Opinion
F069582
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. DUSTIN ROBERT GRAN, Defendant and Appellant.
Kat Kozik and Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR030669B)
OPINION
APPEAL from a judgment of the Superior Court of Madera County, transferred for trial to Superior Court of Stanislaus County (case No. 1446324). Marie Sovey Silveira and James E. Oakley, Judges. Kat Kozik and Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Dustin Robert Gran (defendant) stands convicted, following a jury trial, of first degree murder in which he intentionally killed the victim by means of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15); count 1), conspiracy to commit murder (§ 182, subd. (a)(1); count 2), first degree burglary committed when someone other than an accomplice was in the home (§ 459; count 3), and grand theft of a firearm (§ 487, subd. (d)(2); counts 4-6). The jury further found he was sane at the time of the crimes. The prosecution having elected not to seek the death penalty, defendant was sentenced to a total unstayed term of two years plus life in prison without the possibility of parole, and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
Defendant initially was j ointly charged with Brittany Navarra. Prior to the preliminary hearing, the parties stipulated to sever the cases for trial. Defendant and Navarra were tried separately, with venue changed for both trials to Stanislaus County; where new case numbers were assigned under that county's case management system. Navarra's case is not before us on this appeal.
Defendant now contends (1) the judgment must be reversed, and the case dismissed, due to outrageous government misconduct; (2) the trial court erred by refusing to recuse the Madera County District Attorney's Office; (3) the trial court erred by admitting testimony relating hearsay statements that did not fall within the coconspirator statement exception to the hearsay rule; (4) the lying-in-wait special circumstance is not supported by substantial evidence when the erroneously admitted hearsay statements are disregarded; and (5) the sentencing minutes and abstract of judgment contain a clerical error that must be corrected. We order correction of the clerical errors, but reject defendant's remaining contentions and affirm.
FACTS
Because defendant raises no issues with respect to the jury's sanity finding, we dispense with a summary of the evidence adduced at the sanity phase of trial.
I
PROSECUTION EVIDENCE
As of January 14, 2008, Thomas Hollier resided on Winter Way, in Madera, with his fiancée Krista Pike and his father Lynn Hollier. Thomas was a senior at Madera High School. He and Pike had dated his entire freshman and half of his sophomore year, then they broke up and Pike moved away. She returned to Madera sometime in December 2007. Once she returned, it was as if they had never been apart. They began living together at the beginning of January, and as of January 14, they were engaged to be married.
For clarity, Lynn Hollier and Thomas Hollier are referred to by their first names. No disrespect is intended.
Unspecified dates in the statement of facts are to the year 2008.
During the time Thomas and Pike were apart, Thomas, for about a month, dated Brittany Navarra, who was 16 or 17 years old. When Pike returned, Thomas ended his relationship with Navarra. He told Navarra that Pike was his "one and only." Navarra was a bit upset, but then she and defendant attended a friend's birthday party that Thomas and Pike also attended, and the two couples went to the movies together. As Navarra and defendant were spending a lot of time together, Thomas assumed Navarra was dating someone new. Defendant came over to Thomas's house occasionally to play video games with Thomas and Thomas's friends. About a week before January 14, Navarra and Veronica Blumberg wanted to take Pike shopping at the mall. The three young women were at Thomas's house, talking to each other and having fun.
Unbeknown to Thomas, Navarra took their breakup hard. Blumberg, who had been good friends with Navarra for over a year, saw her after the breakup and found her angry.
Blumberg testified under a grant of use immunity.
Prior to Christmas 2007, perhaps a week after Pike returned to Madera, Navarra and defendant told Blumberg they had a plan to kill Pike. Blumberg, Navarra, and defendant were at defendant's house, watching a movie about an assassin. Defendant asked if Blumberg knew what his third job was. He said it was being an assassin, and he asked if Blumberg wanted to be his apprentice. Blumberg may have given the impression she was interested, and defendant said her first job would be to kill Pike. He asked how Blumberg would do it; she said she would make it look like a suicide and mentioned using a zip tie to strangle her. Defendant said he did not like doing suicides or strangling. It was Blumberg's plan to lure Pike out to Blumberg's truck so Pike could be killed there.
At some point, Blumberg was getting out of defendant's truck when a zip tie fell to the ground. When Blumberg asked what it was, defendant said it was used to strangle someone.
Sometime after this day, defendant asked Blumberg if she still wanted to go through with being his apprentice. She said no. Defendant asked her the same thing on another occasion, and Navarra also asked her multiple times. Defendant said he wanted Pike dead as a Christmas present for Navarra. In return, he was supposed to get sex from Navarra, while Navarra would get back together with Thomas. The plan was for defendant to gain access to Thomas's house to play video games. Navarra and Blumberg took Pike to the mall in an attempt for Navarra to become friends with Pike. This was to give defendant more access to Thomas's house.
January 14 was a Monday. The previous Monday, Lynn did not go to work because he was sick. Defendant came over that day and stayed a while, although Thomas was at school. He claimed he left behind a guard card or keys and had to come back to find them. Although there was room in the driveway, Lynn noticed defendant's white pickup was parked across the street.
Defendant was employed as a security guard.
As of January 14, Lynn had a set of dumbbells sitting in the kitchen. They were angled rather than circular. There were two each of five-pound, 10-pound, and 25-pound weights.
On the morning of January 14, Thomas left for school about 5:30 or 6:00 a.m., so he could work out before classes. Pike was still in bed, asleep. Lynn left for work while Thomas was still at the house. Lynn and a coworker stopped by the house around 10:00 a.m. Pike was watching television. Nobody else was there.
Once at school, Thomas had no contact with Pike until the lunch hour, at which time they exchanged texts about the dinner Pike was planning to make. Pike was trying to find the notebook in which she had written a recipe, and they discussed how they were going to go to the grocery store and get the bank card from Lynn so they could purchase the necessary ingredients. The couple exchanged several text messages, then the communication stopped at the end of the lunch period. Thomas tried to text Pike a couple more times, but thought perhaps she was with her father or her phone had died.
The final text message sent from Pike's cell phone to any other phone was a 12:46 p.m. text to Thomas's cell phone. The last outgoing call from Pike's phone was made the afternoon of January 13.
Blumberg was with Navarra at school while Navarra was texting defendant during the lunch hour. Navarra said defendant was at Thomas's house with Pike, playing video games, and he could not strangle Pike because she kept reaching up to scratch her chin. Navarra subsequently told Blumberg "it's done."
At some point, Navarra had told Blumberg there was a previous attempt to kill Pike. Navarra said defendant had gone over to the house to play video games, but the whole household was home sick and defendant could not do anything.
Thomas got out of school around 2:15 or 2:30 p.m. As soon as he entered his house, he saw Pike lying on the floor with her clothes ripped off. Crying and in shock, he grabbed a phone, but it did not work, so he threw it against a wall. He remembered where there was another phone. He hit caller ID and "call," and happened to telephone his sister. He then lay down beside Pike. The next thing he knew, Lynn was picking him up and moving him away from her, then the police arrived.
Meanwhile, Lynn was at work when his daughter telephoned him in a panic. She hollered that someone had killed Pike and Lynn needed to get home. Lynn immediately went home. He could hear Thomas from outside, and found him curled up next to Pike's body, crying. Lynn bent down to check Pike, but could see she was dead, so he dragged Thomas away from the body. The police arrived two to three minutes later.
Madera Police Officer Dilbeck was dispatched to the Hollier residence at approximately 2:40 p.m. He and Officer Spears arrived in separate vehicles a few minutes later, just as Lynn exited the residence. The officers entered; Dilbeck saw Pike lying in the living room. Thomas was lying nearby in a fetal position, completely distraught. No one else was in the house.
Pike was lying with her head near the couch. She was naked from the waist down. Her shirt had been pulled up. Her bra had been cut in the front, exposing her breasts. Her panties were ripped and were partially inside her jeans, which were covering a portion of her head. Her throat had been cut. There was a deep laceration above the belt line that ran almost the width of her abdomen, and another deep laceration running across her upper right thigh. There was a large pool of blood that was still wet. She clearly was dead. There were no knives around the body. There was a black shirt on the arm of the couch, and a blue comforter lying down the front of the couch with a shopping list and a binder strewn across it. There was what appeared to be blood on the comforter, the piece of paper with "shopping list" written on it, and the binder. The top and inside of one arm of the couch were saturated with blood that was still wet. There were drag marks, suggesting Pike was not killed where her body was found. There was blood on the floor, including in some small square impressions that were parallel to each other. One of the pair of smallest dumbbells was missing from the pile of weights in the kitchen. Right next to the one that remained were the same little squares as near the body, only these were empty except for dust. Spears picked up the remaining dumbbell and compared it to the bloody squares. They appeared to match.
Testing for semen and bodily fluids other than blood was conducted around Pike's body. The results were negative.
There were no signs of forced entry into the house. Writing on the bathroom mirror that was addressed to Thomas and signed by Pike said "Dustin" had come over earlier as he had lost his work keys.
Thomas and Pike often wrote messages to each other on the mirror.
One of the officers asked Lynn who might have done it. Navarra was the one person who came to Lynn's mind, because of her "ugly output." When Thomas and Navarra were dating, Navarra always seemed to be angry when Lynn came home. Perhaps three weeks to a month before the murder, Lynn came home one day and found Navarra and defendant there. He was told they were dating now. Everybody seemed to be getting along. They were at the house, playing video games, several times when he came home between late November or early December 2007 and Pike's death. The Holliers' dogs would bark if they did not know someone, but they interacted well with defendant.
One of the dogs was inside the house when Pike's body was found. The next day, Lynn discovered the dog was bruised and had some blood on the right side of its head, as if it had been hit or kicked. All the dogs were fine when Lynn got ready for work the morning of January 14.
Samuel Browning, a friend of defendant and Thomas, was among the group of people who showed up at the house in the hours after Pike's body was discovered. Browning seemed surprised and antsy and wanted to talk to an officer.
Because of the writing on the mirror, Detective Valdez was tasked with speaking to defendant. Upon arrival at defendant's house, Valdez made contact with defendant's father and learned defendant and Navarra both were present. Valdez advised them that he and Sergeant Salas were investigating a homicide and that Pike had been killed. Defendant appeared surprised, while Navarra screamed, started crying, and walked off. Defendant and Navarra then followed Valdez and Salas to the police department where Valdez interviewed defendant.
When told Valdez had information defendant may have visited Thomas's house earlier that day, defendant said his guard card had fallen out of his pants at Thomas's house. He said he had gone to the house to "hang out" with Pike to make sure Thomas, who was his good friend, was going to marry her, and she was not doing anything stupid like cheating on him. He also needed to find his guard card. Initially, he told Valdez he did not find it, but then explained that it had just "slipped out" because he was distracted by his friend going through a hard time. Defendant actually found his card. Defendant said he arrived at Thomas's house around 10:15 a.m., looked for his card for the first 10 to 30 minutes, and found it under the couch. He watched television and talked with Pike about her wedding plans for about an hour, then left when Jamie Richards telephoned him. Defendant and Richards then "h[u]ng out" at Game Tyme. Defendant remained there until Navarra got dropped off, which was around 3:30 p.m. Defendant said he parked two or three houses away from Thomas's house, because his truck was "huge" and it was a busy area for parking. He did not park in the driveway because it was rude to park in other people's driveways. He could not park in front of the house because there was a car there. Defendant denied having sex with Pike. He also stated he had been diagnosed with schizoid, meaning a lack of emotions. Defendant explained that he had emotions, just a "fucked up version of them," which was why his statements might be irregular. Valdez asked defendant if Pike had any enemies. Defendant responded no. He explained that about a month earlier, Thomas had left Navarra, defendant's girlfriend, for Pike. For a while, Pike and Navarra were kind of mean to each other, but they were "cool" now and even went shopping together recently, along with a friend they called "V."
Detectives Garibay and Herspring obtained video surveillance from Game Tyme, which was a five- to 10-minute drive from the Hollier residence. Herspring also spoke to Jamie Richards, who worked at Game Tyme and identified himself as one of defendant's friends. According to Richards, on January 14, defendant came by Game Tyme between 10:00 and 11:00 a.m., before the business was open. Richards let him in. Defendant was there for 15 or 20 minutes. He smoked a cigarette and then left. A few hours later, he came back, then he and Richards went to a taco shop for some food. On the way to the taco shop, defendant told Richards he was having sex with Pike. He said he had been to her home earlier that day.
Richards told Herspring that defendant had a lockbox at the movie theater in Madera that was owned by defendant's father. Video surveillance obtained by officers from the movie theater showed that at approximately 8:30 a.m. on January 15, defendant dropped his father off in front of the theater, then drove around back toward the dumpsters. He then opened the fiberglass lid to the bed of his pickup truck, discarded something in one of the dumpsters, and left. Inside one of the dumpsters, officers found a white Office Depot box, inside of which was a small metal Brinks safe. Inside the safe was a pair of jeans that were the same size and brand defendant's father had bought defendant for Christmas, and which had what appeared to be blood stains on the leg and cuff, along with blood splatter. Subsequent testing showed the DNA profile for the blood was consistent with Pike's DNA profile. DNA obtained from the interior waistband area showed multiple contributors. The DNA profile of the major contributor—the individual whose DNA was present in a greater concentration—was consistent with Pike's DNA profile, while defendant could not be eliminated as a possible minor contributor. DNA obtained from the interior zipper area was consistent with Pike's DNA profile.
Herspring and other officers searched the movie theater, as well as a nearby storage container. Among the items in the storage container was a large, locked Winchester safe that defendant's father identified as belonging to defendant. On the top shelf of the safe was a green bath towel that matched the towels in the master bathroom of the Hollier residence. There was a spot of what appeared to be blood on the towel. Subsequent testing showed the DNA profile from the blood on the towel was the same as Pike's DNA profile.
The theater's surveillance video showed defendant entering the storage compartment on January 15.
In terms of a statistical analysis, the DNA profile on the blood on the towel and on the Arizona jeans could be expected to occur in a randomly selected individual in approximately one in 570 quintillion African-Americans, one in 4.1 quintillion Caucasians, and one in 190 quintillion Hispanics. A quintillion is a number with 18 zeros. In terms of the minor contributor to the mixture on the waistband of the jeans, the chance of picking a person at random and having that person possibly be a minor contributor to the DNA mixture was one in 5.7 million African-Americans, one in 280,000 Caucasians, and one in 550,000 Hispanics.
The safe also contained numerous guns, papers, personal items, and receipts. Three of the guns belonged to Lynn. He discovered them missing from a trunk in his bedroom closet when he was briefly allowed into his house to get some clothing. About a week before the murder, defendant had been at the house and had told Lynn about the guns he (defendant) owned. He said he had heard about Lynn's guns, and Lynn asked if he wanted to see them. Lynn took defendant to his room and showed him the three pistols.
Lynn also kept two guns inside the dresser next to his bed. He did not show them to defendant. Those guns did not appear to have been touched.
Defendant's Ford pickup truck was processed for evidence. Two zip ties were found in the truck, as was a blood-stained bath towel belonging to the Holliers.
Defendant's cell phone was seized the night of his arrest. Recovered from the phone's memory card were two photographs that had been deleted. One showed a knife on the crotch of an individual leaning against the steering wheel of a Ford vehicle. The other was a photograph of Pike after she had been injured and likely was already dead, but before her body was discovered.
Cell phone record showed that at 10:38 a.m. on January 14, a text was sent from Navarra's phone to defendant's phone that read, "Kk space baby." Beginning at 12:05 p.m., Navarra's phone sent a series of texts to defendant's phone that read, "Just for today NP perment" (12:05 p.m.); "Don't ite up please u still have time" (12:06 p.m.); "Go a head just kill her" (12:09 p.m.); "WaT is it" (12:10 p.m.); "Oh no u can't do it anther way like shoot her" (12:16 p.m.); "Tile her out um eat and do something" (12:16 p.m.); "Get food posino it" (12:19 p.m.); "Ok do a break go rape" (12:26 p.m.); "Kk" (12:27 p.m.); "Dead" (1:19 p.m.); "Wat did u do" (1:20 p.m.); "Nice" (1:23 p.m.); and "Ok" (1:25 p.m.).
Navarra's cell phone service was through AT&T, while defendant's was with Verizon. Verizon captured the actual content of the text messages that were sent to defendant's phone, while the AT&T records did not capture any actual content.
An autopsy revealed five lacerations over the back half of Pike's head, four of which extended through the full thickness of the scalp. All were impact lacerations. There was a meandering fracture involving the rear portion of the right parietal bone and the occipital bone and extending into the base of the skull, a very thick portion of the skull. The fracture was caused by a very forceful blow that resulted in a severe cerebral concussion. All of the blows that penetrated the full thickness of the scalp were very forceful by virtue of their size. There was a gaping, six-inch cut across the neck, from the right side toward the left ear. It exposed a lot of connective tissue in the neck and severed a number of the strap muscles. It also severed the left anterior jugular vein. Although a large quantity of blood came from the scalp lacerations, the neck was also capable of bleeding at the time it was cut. There was a pale bruise beneath the left eye that could have been caused by Pike's face hitting the ground. There was a stab wound in the nape of the neck. It struck cervical bone, but did not penetrate the spinal canal or cord. There was a seven-inch, slightly gaping wound that crossed the abdomen and exposed abdominal fat. There was a six-inch, gaping wound across the upper portion of the right thigh, showing subcutaneous fat. The abdominal and leg wounds did not show the kind of bleeding that would be expected if blood pressure remained. There was an abrasion (scrape of the skin) to the right side of the chest and into the armpit, three linear abrasions in the upper inner aspect of the left thigh, and a third abrasion across the back of the knee. There were no defensive wounds to the body, or any bruising to the forearms. There were no signs of a struggle, and Pike's fingernails were unbroken. There were no lacerations inside the lips and nothing that looked like strangulation. There was a vague, hand-like, five-finger imprint on the abdomen. The internal genitalia were normal.
Effective function of Pike's brain likely was totally gone as a result of the blows to the head. In addition, she completely bled out. Dr. Nelson, who performed the autopsy, could not exclude the possibility that the impact near the back of the head was a fatal blow. In his opinion, the blows were struck from behind, although he could not tell by how many people. During the autopsy, he compared the scalp lacerations to a dumbbell and determined it could have caused the injuries to Pike's head. At least one of the blows to the head came from the back and went left to right. Nelson believed it would have been "very awkward" for a left-handed person to have struck that blow, although a right-handed person could have done so "very easily." This would have depended on the positions of the people at the time the blows were struck. The long, thin knife shown in the photograph retrieved from defendant's cell phone could have caused the cuts and stab wounds. Based on the small amount of bleeding, the cuts to the thigh and abdomen were the last trauma inflicted.
According to defendant's father, defendant is left handed.
II
DEFENSE EVIDENCE
Browning had known defendant since high school. Browning sometimes went to Thomas's home to play video games. He went camping with the Hollier family and had an opportunity to use Lynn's firearms.
Browning testified under a grant of use immunity.
Browning's birthday was on December 14, and he had a birthday celebration near that date in 2007. At the time, Browning was attending Ripperdan, a secondary school located between Fresno and Madera. He got to school by taking a county bus to the Madera High School stadium, then a second bus to Ripperdan. When returning home from school, he had to get on the bus from Ripperdan to the stadium, although he sometimes went into town instead of catching the second bus. The daily school schedule was the same except on alternate Mondays; on those days, students were released at 2:00 p.m., but still did not get picked up until the bus came at the end of the day. On other days, students were released from school at 3:15 or 3:20 p.m.
On January 14, Browning caught the bus at his house at 5:30 a.m., as usual. School started at 8:30 or 8:35 a.m. He was at school for all of his classes. If school records showed he was let out about 12:40 p.m. that day, they would be inaccurate. Once out of school, he went to Courthouse Park to skateboard. He remained there until about 6:30 p.m., when he skated home. When he arrived, his mother told him about Pike.
School records showed January 14 was an early dismissal day for Ripperdan. This meant school ended at 12:45 p.m. School records showed Browning was in attendance on January 14, beginning with zero period at 8:30 a.m. and continuing through fourth period that ended at 12:45 p.m. The bus left at approximately 12:55 to 1:00 p.m. and arrived in the vicinity of the stadium around 1:15 or 1:20 p.m. It took a defense investigator approximately eight minutes to drive from the vicinity of the stadium to the Hollier residence. According to Herspring, however, driving time between the vicinity of the stadium and the Hollier residence would be approximately 12 minutes with after-school traffic. Madera High School had early dismissal days on the same days as Ripperdan. It would take approximately 30 minutes to travel the distance on a skateboard, and about 45 minutes at a brisk walk.
Browning, who was right handed, did not learn of Pike's homicide until 7:00 or 8:00 p.m. on January 14. He arrived at the Hollier home sometime after 8:00 p.m. He approached the officers at the scene to let them know he might have some information about what could have happened, because he had the feeling defendant was involved. Browning was interviewed at the police station, and related that he had theories, because Navarra had been texting Browning when she and Thomas first broke up. She had been "all crazy and ... going on a rampage" and threatening Pike and Thomas. Although Navarra did not say anything about killing Pike, she said she wanted to hurt her. She and Thomas talked it out, and afterward Navarra was "acting cool." Both were at Browning's birthday party and everything had settled down.
Browning denied ever telling anyone he was present during the homicide. He never saw any pictures of Pike's body. Wesley Potter was someone to whom Browning had sold drugs. Browning gave him a line of credit, and when it came time to pay, Potter made up a story about Browning, saying he was inside the house where Pike was killed at the time she was killed. Browning denied having anything to do with Pike's death.
Potter testified Browning once told him Browning had been at the crime scene. Potter could not recall if Browning indicated he participated in Pike's homicide. Potter did not believe Browning's statement, because Potter did not believe anything Browning said.
Herspring interviewed Potter on July 23, 2011. Potter related that Browning had twice said he was at the crime scene at the time of the homicide. Potter also stated, however, that he did not necessarily believe everything Browning said. Potter said Browning related that a weight was used and there were brains everywhere. That did not fit with what Herspring had seen at the crime scene. Moreover, by the time Herspring interviewed Potter, Herspring and Garibay had held a press conference in an attempt to find Pike's cell phone and the missing weight. During the press conference, at which television stations and other news media were present, Garibay showed the weight that was still at the house.
Garibay never considered Browning a suspect, although he was aware there were text messages from Navarra to Browning on January 14, at 1:30 p.m. and 1:33 p.m., and at 8:13 p.m. and 8:16 p.m. The records did not show any texts from Browning to Navarra around 1:30 p.m. There were two phone calls from Navarra to Browning that day, one at 8:24 p.m. that lasted a minute, and one at 8:25 p.m., that lasted two minutes. There were also texts from Navarra to Browning on January 15. As a result of this information, Herspring investigated Browning, but all of the evidence led back to defendant and Navarra as being responsible for Pike's homicide.
DISCUSSION
I
GOVERNMENTAL MISCONDUCT
Defendant contends the judgment must be reversed, and the case dismissed, due to outrageous government misconduct that impacted his rights to counsel, due process, and a fair trial. He points to three types of governmental wrongdoing: illegal taping of privileged attorney-client communications; misrepresentations and delays concerning discovery, including Brady material; and interference with a defense cell phone expert and forgery of a sworn declaration. We agree there was governmental malfeasance—particularly on the part of former Madera County Deputy District Attorney Edmund Gil—that simply should not have occurred and cannot be condoned, and we condemn that misconduct in no uncertain terms. Nevertheless, in light of Gil's removal from the case and particularly the care taken and remedies fashioned by the trial judge—the Honorable Marie S. Silveira—to protect defendant's right to a fair trial, we conclude defendant did indeed receive a fair trial. Accordingly, he is not entitled to reversal or dismissal. A. Background
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Defendant was arrested on January 15, 2008. Attorney John Garvin, who was retained, represented him from the outset. It appears that by January 30, 2008, the case had been assigned to then-Deputy District Attorney Karen Mitchell, although other members of the district attorney's office appeared on behalf of the People in several of the early proceedings. On that date, defense counsel stated he was still awaiting discovery, although he had received some. At a hearing on February 20, 2008, counsel stated his office had received the bulk of discovery—750 pages, not including audio, video, or photographs—the previous afternoon.
The preliminary hearing was held November 10, 2008. Mitchell and Deputy District Attorney Brooke Bergman appeared for the People. Several other members of the district attorney's office appeared between then and the filing of the first amended information on August 4, 2010, by which time it appears the case had been assigned to then-Deputy District Attorney Ryan Sutherland. By September 16, 2010, venue had been changed in Navarra's case, but it had not yet been determined whether defendant would need to file a change of venue motion or the People would stipulate to a change in his case, as well. Judge Oakley, who presided over a number of pretrial hearings, stated he would like to see both cases moving along.
The next hearing was set for November 20, 2010. At that hearing (further trial setting), then-Deputy District Attorney Gil stated he was now in charge of the case.
During a status hearing held on June 6, 2011, the parties discussed various issues. Gil noted there were a "considerable amount" of computer documents in the form of video and audio that defendant might not have, and that he was in the process of ascertaining the exact number. Judge Oakley acknowledged Gil came into the case late, but expressed concern discovery was not yet complete. The court continued the matter to June 21, 2011, stating it "expect[ed] significant progress between now and then, in terms of getting discovery completed and knowing what's going to happen."
The hearing on June 21, 2011, included Navarra's defense counsel, Steven Geringer. Geringer represented he had made a list of the CD's and DVD's he received on June 15, 2011. Originally he had 47; now he had 105, in addition to which he had received 2,000 pages of other documents that had never before been provided. Garvin represented he had received more than 60 new CD's, and he was supposed to pick up a box of 2,000 pages of discovery that morning. He acknowledged the case was old, but observed he was still receiving voluminous discovery that he would need a significant amount of time to examine. He also noted he had not been able to get a definite answer from Gil as to whether he needed to litigate the change of venue issue. Gil responded that much of the so-called new discovery was actually being rediscovered, a point Geringer disputed. The court directed all counsel to meet and confer and return on July 1, 2011, for a discussion of the issue of defendant's change of venue and any other issues with respect to discovery or scheduling.
On July 1, 2011, Judge Oakley stated he wanted to get the matters set on the trial calendar. Having obtained the transcript from the April 25, 2008, hearing in which the cases were severed, he noted the language used by the deputy district attorney was "unequivocal." Gil agreed, but stated he still wanted the opportunity to litigate the joinder issue before the court. He also wanted to resolve the discovery issue. With respect to discovery, Geringer stated the issues had been narrowed "dramatically," but there were still significant items that were missing and that Gil was trying to obtain.
On July 26, 2011, Gil represented counsel had had questions concerning statements involving Blumberg, and he had just given counsel the pertinent information. Garvin related he had not yet reviewed what he had in depth, and the People had not yet responded to his request regarding other discovery that might still be "lurking" somewhere. Gil responded that counsel wanted all jail communications, which was taking time to acquire because gathering that information stopped some time earlier. Garvin countered that someone from the district attorney's office had reviewed an abundant amount of information regarding jail communications and, while Garvin had been provided with the ones the People thought were pertinent, he believed he needed to see them all. Gil responded that it was not a matter of anyone from the prosecution team qualifying the value of the discovery; rather, there was over a year's worth of communications that had been collected by the jail but not turned over because the district attorney's office stopped collecting them. Judge Oakley commended Gil for the "vast improvement" since Gil had come into the case, and directed the parties to continue working with each other. Geringer observed discovery was still not adequate; he noted he had brought four motions to compel, and wondered when the cases could ever be tried if the district attorney's office did not comply with the defense discovery requests. Gil responded that the People were not conceding the information being sought was discoverable under section 1054. He represented that all the information the People planned to use at trial against both defendants had been disclosed. Judge Oakley directed counsel to meet and confer, and then make a specific report at the next hearing as to what had been received and what was still wanting from each side.
At the August 23, 2011, hearing, Gil related that he had met with counsel the day before, and explained it was the People's position that the jailhouse conversations should be more properly obtained by subpoena, since the Department of Corrections was not part of the prosecution team. He expressly represented that everything the prosecution possessed with regard to prosecution of the cases, whether exculpatory or inculpatory, had been disclosed. Garvin responded that included in the additional discovery provided the preceding June were telephone calls defendant had made to family members, as well as telephone calls Navarra had made to family members and other individuals. Those were obtained from the jail records by a district attorney investigator accessing them through a computer system. Garvin estimated less than one percent of the calls had been disclosed. He represented that Gil refused to answer him when he asked if the People planned to use any of the recorded telephone calls or visits, and Garvin took the position that if the People were going to use something against defendant within those telephone conversations, defense counsel needed to know whether there was other information within the telephone calls and visits that was beneficial to defendant.
Apparently, the investigator had the ability to use his computer in the district attorney's office to retrieve the documentation from the secured server at the jail.
Judge Oakley then asked Geringer if he was disputing Gil's representation that everything except the jailhouse conversations had been disclosed. Geringer replied he did not know for sure, and that discovery was "not going well as [sic] all." Judge Oakley then gave the parties a briefing schedule for a motion to compel, in which the issues would be whether the defense was entitled to anything more, and whether the court would compel the prosecutor to go through all of the jailhouse recordings and provide all of them to the defense or the defense would have to seek them by means of a subpoena duces tecum.
Gil filed his motion to rejoin the cases on August 15, 2011. In it, he represented he was the fourth prosecutor specially assigned to litigate the case, "having lost" the three previously assigned prosecutors. Gil's motion was denied on September 22, 2011. Judge Oakley noted the case had "now been pending for three and a half years and we're still not really there," although he acknowledged it had gone through a number of deputy district attorneys. Judge Oakley set October 7, 2011, as the time to set a trial date. Garvin asked "if there's other things coming down the pike that we don't know about yet," because he and Geringer were "kind of blind at the moment." Judge Oakley stated he had been led to believe, based on the last couple of court appearances, that the district attorney believed the defense had "everything that there is to have." Gil confirmed, "That's exactly right." He stated: "You know, there could be something else out there. But is that reasonable? No it's not reasonable that something else is out there. Anything is possible. [¶] But right now, it's the People's belief that we've turned over all the discovery we're required to do by law. And we do contend [sic] the fact that we have a responsibility to turn this other information over, because this agency is not part of the prosecution team, that's our position. And we are going to refuse to do that until we have a court order telling us to do that." Judge Oakley noted that issue would be addressed at the next hearing, but asked, "If it weren't for that issue, they've gotten everything there is to get?" Gil responded, "Correct."
Navarra subsequently filed a motion to compel disclosure of the jailhouse recordings and correspondence, in which defendant joined. The motion was heard October 7, 2011. During argument, Geringer represented he had served a subpoena on the Madera Department of Corrections for the jailhouse recordings, and had been told the Department of Corrections did not have the time or physical ability to get those items. Garvin noted he personally had been involved in the case since before defendant was charged, and had had four deputy district attorneys tell him they had provided him with all of the discovery, only to have a new prosecutor assigned to the case who then provided additional information that sometimes was six months to a year old by the time he received it. He stated a willingness to swear in court that he did not have everything at that moment that he needed to prepare his case for trial.
Gil represented that to the best of his knowledge, the prosecution had provided everything. He noted there was ongoing investigation regarding potential Brady evidence (some people coming forward and saying there could be someone else involved), and he had not received the results of that investigation yet but would provide them as soon as he did. Geringer expressed concern about the veracity of what he was being told. He noted Gil stated, on September 22, 2011, that the prosecutor had provided everything of which it was aware. Yet the defense had learned that in late August 2011, the police interviewed an individual who identified someone who stated he was present at the time Pike was killed, and had noticed a motion to compel, based on this information, for October 26. Garvin accepted Gil's word that he did not know about this new information, but argued the prosecution team was "hiding the ball" from the defense. He and Geringer both suggested appointing a special master to oversee the discovery process. Gil acknowledged the police department was part of the prosecution team and had a responsibility to provide the information, which he was attempting to obtain. He suggested it was unprofessional to come to court "in ambush fashion," however.
With respect to the motion to compel that was currently before the court, Judge Oakley ruled the jail was not part of the prosecution team. Accordingly, he denied the motion to compel. During a discussion of whether the cases could be set for trial, Gil asserted the case had "gone on for way too long," and it was "time to stop pointing the fingers." He claimed he was not pointing fingers at defense counsel, but he asserted Garvin had a "whole room" dedicated to the case and paid for by the county, and that Garvin "looks forward to incurring more cost ...." When Geringer stated he could not do the trial before July 2012 because he was in trial in Madera or in federal court almost every week until May, Gil responded that it "would be a miscarriage of justice if this trial was set based upon Mr. Geringer's personal schedule," and that "[j]ustice demands that this case go to trial within a reasonable period of time." He pointed out that the People were entitled to a speedy trial and to due process. Judge Oakley set Navarra's trial for March 5, 2012. As for defendant, the setting of a trial date was continued to October 26, 2011, because the district attorney's office still had not determined whether to stipulate to a change of venue or require defendant to proceed with a motion.
At the conclusion of the hearing, Gil provided Garibay's report regarding an interview with Browning, dated August 10, 2011, and also a report authored by Herspring dated July 23, 2011. Gil represented he had obtained those reports that day through communication with Garibay, and they had not previously been given to the prosecution. Geringer asserted a recording was made of the interview, yet that was not included. Judge Oakley ordered counsel to meet and confer before the October 26, 2011, hearing.
In conjunction with Navarra's motion to compel, set for hearing on October 26, 2011, Geringer included a sworn declaration from Kim Snipes, in which Snipes stated she was interviewed in the last part of August 2011, by two Madera police officers (one of whom was Herspring), concerning Browning telling her that he was present at the time and place of Pike's murder. Snipes stated Herspring digitally recorded the interview. Navarra requested the reports and original notes from any law enforcement individual concerning this case from June 15, 2011, to the date of production; all of Navarra's statements from June 15, 2011, to the date of production; the names and addresses of all witnesses the prosecution might call to testify against Navarra; and the statements of anyone the prosecution might call to testify against Navarra. Defendant joined in the motion.
At the October 26, 2011, hearing, Gil asserted the motion was frivolous. He represented that all the discovery of which he was aware had been given to counsel.
Geringer argued the prosecution knew no later than August 11, 2011, that there were reports a third party had said he was present at the time and place of the murder, yet nothing was disclosed to the defense until the October 7, 2011, hearing. Geringer represented that on the morning of the October 26, 2011, hearing, defense counsel were handed the two reports they were given on October 7, 2011, as well as nine additional reports. Geringer stated this was not a single incident, but had been continuing since before June 15, 2011. Geringer requested the imposition of sanctions in the form of ordering that CALCRIM No. 306, regarding untimely discovery by the prosecution, be given at trial, as he acknowledged dismissal and evidence exclusion were not reasonable. Garvin joined in Geringer's comments and request. Gil asked that any request for a jury instruction be deferred to the actual trial court. He surmised counsel wanted to send some sort of message, and suggested the contrary message should be sent, i.e., "to not abuse the process of law and the courts for matters that the Penal Code and case law say should be handled informally ...."
Garibay testified at the hearing. Apparently, an error in the Madera Police Department's records department caused the wrong report to be sent to the district attorney's office, which in turn caused the delay in defense counsel obtaining it.
Judge Oakley declined to impose a sanction of the jury instruction, leaving it instead up to the trial court. He expressed concern that the cases were old and needed to go to trial, but also about the discovery issues. He expressed the belief that much of the problem that had occurred up to the middle of 2010 involved changes in the district attorney's office that resulted in the deputy district attorney handling the case. Judge Oakley stated he was going to monitor ongoing discovery and take the motion to compel under submission.
On November 14, 2011, the district attorney's office stipulated to a change of venue for defendant's trial. At a review hearing on November 16, 2011, Geringer announced he had filed a new motion to compel that morning, based on an alleged failure to provide a police report for which Geringer had been asking since September 2011. He also informed the court that he had a letter from County Counsel with respect to his subpoena duces tecum. He represented that County Counsel was going to provide what they had from the jail, but would need six to eight months in which to do so. Gil asserted that if Geringer wanted discovery from the prosecution, all he had to do was ask. Gil claimed it was inappropriate and a waste of the court's time to bring such matters before the court before exhausting informal procedures. Geringer responded by pointing out that he hand-delivered an informal request to the district attorney's office on September 4, 2011, and, when he received no response, he hand-delivered a second request on November 4, 2011. Judge Oakley decided to consider the matter further on December 5, 2011.
At the hearing on December 5, 2011, Gil stated he had personally delivered to Geringer the information requested in the most recent motion to compel. In addition, DNA testing was underway, per Geringer's request, on some evidence found outside the Hollier house. Geringer agreed the information was provided to him on December 1, 2011.
Geringer then turned to a motion the prosecution filed on October 26, 2011, regarding Geringer's alleged abuse of the discovery process and misuse of a subpoena duces tecum that he allegedly served on the Madera Police Department and in which he requested the entire Gran/Navarra case file. In the motion, the People requested that the subpoena be quashed and all counsel admonished to comply with the discovery statutes. Geringer related that the subpoena never came from his office; rather, it came from a civil law firm and related to a civil lawsuit that was filed concerning Pike's death. A representative of the City Attorney's office was present in court; he related no subpoena duces tecum served by Geringer could be found. Judge Oakley noted there was nothing to quash, and so the matter could just be dropped from calendar. Asked if he disagreed, Gil responded, "No, I don't. I think this is more an example of Mr. Geringer wasting the Court's time on discovery matters." Gil asserted the matter had been resolved out of court and should have been taken off calendar, "But, no, Mr. Geringer wants to subpoena these witnesses into court so he can shove it in my face and say I was wrong, is just inappropriate." Gil then denied filing a motion to quash and claimed his pleading was simply a statement of the law. Geringer responded by noting it was the prosecution's motion, and he could not take their motion off calendar. He found "reprehensible" the assertion he was wasting time because the People left their motion on calendar.
Judge Oakley then denied the motions to compel filed October 7 and November 16, 2011. He found both defense counsel complied with the statutorily required informal discovery procedures, but did not find it necessary at this time to make an enforcement order since it appeared all documents had now been provided by the prosecution. Judge Oakley then set a trial date of May 7, 2012, for defendant, with a discovery review hearing in January.
On January 9, 2012, both defense counsel stated they were in the process of receiving discovery from the jail, but that the process would not be completed until the end of March 2012. Judge Oakley then reset the trial dates to July 17, 2012, for Navarra and September 11, 2012, for defendant. He also set a hearing for further review and trial confirmation.
On April 27, 2012, both trial dates were reset. Defendant's trial was set for September 19, 2012, with in limine motions to be heard August 27 and 28, 2012.
On August 28, 2012, a case management conference was held before Judge Silveira. After discussing the case in chambers with counsel, the court revealed that defendant's phone recently had been submitted to additional forensic examination, causing some text messages and other information to be obtained. The court acknowledged Gil had indicated the information was very important to the People, but noted the case was some five years old and was scheduled for trial the following month. Accordingly, the court stated it was inclined to exclude the new evidence and have the case go forward on the trial date in September with the state of the evidence the way it was 30 days before trial.
All further proceedings were before, and references to the trial court are to, Judge Silveira.
Gil argued the evidence was legally admissible as statements made by a coconspirator in furtherance of a conspiracy, and also as admissions. He agreed there was "no question" the defense was entitled to look at the cell phones, which had been equally obtainable to the defense and prosecution for over four years. He noted that the technology used to extract data from cell phones had changed between 2008 and 2012, which was why he had the phones examined again.
The court observed that the change in technology was not so recent that the phones could not have been re-examined in the preceding year or two. The court expressed frustration that the court and counsel had discussed setting a trial date a number of times, and even when they met a month earlier, nothing was said about anything changing. The court stated the People would be required to file a motion to introduce late-disclosed evidence.
The court set a further hearing date regarding the admissibility of the cell phone evidence and further motions in limine. Prior to that date, the People filed a trial brief addressing the admissibility of text messages between coconspirators. In his declaration, Gil stated the data extraction work began in October 2011, but was slowed in mid-2012 by a shortage of qualified criminalists in the Computer Forensics Unit of the Fresno office of the state Department of Justice. Gil further stated the extraction work was completed on or about August 23, 2012, and he received the raw data, and notified Garvin the examination of the cell phone had been completed, on August 27, 2012. Gil delivered the evidence to Garvin on August 28, 2012, which was 29 days prior to trial. He delivered follow-up work performed on a single text message on August 31, 2012.
Garvin opposed the motion to admit late discovery. He noted that in all of the discovery reviews, the People failed to mention their office had acquired the technological expertise for data extraction. He accused the district attorney of attempting to violate defendant's constitutional rights by failing to provide discovery in a timely manner, and argued the evidence should be excluded under provisions of the Evidence Code in any event. The People filed a response in which Gil gave his account of what he had done in terms of providing discovery, and he argued there had been no due process or statutory violation.
A hearing on the motion to admit late discovery was held on September 19, 2012. The court's tentative ruling was to vacate the trial date, since a Kelly analysis of extraction of deleted information from cell phone records was required and defendant needed time to obtain his own expert. The court noted that Judge Oakley had asked numerous times if the case was ready to go and if there was anything else that had to be done, and the representations from the People were clear that that was the state of the evidence. The court expressed the feeling the defense had been "blindsided." Gil disputed the notion there was prejudice to defendant, as defendant would be most aware of the text messages; and he asserted there was other evidence that should have made the content of the messages less of a surprise to the defense. Gil stated it had always been the People's position that the defense should be afforded a reasonable continuance, which he suggested would be approximately three months.
People v. Kelly (1976) 17 Cal.3d 24.
The court queried why, when Gil decided to have the new technology used, he did not let defense counsel hire an expert to become involved while the extraction process was underway. The court also took note of Gil's statement that once he got people who could perform the extraction procedure, it took them 200 hours. The court reviewed other cases dealing with late discovery and the complexity of matters presented to opposing counsel on the eve of trial, and found "a phenomenal burden" was being put on the defense. The court observed: "[Y]ou have put the defense in an untenable position by coming up with a very complicated report on issues that, you say, relate to the actual crime and the elements of the crime and elements of the insanity defense. So to propose that you think it could be handled and they could figure this out and be ready in three months is unreasonable."
Garvin argued the discovery problems throughout the course of the case were willful, and the new evidence should be excluded under section 1054.7 and due process. Garvin asserted defendant had been sitting in jail the entire time without the mental health treatment he needed, and that continuing the trial would perpetuate that situation. Garvin also pointed out he had been a solo practitioner for a little over a year, and had cleared his calendar and turned down work so he could continue on this case. He asserted he might be out of business by January, not to mention the time he had sacrificed with his young children. Garvin asked the court to continue the matter for 30 days so he could determine whether he was able to continue in the case. He argued defendant would not receive the same representation if Garvin left the case, however, since Garvin had been involved since 20 minutes after defendant was first taken to the police station to be interviewed.
Gil acknowledged Garvin's personal hardship, but argued it was "inappropriate" to raise such considerations with regard to the admissibility of evidence and evaluation of prejudice related thereto. He argued a continuance would not prejudice the trial itself, while exclusion of the evidence would prejudice the People's case. Gil further noted that Judge Oakley had never ruled there was any kind of misconduct by any prosecutor assigned to this case. He asserted the data extraction was performed under a search warrant that was only recently made public record, so bringing in a defense expert would not have been possible. Gil also questioned what Garvin had done with the evidence since Gil provided it.
Gil also pointed out Garvin was receiving payment for his services on an hourly basis.
At the conclusion of argument, the court determined a continuance of trial was the only appropriate resolution, although the court pronounced itself "extraordinarily reluctant" to do so.
On October 30, 2012, Garvin asked for a continuance of the resetting of the jury trial to a date in January, as he needed more time to locate an expert for forensic testing of the cell phone. At the hearing on January 28, 2013, he informed the court that an expert had been obtained, but Garvin did not know how long it would take the expert to examine the cell phone. A further hearing was set for March 2013.
On March 6, 2013, Garvin filed a motion to dismiss the charges and impose other sanctions for prosecutorial misconduct. Garvin represented that after an exhaustive search beginning in October 2012, he retained Kessler International (Kessler) as an expert consultant on January 10, 2013. Terry Ginder, an investigator in the district attorney's office, subsequently shipped four cell phones to Kessler's forensic laboratory. On the morning of January 30, 2013, Ginder sent an e-mail to Garvin's legal assistant, asking what the turnaround time would be on the cell phones, because Gil wanted an idea of how long it might be. Informed of this contact, Garvin telephoned Ginder later that morning and stated he did not want the prosecution contacting Kessler for any reason related to this case, and asked that Ginder immediately inform Gil. Nevertheless, early that afternoon, Gil telephoned Kessler to confirm Kessler's receipt of the cell phones. Gil also asked Susan Peterson, Kessler's vice president/COO, about the approximate turnaround time. Later that afternoon, Peterson received two unsolicited e-mails from Gil. The first included contact information for Gil's office. The second included the Department of Justice's reports on the cell phones, along with contact information of the Department of Justice criminalists who performed the data extraction. The e-mail also invited Kessler to contact Gil's office if Kessler would like any additional information such as examination notes. Garvin did not learn of the communications until later that day, when he contacted Peterson by phone to confirm receipt of a previously sent instructional e-mail.
Garvin argued, inter alia, that Gil's intentional direct communication with a defense expert violated defendant's attorney-client privilege and right to the effective assistance of counsel, and improperly interfered with the defense expert. Garvin asserted he would be forced to choose a less credible expert, assuming someone qualified could be found. Garvin argued dismissal was the appropriate remedy or, alternatively, that the court "fashion a remedy to purge the taint," including, but not limited to, recusal of the Madera County District Attorney's Office, recusal of Gil, suppression of the cell phone evidence, sanctions against Gil, sanctions against the Madera County District Attorney's Office in the form of various costs, and any other remedy the court deemed appropriate.
At the next hearing, March 18, 2013, the court and counsel agreed Gil needed the opportunity to respond to the motion. The court noted it had talked to the attorneys about a possible resolution and that defendant was ready to plead to an indeterminate term, but the offer was not accepted.
After a discussion of scheduling, the court permitted Pike's parents to speak. Pike's mother read the Victims' Bill of Rights, and both parents conveyed the toll the continual postponements of trial was taking on the family. The court then set May 2, 2013, for a hearing on the dismissal motion.
Prior to the hearing, then-Senior Deputy District Attorney Linda J. Dunn filed written opposition to the motion to dismiss on behalf of the district attorney's office. Dunn argued Gil's contact with Kessler did not constitute misconduct, but best could be described as " 'zealous.' " She asserted nothing barred one party from communicating with an adverse party's expert witness on the subject of scheduling or the receipt of evidence, such as occurred here. Dunn further asserted that Pike's next of kin had requested that a trial date be set, and that their right to a speedy trial under Marsy's Law should not be undermined by delay on the part of the defense. Appended to the response in support of this argument was a declaration that purported to have been signed by Mary Ariz, a Victims Services employee who presented letters from the Pike family and friends, expressing frustration at the numerous delays.
Dunn submitted a declaration from Gil. In it, Gil stated that when in court on January 28, 2013, he asked Garvin, off the record, about the status of the cell phone investigation and when Garvin would be ready to go to trial. According to Gil, Garvin sarcastically replied that he was going to take as long as it took Gil and the Department of Justice, and that he was going to take a year. After learning Garvin was going to intentionally delay the trial, Gil "made a concerted effort" to ensure the prosecution would not contribute to any delay in providing the cell phone evidence to Garvin's expert. Although Gil declared that he did not ask Kessler about defense strategy or communications between Garvin and Kessler or Garvin and defendant, Gil admitted asking Kessler representatives if they wanted additional information, such as the work performed by Edwin Vargas at the Fresno Department of Justice laboratory and his notes, and when the representatives said yes, Gil provided the reports.
Dunn also submitted a declaration from Ginder, who stated, inter alia, that at approximately 11:00 a.m. on January 30, 2013, Garvin said the prosecution was not to contact Kessler. Ginder advised Gil of Garvin's message that same day.
In his rebuttal, Garvin denied making any improper statement concerning a trial setting date, and argued it was irrelevant to whether Gil committed misconduct when he contacted Kessler who, Garvin emphasized, was not a defense expert witness, but rather a defense expert consultant. Garvin also argued Gil's having actually sent information to Kessler, that Kessler would not otherwise have received, did not constitute an innocuous contact, as asserted by the People.
At the May 2, 2013, hearing, Garvin informed the court that Dunn had just provided him a new declaration by Ariz, as the original declaration was signed by a clerical staff member of the district attorney's office, possibly under Gil's direction. Dunn related she had originally prepared Ariz's declaration with Ariz's assistance, to present certain letters. Apparently, other letters were received, and the declaration was thereafter amended to include those other letters. Ariz did not sign the amended declaration, however. Ariz had now prepared a corrected declaration with Dunn's assistance, which Dunn provided to the court. Dunn argued the circumstances of the declaration should not affect the defense's motion to dismiss.
The court observed that many of the letters submitted were "clearly inappropriate" as they were intended to engender sympathy or passion and came from people who were not family members. The court decided to handle the matter of the declaration at a separate time, and to proceed on the motion as filed.
Dunn argued Gil's contact of Kessler was "a simple and honest mistake," but was not misconduct and did not warrant sanctions suggested. Garvin responded that the People continued to overlook the sending of documents to Kessler. Garvin explained the defense intended to withhold certain information until Kessler's analysis was performed, so the analysis would not be tainted and the defense would have a true independent review. According to Garvin, Gil "spoiled that." Garvin asserted Gil intentionally interfered with the defense and committed misconduct. He also argued the entire district attorney's office had now been tainted as a result of the new information about the Ariz declaration. Garvin represented that he had only asked for two continuances in this case, once in August 2008, when his law office burned down due to arson, and again in September 2012. Aside from those, trial dates and been set and reset because of discovery issues, another of which was before the court at that time.
Garvin had filed a motion to compel discovery in which he sought the disclosure of all Brady material, based on evidence rumored to be in possession of the prosecutor's office that could lead to a new suspect in the homicide.
Dunn conceded that at the time Gil contacted Kessler, Gil knew Garvin did not want him to do so. She did not agree, however, that Gil knew Garvin did not want Kessler to have the reports, as Gil had no way of knowing the defense's strategy. She reiterated that although what Gil did was against Garvin's wishes, it did not amount to misconduct or interfere with defendant's Sixth Amendment right to counsel.
The court denied the request for the "extreme remedy" of a dismissal. It also declined to recuse the district attorney's office at this juncture, because the Attorney General had not been given notice of the request. After learning Michael Keitz, then the Madera County District Attorney, was present, the court stated:
" ... I think it's extremely important that he hear what's going on in this case if he's not aware of each one of the steps about what's happened in this case.
"And I'm saying this because one of the things this Court has tried to do since it was assigned is to get it go to go trial. And actions like this, the reason why this is egregious on behalf of Mr. Gil is because it could have thwarted this evidence, which is what is necessary for the defense to prepare their case to go to trial.
"And so with all of the talk about, 'Let's get this case to trial. We need a trial. We need trial,' it's the district attorney's office that is in the position of thwarting that by contacting an expert consultant against the express wishes of the defense attorney.
"Because what? Because Mr. Gil knows how to do it better than somebody else? Because he doesn't like Mr. Garvin because of something they said in the hallway? You know, in the heat of battle, people say things to each other, but a prosecutor has duties and responsibilities to handle cases properly.
"Your comments this morning, Ms. Dunn, about saying this was a mistake and that it was unfortunate, or however you've said it, those are the first expressions of any regret or apology in this case at all with respect to this motion. Everything that was produced so far was, 'This is what we did and it's not a problem.' Well, it is a problem.
"So—and I say that partly because the egregiousness of this, let me just so the record is clear, has to do with the fact that last year we were ready for trial in this case. Everybody was ready. We had—the Court had blocked out time to do the trial. Mr. Garvin had blocked out time to do the trial. The family wanted the trial to go. And that at the very last day, Mr. Gil came forward and said, 'We have some new evidence that it took us about a year to get. About eight months of investigation. Over 200 hours of forensic analysis. And here it is on the 30th day before trial. You figure it out.'
"And part of what happened in those declarations was that he had the benefit of the Department of Justice, the Fresno County lab, the resources of the Madera District Attorney's Office, everything that he could muster to get evidence that would be used against Mr. Gran in the guilt phase and the sanity phase of this very serious trial and brought that out on the very last day. And we have been having case conferences on a regular basis, and to my knowledge, that was never addressed. This what is going to be called new evidence, which is the discovery of deleted [cell phone] information, that set the trial back.
"And, you know, the bottom line is, Mr. Gran is entitled to a fair trial."
The court expressly found that Gil committed misconduct. After apologizing to the court and the defense, Keitz related that the matter of the Ariz declaration had been referred to the Attorney General's Office. Garvin told the court he had not severed his relationship with Kessler. If the court excluded the text messages, Garvin felt he could continue with Kessler reviewing the phones, which he believed he had a duty to do regardless of the court's ruling. If the court did not exclude the texts, however, Garvin believed he likely would have to find a new expert. Garvin also stated he would be filing a new motion regarding the Ariz declaration.
The court noted the seriousness of this case, and observed it had been "stunned" when it received the current motion, "[b]ecause this is not just one thing, it's one thing on top of another ...." It noted parts of the case had been handled by judges in Madera who had had to address discovery problems "for years," so it had gone back through almost the entire file to read the prior minute orders. It found it "astounding and unfortunate" how many times the case came to court and how many problems there were.
Garvin noted there was Brady discovery generated in November or December 2012, in which a witness told some people he was at the house, then told the police he was at school. It had now been discovered he could not have been in school because school was closed, so the witness's alibi fell apart. Garvin represented that the only reason he knew about this was because Geringer informed him about a conversation he had with Gil. Keitz and Dunn both pledged that Garvin would get whatever reports existed. Dunn pointed out that Gil had suffered a life-threatening illness in December that caused him to be out of the office for four months, but the court noted that the discovery problems had existed for years. The court then continued the matter for further consideration of sanctions and other motions.
Keitz subsequently notified the court and parties that, effective immediately, Assistant District Attorney Miguel Valdovinos and Dunn were assigned for all purposes to defendant's and Navarra's cases, with Valdovinos being the lead attorney.
Garvin file a new motion to dismiss charges and impose other sanctions for prosecutorial misconduct. Garvin based this motion on admissions of forgery concerning the Ariz declaration, together with the cumulative effect of the forgery and past instances of prosecutorial misconduct. Alternatively, the defense sought recusal or other sanctions. Garvin argued, in part, that the entire district attorney's office was tainted by the forgery, since Gil directed a clerk in the office to forge Ariz's signature, and it was Dunn's signed motion that contained the forged declaration. Garvin also argued the office had engaged in a pattern of withholding Brady material. The Attorney General's Office opposed recusal.
Appended to Garvin's motion was a declaration from Mary Ariz. In it, Ariz explained she was a Victim Services Advocate. In early April 2013, Dunn asked her to execute a declaration setting forth her role in that regard with respect to the Pike family, and detailing letters received from family members concerning the numerous trial delays. A declaration was prepared by the district attorney's office, which Ariz executed on or about April 12, 2013, and which was true to the best of her knowledge. On April 15, 2013, Ariz received a telephone call from Gil, who wanted to revise her declaration to include additional information and the receipt of additional letters. Ariz was willing to execute a new declaration so long as its representations were true and accurate. She did not hear back from Gil until April 17, 2013, when he telephoned her about another matter and also told her that he had prepared a revised declaration and signed her name. He stated, " 'I forged your signature.' " When Ariz went to Gil's office about the unrelated matter, Gil again stated he had " 'forged' " Ariz's signature. He told her, " 'Hey, I thought I did a pretty good job.' " The new declaration contained material differences from the original declaration and was not accurate, as Ariz did not, at the time, have in her possession the 17 letters referenced in the declaration. Ariz did not authorize Gil to sign her name or submit the declaration on her behalf. She did not learn it was actually filed with the court until May 2, 2013, when Dunn showed her a file-stamped copy.
We address recusal in detail in part II of the Discussion, post.
A hearing was held on July 31, 2013. During argument, the trial court noted that some 10 members of the district attorney's office had made at least one appearance with respect to either defendant or Navarra, and the issue was not just what Gil did during the preceding year, but how the district attorney's office handled the case from its inception. The court stated it considered this "to be [] very serious."
Valdovinos did not contest the allegations concerning Gil's conduct or the discovery issues. He represented, however, that most of the members of the district attorney's office mentioned by the court as having appeared in the case were no longer with the office. The exceptions were Dunn and Bradshaw, neither of whom were working on the case any longer. Valdovinos represented that he took discovery requirements very seriously. As a result, he talked to the people in the district attorney's office who had generated reports to make sure he and the defense had everything. He also contacted the Madera Police Department. Because the reports he received looked different in terms of appearance and page numbers—though not necessarily in terms of substance—he was going to provide them all to the defense once again.
After further argument, the trial court denied the recusal motion based upon the state of the case as it then existed, with the understanding the court was open to reconsidering the motion if it was brought again by either defense attorney. The court then set a further hearing on whether to impose a discovery sanction with respect to the text messages.
At a hearing on August 22, 2013, the court found the submission of the forged Ariz declaration constituted prosecutorial misconduct. After argument with respect to sanctions, the court found it could not simply look at the declaration or what took place in 2013, but had to consider the history of the case and the fact there had been problems for a long time. It again concluded, however, that dismissal of the charges was not warranted. With respect to possible exclusion of evidence, the court was unable to determine, from the extraction reports, whether the recovered text messages were reliable. It noted that the text messages did not appear to be full and complete sentences, except for the message that appeared to be the most incriminating. As a result, the court decided to hold an Evidence Code section 402 hearing with the People's experts, with the court reserving the possibility of a sanction of excluding the evidence. The court imposed a monetary sanction in that it ordered the district attorney's office to repay the indigent defense fund for the money used to fight the issues of misconduct.
Pursuant to the statement subsequently submitted by Garvin, the court imposed sanctions in the amount of $23,048.
Defendant subsequently moved, pursuant to section 1538.5, to suppress all evidence retrieved from his cell phone. He claimed the phone was unlawfully seized without a warrant, in violation of the Fourth Amendment, and, even if properly seized, any search of its contents required a separate probable cause determination and separate search warrant. The People opposed the motion. Defendant also opposed admission of the extracted cell phone data on Kelly grounds, pursuant to Evidence Code section 352, and as a sanction for the previously found prosecutorial misconduct. An evidentiary hearing on the motions began on December 3, 2013, and eventually was continued to February 4, 2014, with trial set to remain that date and to trail day-to-day until conclusion of the suppression motion and Evidence Code section 402 hearings.
Meanwhile, the People filed points and authorities supporting the admissibility of defendant's interview with Detective Valdez, which took place on the evening of Pike's murder and before defendant was arrested. The People argued that since defendant had come to the police station voluntarily, and had not been arrested or charged, the interview violated neither his Fifth Amendment rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) nor his Sixth Amendment right to counsel. The defense sought suppression of the interview in its entirety. Garvin represented that he arrived at the police department shortly after the interview began, solely for the purpose of representing defendant. He was allowed to speak with defendant approximately 30 minutes later. Despite the fact Garvin told Valdez to turn off any recording devices, the police recorded the communication between Garvin and defendant. Valdez continued his interview with defendant—with the recording equipment still running after this communication. Defendant argued that once the police department or Valdez knew Garvin was present to represent defendant, all recordings from that point forward were illegally obtained, the act of recording was criminal under section 636, and any evidence obtained was inadmissible. Defendant argued he was denied his Sixth Amendment right to the effective assistance of counsel regardless of whether the recording of the attorney-client communication was intentional, and that the police department's actions were "another example of felonious acts perpetrated by the State ...." As a result, he again requested dismissal of all charges based on the cumulative prejudicial effect of the prosecution team's illegal conduct. Alternatively, he requested that the court suppress the recording in its entirety and prohibit the admission of any testimony or written evidence that mentioned the interview.
At the hearing on admissibility of defendant's statement, Valdez testified his interview with defendant began at approximately 6:30 p.m. and lasted until 8:00 p.m. The interview with videotaped, with Valdez turning on the recording after he placed defendant in the interview room. At approximately one hour and three minutes, Valdez received a telephone call from the police department dispatch center and was told Garvin was in the lobby. Shortly after, Valdez walked out and contacted Garvin, then brought him to the interview room. Valdez closed the door to the room and walked away, to allow Garvin and defendant to converse in private. Valdez did not think about the recording and never watched it. He did not recall having any discussion with Garvin about the interview being recorded. Had Garvin asked him to turn off the recording, Valdez probably would have turned it off. After defendant and Garvin had conversed in private for 10 to 15 minutes, Valdez returned to the interview room and asked Garvin if he could talk to defendant. Garvin said yes, so Valdez continued to question defendant with Garvin present. The interview continued for another 20 to 25 minutes, then everyone—including defendant—left.
The parties agreed the court could watch the video recording of the entire interview, including the portion in which Garvin spoke with defendant. Valdovinos represented he had never reviewed the recording of the attorney-client conversation, nor had he reviewed the transcript of their conversation.
The trial court issued written rulings concerning admission both of defendant's interview and the extracted cell phone data. With respect to the interview, the court found Garvin told Valdez to turn off any recording devices, but those devices were not turned off. The court ruled the first part of the interview was admissible, since it was not a custodial interrogation subject to Miranda, the time Garvin waited for access to defendant was not unduly prolonged or prejudicial under the circumstances, and there was no improper motive or illegal purpose for the delay. The court excluded the second part of the interview, i.e., the confidential conversation between defendant and Garvin. The court found recording such confidential communications to be "strictly prohibited," and the continued recording, without consent and despite Garvin's request to stop, to be unlawful. As for the third part of the interview—the questioning during which Garvin was present—the court observed that Garvin believed all recording had ceased because of his instruction to Valdez, and Valdez never informed defendant or Garvin that they were being recorded. The court found the recording to be a significant problem, because it showed defendant's demeanor and tone of voice, and so could be a highly persuasive piece of evidence. Because defense counsel believed the recording had stopped, the court found it appropriate to exclude the recorded interview and transcript thereof; however, Valdez was not prohibited from testifying about the content of this portion of the interview.
With respect to the deleted text messages and other data that was extracted, the court found the People had not met their burden of establishing the admissibility of the extraction process under Kelly. The court further found that even if the scientific technique was acceptable, the evidence should be excluded as more prejudicial than probative under Evidence Code section 352, because the data was evaluated to find only incriminating information. No attempt was made to find information that could be exonerating.
Text messages not recovered by means of the extraction process were admitted, as described in the statement of facts, ante. The trial court also admitted the cell phone images, as it denied the motion to suppress the seizure of defendant's cell phone.
Although the court's ruling had the effect of precluding the admission of some of the cell phone evidence, the court declined to impose any evidentiary sanctions for prosecutorial misconduct, given Valdovinos's diligence in correcting any defects.
During trial, the court had occasion to review Gil's misconduct for the record. The court found that while it caused a lengthy delay in the trial, it did not interfere with any of the evidence actually presented to the jury. The court also denied the defense request for CALCRIM No. 306, regarding untimely disclosure of evidence by the district attorney's office. The court did not view anything that happened as constituting untimely disclosure with respect to the actual trial. B. Analysis
Defendant says the illegal recording of privileged attorney-client communications, misrepresentations and delays concerning Brady material and other discovery, and interference with the defense cell phone expert and forgery of the declaration, constituted outrageous misconduct that impacted his rights to counsel and a fair trial. He says he is entitled to dismissal because the misconduct caused demonstrable prejudice or a substantial threat thereof.
We have set out the relevant proceedings in detail in order to convey a complete picture of what went on in this case. Clearly, things were done by members of the prosecution team that should not have been done, and which constituted misconduct on the part of the government.
First, there was Valdez's recording of defendant's conference with Garvin before defendant was even arrested. "The attorney-client privilege, which authorizes a client to refuse to disclose, and prevents others from disclosing, confidential communications between lawyer and client, is considered a hallmark of our jurisprudence. [Citations.] The privilege is fundamental to our legal system and furthers the public policy of ensuring every person's right to freely and fully confer with and confide in his or her lawyer in order to receive adequate advice and a proper defense. [Citation.] Safeguarding a client's confidences is one of a lawyer's most basic obligations. [Citations.]" (People v. Navarro (2006) 138 Cal.App.4th 146, 156-157 (Navarro).) In keeping with the importance placed on this privilege, anyone who, without permission from all parties to the conversation, eavesdrops on or records any or all of a conversation between a person on the property of a law enforcement agency and that person's attorney, commits a felony. (§ 636, subd. (a).)
Valdez improperly allowed recording to continue while Garvin met with defendant at the police station, despite Garvin's direction to turn off any recording devices. Our state Supreme Court has recognized that "[s]ufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law. [Citation.]" (People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1.) In addition, the Sixth Amendment right to counsel is implicated. (Navarro, supra, 138 Cal.App.4th at p. 157; see People v. Ervine (2009) 47 Cal.4th 745, 763-765.)
Second, the prosecution team failed woefully to fulfill its discovery obligations in a timely manner (see § 1054.7), necessitating lengthy continuances of trial that almost cost defendant the attorney of his choice. Not only did the delayed disclosures involve inculpatory material, such as the recovered text messages, but they also involved potentially exculpatory material, such as information concerning Browning and his alibi.
As this court has stated, "When a defendant is convicted, we conclude that the jury has resolved what the truth is for purposes of imposing the consequences the law demands. In that sense, a trial is a search for the truth[.] [Citation.] However, what is fundamental to this search is that it 'is not served but hindered by the concealment of relevant and material evidence.' [Citation.] If we expect jurors to do their job, they must be presented with all the evidence that is relevant and legally admissible for them to consider. It is then their duty to sift through that body of evidence to resolve what they can accept and believe. The withholding of admissible evidence from them can result in their drawing wrong conclusions and can undermine the certainty of their belief in other evidence that never had to be reconciled with the undisclosed information. [¶] For the public to have confidence in the result, they must have confidence in the process. As the United States Supreme Court has observed, 'Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.' [Citation.]" (In re Sodersten (2007) 146 Cal.App.4th 1163, 1170-1171.)
" 'The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant' when the evidence is 'both favorable to the defendant and material on either guilt or punishment.' [Citations.] Evidence is 'favorable' if it hurts the prosecution or helps the defense. [Citation.] 'Evidence is "material" "only if there is a reasonable probability that, had [it] been disclosed to the defense, the result ... would have been different." ' [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 866.) "In deciding whether evidence not disclosed to the defense was material under these standards, we consider how the nondisclosure affected the defense investigation and trial strategy. [Citations.]" (In re Bacigalupo (2012) 55 Cal.4th 312, 334.) The Brady rule can be violated not only by nondisclosure, but also by delayed disclosure. (U.S. v. Burke (10th Cir. 2009) 571 F.3d 1048, 1054.)
"Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all [citation]. The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf ....' [Citation.] Courts have thus consistently 'decline[d] "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel." ' [Citation.]" (In re Brown (1998) 17 Cal.4th 873, 879, fn. omitted.) As a result, "any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. 'The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.' [Citations.]" (Ibid.)
Third, Gil clearly committed misconduct by contacting Kessler after being expressly told not to do so, misleading defense counsel with respect to discovery, and then directing the forgery of a declaration aimed, it appears, at diverting attention away from Gil's considerable contributions to the lengthy delays in getting this case to trial, which understandably took their toll on the victim's family as well as the defense. (See § 134; Bus. & Prof. Code, §§ 6068, subd. (d), 6128, subd. (a); Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1078-1079; People v. Pitts (1990) 223 Cal.App.3d 606, 794 (Pitts).)
"Prosecutors have a special obligation to promote justice and the ascertainment of truth." (People v. Kasim (1997) 56 Cal.App.4th 1360, 1378 (Kasim).) As we explained in Pitts, supra, 223 Cal.App.3d at page 691: " ' "Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.]" ' [Citation.] A prosecutor has a duty to prosecute vigorously. 'But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' [Citation.] Misconduct need not be intentional in order to constitute reversible error. [Citation.] [¶] ... ' "[Prosecuting officers] seem to forget that it is their sworn duty to see that the defendant has a fair and impartial trial .... Equally with the court, the district attorney, as the representative of law and justice, should be fair and impartial. He should remember that it is not his sole duty to convict, and that to use his official position to obtain a verdict by illegitimate and unfair means is to bring his office and courts into distrust. We make due allowance for the zeal which is the natural result of such a legal battle as this, and for the desire of every lawyer to win his case, but these should be overcome by the conscientious desire of a sworn officer of the court to do his duty, and not go beyond it." ' "
The government's misconduct in this case implicated defendant's due process right to a fair trial and his right to counsel. Due process mandates that "convictions cannot be brought about by methods that offend 'a sense of justice.' [Citation.]" (Rochin v. California (1952) 342 U.S. 165, 173 (Rochin).) It "demands whatever is necessary for fundamental fairness." (People v. Marshall (1990) 50 Cal.3d 907, 925.) The right to counsel—and the requirement that the state must honor it once it has attached and been asserted—"means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. [This means,] at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." (Maine v. Moulton (1985) 474 U.S. 159, 170-171.)
Due process and the right to counsel are interrelated. As the United States Supreme Court explained in Strickland v. Washington (1984) 466 U.S. 668, 684-685:
"[T]he Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:
" 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.'
"Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to which they are entitled. [Citations.]"
There can be no doubt a court can order dismissal as a remedy for sufficiently egregious governmental misconduct. Defendant has drawn our attention to, and our research has disclosed, a number of cases addressing the propriety of such an order. We summarize the most pertinent of them chronologically.
The Attorney General says it is "unclear" under what authority defendant claims the trial court or this court could order the charges dismissed. He identifies three possibilities, but says none encompasses the circumstances of this case. We see no need to compartmentalize the court's power in this manner.
In Rochin, supra, 342 U.S. 165, Rochin swallowed some capsules containing illegal drugs in an attempt to prevent their seizure by law enforcement officers. He was taken to a hospital, where his stomach was pumped against his will, causing him to vomit up the capsules. (Id. at p. 166.) The United States Supreme Court found the manner in which the drugs were obtained "shock[ed] the conscience," and so Rochin's conviction violated due process and could not stand. (Id. at pp. 172-173.)
In United States v. Russell (1973) 411 U.S. 423, the United States Supreme Court acknowledged it might "some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction ...." (Id. at pp. 431-432.) The court found the case before it, which involved an undercover officer supplying an essential ingredient to a drug manufacturing ring, "distinctly not of that breed." (Id. at p. 432.)
In Weatherford v. Bursey (1977) 429 U.S. 545, an undercover agent participated with Bursey and others in vandalizing the offices of the local draft board, and subsequently attended two pretrial meetings with Bursey and Bursey's attorney. The agent did not seek information from them, nor did he discuss with or pass on to his superiors or anyone in the prosecutor's office any information concerning Bursey's pending criminal action or trial strategy. (Id. at pp. 547-549.) In finding no deprivation of Bursey's right to the effective assistance of counsel, the United States Supreme Court noted that "when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." (Id. at p. 552.) The court observed: "As long as the information possessed by [the agent] remained uncommunicated, he posed no substantial threat to Bursey's Sixth Amendment rights. Nor do we believe that federal or state prosecutors will be so prone to lie or the difficulties of proof will be so great that we must always assume not only that an informant communicates what he learns from an encounter with the defendant and his counsel but also that what he communicates has the potential for detriment to the defendant or benefit to the prosecutor's case. [¶] Moreover, this is not a situation where the State's purpose was to learn what it could about the defendant's defense plans and the informant was instructed to intrude on the lawyer-client relationship or where the informant has assumed for himself that task and acted accordingly." (Id. at pp. 556-557.)
In Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), a number of people were arrested and charged after participating in a protest. Before trial, they learned one of their codefendants was an undercover law enforcement officer. (Id. at p. 745.) This officer was present at an attorney-client conference at which defense strategy was discussed. (Id. at p. 747.) After his identity was revealed, Barber and his cohorts (the petitioners) became very reluctant to speak out at defense meetings, as well as distrustful of one another and a member of defense counsel's staff. This substantially impaired their ability to assist counsel in preparing their defense. (Id. at p. 750.)
The California Supreme Court found that state constitutional "right to counsel, which embodies the right to private consultation with counsel, is violated when a state agent is present at confidential attorney-client conferences. [Citations.]" (Barber, supra, 24 Cal.3d at p. 752.) The court found that an exclusionary remedy was inadequate to protect the petitioners' rights, and would not deter the state from such unlawful intrusions in the future. (Id. at p. 756.) The court observed that regardless of whether the prosecution directly gained any confidential information that might be subject to suppression, the prosecution had been aided by the agent's conduct, since it had negatively affected the petitioners' confidence in their ability to discuss the case with their attorney, and so they had been prejudiced in their ability to prepare their defense. The court also observed that enforcement of an exclusionary rule would involve problems of proof for an aggrieved client, and even the blatant use of illegally obtained information would be difficult to prove. (Id. at pp. 756-757.) Additionally, enforcement of an exclusionary remedy would require a client to disclose his or her confidences in order for a trial court intelligently to pass upon the question whether certain evidence was tainted by the illegally obtained information, and such disclosure would be made not only to the trial court, but also to the prosecutor. (Id. at p. 758.) Finally, an exclusionary remedy would not provide any incentive for state agents to refrain from such violations, since the prosecution would proceed with untainted evidence, as if the unlawful conduct had not occurred. (Id. at p. 759.) Accordingly, the court concluded, dismissal of the underlying charges was the only effective remedy for law enforcement's intrusion into the petitioners' confidential attorney-client conferences. (Id. at pp. 759-760.)
In United States v. Morrison (1981) 449 U.S. 361 (Morrison), the defendant was approached by law enforcement agents who, although they were aware she had been indicted and had retained counsel, conversed with her without her attorney's knowledge or permission and sought to obtain her cooperation in an investigation related to the matter in which she was charged. In the course of the conversation, the agents disparaged defense counsel, and indicated the defendant would gain various benefits if she cooperated but would face a stiff jail term if she did not. The defendant declined to cooperate, immediately notified her attorney, and continued to rely on that attorney's services. (Id. at pp. 362-363.)
The United States Supreme Court assumed, without deciding, that the defendant's Sixth Amendment right to counsel was violated. (Morrison, supra, 449 U.S. at p. 364.) It stated: "Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.... [¶] Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial. [¶] More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." (Id. at pp. 364-365, fn. omitted.)
In Boulas v. Superior Court (1986) 188 Cal.App.3d 422 (Boulas), Boulas was charged with selling cocaine, and he retained counsel. He subsequently hired an acquaintance to serve as his private investigator, and to contact the authorities to determine if they would be willing to enter into a plea bargain in exchange for the petitioner's cooperation. Defense counsel was not told of this plan. Ultimately, at the behest of the deputy district attorney assigned to the case, a law enforcement agent told Boulas a deal could be made only if Boulas fired his current attorney. Boulas discharged counsel and provided information to the authorities, only to be told the district attorney's office was no longer interested in entering into a plea bargain. Boulas rehired his original attorney, then substituted new counsel, who moved for a dismissal on the ground the government's conduct interfered with Boulas's rights to counsel and a fair trial. (Id. at pp. 425-429.) The trial court refused to dismiss the charges, finding Boulas was not prejudiced and could be protected by orders denying the prosecution the fruits of any inculpatory information gleaned as a result of its intrusion into Boulas's relationship with his original attorney. (Id. at p. 429.)
On the "highly unusual facts of this case," the Court of Appeal concluded dismissal of the charges was the "sole appropriate sanction." (Boulas, supra, 188 Cal.App.3d at p. 425.) The court explained:
"When conduct on the part of the authorities is so outrageous as to interfere with an accused's right of due process of law, proceedings against the accused are thereby rendered improper. [Citations.] Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases. [Citations.]
"The prosecution contends that, absent any proof of Boulas's having been harmed, dismissal of the charges filed against him is an inappropriate sanction for the violation of a criminal defendant's Sixth Amendment rights. [Citations.] They assert that mere governmental intrusion into the attorney-client relationship does not, in every case, in and of itself, necessarily violate an accused's right to counsel and require dismissal. [Citations.] The prosecution argues that Boulas cannot prove prejudice, because he presently has retained a competent attorney to handle his
defense and because no information relating to present charges was obtained by the authorities.
"The prosecution's argument fundamentally misunderstands the scope and breadth of the state's invasion of Boulas's right to be represented by counsel of choice. Criminal defense lawyers are not fungible.... In order to provide effective assistance of counsel, it is essential that a defendant have full confidence that his attorney is representing the defendant's interests with all due competence. [Citation.]" (Boulas, supra, 188 Cal.App.3d at pp. 429-430.)
The appellate court acknowledged it may not be easy to compute the effect of tampering with the attorney-client relationship, but stated: " 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' [Citations.]" (Boulas, supra, 188 Cal.App.3d at p. 431.) The court observed this was not a case in which government agents appeared merely to have blundered; rather, it involved an "intentional undermining of an individual's right to counsel of his own choosing [that could not be] countenanced under any rational standard of justice. [Citations.]" (Id. at p. 434.) The court concluded that the evidence presented to the trial court established, as a matter of law, that Boulas was seriously prejudiced as a result of the improper governmental intrusion into his federal and state constitutional rights to counsel, and so the trial court abused its discretion by denying his motion to dismiss. (Id. at p. 435.)
In Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow), the prosecutor directed her investigator to eavesdrop on a conversation between Morrow and defense counsel in the courtroom holding area. (Id. at p. 1255.) Morrow subsequently moved for dismissal based on prosecutorial misconduct. At the hearing on the motion, the prosecutor and investigator asserted their privilege against self-incrimination and refused to answer any questions. (Id. at pp. 1256-1257.) The trial court found eavesdropping had occurred and confidential matters were discussed, but found no evidence the investigator overheard any essential or strategic information. Accordingly, it ruled dismissal was inappropriate because Morrow was not prejudiced. (Id. at p. 1258.)
The appellate court determined that where the state has engaged in misconduct, the People have the burden of proving, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct and there was no substantial threat of demonstrable prejudice. (Morrow, supra, 30 Cal.App.4th at p. 1258; see People v. Zapien (1993) 4 Cal.4th 929, 967 (Zapien).) Given the lack of evidence, the appellate court concluded, the trial court could not have made a reliable finding as to what the investigator overheard. (Morrow, at p. 1258.)
The Court of Appeal found the prosecutor's and investigator's actions violated a number of federal and state constitutional provisions, including the rights to due process and counsel. (Morrow, supra, 30 Cal.App.4th at p. 1259.) It observed that a court's power to dismiss for outrageous conduct arises from the due process clause of the United States Constitution. (Morrow, at p. 1259.) It stated: "Where, as here, the prosecutor orchestrates an eavesdropping upon a privileged attorney-client communication in the courtroom and acquires confidential information, the court's conscience is shocked and dismissal is the appropriate remedy. Even when the issue is narrowed to a Sixth Amendment violation, dismissal is still appropriate because here there is a 'substantial threat of demonstrable prejudice' as a matter of law. [Citation.]" (Id. at p. 1261, fn. omitted.) The court observed that "[c]ases of outrageous conduct and the appropriate sanctions ... are sui generis" and each must be decided on its own facts. (Id. at p. 1263, fn. 4.) The court stated that in ordering dismissal, it considered the nature of the crime charged (residential burglary), the fact Morrow had been incarcerated for approximately one year awaiting trial, the harassment he endured at the hands of the prosecutor and her investigator, and the burdens he might confront if the case were permitted to proceed to trial and conviction resulted. (Id. at p. 1263.) The court observed: "Here the trial court found that confidential matters were discussed and overheard. In this situation, the harm is apparent and the substantial threat of demonstrable prejudice is inherent. There must be an '... incentive for state agents to refrain from such violations.' [Citation.] The instant violation is not a 'no harm no foul' situation." (Ibid.)
In People v. Alexander (2010) 49 Cal.4th 846 (Alexander), law enforcement agents intercepted a telephone call involving Alexander, his mother, and a defense investigator, during a wiretap operation that was authorized by warrant. Potential defense witnesses and strategy were discussed during the call. Although the detective who supervised the wiretap operation heard parts of the intercepted conversation while seeking legal advice concerning whether calls involving a defense investigator should be monitored, he and the district attorney's investigator who recorded the call both testified they never communicated the call's contents to anyone on the prosecution team. (Id. at pp. 884-885.) At the conclusion of a posttrial hearing, the trial court found Alexander had made a prima facie showing the call was a privileged communication, but refused to dismiss the case since the evidence showed interception of the call did not prejudice Alexander or benefit the prosecution. The court credited the prosecution team's statements that the prosecution made no use of any of the information disclosed in the call. (Id. at pp. 886-887.)
The state Supreme Court found no violation of Alexander's statutory rights under the attorney-client privilege. (Alexander, supra, 49 Cal.4th at p. 887.) With respect to his Sixth Amendment right to counsel, the court noted that "[n]o federal constitutional provision ... establishes an attorney-client communication privilege. Rather, the Sixth Amendment guarantees a criminal defendant the right to 'assistance of counsel for his defense.' [Citation.] Confidential communication between a defendant and his lawyer is itself not a separate 'right' that the federal Constitution guarantees, but rather an aspect of ensuring fulfillment of the right to assistance of counsel." (Alexander, at pp. 887-888.)
Relying on Weatherford v. Bursey, supra, 429 U.S. 545, the California Supreme Court determined that "a court properly rejects a Sixth Amendment claim based on surreptitious state participation in communications between a defendant and his or her attorney or the attorney's agent when the record demonstrates there was no realistic possibility of injury to the defendant or benefit to the prosecution." (Alexander, supra, 49 Cal.4th at pp. 888-889, fn. omitted.) The court found the trial court's implicit ruling, there was no realistic possibility of injury to Alexander or benefit to the state and so no violation of the Sixth Amendment right to counsel, to be correct. (Alexander, at p. 889.) It noted that at no point did Alexander identify any specific evidence offered by the prosecution that he suspected was developed as a result of the intercepted telephone call. (Ibid.) The court also observed that Alexander, who testified at the hearing on the motion to dismiss, did not claim his ability to communicate with his attorneys or investigators was negatively affected after he learned of the wiretap operation. (Id. at p. 890.)
The state high court also rejected any claim the allegedly "egregious" actions by the authorities violated Alexander's right to substantive due process under Rochin, supra, 342 U.S. 165. (Alexander, supra, 49 Cal.4th at p. 892.) The court explained: "Arbitrary official action can violate a defendant's substantive due process rights, but 'only the most egregious official conduct can be said to be "arbitrary in the constitutional sense[.]" ' [Citation.] The high court described the required level of egregiousness as 'that which shocks the conscience,' but it has recognized that courts cannot apply a 'calibrated yard stick' in assessing whether challenged official action shocks the conscience. [Citation.] We easily conclude the challenged actions here were not so egregious as to shock the conscience such that the conduct was arbitrary in the constitutional sense.... [¶] The record demonstrates that the interception of the call at issue, if improper at all in a constitutional sense, was the result of negligence in interpreting the privilege statute in the heat of the moment. As the high court has stated, however, 'liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.' [Citation.]" (Id. at pp. 892-893, fn. omitted.)
Finally, the Supreme Court rejected any suggestion Alexander's right to counsel under the state Constitution, as interpreted in Barber, supra, 24 Cal.3d 742, was violated. (Alexander, supra, 49 Cal.4th at p. 893.) The court found the circumstances of Barber "quite different" from those of the case before it, noting particularly that the officer in Barber participated in many meetings during which defense strategy was thoroughly discussed, at least somewhat conveyed the nature of the anticipated defense to his superiors, and inserted himself directly into the defense preparations; and in addition to which there was evidence the defendants were prejudiced in their ability to prepare their defense once they learned an undercover officer had been in their midst. (Alexander, at p. 895.) The court further observed that Barber involved an application for a pretrial writ of prohibition, and so had no occasion to consider whether a violation of the state right to counsel could be considered a miscarriage of justice without a showing of prejudice to the outcome of the trial, as was generally required by article VI, section 13 of the California Constitution with respect to an issue raised on an appeal from a judgment of conviction and sentence. (Alexander, at p. 896.) The court found the facts before it did not involve such an error—in essence, a fundamental structural defect in the judicial proceedings—and that Alexander failed to demonstrate a reasonable probability that, absent the violation of his state constitutional right to counsel, the trial's outcome would have been more favorable to him. (Id. at pp. 896, 899.) Accordingly, he was not entitled to reversal of the judgment. (Id. at p. 899.)
In People v. Uribe (2011) 199 Cal.App.4th 836 (Uribe), the Court of Appeal reversed Uribe's conviction of sex crimes, based on the failure of the Sexual Assault Response Team (SART) to disclose to the defense a videotape of a medical examination of the alleged victim. Although there was no suggestion the prosecutor knew of the recording, the court concluded the SART unit was part of the prosecution team; hence, its nondisclosure constituted a Brady violation. On remand, Uribe moved for dismissal on the ground, inter alia, of outrageous prosecutorial misconduct in violation of his due process rights. He argued members of the SART unit and the prosecutor had been aware of the videotape at the time of the first trial, and had suppressed it in order to thwart the defense effort to obtain an acquittal. The trial court granted the motion, concluding the deputy district attorney who had prosecuted the first trial testified untruthfully at the hearings on the motion. (Uribe, at pp. 840-841.)
Finding the determination of whether the government engaged in outrageous conduct in violation of a defendant's due process rights to involve a mixed question of law and fact subject to independent review (Uribe, supra, 199 Cal.App.4th at pp. 858-859), the Court of Appeal found the sanction of dismissal "unwarranted under established law." (Id. at p. 859.) It explained: "A court may dismiss an information in an extreme case to address outrageous governmental conduct. A prosecutor's false testimony in any court proceeding is a grave affront to the judicial system. It is undoubtedly an act that is 'outrageous' in a general, nonconstitutional sense. When such prosecutorial misconduct impairs a defendant's constitutional right to a fair trial, it may constitute outrageous governmental conduct warranting dismissal. But here the false testimony occurred in a peripheral hearing and was not shown to have prejudiced defendant's right to a fair trial. The misconduct thus did not constitute outrageous governmental conduct in violation of due process. Accordingly, while we acknowledge the trial court's understandable and profound concern about the former prosecutor's misconduct, including his false testimony, the court chose the wrong remedy." (Id. at p. 841.)
The appellate court observed the "fundamental principle that reversal for prosecutorial misconduct is not required unless the defendant can show that he has suffered prejudice. [Citations.]" (Uribe, supra, 199 Cal.App.4th at p. 873.) "Likewise, since due process considerations require examination of the fairness of the trial rather than the blameworthiness of the prosecutor [citations], the court may not properly ignore the impact of the prosecutorial misconduct upon defendant's fair trial rights by imposing the severe sanction of dismissal based solely on the egregiousness of the conduct. This would 'punish[] ... society for [the] misdeeds of a prosecutor' rather than 'avoid[] ... an unfair trial to the accused.' [Citation.]" (Ibid.) The court noted that the governmental misconduct consisted of the actions of a single deputy district attorney, who was no longer trial counsel, in soliciting untruthful declarations from opposing counsel and the trial judge, apparently to benefit the deputy district attorney's State Bar investigation; making misleading statements to the trial judge and opposing counsel concerning discovery of the SART exam, also apparently in furtherance of his personal objectives concerning the State Bar investigation; and providing false testimony at the hearing on Uribe's motion. (Ibid.) The court found "no showing" the misconduct prevented Uribe from receiving a fair retrial or otherwise prejudiced his rights. (Id. at pp. 873-874.) The court found that, under the circumstances, "[t]he trial court's dismissal of the information ... considered only the prosecutorial misconduct without regard to its impact on defendant. The court failed to tailor the remedy to the harm caused by the misconduct, and gave no consideration to societal interests in having those who have committed serious crimes being brought to justice. [Citation.]" (Id. at pp. 874-875.)
Most recently, in People v. Velasco-Palacios (2015) 235 Cal.App.4th 439 (Velasco-Palacios), this court confronted a situation in which, during the plea bargaining process, the prosecutor inserted a false confession into the transcript of Velasco-Palacios's police interrogation and provided it to defense counsel at a time he knew counsel was attempting to persuade Velasco-Palacios to settle the case. The prosecutor did not reveal the alteration until nine days later, when he was directly confronted about the fabrication by defense counsel. The trial court granted the defense motion to dismiss on the basis of outrageous government misconduct. (Id. at pp. 442, 447.)
On the People's appeal, we applied the abuse of discretion standard and affirmed the order of dismissal. (Velasco-Palacios, supra, 235 Cal.App.4th at pp. 442, 445-446.) We concluded the prosecutor's action constituted egregious misconduct that directly interfered with Velasco-Palacios's attorney-client relationship. (Id. at p. 447.) We observed that in response to the misconduct, defense counsel filed a motion to dismiss, and he and Velasco-Palacios waived the attorney-client privilege so they could testify at the resulting evidentiary hearing. Because the People's response to the motion contained an unsubstantiated claim that defense counsel had privately admitted Velasco-Palacios had no viable defense, the public defender's office removed counsel from the case. Thus, we determined, the prosecutorial misconduct led directly to Velasco-Palacios losing a particular attorney as his trial counsel. In addition, the misconduct caused defense counsel to use the fraudulent evidence in attempting to convince Velasco-Palacios to settle the case, making it extremely difficult for Velasco-Palacios to trust his attorney. (Id. at p. 448.)
Defendant asks us to reconsider our position that abuse of discretion is the appropriate standard. We decline to do so. Our analysis and conclusion in defendant's case is the same whether we review the trial court's denial of dismissal for abuse of discretion, or review that court's factual findings for substantial evidence and independently review its ruling on dismissal.
We concluded that "[b]ecause [the deputy district attorney] clearly engaged in egregious misconduct that prejudiced defendant's constitutional right to counsel, the trial court was correct in finding [the prosecutor's] actions were outrageous and conscience shocking in a constitutional sense." (Velasco-Palacios, supra, 235 Cal.App.4th at p. 447.) That the misconduct did not prejudice Velasco-Palacios's right to a fair trial was immaterial; "prejudice occurring during the plea negotiating process can be, and has been, sufficient to support a sanction of dismissal. [Citations.]" (Id. at p. 450.) Because there was actual, demonstrated prejudice, dismissal was an appropriate sanction, and also served "as a potent deterrent to government misconduct." (Id. at p. 451.)
We have examined the record before us and the relevant authorities with great care. In applying the pertinent principles, "we must not lose sight of the nature of the matter before us, namely the appeal of a specific criminal prosecution." (Kasim, supra, 56 Cal.App.4th at p. 1378, fn. omitted.) The overriding question is, did defendant receive a fair trial? The answer clearly is yes, thanks in large part to Valdovinos's efforts to rectify matters, and the rulings made by the trial judge. Those efforts and rulings obviated the threats to defendant's rights to counsel and due process that were occasioned by the government's conduct.
In so concluding, we agree with the trial court that Gil committed misconduct. The forged Ariz declaration was collateral to the issues at trial, however, in the sense that it was an attempt to divert attention from discovery matters. With respect to the tape recording of Garvin's consultation with defendant prior to defendant's arrest, the record does not suggest this was intentionally done or that law enforcement did so to obtain any kind of advantage. The parties agreed the trial court could view the recording in camera, so there was no waiver of the attorney-client privilege in a manner that could have been helpful to the prosecution or harmful to defendant. There was never any assertion the relationship between defendant and Garvin was impacted, whether by the recording of their consultation or the multiple delays occasioned by discovery disputes. Although these delays nearly caused Garvin to have to withdraw from the case—an event that certainly would have been prejudicial to defendant's right to counsel—Garvin ultimately did not do so, and there is no suggestion his ability effectively to represent defendant was adversely affected. The Brady material concerning Browning and his alibi (or lack thereof) for the time of killing ultimately was disclosed prior to trial, and Valdovinos commendably granted Browning use immunity, thus enabling defendant to call as a witness the individual he insinuated was the actual killer. Issues concerning Gil's contact with Kessler, the defense expert consultant, were rendered moot when the recovered cell phone data was excluded. That this evidence was excluded on Kelly grounds and not as a sanction for late disclosure or prosecutorial interference with a defense expert is immaterial.
Defendant contends he suffered demonstrable prejudice to his constitutional right to a speedy trial by virtue of the discovery delays, because his trial was unnecessarily delayed for years due to the prosecution's misconduct. Defendant waived time for trial in each instance, however, and never asked the trial court to undertake a speedy trial analysis. (See generally People v. Williams (2013) 58 Cal.4th 197, 215, 252.) The right to a speedy trial cannot be asserted for the first time on appeal. (People v. Blanchard (1996) 42 Cal.App.4th 1842, 1849.) Moreover, a delay between arrest and trial of the length that occurred here does not necessarily violate the constitutional right to a speedy trial. (See Williams, at pp. 215, 252 [nearly seven-year delay].) The record before us does not suggest the delays harmed defendant's ability to defend against the charges. (See People v. Conrad (2006) 145 Cal.App.4th 1175, 1184; see also Burgos v. Superior Court (2012) 206 Cal.App.4th 817, 825.)
In sum, we have considered the instances of actual and alleged governmental misconduct singly and collectively. We find no demonstrable prejudice or substantial threat thereof. (See Morrison, supra, 449 U.S. at pp. 364-365; Zapien, supra, 4 Cal.4th at p. 968.) We find no cause for reversal. Nor do we find dismissal to be appropriate. "Dismissal of charges is an extraordinary remedy, which is reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial. [Citation.]" (Kasim, supra, 56 Cal.App.4th at p. 1387.) The government's wrongdoing in the present case does not approach the egregiousness of the misconduct in the cases in which dismissal has been found to be appropriate.
This is not to say we condone what happened, particularly while Gil was assigned to the case. We condemn it in the strongest of terms. Under different circumstances, reversal or even outright dismissal might well be warranted. Clearly, however, defendant received a fair trial. To order reversal or, particularly, dismissal in the face of that reality would, in essence, sanction the victim's family for the government's misdeeds. Because defendant's trial was fair, we will not do so simply to teach prosecutors and law enforcement officers a lesson.
II
RECUSAL
Defendant contends the trial court erred by refusing to recuse the Madera County District Attorney's Office. We find no error. A. Background
As mentioned ante, defendant twice asked the trial court to recuse the Madera County District Attorney's Office as a sanction for prosecutorial misconduct, if the court was unwilling to dismiss all charges. The Attorney General opposed the motion, arguing it was unsupported by affidavits of actual witnesses as required by section 1424, and that it was not appropriate because defendant had failed to show that, as a result of a conflict, fair treatment by the entire district attorney's office was unlikely. The Attorney General asserted that an "ethical wall within the district attorney's office" to isolate Gil from the prosecution was appropriate and sufficient. The Attorney General presented a declaration by Keitz, who attested that he had removed Gil from the prosecution of defendant's and Navarra's cases, and that Gil had acted without Keitz's approval and contrary to the policies and practices of the district attorney's office in contacting Kessler and submitting the Ariz declaration without Ariz's signature. Keitz further attested he had referred the matter of the Ariz declaration to the Attorney General's office for investigation the day he was made aware of Gil's conduct in that regard.
The court denied the first request because the required notice was not provided to the Attorney General.
The motion was heard on July 31, 2013. The court observed that discovery and other problems with the case antedated Gil's assignment to it, and that numerous—perhaps as many as 10—deputy district attorneys had made appearances in the case. The court pointed out that at issue was not just what Gil did during the preceding year, but how the district attorney's office had handled defendant's and Navarra's cases from the beginning. The court permitted Valdovinos to speak, and he emphasized his commitments to defendants having fair trials and to taking discovery seriously. He also stated what he was doing to make sure Garvin had all discovery in this case.
After further argument, the court stated:
"[T]his is a terrible situation and couldn't in fact be worse, because it's just not clear, if you were to compare this to an infection, has it gone through the bloodstream of the DA's Office in terms of this case and how this case is handled? And I know there are descriptions about, well, we can
wall off a person, and that might be true if it was just walling off the one person. But it's ... such a long history in this particular case.B. Analysis
"Having said that, I have nothing against Mr. Valdovinos. He seems like he understands the gravity, and I think he's been very direct with this matter this morning. I think he understands where he needs to be on the case.
"And I will tell you, my goal is to have a fair jury trial for both sides as soon as possible. I think achieving that goal would allow for one last opportunity for the Madera District Attorney's Office to keep the case.
"I'm saying that, so that you understand, that this is a record that's being made in the event there are problems and there is a recusal motion made again, that indicates that the District Attorney's Office is unable to fulfill their obligations as a prosecutor, which are in fact among the greatest obligations of any attorney in the country. The responsibilities and the obligations that the People have, because they act on behalf of the people, are very important.
"What they do when they seek to imprison a person for the rest of his or her natural life, are extremely important responsibilities, and have to be handled that way and not just handed off or not just, here is a piece of information and here's a few other pieces ....
"And the same is true for the family of Ms. Pike, who wants to have this trial be handled properly and in a timely way, and understanding that it won't be reversed on appeal because the mistakes are too many and too grave ....
"So I'm going to deny the motion to recuse the Madera District Attorney's Office based upon the state of the case at this time, but would be open to reconsidering that if the motion is brought again by either of the defense counsel."
Defendant contends a conflict existed on the part of the Madera County District Attorney's Office in light of the ongoing discovery problems and Gil's instances of misconduct. He argues Gil's misconduct gave rise to a reasonable possibility the district attorney's office would not exercise its discretion in an evenhanded manner—as demonstrated by the office's refusal to resolve the case by plea bargain—because it could not been seen as the isolated conduct of one individual that was cured by Gil's removal from the case. Defendant argues the Madera County District Attorney's Office is small, and nothing indicates Gil was "walled off" from the other prosecutors in the office.
As support for his claim the office is small, defendant cites a newspaper article that apparently says the office consists of about 18 attorneys. During his argument concerning the implication of the fact the case could not be resolved by plea bargain, he cites to another newspaper article that apparently deals with a mentally ill killer in Norway. The information contained in these articles is not properly before us, and we do not consider it. Defendant never requested that we take judicial notice of the information, assuming we could properly do so (Evid. Code, § 459; see id., § 452, subd. (h); Cal. Rules of Court, rule 8.252(a)), and "[m]atters not presented by the record cannot be considered on the suggestion of counsel in the briefs. [Citations.]" (People v. Hernandez (1957) 150 Cal.App.2d 398, 402.) The only information contained in the record on appeal concerning the size of the district attorney's office is Judge Oakley's reference to it as being a "large office." We will assume, for the sake of our analysis, that the office might properly be considered small or relatively small.
"Under section 1424, a motion to recuse a prosecutor 'may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.' [Citation.] 'The statute "articulates a two-part test: '(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?' " ' [Citation.]" (People v. Trinh (2014) 59 Cal.4th 216, 229 (Trinh).) A conflict exists within the meaning of section 1424 "whenever the circumstances of a case evidence a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner. Thus, there is no need to determine whether a conflict is 'actual,' or only gives an 'appearance' of conflict." (People v. Conner (1983) 34 Cal.3d 141, 148.) "[P]ublic prosecutors in California are required to exercise their discretionary functions, which are broad in scope and subject to only limited review, ' "with the highest degree of integrity and impartiality." ' [Citations.] Impartiality, in this context, means not that the prosecutor is indifferent to the conviction or acquittal of the defendant—the prosecutor does not share in the neutrality expected of the judge and jury—but that the prosecutor is 'expected to exercise his or her discretionary functions in the interests of the People at large, and not under the influence or control of an interested individual.' [Citation.] The public prosecutor's proper interest ' " 'is not that it shall win a case, but that justice shall be done.' " ' [Citation.]" (People v. Vasquez (2006) 39 Cal.4th 47, 55 (Vasquez).) A defendant is entitled to fair treatment during all portions of the criminal proceedings, including before and after trial. (Conner at pp. 148, 149.)
"The defendant 'bear[s] the burden of demonstrating a genuine conflict; in the absence of any such conflict, a trial court should not interfere with the People's prerogative to select who is to represent them.' [Citation.]" (Trinh, supra, 59 Cal.4th at p. 229.) "[T]he potential for prejudice to the defendant—the likelihood that the defendant will not receive a fair trial [i.e., fair treatment during all portions of the criminal proceedings]—must be real, not merely apparent, and must rise to the level of a likelihood of unfairness. Thus section 1424 ... does not allow disqualification merely because the district attorney's further participation in the prosecution would be unseemly, would appear improper, or would tend to reduce public confidence in the impartiality and integrity of the criminal justice system. [Citations.]" (People v. Eubanks (1996) 14 Cal.4th 580, 592, fn. omitted (Eubanks); see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 373 (Bryant, Smith and Wheeler).)
When a defendant seeks recusal of an entire prosecutorial office and not merely a particular prosecutor, "the showing of a conflict of interest must be especially persuasive. [Citation.]" (People v. Hernandez (1991) 235 Cal.App.3d 674, 678.) The defendant's burden of establishing a genuine conflict is "especially heavy" (Trinh, supra, 59 Cal.4th at p. 229); "the record must demonstrate 'that the conduct of any deputy district attorney assigned to the case, or of the office as a whole, would likely be influenced by the personal interest of the district attorney or an employee.' [Citation.]" (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 373.) " '[W]hen the entire prosecutorial office of the district attorney is recused and the Attorney General is required to undertake the prosecution or employ a special prosecutor, the district attorney is prevented from carrying out the statutory duties of his elective office and, perhaps even more significantly, the residents of the county are deprived of the services of their [locally] elected representative in the prosecution of crime in the county.' [Citation.]" (Eubanks, supra, 14 Cal.4th at p. 594, fn. 6.) "Thus, 'the entire prosecutorial office of the district attorney should not be recused in the absence of some substantial reason related to the proper administration of criminal justice.' [Citations.] As another court put it, 'The recusal of an entire prosecutorial office is a serious step, imposing a substantial burden on the People, and the Legislature and courts may reasonable insist upon a showing that such a step is necessary to assure a fair trial.' [Citation.]" (People v. Cannedy (2009) 176 Cal.App.4th 1474, 1482.) "Recusal of an entire prosecutorial office is a 'disfavored,' 'drastic' remedy and 'there must be "no other alternative available." ' [Citation.]" (People v. Dekraai (2016) 5 Cal.App.5th 1110, 1139.)
"We review the trial court's decision to deny a recusal motion ... only for an abuse of discretion. [Citation.] Accordingly, we must determine whether the trial court's findings were supported by substantial evidence and whether, in turn, those findings support the decision to deny recusal. [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 361-362 (Gamache); accord, Vasquez, supra, 39 Cal.4th at p. 56; People v. Breaux (1991) 1 Cal.4th 281, 293-294.)
In the present case, the trial court had before it uncontradicted evidence that Gil had been removed from the case and had acted contrary to the policies of the Madera County District Attorney's Office in contacting the defense consultant and submitting the forged Ariz declaration, and that the district attorney had referred the matter of the Ariz declaration to the Attorney General's Office for investigation the same day he learned of Gil's conduct in that regard. The court also had Valdovinos's professions of his commitment to ensuring defendant had all discovery and received a fair trial. Although the court questioned whether walling off one person would be adequate, in light of problems with the manner in which the district attorney's office had handled the case even before Gil's involvement, the record shows the pre-Gil delays and discovery problems were more the result of personnel turnover in the office than wrongdoing. "Notwithstanding the probable intimacy of the [presumably relatively small district attorney's] office, there was no suggestion or evidence that any leak in the wall of silence between [Gil] and his colleagues ... would occur." (People v. Lopez (1984) 155 Cal.App.3d 813, 827 (Lopez).)
Although Valdovinos was not sworn, he spoke as an officer of the court. We know of no reason the trial court could not consider his statements in deciding whether to grant the motion for recusal.
Dunn's sworn declaration in support of the Attorney General's opposition to the recusal motion, in which she set forth her involvement with the Ariz declaration, supported the notion creating an ethical wall around Gil would be viable and that the rest of the office was not infected with the same penchant for malfeasance as Gil. Dunn attested that when she was assigned to write an opposition to defendant's motion to dismiss in April 2013, she knew little about the case; she was "stunned" to learn, on May 1, 2013, that Ariz did not sign the declaration; when told about the forged signature, she discussed immediate disclosure to the defense with Keitz and Valdovinos; and she contacted Garvin's office that same day and also personally informed him the next morning.
We recognize, as did the trial court, that Gil committed serious misconduct in more than one respect and on more than one occasion. However, "[r]ecusal is not a mechanism to punish past prosecutorial misconduct. Instead, it is employed if necessary to ensure that future proceedings will be fair. '[S]ection 1424 does not exist as a free-form vehicle through which to express judicial condemnation of distasteful, or even improper, prosecutorial actions.' [Citation.]" (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 375.) As the California Supreme Court has observed, "Even if specific prosecutors had engaged in misconduct, this behavior standing alone would not necessarily evince a likelihood that other prosecutors would exceed the bounds of proper advocacy. 'Our cases upholding recusal have generally identified a structural incentive for the prosecutor to elevate some other interest over the interest in impartial justice, should the two diverge.' [Citation.]" (Ibid.)
Defendant points to the lack of a plea bargain, despite the trial court's assessment the case could be resolved by defendant's apparent offer to "plead to the sheet." There are many factors that must be taken into consideration in deciding whether to enter into a plea agreement, however, particularly in a case of this magnitude. The trial court was well aware the People declined to accept defendant's offer, yet did not suggest this posture supported recusal.
The trial court did not explicitly state the factors upon which it relied in finding recusal was unwarranted. Nevertheless, the record supports its implied finding that whatever conflict may have existed was not so grave as to render a fair trial unlikely (see People v. Choi (2000) 80 Cal.App.4th 476, 482), particularly in light of the credence it gave to Valdovinos's assurances. "That assessment, made from a vantage point close to the circumstances and people involved, is entitled to our deference. [Citation.]" (Lopez, supra, 155 Cal.App.3d at p. 827.) Though the court might reasonably have ordered recusal, it did not abuse its discretion by refusing to do so. (See Gamache, supra, 48 Cal.4th at p. 366, fn. 5 ["Given the deferential standard of review applicable to rulings on recusal motions, in many cases the record may contain sufficient evidence to support either a grant or a denial, and an appellate court may be precluded from disturbing either ruling"].)
Defendant has failed to establish error.
III
ADMISSION OF BLUMBERG'S TESTIMONY REGARDING NAVARRA'S STATEMENTS
Blumberg's testimony is summarized in the statement of facts, ante. Defendant contends the trial court should have excluded Navarra's hearsay statements, as related by Blumberg, because they did not fall within the coconspirator hearsay exception. He says their erroneous admission violated his Sixth Amendment rights to confrontation an cross- examination under Bruton v. United States (1968) 391 U.S. 123 (Bruton). We conclude defendant's Bruton claim has not been preserved for appeal, and that any error in admission of the statements was harmless. A. Background
Outside the jury's presence, Blumberg asserted her privilege against self-incrimination, and was granted use immunity. An Evidence Code section 402 hearing was then held at which Blumberg testified about her knowledge of a plan to kill Pike and her conversations in that regard with defendant and/or Navarra, in order to determine whether there was a basis for a conspiracy finding and whether certain statements fell within the coconspirator exception to the hearsay rule. In part, Blumberg testified that although she knew defendant and Navarra planned to kill Pike, she herself did not intend to help them.
Defense counsel subsequently argued the People had failed to make a prima facie showing of the existence of a conspiracy, and that, if such a showing had been made, the People had failed to demonstrate the statements were made in furtherance of the conspiracy. He argued that statements made prior to the conspiracy, or that constituted bragging or talking about other issues, were not in furtherance of the conspiracy and should not be admitted. The trial court ruled the People presented sufficient evidence of a conspiracy that existed for several weeks, from the time of just about Christmas 2007 to January 15, 2008, to permit admission of Blumberg's testimony.
Given counsel's argument in this regard, we reject the Attorney General's claim defendant's argument on appeal—that Navarra's narrating past events to Blumberg did not further the goal of the conspiracy—differed from his objection in the trial court, and so defendant's claim on appeal has been forfeited.
Blumberg subsequently testified in front of the jury about the plan to kill Pike. When the prosecutor questioned her about Navarra texting during lunch time at school on January 14, 2008, and what Navarra told Blumberg about the texts, defense counsel objected, referencing his prior objections. His objection was overruled, consistent with the court's previous ruling, but defense counsel asked for and was granted a continuing objection.
Defendant now identifies five excerpts from Blumberg's testimony that he says were wrongly admitted, the first of which occurred at an unspecified time, and the remaining four of which took place during lunchtime on January 14, 2008, when Navarra told Blumberg she was texting defendant:
(1) Navarra told Blumberg that, sometime before January 14, 2008, defendant went to the Hollier residence to play video games, but the whole household was home sick and so he could not do anything to Pike.
(2) Defendant said he was at Thomas's house with Pike and he was playing video games, but he could not strangle Pike because she kept reaching up to scratch her chin.
(3) Defendant asked Navarra what he should do.
(4) Navarra told defendant "to rape her, kill her, and get it over with."
(5) Navarra told Blumberg "it's done." B. Analysis
" '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).) It is generally inadmissible. (Id., subd. (b); People v. Homick (2012) 55 Cal.4th 816 (Homick).) Under Evidence Code section 1223, however, " '[h]earsay statements by coconspirators ... may nonetheless be admitted against a party if, at the threshold, the offering party presents "independent evidence to establish prima facie the existence of ... [a] conspiracy." [Citations.] Once independent proof of a conspiracy has been shown, 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." [Citation.]' [Citation.]" (Homick, at p. 871; accord, People v. Herrera (2000) 83 Cal.App.4th 46, 64 (Herrera).)
Evidence Code section 1223 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence."
Defendant concedes a conspiracy existed at the time the challenged statements were made, but argues those statements were not in furtherance thereof. He points out that they contain two levels of hearsay: (1) Defendant's statements to Navarra, and (2) Navarra's statements to Blumberg relating what defendant said. For multiple hearsay to be admissible for its truth, each hearsay layer separately must meet the requirements of a hearsay exception. (Evid. Code, § 1201; People v. Arias (1996) 13 Cal.4th 92, 149.) We review for abuse of discretion the trial court's decision to admit the statements. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
There can be little doubt defendant and Navarra were coparticipants in a conspiracy to kill Pike at the time of defendant's statements to Navarra, and that those statements were in furtherance of said conspiracy. (See Herrera, supra, 83 Cal.App.4th at pp. 64-65.) Defendant does not appear to argue otherwise. Accordingly, we focus on whether Navarra's statements to Blumberg were in furtherance of the conspiracy. The trial court's implied finding that they were binds us if supported by substantial evidence. (Homick, supra, 55 Cal.4th at p. 872.)
" 'Declarations showing past acts, or expressing merely the opinion or desire of the conspirator making them, are not binding upon any one except himself, or those in whose presence they are made.' " (People v. Smith (1907) 151 Cal. 619, 626 (Smith).) On the other hand, statements meet the " 'in furtherance' [requirement when they] in some way have been designed to promote or facilitate achievement of the goals of the ongoing conspiracy, as by, for example, providing reassurance to a coconspirator, seeking to induce a coconspirator's assistance, serving to foster trust and cohesiveness, or informing coconspirators as to the progress or status of the conspiracy, [citations], or by prompting the listener—who need not be a coconspirator—to respond in a way that promotes or facilitates the carrying out of a criminal activity, [citations]. Mere 'idle chatter' does not satisfy the in-furtherance requirement. [Citation.]" (U.S. v. Tracy (2d Cir. 1993) 12 F.3d 1186, 1196; accord, e.g., U.S. v. James (2d Cir. 2013) 712 F.3d 79, 106; U.S. v. Ammar (3d Cir. 1983) 714 F.2d 238, 252.)
Although Smith, supra, 151 Cal. 619 antedates adoption of the Evidence Code, our research has revealed nothing to suggest the quoted portion is inapplicable under Evidence Code section 1223.
We are not bound by decisions of federal courts of appeal. (People v. Seaton (2001) 26 Cal.4th 598, 653.) Nevertheless, the cited cases are instructive. They interpret rule 801(d)(2)(E) of the Federal Rules of Evidence (28 U.S.C.) which classifies as nonhearsay statements made by a party's coconspirator "during and in furtherance of the conspiracy."
The admissibility of Navarra's statement about defendant previously going to the Hollier residence and finding everyone home sick, is questionable. It appears to be more of a narration of past acts than something aimed at promoting or achieving the goal of the conspiracy, i.e., Pike's killing. Substantial evidence—including the reasonable inferences to be drawn from the evidence—supports the trial court's implied finding the statements of Navarra that were essentially contemporaneous with the homicide, were in furtherance of the conspiracy, however. Blumberg was the one who came up with the initial plan for how to kill Pike. She continued to associate with Navarra on almost a daily basis afterwards. She accompanied Navarra and Pike to the mall not long before the killing, despite knowing the outing was part of Navarra's homicidal plan. She did not report the plan before or during the killing. Under the circumstances, the trial court reasonably could have concluded Blumberg was defendant's and Navarra's coconspirator, and that the statements were made to inform Blumberg of the progress of the conspiracy and to reassure her that the goal was being achieved as opposed to being mere idle chatter, bragging, or casual admissions of culpability. (Cf. Homick, supra, 55 Cal.4th at p. 872; People v. Sanders (1995) 11 Cal.4th 475, 517.) The court was not required to accept as credible Blumberg's testimony that she told Navarra she did not want to be part of the plan.
Testimony at trial showed she did not disclose her knowledge until sometime after the killing, and then only when detectives sought her out.
At trial, Garibay testified that Navarra said Blumberg stated she did not want to be involved. This evidence was not before the trial court when it ruled on the admissibility of Blumberg's testimony, however, and defendant's objection was not renewed as a result of Garibay's testimony.
Assuming any or all of the challenged statements should have been excluded, we conclude the error was harmless. After examining the entire cause, including the evidence, we conclude it is not reasonably probable a result more favorable to defendant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) This is the standard applicable to the erroneous admission of hearsay evidence. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308; Homick, supra, 55 Cal.4th at p. 872.) Defendant's arguments to the contrary notwithstanding, the evidence of his guilt was very strong, if not overwhelming, particularly in light of the texts sent from Navarra's cell phone to defendant's cell phone around the time of the killing that were admitted through the testimony of other witnesses.
Defendant contends prejudice should be assessed under the more stringent harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24, because the erroneous admission of the statements violated his Sixth Amendment right to confrontation and cross-examination under Bruton, supra, 391 U.S. 123. His failure to make this claim at trial—which he admits —has forfeited the issue for purposes of appellate review. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1206, disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216 (Rangel); see Evid. Code, § 353.)
Defendant argues this is not so, because he is simply claiming the trial court's ruling "had the additional legal consequence of violating Bruton." The California Supreme Court has stated that to the extent constitutional arguments not raised at trial "do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution," such new arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see People v. Partida (2005) 37 Cal.4th 428, 435-436; cf. People v. Thompson (2017) 1 Cal.5th 1043, 1106.)
Addressing a confrontation clause claim brought under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), however, the state high court clarified that a Crawford challenge does not fall within this exception to the requirement of a timely and specific objection at trial. Such an objection, which generally requires a trial court to consider whether statements are testimonial, and, if so, whether the witness was unavailable and the defendant had a prior opportunity for cross-examination, "invokes different legal standards than, for example, a hearsay objection, which generally requires a court to consider whether the foundational requirements for admission of particular hearsay have been satisfied. [Citation.]" (Rangel, supra, 62 Cal.4th at pp. 1216-1217.)
A Bruton claim is akin to a Crawford challenge in this regard. It "addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant." (People v. Capistrano (2014) 59 Cal.4th 830, 869; see generally People v. Lewis (2008) 43 Cal.4th 415, 453-455, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 918-920.) Although a trial court's erroneous determination that statements came within the coconspirator exception to the hearsay rule can indeed violate Bruton (People v. Roberts (1992) 2 Cal.4th 271, 304), under Bruton the trial court is called upon to determine whether, for example, a true joint trial is required in order for a defendant to invoke Bruton's protections or whether joint charging is sufficient (see, e.g., Capistrano, at pp. 869-870; In re Sakarias (2005) 35 Cal.4th 140, 154; People v. Brown (2003) 31 Cal.4th 518, 537), and, assuming Bruton applies, whether the statement can be redacted in a way that obviates the constitutional problem without prejudicing the declarant (see Lewis, at pp. 454-455 & cases cited therein). A number of courts have held that, after Crawford, a determination whether the statements are testimonial is also required, since only the admission of such statements can violate the confrontation clause. (People v. Loy (2011) 52 Cal.4th 46, 66; People v. Gutierrez (2009) 45 Cal.4th 789, 812; People v. Arceo (2011) 195 Cal.App.4th 556, 571; U.S. v. Johnson (6th Cir. 2009) 581 F.3d 320, 326.)
"We concluded above that defendant preserved his related claim of state evidentiary error, but because the constitutional claim[] defendant now asserts do[es] not simply restate his evidentiary claim on alternative legal principles, but instead require[s] consideration of different circumstances ... he has forfeited the constitutional argument[] for appeal. [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 414.)
IV
SUFFICIENCY OF THE EVIDENCE
As previously described, the jury found true the special circumstance allegation that defendant intentionally killed Pike by means of lying in wait. (§ 190.2, subd. (a)(15).) Defendant contends that when Blumberg's assertedly inadmissible hearsay testimony (discussed ante) is disregarded, the remaining evidence is legally insufficient to establish the special circumstance; accordingly, retrial on the allegation is barred (Burks v. United States (1978) 437 U.S. 1, 11) and the finding must be stricken.
Defendant's minor premise—that retrial would be barred if we found the evidence insufficient absent Blumberg's testimony—is incorrect. When the evidence admitted at trial—whether erroneously or not—is sufficient to sustain a guilty verdict (or, by parity of reasoning, a jury's true finding), the double jeopardy clause does not preclude retrial. (Lockhart v. Nelson (1988) 488 U.S. 33, 34; accord, People v. Story (2009) 45 Cal.4th 1282, 1296-1297; People v. Venegas (1988) 18 Cal.4th 47, 94-95.)
Defendant's major premise—that the evidence is insufficient—also fails.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (Johnson, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) Although a finding of fact must be based on reasonable inferences drawn from evidence and not on mere suspicion or speculation (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-546, fns. 5 & 6), an appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of fact's finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to review of special circumstance findings (People v. Mayfield (1997) 14 Cal.4th 668, 790-791, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
In People v. Mendoza (2011) 52 Cal.4th 1056 (Mendoza), the California Supreme Court addressed lying in wait:
" ' "The requirements of lying in wait for first degree murder under ... section 189 are 'slightly different' from the lying-in-wait special circumstance under ... section 190.2, subdivision (a)(15). [Citation.] ... We focus on the special circumstance because it contains the more stringent requirements. [Citation.] ... [¶] The lying-in-wait special circumstance requires 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage....' [Citations.]" ' [Citation.]
"We have explained the elements of the lying-in-wait special circumstance as follows. ' " 'The element of concealment is satisfied by a showing " 'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.' " ' [Citation.]" ' [Citation.] As for the watching and waiting element, the purpose of this requirement 'is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse. [Citation.] This period need not continue for any particular length " 'of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.' " [Citation.]' [Citation.] 'The factors of concealing murderous intent, and striking from a position of advantage and surprise, "are the hallmark of a murder by lying in wait." [Citation.]' [Citation.]" (Mendoza, supra, 52 Cal.4th at pp. 1072-1073, fn. omitted.)
"A 2000 ballot measure ... changed the definition of the lying-in-wait special circumstance in section 190.2, subdivision (a)(15) to delete the requirement that the murder be committed 'while' the defendant was lying in wait and to instead require only the lesser standard that the defendant must have 'intentionally killed the victim by means of lying-in-wait.' [Citation.]" (People v. Sandoval (2015) 62 Cal.4th 394, 415.) The main change effected by the amendment was to largely eliminate the immediacy requirement case law had placed on the special circumstance in terms of the temporal proximity between the period of concealment and watchful waiting and the lethal acts. (See People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 306-308 (Bradway).)
From the evidence presented at defendant's trial, jurors reasonably could have concluded defendant gained entry to the Hollier house by the ruse or pretext of looking for his keys or guard card or playing video games; Pike was alone in the house and therefore isolated from help; defendant watched and waited, with his murderous purpose concealed, until the opportune time to act; and while Pike was sitting on the sofa in the process of writing her grocery list and watching television, he took her by surprise from a position of advantage by striking her from behind. Accordingly, the evidence was sufficient—even without the challenged portions of Blumberg's testimony—to sustain the lying-in-wait special circumstance. (See, .e.g., Mendoza, supra, 52 Cal.4th at p. 1074; People v. Webster (1991) 54 Cal.3d 411, 448; Bradway, supra, 105 Cal.App.4th at p. 309.)
There was a large amount of blood on the couch, which was against the north wall of the living room, facing south. Pike had no defensive wounds. According to Dr. Nelson, who performed the autopsy, the blows to her head were struck from behind. Nelson opined it would have been "awkward" for a left-handed person (which defendant was) to inflict the most serious of the blows, but this would depend on the positions of the people and Pike's head at the time the blows were being struck. The television was in the southeast corner of the living room. It was on. Because of the way it was angled across the corner of the living room, jurors reasonably could have concluded Pike turned her head slightly left to watch it.
V
CLERICAL ERROR
As previously described, defendant was convicted, in count 3, of first degree burglary. (§§ 459, 460, subd. (a).) The court orally pronounced sentence for that conviction. The sentencing minutes and amended abstract of judgment, however, erroneously show count 3 as a conviction of first degree robbery in violation of section 211. Defendant contends, and the Attorney General concedes, these clerical errors must be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to cause correction of the clerk's minutes of the June 13, 2014, sentencing hearing and the abstract of judgment, both of which shall reflect defendant was convicted, in count 3, of first degree burglary, and to forward certified copies of same to the appropriate authorities.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.