paper away. Guidi encouraged appellant to try the same technique. Appellant testified he had previously attended Narcotics Anonymous, Alcoholics Anonymous, anger management classes, and had completed the drug court program. He said the anger management and Alcoholics Anonymous programs encouraged similar stress relief techniques.
Appellant wrote two letters to Guidi. He explained: "[Guidi] said to just play it out in my head like if it was gonna make ... it easier on myself to ... write these things down on paper that I wanted to do to her or wanted done to her, then it would get it out of my head because I was extremely upset with her. [¶] Don't get me wrong, I know, like I said, the paper looks bad, and it was meant to look bad but for me. I was supposed to read the paper and throw it away. [¶] I was gonna let [Guidi] read it so that when he read it, he could give me his insights, and hopefully - I'm trying to deal with my anger still, but I was trying to use him to help me with my anger issues as well as pick his brain for the army because he was a Vietnam vet." Appellant testified his two letters were "fantasies."
Appellant said he drew the map on the first letter because he was unfamiliar with the area where his children were located and was "just trying to think it out." Appellant testified the information about M.L.'s tattoos, location, and weekly schedule were also part of his fantasy. Appellant said Guidi encouraged him to "just write down what you're feeling in your head" and that is why appellant included the information about M.L.'s personal life and automobiles. After appellant wrote the first letter, he told Guidi he still felt angry. Guidi suggested that he write a second letter with more details about appellant's feelings toward M.L. Appellant said Guidi read the letters so that he could then discuss them with appellant. However, appellant told Guidi to throw away the letters once he read them because "if one of these deputies searches our cells and sees it, they're gonna take it all wrong."
At trial, appellant said, "I might wish things in my head about her [M.L.], but I would never intentionally try to harm her. She's the mother of my kids; what would that make me look like?" Appellant said he still loved M.L. but had anger toward her "because she's keeping my kids from me." Appellant said he did not want M.L. dead because M.L. was the mother of his children. He explained, "[S]he's a great mom, and my mom raised me to have total respect for her and for other moms. Even if it's my enemy, I'll still respect that woman because she's a mom." Appellant said M.L.'s allegations of domestic violence were false and that she was being vindictive because she thought appellant "put her brother in prison." Appellant said he and the brother had a fight, the brother struck appellant with a box cutter, and the brother ended up in prison with a term of six years eight months.
When asked about prior incidents of domestic violence, appellant said he had been arrested on such a charge but maintained he had not harmed M.L. He claimed M.L., while under the influence of alcohol, had scratched him while she was trying to retrieve her car keys from him. Appellant testified he never hit M.L., never tried to hurt her, and would never ask anyone to kill her. However, appellant did admit beating up M.L.'s friend, Craig U.
As to the sexually explicit phone text, appellant admitted having the numbers of M.L.'s family members in his phone. However, he maintained the sex video itself was only on his phone. Appellant denied sending the video to M.L.'s family members and denied sending messages to her Internet page.
DISCUSSION
I. APPELLANT'S LETTERS AND GUIDI'S EXTRAJUDICIAL STATEMENTS FULFILLED THE "TESTIMONY" REQUIREMENT OF SECTION 653f, SUBDIVISION (F)
Appellant contends the judgment must be reversed because the prosecution case rested upon Robert Guidi's extrajudicial statements and corroboration rather than the statutorily-required "testimony of two witnesses, or the testimony of one witness plus corroboration."
A. Applicable Substantive Law
Section 653f, subdivisions (b) and (f) state in relevant part:
"(b) Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years. [¶] ... [¶]
"(f) An offense charged in violation of subdivision (a), (b), or (c) shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances.. "
The purpose of corroboration in a prosecution for solicitation is to guard against convictions based on the testimony of one person who may have suspect motives. (People v. Phillips (1985) 41 Cal.3d 29, 76.) Corroborative evidence is additional evidence of a different character related to the same point. Corroborative evidence need not be strong and need not be sufficient in itself, without the aid of other evidence, to establish the fact in question. (People v. Baskins (1946) 72 Cal.App.2d 728, 731.) Corroborative evidence "may be slight and, when standing by itself, entitled to but little consideration." (People v. Negra (1929) 208 Cal. 64, 69, citing People v McLean (1890) 84 Cal. 480, 482.) Although section 653f requires corroboration, the statute does not specify what type of evidence is necessary. Courts have construed this statute to mean that the "corroborating evidence must tend to connect the defendant with the offense." (People v. MacEwing (1955) 45 Cal.2d 218, 224.)
B. Applicable Evidentiary Law
The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in the Penal Code. (§ 1102.) "'Evidence'" means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) " '[E]vidence' is the more comprehensive word and includes " 'testimony.' " (Mann v. Higgins (1890) 83 Cal. 66, 69.) The latter term means "only that evidence which comes from living witnesses who testify orally. But in common language and sometimes even among lawyers, the two words are frequently used synonymously ...." (Ibid.) The California Supreme Court recently observed: " 'Testimony' ... is a ' " 'solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " ' " (People v. Blacksher (2011) 52 Cal.4th 769, 811.) In an earlier case, the Supreme Court stated: " 'Testimony' is generally described in both statutory and decisional law as oral statements made by a person under oath in a court proceeding." (People v. Belton (1979) 23 Cal.3d 516, 524.)
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is generally incompetent and inadmissible without statutory or decisional authorization, or absent stipulation or waiver by the parties. (See Evid. Code, § 1200, subd. (b); In re Cindy L. (1997) 17 Cal.4th 15, 26-27; Windigo Mills v. Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 597.) In other words, "[h]earsay is not admissible unless it qualifies under some exception to the hearsay rule." (People v. Davis (2005) 36 Cal.4th 510, 535.) The purpose of the hearsay rule is to preserve a party's Sixth Amendment rights to confront and cross-examine an adverse witness and to disallow testimony by a witness who is not under oath and whose demeanor cannot be observed by the trier of fact. The hearsay rule does have exceptions, most of which are codified in the Evidence Code beginning at section 1220. "The reasoning behind such exceptions is that experience has shown that there are situations where it is impossible or impractical to present an actual witness, yet the proffered necessary evidence is inherently trustworthy under the circumstances." (In re Michael G. (1993) 19 Cal.App.4th 1674, 1677.) "Hearsay evidence may be admitted to the extent that it is otherwise admissible in a criminal action under the law of this state." (§ 686, subd. 3(a).)
C. Applicability of Crawford v. Washington
Although the parties have not raised the issue of the constitutional implications of hearsay evidence, we briefly address the point. In Crawford v. Washington (2004) 541 U.S. 36, the Supreme Court held that "[w]here testimonial [hearsay] evidence is at issue . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Id. at 541 U.S. at p. 68.) Although the high court did not comprehensively define the term "testimonial," it noted, "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Ibid.) The Supreme Court further noted that "The [confrontation] Clause . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Id. at pp. 60, fn. 9; People v. Combs (2004) 34 Cal.4th 821, 842-843.) The Supreme Court in Crawford specifically held: "[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9.) A " '[d]eclarant' is a person who makes a statement." (Evid. Code, § 135.) A hearsay declarant, such as Guidi, is a person not currently testifying who makes a statement out of court. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2009) Hearsay and Nonhearsay Evidence, § 1.2, citing Evid. Code, § 135.) Guidi was available for cross-examination at trial and, therefore, the constitutional imperatives set forth in Crawford were satisfied.
D. Appellant's Specific Contention
Appellant argues "[t]he prosecutor attempted to meet his burden to prove appellant solicited murder in violation of Penal Code section 653f, subdivision (b), with extrajudicial statements accompanied by corroboration. However, subdivision (f) of section 653f, requires that solicitation of murder, 'be proven by the testimony of two witnesses, or of one witness and corroborating circumstances.' (Ibid.) The prosecutor failed to present any in court testimony to establish that the notes appellant wrote were intended to be used to solicit another to commit murder. Appellant contends that neither the notes, nor the extrajudicial statements qualified as the 'testimony' required to prove solicitation to murder."
E. Analysis
Appellant acknowledges (1) there do not appear to be any cases addressing section 653f, subdivision (f); (2) Guidi's exculpatory testimony at trial contradicted his inculpatory statements to Detective Kelly during their interview; (3) the interview statements were admitted under the prior inconsistent statement exception to the hearsay rule (Evid. Code, §§ 770, 1235); and (4) the jury was correctly instructed that prior inconsistent statements could be considered for the truth of the matter asserted. Appellant nevertheless contends "hearsay statements - even if admissible for the truth of matter asserted - do not relieve the prosecutor from the burden of proving solicitation of murder by measn of the 'testimony' of at least one witness as required by Penal Code section 653f, subdivisions (b) and (f)."
As noted above, section 653f, subdivision (f) provides: "An offense charged in violation of subdivision (a), (b), or (c) shall be proven by the testimony of two witnesses, or of one witness and corroborating circumstances." This provision specifically refers to "testimony," which includes evidence admitted pursuant to an exception to the hearsay rule. Despite the specific requirement of testimony set forth in subdivision (f), appellant appears to contend that personal knowledge is required before evidence can be admitted in a section 653f case. Appellant confuses the concept of personal knowledge with the testimony required by subdivision (f).
Appellant made "admissions" to his cellmate, Robert Guidi, by orally soliciting the death of M.L. and by giving Guidi a letter containing incriminating information relating to that solicitation. Both Detective Kelly and Guidi authenticated appellant's letter at trial. (Evid. Code, § 1401, subd. (a).) Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity ...." (Evid. Code, § 1220.) Guidi arranged for appellant's letter to be transmitted to law enforcement officials and spoke at length with Detective James Kelly about appellant's solicitation of the murder of M.L. Guidi subsequently revised and understated his version of events and at trial his testimony did not conform to the statements he had made to Detective Kelly during his interview. "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] section 770." (Evid. Code, § 1235.) Thus, Guidi's inconsistency did not preclude statements from his interview with Kelly to be admitted into evidence at trial. "[E]xtrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless" the witness, while testifying, had "an opportunity to explain or to deny the statement; or [t]he witness has not been excused from giving further testimony in the action." (Evid. Code, § 770.)
Thus, in this case one witness - Detective Kelly - testified as to a prior inconsistent statement of Robert Guidi, who had previously described jailhouse admissions by his cellmate, the appellant. The trial testimony of Guidi and the letter itself constituted corroborating circumstances. As observed above, corroborative evidence need only be slight to satisfy section 653f, subdivision (f). (People v. Baskins, supra, 72 Cal.App.2d at p. 731.)
F. The Application of People v. Phillips
Appellant acknowledges the closest case on point is People v. Phillips, supra, 41 Cal.3d 29 (Phillips) but maintains it "should not be applied to affirm the conviction in this case." In Phillips, the defendant was found guilty in Madera Superior Court of two counts of robbery, one count of attempted murder, and one count of first degree murder in the commission of a robbery, with several firearm use enhancements. He fled to Salt Lake City after the crimes occurred and was ultimately incarcerated in a Utah jail before being returned to central California for trial. On automatic appeal from a sentence of death, the defendant raised numerous issues arising from the guilt phase and penalty phase of the trial proceedings. As to the penalty phase, the defendant alleged the trial court erroneously allowed the prosecution to introduce copies of two letters he wrote while incarcerated in the Utah jail before being returned to California for his homicide trial. One letter sought the apparent murder of four prosecution witnesses. The second letter sought the kidnapping, beating, and extortion of someone defendant referred to as "the accountant." A Utah jail employee testified as to the authenticity of the copies of the defendant's letters, but nothing more. The Supreme Court initially held: "Since the county jail employee's testimony was solely limited to establishing this preliminary fact, it cannot constitute positive or direct evidence of defendant's alleged criminal solicitation." (Id. at p. 76.)
The Supreme Court nevertheless concluded that no error occurred, stating:
"In this case ... we do have 'the testimony ... of one witness and corroborating circumstances' as required by section 653f, subdivision (d) [now subdivision (f)]. The introduction of defendant's jailhouse letter ... effectively rendered defendant 'a witness' within the meaning of the provision, who provided direct 'testimony' about the crime of solicitation. The purpose of section 653f, subdivision (d) [now (f)] is to guard against convictions for solicitation based on the testimony of one person who may have suspect motives. The danger that the statute guards against is not present, however, when the accused himself provides evidence of the alleged crime and independent circumstances corroborate this evidence." (Phillips, supra, at p. 76.)
The Supreme Court noted it was in the defendant's interest to eliminate the four witnesses before they had a chance to testify at his trial. The fact the proposed victims were potential witnesses against the defendant in the impending capital trial, combined with evidence of his earlier threats against some of these same witnesses, provided adequate corroboration to satisfy the requirements of section 653f, subdivision (d). In light of the defendant's apparent motive, the directions in one letter to "knock out," "nail," and "blast" these four witnesses supported the conclusion that the defendant was seeking their murder as well as the requisite element of specific intent to kill or express malice. (Phillips, supra, at p. 77.)
Phillips is strongly supportive of the judgment of conviction in this case. Here, the prosecution introduced two letters written by the appellant. These letters contained detailed information about M.L.'s residence, vehicles, phone numbers personal schedule, and instructions about what a killer should say and do to her. Appellant's second letter stated in pertinent part:
"[T]he neighbors aren't real close but she may be heard, so try to keep her silent. [H]er new boyfriend will without a doubt scream. [H]er Mom will take care of my daughter until I get out. No problem with that. Make her think she'll be let go as long as she writes the confession letter saying how she only reported the car stolen because she was mad at me, and she should also give me full sole custody of our daughter [J.G.]. I want her to be told, 'I told you not to play with me seeing my kids, and now who has the last laugh you nasty c**t.' If she has her braces or her teeth pull them off and tell her 'I' payed [sic] for them. Then I want her front teeth knocked out, afterwards make sure she knows this is what happens when somebody f***s wit[h] my emotions. I want her to beg you for my forgiveness; beat her until she's unrecognizable but still awake, and before she is silenced tell her I'll have fun with her sisters! If Craig [U.] is around I want him beat in front of her and then tell them both I'm going to have a great life while they won't ever be found. Make sure they are disposed of in separate places. I want them to spend eternity alone! Don't forget the letter, and make sure she apologizes to me in the letter! To help with identifying her, she has stars tattooed on her upper left arm and she has "[M.]" tattooed on her wrist and on her right inner for[e]arm she has the Capricorn sign."
At trial, Robert Guidi testified he and appellant talked frequently about their respective cases in the minimum security area of Tulare County Jail. Guidi said appellant was upset about his case, and Guidi encouraged appellant to write down his feelings to relieve the pressure and stress he was experiencing. Guidi said appellant wrote something and gave Guidi the piece of paper. Guidi stored the paper in his locker. A fellow inmate later advised Guidi that appellant was going to attempt to set Guidi up " 'to get a good deal.' " Guidi gave the letter to his attorney, telling her he did not think appellant was serious but adding, "I did not want it in my possession in case anything came up where, you know, somebody tried to pin something on me about it." Guidi said the attorney took the letter, and he never heard anything until he was interviewed by a Tulare police detective. Guidi said this occurred a long time after he gave the letter to his counsel. The prosecution introduced the two letters into evidence at trial.
Tulare Police Detective James Kelly interviewed Guidi on July 8, 2010. Guidi told Kelly that appellant approached him in the Tulare County Jail and asked Guidi if he had any connections on the East Coast. Appellant said he wanted to "get rid of" his girlfriend and her boyfriend. Guidi believed appellant "wanted her done away with killed" and asked appellant for specifics. In response, appellant wrote two notes. According to Guidi, the first one described where she lived and included a map. The second note gave a detailed explanation of what appellant wanted done to his girlfriend. Guidi explained that appellant thought he had "connections" because Guidi was of Italian descent and came from the eastern United States. Guidi told Detective Kelly that appellant made it "perfectly clear" he wanted his girlfriend dead. Detective Kelly asked whether appellant wrote the notes "like a therapy to release his anger." Guidi replied, "[H]e thought I could get somebody back east to come down with somebody, somebody back east could come here and do it for him prior to his going to court because he felt that if she didn't appear in court he was gonna you know not have these felonies." At trial, Detective Kelly testified about his interview with Guidi. While Kelly was on the witness stand, the prosecutor played an audio recording of the interview for the jury.
Appellant contends Phillips is inapplicable to this case because the Supreme Court in Phillips "did not include my analysis in support of the conclusion that a conviction could be based upon hearsay serving as the 'testimony' requirement." The Supreme Court did not draw such a distinction in Phillips and, in fact, expressly equated a jailhouse letter with direct "testimony" about the crime of solicitation. (Phillips, supra, 41 Cal.3d at p. 76.) Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. The decisions of the Supreme Court are binding upon and must be followed by all the state courts of California. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction and it is not their function to attempt to overrule decisions of a higher court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In view of the Supreme Court's holding in Phillips, we must reject appellant's evidentiary challenge in this case.
Respondent correctly points out that Guidi's statements to Detective Kelly constituted "testimony." Detective Kelly testified at trial about his interview with Guidi. While Kelly was on the witness stand, the prosecutor played an audio recording of the interview. Jurors heard appellant tell Guidi he wanted M.L. dead and ask Guidi "to get somebody to kill" her. Guidi advised appellant he would need specific information, including M.L.'s address and her picture. In response, appellant wrote two letters. Guidi said he would try to help appellant. Detective Kelly asked whether appellant wrote the two letters to release his anger. Guidi replied in the negative, saying appellant wanted to kill M.L. before appellant's next appearance in court.
II. THE JUDGMENT OF CONVICTION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE
Appellant contends the prosecutor failed to prove the charge of solicitation by the testimony of at least one witness, as required by section 653f, subdivision (f).
A. Appellant's Specific Contention
Appellant argues:
"The prosecutor failed to prove the elements that someone was asked to and received a request to kill. The evidence established only that appellant asked Guidi to find someone for appellant to hire to commit murder.... [¶] ... [¶]
"Here, the persons to be killed were identified while the person who was to commit the murder was as yet to be determined. Guidi was not asked to kill or join in the commission of murder. Guidi was asked to give the notes
about killing M.L. and Mr. [U.] to someone on the east coast. Instead, he kept the notes. Therefore, not only was the intended recipient never identified when the notes were written, the notes were never delivered to an intended recipient. The evidence is insufficient to sustain the guilty verdict because nobody was ever in receipt of an actual request to kill."
B. Applicable Law
The Supreme Court has stated the applicable standard for assessing the sufficiency of evidence:
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [].) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320[].) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [].) ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' (Id. at pp. 792-793.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
In framing his contention, appellant refers back to the trial court's denial of his motion for acquittal (§ 1118.1) on December 15, 2010. " 'In ruling on a motion for judgment of acquittal pursuant to ... section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" [Citation.]' " (People v. Magallanes (2009) 173 Cal.App.4th 529, 533, citing People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
C. Analysis
Appellant acknowledges the charge of solicitation was based upon Guidi's extrajudicial statements and two notes appellant wrote and gave to Guidi when they were both in jail. According to appellant, the first note set forth phone numbers, M.L.'s name, her address, and descriptions of three different vehicles that she might use for transportation. The note included a map of M.L.'s residence and also listed places in Tulare that M.L. frequented on Friday and Saturday evenings. The second note described how appellant wanted M.L. and her friend, Craig U., abused and killed. During a July 8, 2010, interview with Tulare Police Detective Kelly, Guidi said appellant wrote the notes because he wanted Guidi to arrange for someone from the east coast to kill M.L. and Craig U.. According to Guidi, appellant said he could obtain funds to pay for this service "once if anything was made concrete." Appellant told Guidi if he could not get someone from the east coast, appellant would "try to get somebody from the Northerners or somebody else to do it for him."
Appellant contends Guidi's extrajudicial statements coupled with the two notes proved, at most, an attempt to solicit murder. " 'Solicitation is defined as an offer or invitation to another to commit a crime, with the intent that the crime be committed. The crime of solicitation, which is restricted to the solicitation of particular serious felony offenses, is complete once the verbal request is made with the requisite criminal intent; the harm is in the asking, and it is punishable irrespective of the reaction of the person solicited. Thus, solicitation does not require the defendant to undertake any direct, unequivocal act towards committing the target crime; it is completed by the solicitation itself, whether or not the object of the solicitation is ever achieved, any steps are even taken toward accomplishing it, or the person solicited immediately rejects it. [Citations.]' " (People v. Wilson (2005) 36 Cal.4th 309, 328, citing In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377-1378.)
Robert Guidi testified he met appellant in the minimum security portion of the Tulare County Jail in the fall or winter of 2009. Guidi said he and appellant lived in a dormitory-type setting and became friendly with one another, sharing their respective family histories. Guidi, a New Yorker, advised appellant that his late uncle had been connected with organized crime. Appellant told Guidi he was innocent and was upset about being tried. At some point in time, appellant gave Guidi two letters. The first letter included M.L.'s telephone numbers, address, vehicles (including color, make, model, and year), weekday and weekend schedule, places frequented, and a hand drawn map of her residential neighborhood. In the second letter, appellant provided further details about M.L.'s daily schedule and modes of transportation. The letter concluded:
"If Craig is around I want him beat[en] in front of her and tell them both I'm going to have a great life while they won't ever be found. Make sure they are disposed of in separate places. I want them to spend eternity alone! Don't forget the letter, and make sure she apologizes to me in the letter! To help with identifying her, she has stars tattooed on her upper left arm and she has '[M.]' tattooed on her wrist and on her right inner for[e]arm she has the Capricorn sign."
In a July 8, 2010, interview with Detective Jim Kelly, Guidi said appellant approached him in the jail, noted Guidi was from the east coast, and asked with Guidi could "get me any connections[;] I want to get rid of my spouse and her boyfriend." When appellant used the term "get rid of," Guidi believed appellant "wanted her done away with and killed." Guidi said appellant gave him the letters about two months before his interview with Detective Kelly, and Guidi received the first letter about one week before the second letter. Guidi told Detective Kelly he gave the letters to his attorney from the office of the public defender.
The California Supreme Court has observed that "[w]hether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of the case." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 14.) The Court further observed, "There is thus no error in resting a finding of attempted murder in part on evidence that also tends to establish solicitation to commit murder and vice versa." (Id. at pp. 12-13.)
In this case, appellant asked Guidi, orally and in writing, to locate someone to kill M.L. and her current boyfriend, Craig U. Appellant contends - and respondent agrees -that "[a] defendant can ordinarily be convicted for solicitation only if, had the solicitation been successful, the person solicited would have been guilty of the underlying offense." Under California law, the defendant's failure to request the solicited person to engage personally in the solicited offense does not matter. Here, appellant solicited Guidi to facilitate the commission of the murder of M.L. and Craig U.. Had Guidi done so, he would have been equally guilty, as a principal, of their murders. In any event, it is irrelevant for purposes of section 653f that Guidi did not actually intend to aid and abet appellant. That is because the gist of the offense is solicitation and the offense is complete when the solicitation is made. (People v. Bell (1988) 201 Cal.App.3d 1396, 1399.)
Appellant contends this court's opinion in People v. Saephanh (2000) 80 Cal.App.4th 451 (Saephanh) compels a different result. In Saephanh, the defendant and a girl named Cassandra had consensual sexual intercourse, and she became pregnant while the defendant was in Corcoran State Prison. Five months after learning of the pregnancy, the defendant wrote a fellow gang member from prison and asked him to kill Cassandra. Prison officials intercepted the letter, and it never reached the fellow gang member. The defendant appealed his conviction of solicitation of murder (§ 653f), contending the soliciting communication was not received by the intended recipient, therefore no one was solicited. This court agreed with the defendant that solicitation requires a completed communication and modified the judgment to a conviction of attempted solicitation of murder. The instant case is factually distinguishable from Saephanh. In Saephanh, we stated: "One cannot 'solicit another' without a completed communication. The communication is only completed when it is received by its intended recipient." (Saephanh, supra, 80 Cal.App.4th at p. 459.) Here, Robert Guidi was appellant's intended recipient and did, in fact, receive appellant's written and oral communications. The rule of Saephanh does not compel a different result in this case.
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The judgment of conviction was supported by substantial evidence.
III. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE CRIME OF SOLICITATION
Appellant contends the trial court committed reversible instructional error by instructing in modified CALCRIM No. 441. Appellant maintains the modified instruction improperly expanded the elements of the charged offense and thereby lightened the prosecutor's burden of proof.
A. Challenged Instruction
CALCRIM No. 441 [solicitation: elements (§ 653f)], as read to the jury, stated:
" . Mr. Gore is charged with soliciting another person to commit a crime, specifically the crime of murder.
"To prove that Mr. Gore is guilty of this crime, the People must prove the following:
"First, that ... the defendant solicited Robert Guidi to have a third person murder [M.L.]. That's the first element the District Attorney must prove, A or B.
"Further, two, People must prove that the defendant intended that the crime of murder be committed; and thirdly, the People must prove ... that the other person - that would be Robert Guidi ... received the communication containing the request."
After a brief sidebar conference with counsel, the court went on to instruct on the remainder of CALCRIM No. 441:
"To decide whether Mr. Gore intended that [M.L.] be murdered, please refer to the separate instructions that I will give you on that crime.
"The crime of solicitation must be proved by the testimony of at least one witness and corroborating evidence.
"Corroborating evidence is evidence that first tends to connect the defendant with the commission of the crime, and secondly, is independent of the evidence given by the witness who testified about the solicitation or independent of the facts testified to by that witness.
"Corroborating evidence need not be strong or even enough to establish each element by itself. Corroborating evidence may include the defendant's acts, statement or conduct or other circumstance that tends to connect him with the crime.
"A person is guilty of solicitation even if the crime solicited is not completed or even started. The person solicited does not have to agree to commit the crime.
"The crime of solicitation is complete when the request or solicitation is made, that is, when the soliciting message is received by its intended recipient. The crime may be committed even if the recipient does not agree to commit the crime."
B. Underlying Statute and Appellant's Contention
Section 653f, subdivision (b) as charged in count 1, states:
"(b) Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years."
Appellant notes the statute expressly makes criminal the solicitation of another "to commit or join in the commission of murder" and contends the court erred by failing to instruct the jury "that in order to find appellant guilty, the jury had to find appellant asked Guidi to commit murder or join in the commission of murder."
C. Applicable Law
Section 653f has a twofold purpose: to protect individuals from being exposed to inducement to commit or join in the commission of crimes and to prevent solicitations from resulting in the commission of the crimes solicited. (People v. Cook (1984) 151 Cal.App.3d 1142, 1145.) "The essence of criminal solicitation is an attempt to induce another to commit a criminal offense. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 31, p. 237 [statutes derive from common law offense of 'solicit[ing] a person to commit a felony']; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377 [] ['Solicitation is defined as an offer or invitation to another to commit a crime, with the intent that the crime be committed.']; People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494 [] ['Solicitation is defined as an offer or invitation to another to commit a crime.']; People v. Miley (1984) 158 Cal.App.3d 25, 33 [] ['Solicitation consists of the asking of another to commit one of the crimes specified in Penal Code section 653f with the intent that the crime be committed.'] ... [¶] Consistent with this conception, a defendant can ordinarily be convicted under a general solicitation statute only if, had the solicitation been successful, the person solicited would have been guilty of the underlying offense." (People v. Herman (2002) 97 Cal.App.4th 1369, 1381-1382, fn. omitted.) D. Analysis
In this case, appellant essentially contends the court erred by instructing the jury that "the defendant solicited Robert Guidi to murder [M.L.]" rather than instructing "the defendant solicited Robert Guidi to commit or join in the commission of the murder of [M.L.]." Appellant maintains "the jury had to find appellant asked Guidi to commit murder or join in the commission of murder." In our view, a judgment of conviction of solicitation does not turn on the use of the word "ask." The Bench Notes to CALCRIM No. 441 clearly state: "A blank has also been provided in element one to permit substituting other words for 'solicit.' Other approved language includes: to ask, entreat, implore, importune, to make petition to, to plead for, to try to obtain, or to offer or invite another to commit a crime." (Bench Notes to CALCRIM No. 441 (2011) p. 210.)
The instructional phrase employed by the trial court - "to murder [M.L.]" -necessarily included the concept of " ' "commit" ' " as the latter term generally means " ' "to do or perpetrate (an offense or crime)" ' " rather than to be convicted of an offense or crime. (People v. Garcia (1995) 33 Cal.App.4th 1119, 1128, citing Webster's New World Dict. (2d college ed. 1982) p. 286.) Thus, the omission of the word commit in modified CALCRIM No. 441 did not amount to reversible error.
The last aspect of appellant's instructional challenge is the omission of the phrase "or join in the commission of" the charged crime. The Bench Notes to CALCRIM No. 441 state:
"Penal Code section 653f lists those crimes that may be the target of a solicitation. If the target crime is listed in subdivision(a) or (b) of that section, insert the bracketed portion "[or join in the commission of]." If the target crime is listed in subdivision (c), (d), or (e) of the section, omit that bracketed portion." (Bench Notes to CALCRIM No. 441, supra, p. 224.)
Here, the trial court did not employ the phrase "or join in the commission of." Instead, the court instructed:
"To prove that Mr. Gore is guilty of this crime, the People must prove the following:
"First, that ... the defendant solicited Robert Guidi to have a third person murder [M.L.]. That's the first element the District Attorney must prove, A or B." (Italics added.)
" 'The crime of solicitation, which is restricted to the solicitation of particular serious felony offenses, is complete once the verbal request is made with the requisite criminal intent; the harm is in asking, and it is punishable irrespective of the reaction of the person solicited. Thus, solicitation does not require the defendant to undertake any direct, unequivocal act towards committing the target crime; it is completed by the solicitation itself, whether or not the object of the solicitation is ever achieved, any steps are even taken towards accomplishing it, or the person solicited immediately rejects it.' " (People v. Wilson, supra, 36 Cal.4th at p. 328, citing In re Ryan N., supra, 92 Cal.App.4th at pp. 1377-1378.)
Appellant contends, "The court's modified instruction expanded the element set forth in the statute of soliciting another to commit or join in the commission of murder, to include soliciting another to have a third person commit murder. However . asking Guidi to ask someone else [to] kill M.L. did not amount to asking Guidi to either murder or join in the commission of murder." Appellant argues the modified instruction "improperly expanded the elements of the charged offense which lightened the prosecutor's burden of proof."
On direct appeal, instructional errors - whether they entail misdescriptions, omissions, or presumptions - generally fall within the broad category of trial errors subject to the standard of Chapman v. California (1967) 386 U.S. 18. Accordingly, we must determine whether it appears beyond a reasonable doubt that the asserted error did not contribute to the jury's verdict. (People v. Huggins (2006) 38 Cal.4th 175, 211-212.) We initially note the trial court's modification of CALCRIM No. 441 did not expand the elements of the charged offense. If anything, the modification narrowed the elements by requiring the jury to find that appellant solicited Guidi to commit the murder of M.L. or solicited Guidi to have a third person commit the murder of M.L. The latter phrasing was more restrictive than the pattern phrasing, "join in the commission of the crime of murder." In any event, solicitation does not require a defendant to undertake any direct, unequivocal act toward committing the target crime. The offense of solicitation is completed by the solicitation itself. Solicitation "is completed merely by giving a suggestion, encouragement or advice that a hypothetical crime be committed, regardless of what then transpires ...." (In re Ryan N., supra, 92 Cal.App.4th at p. 1378.)
In light of the governing law, the court's use of the phrase "the defendant solicited Robert Guidi to have a third person murder [M.L.]" was essentially the equivalent of the pattern instruction phrase "join in the commission of the crime of murder." The omission of the latter phrase from modified CALCRIM No. 441 did not contribute to the verdict where the evidence strongly demonstrated that appellant spoke to Robert Guidi in Tulare County Jail, advised Guidi he wanted to "get rid" of his girlfriend, asked whether Guidi could use "connections" from the East Coast to carry out this task, and wrote Guidi several notes or letters that set forth specifics about the girlfriend, including her place of residence and usual schedule.
To the extent the modified instruction failed to conform to the precise language of section 653f, subdivision (b) and pattern instruction CALCRIM No. 441, any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR:
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Wiseman, Acting P.J.
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Detjen, J.