Opinion
C076567
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. CLEO MARTINEZ-COSTA et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F00180)
A jury found defendant Lionel Doria (Doria) guilty of the first degree murder of James Tobey Hiter (Hiter) in violation of Penal Code section 187, subdivision (a) (statutory section references that follow are to the Penal Code unless otherwise stated), found true special allegations that Doria personally and intentionally discharged a firearm proximately causing the death of Hiter within the meaning of section 12022.53, subdivision (d), and that the murder was committed while in the commission of an attempted robbery within the meaning of section 190.2, subdivision (a)(17).
The jury also found Doria guilty of the attempted robbery of Hiter as defined in sections 664/211 and found true the special allegation that Doria personally and intentionally discharged a firearm causing the death of Hiter as defined by section 12022.53, subdivision (d). Finally, the jury found Doria guilty of being a felon in possession of a firearm as defined in section 29800, subdivision (a)(1).
The court sentenced Doria to life without the possibility of parole on the special circumstance murder conviction with a consecutive term of 25 years to life for personal discharge of a firearm. It imposed a consecutive sentence of eight months for felon in possession of a firearm. It stayed the sentences for attempted robbery and the accompanying 25 years to life term under section 654.
A jury found Cleo Martinez-Costa (Costa) guilty of the first degree murder of Hiter in violation of section 187, subdivision (a), found true special allegations that a principal in her offense was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and that the murder was committed while in the commission of an attempted robbery within the meaning of section 190.2, subdivision (a)(17).
The jury also found Costa guilty of the attempted robbery of Hiter as defined in sections 664/211 and found true the special allegation that the principal in the offense was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
Thereafter, the trial court found that on May 2, 1994, Costa had been convicted of a violation of section 245, subdivision (a)(2) (assault with a firearm) and 12022.5 (personal use of a firearm), bringing her within the provisions of section 667, subdivision (a) and sections 667, subdivisions (b) through (i) and 1170.12.
The court sentenced Costa to life without the possibility of parole on the special circumstance murder conviction, one year for the section 12022, subdivision (a)(1) allegation, five years for the prior conviction under section 667, subdivision (a), and stayed the sentence for count two. The trial court awarded Costa 850 days credit for time served.
Both defendants appeal.
Doria argues the trial court erred by: (1) allowing into evidence a recorded telephone conversation wherein Angel McElroy "guaranteed" that Doria killed Hite; (2) excluding third party culpability evidence; and (3) violating section 654 by imposing a consecutive sentence for Doria's conviction for being a felon in possession of a firearm.
Finally, in a supplemental brief, Doria argues that his matter should be remanded to the trial court to allow the court to consider exercising its discretion to strike or dismiss the punishment imposed pursuant to section 12022.53.
Costa argues (1) the evidence is insufficient to prove that she acted with reckless indifference to human life and (2) the judgment must be modified to reflect additional custody credit. She joins Doria's third party culpability challenge.
We will remand Doria's conviction to the trial court to give the court a chance to exercise its discretion to strike the punishment assessed pursuant to section 12022.53, subdivision (d). Costa is entitled to a recalculation of custody credits. We otherwise affirm the judgments.
FACTS
In view of the issues raised on appeal, we will here set forth the facts relating to the commission of the charged crimes. Other facts relevant to defendants' claims on appeal will be set forth, post.
The People's Evidence
On November 25, 2011, around midnight, Breaonna Nunes accompanied "Jimmy" Hiter in his red Cadillac to Hiter's apartment. Nunes paid Hiter $4,000 for either a quarter- or half-pound of methamphetamine, and helped him package additional methamphetamine that he was going to drop off with various buyers.
While Nunes was with Hiter, Hiter received a constant barrage of calls and text messages on his cell phone. When Hiter answered several calls, Nunes heard the same woman's voice on the other line.
At one point, Hiter told Nunes that he was going to deliver methamphetamine to his ex-girlfriend's house. Later in the interview with law enforcement, Costa said that she and Hiter had dated in the past.
Hiter and Nunes arrived at Costa's house, and Hiter parked the car on the side of the road in front of the house. Hiter got out of the car and walked towards the trunk where he kept the methamphetamine in a safe. Nunes then saw a man wearing a mask and wielding a semiautomatic firearm running towards them from the direction of Costa's house. Nunes saw the man rack the slide on his gun, and tell Hiter, "Mother fucker, give me everything you got." Nunes retreated to the driver's seat of Hiter's car and heard a gunshot. Nunes got out of the car and saw Hiter on the ground in front of it. She saw that Hiter had been shot in the area of his lower abdomen.
Nunes then saw Costa who was wearing brown Coach brand rain boots. Nunes heard Costa angrily say something to the effect of, "Where did that little bitch go." Costa then asked Nunes to help her move Hiter's body. Nunes refused, grabbed the car keys out of Hiter's hand, and drove away. She did not call law enforcement.
Angela Law began dating Doria around August 2011. During their relationship, Law often saw Doria with a semiautomatic firearm tucked in the front of his waistband. Doria told Law that he made money by robbing people and selling drugs.
Sometime close to midnight on November 24, 2011, or early in the morning of November 25, 2011, Law met with Doria at his house. They eventually left together in a minivan that belonged to the mother of Doria's children. There was a bicycle and a duffle bag in the back of the van, and Doria told Law that he was going to rob someone. Law saw a semiautomatic firearm in the waistband of Doria's pants.
Doria and Law first went to Hiter's apartment complex. While at the apartment complex, Law saw a "burgundy" Cadillac leaving the complex. Doria was on the phone, and Doria said to the person he was speaking to that he had seen "him" and "he" had just left. Law recognized Costa's voice through the phone. She heard Costa tell Doria that Hiter was "on his way." Doria then told Law that they were going to Costa's house.
Doria parked the van around the corner from Costa's house, and Doria, who was wearing a loose "hoodie," took the bicycle out of the van and rode off on it. A patrol vehicle passed Law as she waited in the van and she sent a text message to Doria that read, "[D]id u see the boys." Law heard a gunshot while she was waiting for Doria.
When Doria returned to the van he appeared anxious, and told her that the gun had jammed. They then drove to a friend's house. Doria and Law left their friend's house to go to a doughnut shop where Law spoke with her father on Doria's cell phone. Her father told her that someone had been killed near Costa's house.
An autopsy revealed that Hiter died from a gunshot that entered his back and traveled into his chest. About $400 was found on Hiter's body.
At the site of the killing, law enforcement officers found a bullet casing along with a live nine-millimeter round. Racking the slide on a semiautomatic handgun ejects a live round if a live round was already chambered. Racking the slide is also a method that can be used to eject a live round that has jammed a semiautomatic firearm. Officers also found a knit cap with "eye holes" cut out at Doria's home.
Towards the start of 2011, Cara Bain lived in a trailer behind Costa's house for roughly six months. She knew Costa and encountered Doria several times at Costa's house. Bain was also familiar with Hiter, having met him when they both attended drug court.
On November 27 or 28, 2011, Becky Collins chaired a meeting at the Serenity House recovery home. After the meeting, Bain approached Collins and said that Hiter's murder was a "robbery gone bad." Bain also related that she had lived with the people who had murdered Hiter. Collins called the police to give them the information that Bain had provided.
On December 8, 2011, Detective Donald McCoy and his partner went to the Serenity House and interviewed Bain. Bain recalled that Hiter would go to Costa's house and sell Costa "dope." When at Costa's house, Hiter would show off by exhibiting large quantities of drugs and cash. About one month before Hiter's murder, Costa remarked that Hiter had sold her poor quality drugs and she wanted to rob him. Bain saw Hiter at Costa's house around 10 times, and he sold Costa drugs on each of those visits. Costa sold the drugs that she purchased from Hiter.
Bain also knew Doria because he would go to Costa's to "hang out." Bain described Doria as half-Mexican, half-White, but "more on the white side." There was an occasion when Doria gave Bain a ride to Home Depot. During the trip, Doria told Bain that he had robbed drug dealers in the Bay Area. Bain recalled that Hiter sold Doria drugs on one occasion in Costa's living room. During the deal, Hiter exhibited a large amount of cash and Bain later warned him to be careful around Doria because Doria robbed drug dealers.
During her testimony at trial, Bain denied giving information regarding the murder to Collins. She also denied providing information to detectives in a subsequent interview at the Serenity House. Cara Bain was also referred to as Cara King. A recording of her interview was played for the jury.
Gina Ballejos was Costa's next door neighbor. In November 2011, Ballejos and Costa spoke nearly every day, and used methamphetamine together on occasion. The night of November 24, 2011, and into the early morning hours of November 25, Ballejos and Costa were "partying for Thanksgiving." She did not recall receiving a text message from Costa that told her to not go to Costa's house. The morning of November 25, she heard a gunshot and called Costa.
Officer Henry McClusky was dispatched to Costa's house at 3:50 a.m. the morning of the shooting. Officer McClusky spoke with Ballejos after arriving, and Ballejos informed him that she called Costa at 3:38 a.m., after hearing a gunshot.
Angel McElroy, Costa's daughter, spent November 24, 2011, at Costa's house. She left around midnight. The following day, around 7:30 or 8:00 a.m., she returned to Costa's house after hearing that a shooting had occurred there. She left immediately after learning that Hiter had been murdered, and made several phone calls to Costa and Doria. At that time, according to McElroy, Doria was an acquaintance whom she had not seen for roughly a month prior to the murder. About one month after Hiter's murder, McElroy was dating Doria.
On November 25, 2011, around noon, McElroy received a call from her then boyfriend Jeffrey Hayden. During the phone call, McElroy told Hayden that Doria had murdered Hiter. McElroy explained that her statement to Hayden was based on a conversation with her brother, who did not like Doria and thought that Doria might have "had something to do with it."
Detective Mark Johnson testified to cell phone records. He testified that when a call is made or received, it "pings" off a cell tower. Cell tower records show the location of the tower that a particular call was routed through, whether made or received. The cell tower records for Nunes and Hiter's cell phones were consistent with Nunes's account of where she went with Hiter the night he was murdered. The records for Law and Doria's cell phones were consistent with Law's testimony regarding their locations the night of the murder. Records for Doria's cell phone showed that a call was made or received at 3:33 a.m., and the call was routed through a cell tower near Costa's house.
Cell phone records showed that Costa made numerous calls and sent numerous text messages to both Hiter and Doria in the hours leading up to Hiter's murder. At 1:37 a.m. Costa called Hiter. At 1:38 a.m. she sent Doria a text message that read, "I jus cald him n he sai hey hold on a sxec ill call u bac so maby he at home now." At 3:18 a.m. Costa and Hiter exchanged calls and, seconds later, Costa texted Doria, "He call to say he on the road il c u when I c him on camera." At 3:35 a.m. Costa sent a text to Ballejos: "Dont come over." At 3:38 a.m. Law sent a text to Doria: "did u see the boys."
At 3:44 a.m. Costa called 911. In the call, Costa reported that a woman driving a red Cadillac possibly struck Hiter with the car. A recording of that call was played for the jury.
Detective Donald McCoy interviewed Costa on November 25, 2011, and on December 6, 2011.
During the first interview, Costa explained that she had Thanksgiving dinner with her family and was cleaning up late that night when her dog started barking. Costa looked outside and heard the sound of a person snoring. Upon further examination, she saw Nunes get out of Hiter's car. Nunes refused to help Costa move Hiter and, instead, got into the car and sped away.
Costa said that she and Hiter dated for roughly two months about 10 years before Hiter's death. Hiter and Costa spoke on the phone a couple of times that night. Hiter asked Costa if he could come over to her house. Costa admitted that Hiter showed up at her house around 10:00 or 11:00 p.m. Costa asked him to leave, and he said that he would return after the children at the house had gone to sleep. Costa then sent her neighbor Gina Ballejos a text message that told Ballejos to not come over to Costa's house. Costa sent the text anticipating that Hiter would return to her house. Costa did laundry while she waited for Hiter. She never heard a gunshot.
Detective McCoy interviewed Costa on December 6, 2011, to determine whether Costa knew Doria. Costa knew Doria because he was going to repair her heating and air conditioning system. She described Doria as a White male in his late twenties. Costa knew that Doria drove a minivan, and described him as having the mentality of a child and as being "fuckin' crazy." Recordings of the interviews were played for the jury.
Doria's Defense Evidence
In his defense, Doria introduced portions of four interviews of Nunes which were played for the jury.
In the November 28, 2012 interview, Nunes said she knew that Hiter's killer was White because of the way he spoke.
In the December 9, 2011 interview, Nunes stated she previously thought the shooter was "Chaos," but that the shooter was not Chaos and that she was constantly second-guessing herself.
In her February 28, 2012 interview, she explained, "Chaos is just, ah, some guy that, um, I just thought that might have killed Jimmy, shot him." However, she clarified she did not personally know him, but he was reputed to be a "psycho." She denied Chaos was at the location of the crime, but mentioned his "distinctive voice."
In the May 9, 2012 interview Nunes, when asked again about Chaos, stated: "But—but that—that Chaos dude, I don't even know why I think he said—said Chaos, I really, I don't know why. I didn't—I really have no idea why I said that. I think that I heard one of my friends saying it, oh it was just Chaos or something like that. So that's why I—I think I said that." She reiterated she did not know Chaos, although she had spoken to him the year before.
The parties stipulated that "Chaos, otherwise known as Justin Winn, is approximately five-feet-six to five-foot-eight inches tall and approximately 145 to 165 pounds. [¶] It is further stipulated that there was no mention of Chaos in the first interview that occurred . . . on November 29, 20[11] between Miss Nunes and Detective Johnson." The trial court refused Doria's request to offer evidence that Angela Law was with Chaos when she was apprehended by officers in February 2012, approximately three months after Hiter's murder.
Costa's Defense Evidence
Costa presented no evidence on her own behalf.
DISCUSSION
Doria's Appeal
I
Evidence of Third Party Culpability
Doria argues the trial court abused its discretion in excluding evidence that witness Angela Law "was linked to another potential suspect in the Hiter shooting" and that this exclusion violated his federal due process right to present a defense.
Costa attempts to join this challenge on appeal, but she has forfeited the issue because she did not preserve it in the trial court. Doria raised the issue twice in the trial court, but Costa's attorney failed to join Doria's argument and stated on the record, "I'm staying out of this," and that it was "their issue." (See People v. Panah (2005) 35 Cal.4th 395, 481 ["Since defendant did not seek admission of the testimony as third party culpability evidence, he forfeited any claim that it was improperly excluded for that purpose"].)
" 'We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]' [Citation.]
"In People v. Hall (1986) 41 Cal.3d 826 [Hall], we held that 'the third-party evidence need not show "substantial proof of a probability" that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt.' (Id. at p. 833.) 'Our holding [in Hall] did not, however, require the indiscriminate admission of any evidence offered to prove third-party culpability. The evidence must meet minimum standards of relevance: "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.) We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352. [Citation.]' (People v. Edelbacher[ (1989)] 47 Cal.3d 983, 1017.)" (People v. McWhorter (2009) 47 Cal.4th 318, 367-368.)
A trial court's ruling on third party culpability evidence is reviewed for an abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242 (Prince).)
Here, as previously set forth, the trial court allowed the admission of recorded statements of Nunes which, at least in part, suggested that she may have believed at one point that an individual known as Chaos killed Hiter. Doria complains the trial court should have gone further; that the trial court abused its discretion when it refused to also admit testimony that would link Chaos to Law because they were seen together some months after the murder.
The trial court excluded this testimony, noting, "There is really not [sic] other evidence that I can see in here in any significant way links [Chaos] to this case or to this crime. He hasn't been placed at the scene, near the scene. [¶] The most is that—the closest he can get to the case is that [Chaos] apparently knew one of the other people in this case, Miss Crystal—no, I'm sorry, Miss Law, whose name apparently was Crystal. [¶] That part I think is too tentative, and I have excluded that as being irrelevant just because months after the crime she was—when she was arrested, she was found in his presence. I don't think there is any probative aspect to that and I have excluded that under 352 . . . ."
The trial court did not abuse its discretion when it excluded the proffered testimony as irrelevant and as not sufficiently probative of third party culpability.
Whether Law may have been in the same place as Chaos when she was arrested by authorities months after the murder is not capable of raising a reasonable doubt as to Doria's guilt for Hiter's killing. As the trial court found, this proposed testimony was not probative. It was simply irrelevant. (People v. Brady (2010) 50 Cal.4th 547, 558 ["to be relevant, the evidence must link this third person to the actual commission of the crime"].)
Further, assuming some marginal relevancy, the trial court properly exercised its discretion in excluding it under Evidence Code section 352 and the rationale of Hall recognizing "we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (Hall, supra, 41 Cal.3d at p. 833.) The remoteness of Law's association with Chaos and the import of that later association, without more—and Doria did not offer more—had the potential for simply confusing the issues and misleading the jury which potential far outweighed what little probative value the evidence may have had. (See People v. Linton (2013) 56 Cal.4th 1146, 1183 [upholding exclusion of " 'highly speculative' " expert testimony under Evid. Code, § 352]; People v. Stitely (2005) 35 Cal.4th 514, 549-550 [upholding exclusion of evidence that could lead to speculative inferences].)
Finally, as recognized by the California Supreme Court in Hall and Prince, the exclusion of third party evidence through application of the ordinary rules of evidence does not violate a defendant's constitutional right to present a defense. (Prince, supra, 40 Cal.4th at p. 1243; Hall, supra, 41 Cal.3d at pp. 834-835 [exclusion of third party culpability evidence under Evid. Code, § 352 does not violate federal due process].)
II
McElroy's Recorded Statement
Doria argues the trial court erred in admitting a recorded statement of McElroy guaranteeing Doria committed the murder of Hiter. Specifically, he argues the statement was inadmissible because it was based upon speculation, lacked foundation, and to the extent it relied upon statements of a third party nonwitness, it also violated the confrontation clause of the United States Constitution.
We note at the outset that the statement was not admitted as substantive evidence but only as evidence bearing on McElroy's credibility.
Around noon on the day of the murder, McElroy spoke at the jail with her then boyfriend; the conversation was recorded. The conversation stated in pertinent part:
Boyfriend: "[W]hat's up with Lionel?
McElroy: "[I]t's that mother fucker's fault."
Boyfriend: "[H]e's the one that did it?"
McElroy: "I guarantee it."
While acknowledging the numerous text messages and phone calls between McElroy and Doria that led up to the taped conversation, the trial court initially declined to allow the People to introduce this evidence at trial because the People did not have the content of those messages and conversations. It left open the possibility that its ruling could be revisited depending on McElroy's trial testimony.
McElroy testified the next day. She denied receiving any information from Doria regarding Hiter's death. She testified that she "asked [Doria] if he knew of anything that had happened" and "[h]e said he had no idea what had happened." She also denied having "the slightest suspicion or reason to suspect that Lionel Doria was gonna commit a murder in front of [her] mother's house." She said she "was somewhat suspicious because of [her] brother" who "really didn't like him."
In light of this testimony, the court revisited its previous ruling and allowed the People to question McElroy concerning the taped exchange with her boyfriend on the day of the murder because it is "inconsistent with what she said here on the witness stand" and also "for her possible bias which is now . . . even more evident that she's the girlfriend of Mr. Doria now or was for a while on [sic] January 2012."
Thereafter, the People questioned McElroy about the recorded conversation with her boyfriend on the day of the murder, and confirmed that McElroy told him that Doria was responsible, saying, "I guarantee it."
On recross-examination McElroy explained she based her statement on conversations with her brother on the day of the murder both in person and by telephone. However, on redirect and based on telephone records, while there were numerous telephone calls from McElroy to Doria and to Costa, there was no record of any telephone conversation with her brother prior to the recorded jail call. McElroy admitted she had lied to detectives about not having Doria's phone number, which was listed in her phone under "miamor."
A. The Confrontation Clause
Doria argues to the extent McElroy's recorded statement repeated an accusation of a third party witness, he was denied his right of confrontation guaranteed by the Sixth Amendment of the United States Constitution. He does not tell us however, who the third party is that he wished to confront, although one can guess it may be McElroy's brother. We are not told whether the brother was available to testify if called to do so.
In any event, "[u]nder Evidence Code section 353, subdivision (a), a reviewing court cannot grant relief on a claim that evidence was erroneously admitted unless a timely objection was made 'and so stated as to make clear the specific ground of the objection or motion.' ' "What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." ' (People v. Geier (2007) 41 Cal.4th 555, 609.)" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1214 (Hajek), overruled on other grounds, People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216.)
Doria has not pointed us to any place in the record where his attorney objected to this evidence on confrontation clause grounds, and our review of the record has not found such an objection. Therefore, Doria's confrontation clause claim of error has been forfeited.
Even if not forfeited, Doria's argument fails.
In Hajek, defendant argued that the admission into evidence of certain letters written to him by a codefendant after their arrest violated the confrontation clause.
As to that argument, our Supreme Court held: "Private communications between inmates are not testimonial, and their admission would not violate the principle laid down in Crawford [v. Washington (2004) 541 U.S. 36 ] that bars the use at trial of testimonial out-of-court statements as to which no opportunity for cross-examination was afforded. (Crawford v. Washington[, supra,] 541 U.S. at p. 68; see U.S. v. Pelletier (1st Cir. 2011) 666 F.3d 1, 9 [in-custody inmate conversations were not testimonial because '[t]hey were made not under formal circumstances, but rather to a fellow inmate with a shared history, under circumstances that did not portend their use at trial'].) Because 'the confrontation clause is concerned solely with hearsay statements that are testimonial' (People v. Cage (2007) 40 Cal.4th 965, 981), and the letters are not testimonial, [defendant's] rights under Crawford were not implicated by their admission." (Hajek, supra, 58 Cal.4th at p. 1214, italics omitted.)
So too here. This was a private conversation between McElroy and her boyfriend in a jail setting discussing the murder of Hiter wherein McElroy stated her belief, based on conversations with unknown third parties, that Doria killed Hiter. Since the conversation did not take place under "formal" circumstances and the conversation was not made in anticipation of its use at trial, it was not "testimonial" and admission of the evidence did not offend the confrontation clause.
B. Hearsay
Doria argues that the admission of the jailhouse telephone conversation and the testimony related to that was error because the conversation's content was based on speculation and was inadmissible hearsay.
As earlier set forth, the trial court admitted the challenged testimony in part because the court found that it was a prior inconsistent statement, thus falling within a statutory exception to the hearsay rule.
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . . ."
"The 'fundamental requirement' of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. [Citation.]" (People v. Johnson (1992) 3 Cal.4th 1183, 1219, original italics.) "A trial court's decision to admit or exclude evidence is a matter committed to its discretion ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. Geier, supra, 41 Cal.4th at p. 585.)
In this instance, McElroy's statements to her boyfriend in jail were certainly inconsistent with her testimony at trial. During her trial testimony, she said she had spoken to Doria on the phone and in person the day of the murder and he never "told [her] about any knowledge of [Hiter's] death." Moreover, according to McElroy, Doria told McElroy that day that he had no idea what happened. Finally, McElroy testified that she did not have "the slightest inkling, the slightest suspicion or reason to suspect" that Doria was going to commit a murder in front of her mother's house.
In contrast, according to the recorded conversation at the jail which also took place on the day of the murder, McElroy told her boyfriend at the jail that the murder was Doria's "fault" and guaranteed that Doria was the person who killed Hiter.
" ' "Inconsistency in effect, rather than contradiction is express terms, is the test for admitting a witness'[s] prior statement . . . ." ' [Citation.]" (People v. Cowan (2010) 50 Cal.4th 401, 462.)
McElroy's testimony at trial was that Doria had told her nothing about Hiter's death, that Doria had no idea what happened and that she had no suspicion that Doria was going to commit the murder. In essence, she implied by her testimony at trial she had no knowledge on the day of the murder that Doria killed Hiter. Inconsistently in effect, also on the day of the murder, she purported to have knowledge of the murder and, given her jailhouse statement, knew that Doria in fact did know what happened and she "guaranteed" that Doria committed the murder. It was not error to admit the recording of the jailhouse conversation as a prior inconsistent statement.
III
Consecutive Sentences and Section 654
The trial court sentenced Doria to life without the possibility of parole for the special circumstance murder and a consecutive term of 25 years to life for the personal use of a firearm. The trial court also imposed a consecutive eight-month determinate term for possession of a firearm. In so doing, the trial court specifically found the violations were separate for purposes of 654, stating on the record: "I'm gonna decline to follow the probation's recommendation of 654. It is not a 654 offense because the possession of a firearm was independent of the shooting, and the crime occurred even before the shooting itself."
Doria argues "[t]he trial court violated Penal Code § 654 by imposing a consecutive sentence for felon in possession of a firearm, an offense which shared the same intent and objective with the personal discharge enhancement to count one."
"The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
"[S]ection 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1379, citing People v. Jones (2002) 103 Cal.App.4th 1139, 1145].)
Here, Angela Law testified that, upon leaving Doria's house on the evening of the murder with the intention to rob Hiter, Doria armed himself with a semiautomatic weapon that he put in his waistband. Thus, his crime of possession of a firearm after having been convicted of a felony was antecedent to and separate from the robbery/murder wherein he utilized the firearm, and section 654 is inapplicable. (People v. Ortiz, supra, 208 Cal.App.4th at p. 1379 [possession of firearm separate from enhancements of using firearm during kidnapping/carjacking]; People v. Jones, supra, 103 Cal.App.4th at pp. 1144-1145 [possession of firearm separate from shooting at inhabited dwelling].)
There was no error.
IV
Section 12022.53
Finally, as to Doria's appeal, in a supplemental brief, he contends that, given a change in the law since the time of his original sentencing, his case should be remanded to the trial court for a further sentencing hearing.
As noted earlier, the jury found a sentence enhancement allegation that Dora violated section 12022.53, subdivision (d) by personally and intentionally discharged the firearm that resulted in the death of Hiter. On May 23, 2014, the date of Doria's sentencing, the law required the court to add a term of 25 years to life to his sentence of life without the possibility of parole. (§ 12022.53, subd. (d).)
However, effective January 1, 2018, section 12022.53 was amended to give the trial court discretion to "strike or dismiss" the enhancement in the interest of justice and pursuant to section 1385. (§ 12022.53, subd. (h).)
The People agree that subdivision (h) is retroactive as to Doria, making him eligible for resentencing under that subdivision. The People argue, however, that remand would be an empty exercise because the record makes it clear that the sentencing judge would not have exercised his discretion to strike the section 12022.53 enhancements had he had the discretion to do so at the time of the original sentencing. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
We will remand the matter to the trial court to consider exercising the court's discretion now authorized by section 12022.53, subdivision (h).
There is weight to the People's argument that, while the sentencing judge did not expressly say he would not have granted discretionary relief from this sentence if he had had the authority to do so, the nature of his sentence suggests that message, although Doria's sentence for murder and, at the time of sentencing, his added sentence for the section 12022.53 enhancements were mandatory. Beyond that, it is also true that Doria's prison sentence for the murder of Hiter, life without the possibility of parole, will not be lessened by even a single day if the enhancements are stricken; Doria would still spend the rest of his life in jail. The trial judge could conclude under those circumstances that striking the enhancements has no practical effect and, thus, opt not to do so because to do so would be an idle judicial act.
Even so, while striking the enhancements would have no effect on the length of Doria's term in prison, the enhancements may have an effect on the terms and conditions of his incarceration or there may be other penological consequences of which we are not aware that attach to true findings of alleged 12022.53 enhancements. We will give the parties the opportunity to be heard on that issue and the trial court the opportunity to consider it.
Costa's Appeal
V
The Special Circumstance Reckless Indifference Finding
Costa argues there is insufficient evidence to support the jury's special circumstance finding that Costa acted with reckless indifference to human life. Specifically, she argues something more than being an aider and abettor in the underlying attempted robbery must be shown in order to affirm the jury's reckless indifference finding. In denying Costa's motion for a new trial for lack of sufficient evidence, the trial court said: "[Defendant's attorney's] argument that there is insubstantial evidence to support a special circumstance murder conviction does not, frankly, comport with the evidence that the Court heard in this case. [¶] . . . [¶]
"The jury clearly found beyond a reasonable doubt that there was evidence to support the special circumstance murder, and I have to agree from what I heard in this case, there was overwhelming evidence, really, that Ms. Martinez-Costa is the one who set up this robbery, and without Ms. Martinez-Costa, Mr. Hiter would be alive today. I have no doubt based on what I heard in this case."
"A defendant convicted of first degree murder with at least one special circumstance found true will be sentenced to either death or life imprisonment without the possibility of parole. (Pen. Code, § 190.2 . . . .) One of these special circumstances is the felony-murder special circumstance under which a murder occurred during the commission or attempted commission, or the immediate flight after commission, of one of eleven specified felonies. (§ 190.2, subd. (a)(17)(i-xi).) A felony-murder special circumstance is applicable to a defendant who is not the actual killer if the defendant, either with the 'intent to kill' (§ 190.2, subd. (c)), or 'with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [one of the eleven enumerated felonies].' (§ 190.2, subd. (d) . . . .)" (People v. Estrada (1995) 11 Cal.4th 568, 571-572, original italics.)
As recognized by the California Supreme Court in People v. Banks (2015) 61 Cal.4th 788 (Banks), special circumstances felony murder under section 190.2, subdivision (d) "imposes both a special acts reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (Banks, supra, at p. 798.)
To be a major participant, the "defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder." (Banks, supra, 61 Cal.4th at p. 802.) In assessing a defendant's role, the following factors may be utilized: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Id. at p. 803.)
These factors are not necessarily determinative, but are meant to inform the court's decision. (See Banks, supra, 61 Cal.4th at p. 803 [noting "[n]o one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant's participation 'in criminal activities known to carry a grave risk of death' [citation] was sufficiently significant to be considered 'major' [citations]"].)
In assessing the mental requirement, the court "look[s] to whether a defendant has ' "knowingly engag[ed] in criminal activities known to carry a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 801 [citing People v. Estrada, supra, 11 Cal.5th at p. 577; Tison v. Arizona (1987) 481 U.S. 137, 157 [95 L.Ed.2d 127, 144]].) "The defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create." (Banks, supra, at p. 801.) Notably, "[a]wareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Banks, supra, 61 Cal.4th at p. 808.) It is also not enough to be a major participant in a crime listed under section 189. (Id. at p. 810 ["[w]hether a category of crimes is sufficiently dangerous to warrant felony-murder treatment, and whether an individual participant has acted with reckless indifference to human life, are different inquiries"].)
In People v. Clark (2016) 63 Cal.4th 522 (Clark), the California Supreme Court considered whether a defendant who planned an armed robbery had the requisite mental state for the reckless indifference to human life special circumstance of felony murder. (Id. at pp. 614-623.) Relying on the seminal Supreme Court of the United States decision, Tison v. Arizona, supra, 481 U.S. 137, it noted that whether a defendant has acted with reckless indifference has both an objective and subjective component. (Clark, supra, 63 Cal.4th at p. 617.) "The subjective element is the defendant's conscious disregard of risks known to him or her[,]" while the objective element asks "what 'a law-abiding person would observe in the actor's situation.' [Citation.]" (Ibid.)
"When reviewing a challenge to the sufficiency of the evidence, we ask ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citations.]" (Banks, supra, 61 Cal.4th at p. 804, original italics.) "Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence—that is, evidence which is reasonable, credible, and of solid value" ' that would support a finding beyond a reasonable doubt. [Citation.] These same standards apply to challenges to the evidence underlying a true finding on a special circumstance. [Citation]." (Ibid.)
Whether substantial evidence supports a finding of reckless indifference to human life is a case specific inquiry for which there is no magic formula. Rather, we look at the totality of the circumstances to determine whether there is substantial evidence Costa " ' "knowingly engag[ed] in criminal activities known to carry a grave risk of death." ' " (Banks, supra, 61 Cal.4th at p. 801; In re Loza (2017) 10 Cal.App.5th 38, 55 [the totality of the circumstances supported the reckless inference finding].)
Here, we hold substantial evidence supports the jury's determination that Costa acted with reckless indifference to human life.
The evidence showed that Costa lured Hiter—a drug dealer who she believed had sold her inferior methamphetamine—to her home in the dead of night to be robbed by Doria, another drug dealer, who she believed had the mentality of a child and was "fuckin' crazy." That Costa recruited Doria to rob Hiter suggests that she knew Doria was capable of violence. We note that, as a matter of common sense, taking money and drugs from a drug dealer is an inherently dangerous activity.
Here, the record shows both Doria and Hiter used and sold drugs and Costa knew that. Moreover, Doria was a dangerous person, who carried a gun at all times. He was known in his circle of acquaintances, of which Costa was one, to at least claim to have used a firearm to rob people, was known to have been previously involved in a shootout while robbing a dealer, and was known as a person considered capable of murder.
Costa's own son harbored concerns about Doria's violent tendencies and the danger he posed to Costa, which one can reasonably infer he expressed to his mother, further supporting Costa's subjective awareness of the risk incurred by enlisting Doria to rob Hiter.
Costa's awareness of the heightened potential for grave danger during the robbery may also be inferred from Costa texting her friend not come to Costa's house shortly before the botched robbery, arguably to keep the friend safe and avoid witnesses to the crime. That Hiter would not be a passive victim and was capable of defending himself from an armed assailant may be inferred from his apathy concerning a warning that Doria might try to rob him if he flashed money in front of him again. All of these factors notwithstanding, Costa arranged the robbery for her own purposes and participated in it knowing she was bringing together two violent drug dealers who were quite likely armed with firearms.
In light of all these facts and circumstances and the reasonable inferences that can be drawn therefrom, there is substantial evidence in the record to support the jury's ultimate finding that objectively the robbery Costa orchestrated posed a grave risk of death and that subjectively she was aware that her active participation, indeed her organization, of the robbery of Hiter, posed a grave risk of his death and, therefore, that she acted with a reckless indifference to human life.
VI
The Custody Credit
Costa argues her judgment must be modified to reflect an additional 17 days of custody credits from the time she spent in Arizona after her arrest at the United States border and prior to her return to California. The People argue Costa is not entitled to these days because she has not proved that the conduct that led to the conviction was a "dispositive" or "but for" cause of the presentence custody.
An error in the calculation of presentence credit creates an unauthorized sentence regardless of Costa's counsel's failure to identify it below (People v. Acosta (1996) 48 Cal.App.4th 411, 420-428 [recognizing presentence custody credit issue need not be preserved below where multiple issues raised on appeal]), thus entitling Costa to raise this matter on appeal. (People v. DeJesus (1995) 38 Cal.App.4th 1, 33 [person with life sentence still entitled to review].)
Under section 2900.5, subdivision (b), Costa was entitled to credit "where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (b).) "It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213." (§ 2900.5, subd. (d).)
The abstract of judgment credited Costa with 850 custody days, presumably based upon the probation report, which showed Costa's date of arrest as January 25, 2012, and calculated that she was entitled to 850 days of presentence custody credits.
Officials in Santa Cruz County, Arizona, arrested Costa on January 8, 2012, while she was reentering the United States. The People argue Costa has not established that she was not apprehended for crimes other than the ones that she was convicted of here. But this argument ignores the fact that Costa was picked up while crossing the border because "the border patrol picked up the [California] warrant on their system and flagged it," resulting in notification to California authorities that Arizona officials had Costa in custody on California's warrant.
Nothing in the record suggests Costa was detained on January 8, 2012, because of anything but the California warrant, and we decline the People's invitation to remand this case for a factual determination regarding whether an alternative cause for her detention exists.
Costa is entitled to credit for time spent in custody pending her return to California on the California warrant. (See In re Watson (1977) 19 Cal.3d 646, 650-652 [defendant entitled to time spent in foreign jurisdiction resisting extradition].) The People's authorities concerning custody credit where there are mixed causes for incarceration are inapplicable on this record because it is devoid of any suggestion that Costa was incarcerated for anything but her conduct in this matter which led to her conviction.
Costa is entitled to credit for an additional 17 days in custody while she was being held in Arizona on California's arrest warrant in this matter.
DISPOSITION
We remand Doria's matter to the trial court to consider its discretion under section 12022.53, subdivision (h). We remand Costa's matter for the trial court to amend Costa's abstract of judgment to reflect 867 days of custody credits. This amended abstract of judgment reflecting the proper custody credits shall be sent to the California Department of Corrections and Rehabilitation. The judgments are otherwise affirmed.
HULL, Acting P. J. We concur: MAURO, J. DUARTE, J.