Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SA052445, James R. Dabney, Judge. Affirmed as modified.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Rohan McDermott, appeals from the judgment entered following his conviction, by jury trial, for special circumstance first degree murder (during commission of kidnapping and robbery), with a firearm use enhancement (Pen. Code, §§ 187, 190.2, subd. (a)(17)). Sentenced to state prison for life without possibility of parole plus one year, McDermott claims there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
On April 28, 2004, Dwane Godoy met with defendant McDermott and Alcliff Daley. They asked if Godoy knew anyone who could get marijuana for them. Godoy promised to check around. He contacted Troy Lewis’s uncle Dave, who subsequently called back to say Lewis could get the marijuana.
All further calendar references are to the year 2004 unless otherwise specified.
On the night of April 29, McDermott, Daley, Godoy, Lewis, Dave, and Lewis’s girlfriend Karla DeDunn got together at a house on 36th Street. McDermott said he wanted to buy 100 pounds of marijuana. Godoy testified the price for this amount of marijuana was between $28,000 and $35,000. Lewis had 33 pounds of marijuana in DeDunn’s S.U.V. McDermott inspected it and said “he could work with the stuff,” but he wanted to buy the entire hundred pounds at one time. The group agreed to meet the following day. Godoy testified McDermott had been doing all the negotiating during this first meeting. Later that night, Lewis called Godoy to say he had acquired the rest of the marijuana and the deal could take place in the morning.
On the morning of April 30, Godoy returned to the house on 36th Street. McDermott, Daley, Lewis and DeDunn were already there. This surprised Godoy, because McDermott and Daley only knew Lewis through him; Godoy feared McDermott and Daley might be trying to cut him out of the deal. The marijuana was in the back of DeDunn’s S.U.V. McDermott was holding a Converse tennis shoe box. Lewis said, “Let’s count the cash.” McDermott opened the Converse box, but then both he and Daley started “to fidget around,” “acting . . . nervous.” McDermott took some money out of the box. The money was wrapped in plastic. Then McDermott put the money back into the Converse box and said he wanted a scale. Lewis said, “We don’t play games. . . . It’s a hundred and three [pounds] there. If you short, we gonna give you that.” Godoy testified he said, “This is business. We could do it right here if the cash is right.” But McDermott replied, “Well, I need a scale. I want to weigh out everything.”
They agreed to go to Daley’s apartment in Hawthorne because McDermott said he had an electric scale there. McDermott and Daley left in McDermott’s rental car and took the Converse box with them. Lewis and Godoy went in Godoy’s car, and DeDunn drove the S.U.V. Lewis told DeDunn to drive around until everything was settled. At one point, the two cars pulled over. DeDunn was nowhere in sight. McDermott indicated he would complete the drug deal right there, that he would give them the money when they put the marijuana in his car. However, a police car drove past just then. McDermott panicked and said he had to get out of there. Lewis jumped into McDermott’s car and Godoy drove by himself.
Godoy called Lewis on his cell phone to ask what was happening. Godoy thought McDermott was trying to convince Lewis to do the deal without him. Godoy told them to pull over so he could catch up. When he did, there were more negotiations and then the four of them again agreed to go to Daley’s apartment. Lewis got back into Godoy’s car. Meanwhile, Lewis stayed in phone contact with DeDunn, who was still driving the marijuana around in her S.U.V.
Godoy and Lewis got to Daley’s apartment complex first. There was a 7-Eleven nearby and Lewis told DeDunn to wait there until it was time to bring the marijuana. When the others arrived, Godoy and Lewis got into McDermott’s car and he drove through the security gate into the parking garage. Godoy thought they were going to complete the transaction right there, but McDermott handed the Converse box to Daley and then drove back out onto the street. Daley, Lewis and Godoy went upstairs to Daley’s apartment.
Inside apartment 200, Daley put the Converse box down on a table. He showed Godoy and Lewis pictures of a house he was building in Jamaica. Meanwhile, McDermott telephoned Daley repeatedly. During these calls, Godoy could hear McDermott asking Daley what they were doing. At one point, Lewis went over to the Converse box and said, “Let’s count the money.” Daley told him not to touch it because it was McDermott’s money and he didn’t want McDermott “to come upstairs and say . . . something is missing. . . .” Finally, McDermott showed up. He did not look at Godoy and Lewis when he came in; he kept his head down and just walked into the kitchen with the Converse box and sat down.
Daley went into a back room and suddenly reappeared with a gun. He ordered Godoy and Lewis not to move, and he told McDermott to get the tape and tie them up. Daley said he was going to kill Godoy and Lewis “and just leave us in the closet to stink up.” He ordered them onto the floor, where McDermott taped their hands and legs. Godoy got his hands free, but when Daley noticed it he put the gun to Godoy’s head and said, “If you do that again, I’m gonna kill you.” McDermott re-taped Godoy’s hands.
Daley announced he was going after the marijuana. He told McDermott to “get the other gun” and guard Godoy and Lewis. But when Daley left the apartment, McDermott walked out right behind him. Godoy again managed to free his hands and he got to the front door. But as he pulled it open, McDermott suddenly appeared and said, “You’re not going nowhere.” A struggle ensued, during which a window broke. Godoy got away and started screaming for help.
With McDermott chasing after him, Godoy ran from the apartment complex and hid underneath a car in a neighboring yard. A man holding a shotgun told Godoy he was trespassing, but Godoy refused to leave. When the man’s daughter intervened, Godoy begged her to call the police, saying he and a friend had just been “jacked in that apartment building over there.” The woman called the police, who arrived 40 minutes later.
Godoy gave police a false story, saying he and his friend had been walking down the street when they were kidnapped. He didn’t tell the truth because he realized he could be prosecuted for drug trafficking. When the police took Godoy back to the apartment complex to look around, he did not tell them about apartment 200 or Lewis being tied up there.
Anna Fitzgerald lived in apartment 201. On the afternoon of April 30, she heard a single gunshot, followed by breaking glass and then someone saying, “Hey, get back here.” Fitzgerald looked out and saw that apartment 200’s security screen door was open and that the doorknob had smashed backward into the kitchen window.
On the afternoon of April 30, Edna Martinez, assistant manager at Daley’s apartment complex, received several telephone messages about a problem in apartment 200. That night, she went to apartment 200. The security screen door had apparently been slammed into the kitchen window, cracking it. Inside the apartment she found Lewis’s dead body.
Lewis had been shot in the head. His hands were behind his back, bound with tape. The Converse tennis shoe box was on the kitchen counter. Inside the box there were several bundles of cut up newsprint. Each bundle was covered by a little paper money and wrapped in cellophane. A similar bundle was found under the front seat of McDermott’s car. The total amount of real money in all the bundles was $1,120.
That night, Godoy’s uncle convinced him to go to the police. At first, Godoy repeated his story about having been kidnapped off the street, but after learning Lewis had been killed he described the marijuana deal and what took place inside apartment 200. Godoy gave police the license number of McDermott’s rental car, which was found parked in front of Daley’s apartment complex.
Godoy testified he did not have either the marijuana or a gun in his car that day, nor did he have a gun on him when he went up to apartment 200.
2. Defense evidence.
McDermott testified he was living in Florida in 2004. In late April, he flew to Los Angeles in order to retain an attorney to represent him in a forfeiture proceeding. In November 2003, officers had taken $14,000 from him when he flew into Long Beach, and he wanted to reclaim that money. He was planning to stay with Daley in Hawthorne. Because Daley did not own a car, McDermott rented one.
On April 29, Daley gave McDermott a ride to the corner of Slauson and Western Avenue, where Daley met with Godoy and spoke to him about buying marijuana. Godoy seemed to know McDermott, but McDermott couldn’t place him until he remembered Godoy’s cousin had once introduced them. That night, while McDermott stayed at Daley’s apartment, Daley borrowed the rental car; McDermott didn’t know where he went.
On April 30, McDermott drove Daley to 36th Street to meet Godoy again. Godoy showed Daley a small plastic bag of marijuana. There was an S.U.V. there with a female driver and a male passenger who McDermott later learned was Lewis. When Daley got back in the car, he told McDermott he had ordered some marijuana from Godoy. McDermott thought Godoy was going to call them to set up the exchange. McDermott and Daley drove to a restaurant to get take-out food. There was never a discussion about a scale and they did not stop anywhere on the street to discuss the drug transaction.
When they got to Daley’s apartment complex, Lewis and Godoy were waiting for them in front. McDermott drove them into the garage and then went to park his car. He suddenly felt uncomfortable about Godoy and Lewis going up to Daley’s apartment because he didn’t like their “vibes.” McDermott made a series of phone calls to the apartment, during which he urged Daley to tell Godoy and Lewis to leave. But Daley kept hanging up on him. Finally, Daley told McDermott to come upstairs and McDermott complied.
When he got inside apartment 200, McDermott went to the kitchen to get something to drink. Then he heard his name called. He walked into the living room and saw Daley pointing a gun at Godoy and Lewis. When Daley ordered McDermott to tie them up, McDermott “said, ‘Man, I don’t want to get involved in this.’ And when I said that, I was about to leave. But the expression on [Daley’s] face change[d], and I tied them up.” Then, when Daley turned his back, McDermott fled from the apartment. As he was running, he heard a loud noise. McDermott could not find his car key, so he ran “all the way to Century.” He took a cab to where a friend of his worked.
Several weeks later, McDermott was apprehended in Florida.
McDermott denied having any more than $100 on him when he landed at Long Beach in April 2004. He testified that when the $14,000 was taken from him at the Long Beach airport in November 2003, he told the detaining officer he lived in Florida. McDermott specifically denied telling the officer he lived in Los Angeles.
3. Rebuttal evidence.
Michael Vanagas testified he worked at the Long Beach airport as part of a California Department of Justice task force intercepting shipments of drugs and drug money. On November 24, 2003, he seized $14,000 from McDermott. On that day, Vanagas asked McDermott where he lived and McDermott said Los Angeles.
Vanagas testified he was working the same assignment on April 21, 2004, when he again came into contact with McDermott. Because he remembered McDermott from before, Vanagas searched him and found he was carrying approximately $2,000. Vanagas did not take possession of this money because the policy was to seize only amounts over $5,000.
CONTENTIONS
1. The trial court erred by refusing to grant judicial immunity to Karla DeDunn.
2. The trial court erred by imposing a parole revocation fine.
DISCUSSION
1. Trial court did not err by refusing to grant judicial immunity.
McDermott contends his constitutional rights were violated because the trial court refused to grant judicial immunity to Karla DeDunn. This claim is meritless.
a. Background.
DeDunn told police she had seen a gun in Godoy’s waistband shortly before he and Lewis left the 36th Street house to drive to Daley’s apartment in Hawthorne. She also told police there had not been any marijuana in her S.U.V. on April 30, and that she had not been involved in any drug deal. McDermott argues this was crucial defense evidence because it contradicted Godoy’s testimony that he did not have a gun and that DeDunn had the marijuana in her S.U.V.
DeDunn said Godoy later told her he left the gun in his car when he and Lewis arrived at Daley’s apartment, which was why he didn’t tell the police about Lewis being tied up there.
At trial, the prosecutor requested immunity for Godoy, but it turned out to be unnecessary because Godoy decided not to claim the Fifth Amendment privilege against self-incrimination. DeDunn’s attorney initially told the trial court nothing DeDunn said would incriminate her. However, the prosecutor told counsel, “Just so you know, there were four or five other witnesses who say she had a hundred pounds of marijuana in the car.” After some discussion, DeDunn’s attorney said, “Okay. You sold me. I guess she should take the Fifth. That makes sense.” Subsequently, DeDunn informed the trial court she would invoke the Fifth Amendment if called to testify. The prosecutor told the trial court he was not going to call DeDunn as a witness, or ask that she be granted immunity, because he believed her testimony would be false.
McDermott’s attorney subsequently asked the trial court to grant DeDunn judicial immunity. The prosecutor opposed the request, saying: “I do not believe the testimony exculpable. It is not exculpable. Simply put, it’s a statement by Ms. DeDunn that is suspect in nature based upon the entire rest of the evidence in this case.” The prosecutor also told the trial court DeDunn’s testimony would be false: “[T]here is no truth to anything Ms. DeDunn is saying. There’s no truth. I will not, as an officer of the court, ask this court under [section ]1324 to grant immunity based on . . . fictitious testimony.” The trial court denied the defense immunity request, ruling that even if it had power to grant it, judicial immunity was unwarranted. DeDunn’s proposed testimony was not clearly exculpable because she had not been there when Lewis was murdered, and there was no reason to think the prosecutor had refused to grant DeDunn statutory immunity “in order to subvert the fact-finding process.”
The trial court reasoned that, although evidence that DeDunn saw a gun in Godoy’s waistband and that she did not have any marijuana in the S.U.V. would have benefited the defense, “I just don’t . . . see it as being clearly exculpatory, because it doesn’t go to the heart of the case as to what transpired in apartment 200.”
b. Legal principles.
Under section 1324, the granting of immunity is a prosecutorial function. “It was undoubtedly within the power of the Legislature to make the grant of immunity conditional upon a request of the district attorney . . ., the power to provide for the exercise of a grant of immunity being essentially a legislative function. [Citations.] Making a grant of immunity subject to a request therefor by the district attorney . . . does not invade judicial prerogatives, since the decision to seek immunity is an integral part of the charging process, and it is the prosecuting attorneys who are to decide what, if any, crime is to be charged.” (In re Weber (1974) 11 Cal.3d 703, 720.) McDermott acknowledges this rule, but contends the trial court had the inherent authority to grant DeDunn judicial immunity and that its failure to do so constituted prejudicial error.
Section 1324 provides, in pertinent part: “In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he or she may be incriminated thereby, and if the district attorney of the county or any other prosecuting agency in writing requests the court, in and for that county, to order that person to answer the question or produce the evidence, a judge shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order.”
Although our Supreme Court has assumed, arguendo, that a trial court could grant immunity if necessary to protect a defendant’s due process rights, it has not had to decide the issue because every case so far has failed on its facts. “As [People v. Hunter (1989) 49 Cal.3d 957] makes clear, the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has ‘inherent power’ to confer immunity on a witness called by the defense. We noted and discussed the ‘one case which has clearly recognized such a right, Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964,’ and concluded that even under Smith, the defendant’s offer of proof ‘fell well short of the standards set forth’ in that case. [Citation.] We reach the same conclusion, by the same reasoning, in this case. [¶] As we explained in Hunter, supra, although the Smith court recognized the possibility of judicially conferred immunity in special cases, it ‘also recognized that “the opportunities for judicial use of this immunity power must be clearly limited; . . . the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity . . . . [¶] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government’s witnesses.” [Citation.]’ [Citation.].” (In re Williams (1994) 7 Cal.4th 572, 610.)
“The first of the two tests outlined in Hunter . . . would recognize the authority of a trial court to confer immunity upon a witness when each of the following three elements is met: (1) ‘the proffered testimony [is] clearly exculpatory; [(2)] the testimony [is] essential; and [(3)] there [is] no strong governmental interest[ ] which countervail[s] against a grant of immunity.’ [Citation.]” (People v. Stewart (2004) 33 Cal.4th 425, 469, fn. omitted.) “The second of the two tests referred to in Hunter . . . as authorizing a trial court to grant immunity to a defense witness, would recognize such authority when ‘the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence,’ thereby distorting the judicial factfinding process.” (Id. at p. 470.)
“Clearly exculpatory” in this context means evidence that, if believed, would logically require the defendant’s acquittal. (Compare Government of Virgin Islands v. Smith, supra, 615 F.2d at p. 966 [judicial immunity might be justified where witness’s proposed testimony, admitting culpability and naming accomplices in victim’s assault, would have necessarily exculpated several defendants] with U.S. v. Eagle Hawk (8th Cir. 1987) 815 F.2d 1213, 1217 [even if district court could grant judicial immunity to witness who found victim’s wallet in her basement, where defendant’s accuser had been living, denial of immunity was not erroneous because evidence at most cast doubt on accuser’s credibility and did not necessarily exculpate defendant].)
c. Analysis.
The prosecution’s theory of the case was that McDermott and Daley intended to steal the marijuana after tricking Godoy and Lewis into thinking they would be paid tens of thousands of dollars. The plan was to tie up Godoy and Lewis inside apartment 200, then go find DeDunn’s S.U.V. and grab the marijuana.
As noted, above, Godoy testified one hundred pounds of marijuana was worth between $28,000 and $35,000. Presumably Godoy was going to get a percentage of Lewis’s profit for having introduced him to the buyers.
McDermott’s theory was that he had been an innocent bystander to a conspiracy between Godoy and Daley to steal Lewis’s marijuana. He argues DeDunn’s testimony was crucial because it supported both this theory and his testimony that he had nothing to do with Lewis’s murder. During closing argument, defense counsel proposed the following scenario to the jury. Daley and Godoy planned to make it look like Daley was robbing both Godoy and Lewis, so they went through the charade of forcing McDermott
to tie them both up. Lewis got shot trying to escape, probably just after McDermott fled from the apartment. Counsel suggested Daley shot Lewis, which caused Godoy to panic because he had only planned on robbing Lewis, not getting him killed. In his panic, Godoy forgot to take his car when he fled from the apartment complex. The marijuana was in Godoy’s car. McDermott had been an innocent bystander to everything that happened.
The prosecutor also opined it had probably been Daley who shot Lewis.
Whether judicial immunity was warranted depends on the degree to which DeDunn’s testimony would have confirmed the defense scenario and corroborated McDermott’s testimony. DeDunn told police she saw Godoy with a gun on the day Lewis was murdered. She said Godoy would be delivering the marijuana to McDermott and Daley, and that Lewis was only going along to help Godoy count the money. DeDunn tagged along in her S.U.V. because she and Lewis were supposed to attend her sister’s graduation. DeDunn said at one point there was a stop on the drive over to Daley’s apartment and Lewis called to tell her where they were. When DeDunn drove up, she asked Lewis “[W]hat happened? And he was like man, they didn’t want to do it right here, you know? . . . [A]nd I was okay, let’s go, but [Godoy] told him, man, we can do this, you know. We can do this. We can make this happen.” So Lewis agreed to go with Godoy to Daley’s apartment. DeDunn waited at the nearby 7-Eleven from 12:30 until 1:30 p.m. Lewis called her twice from Daley’s apartment. The first time Lewis called he said, “we almost done counting the money,” and then he called again to say, “I’m done counting the money.” She never heard from him again.
The following colloquy occurred during DeDunn’s police interview:
“DET. STEINWAND: Could this have been [Lewis’s] marijuana that they are
ripping off?
“[DeDUNN]: No.
“DET. STEINWAND: You don’t think so?
“[DeDUNN]: I don’t think so.”
DeDunn stuck to this story, even though Detective Steinwand asked her, “[W]hat would be [Godoy’s] motive if . . . it wasn’t [Lewis’s] marijuana according to you?”
As the trial court pointed out, DeDunn was not present inside apartment 200 when Lewis got shot, and nothing she said made it impossible for McDermott to have been guilty of Lewis’s murder. That is, DeDunn’s assertions that she did not have the marijuana and Godoy had a gun would have tended to impeach Godoy’s credibility, but they would not have clearly exculpated McDermott. Hence, the trial court properly refused to grant judicial immunity under the first Hunter test. (See People v. Stewart, supra, 33 Cal.4th at p. 469 [one test for granting judicial immunity requires proffered testimony that is “essential” and “clearly exculpatory”].)
Moreover, some of DeDunn’s story did not support McDermott’s testimony. For instance, DeDunn told of a stop on the drive over to Daley’s apartment, which was more consistent with Godoy’s testimony than with McDermott’s. More damaging for McDermott, some parts of DeDunn’s story were so improbable they tended to justify the prosecutor’s assertion her testimony would be false. First, as the detective who interviewed DeDunn realized, if the marijuana did not belong to Lewis it must have belonged to Godoy, but then Godoy had no motive for engaging in the conspiracy posited by the defense theory. Second, DeDunn told police Lewis called her from apartment 200 and said they had finished counting the money. But there was no money to count; there
were only bundles of fake money. It seems highly improbable Lewis could have said this to DeDunn. Hence, the trial court properly refused to grant judicial immunity under the second Hunter test. (See People v. Stewart, supra, 33 Cal.4th at p. 470 [one test for granting judicial immunity requires prosecutor’s intentional refusal to immunize key defense witness in order to suppress exculpatory evidence].)
Ironically, McDermott tries to impeach Godoy by noting he testified that Lewis called DeDunn to say “they were about to count the money, but by the prosecution’s evidence there were only packages of fake money, not real money to count.” Lewis, however, might indeed have thought they were about to count the money in the Converse box because he was unaware the money was fake. But DeDunn’s statement that Lewis called to say they had already counted the money is another matter.
The trial court did not err because neither of the two tests approved by our Supreme Court for granting judicial immunity was met.
2. Trial court imposed an unauthorized parole revocation fine.
McDermott contends the trial court erred by imposing a parole revocation fine under section 1202.45 because he was given a term of life without possibility of parole and, therefore, his sentence does not include a period of parole. The Attorney General properly concedes this claim has merit.
Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.”
People v. Oganesyan (1999) 70 Cal.App.4th 1178, held that where one of the terms imposed on a defendant was for life without possibility of parole, the trial court did not err by declining to impose a parole revocation fine “because the sentence does not presently allow for parole and there is no evidence it ever will.” (Id. at p. 1185; accord People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Oganesyan reasoned the legislative purpose of restitution fines is to recoup “from prisoners and potentially from parolees who violate the conditions of their parole some of the costs of providing restitution to crime victims,” but given there is only the slimmest chance anything would be recouped from a defendant sentenced to a term that prohibited parole, “there is no evidence the Legislature intended that its cost recoupment purposes were to apply under such an extremely limited set of circumstances.” (People v. Oganesyan, supra, 70 Cal.App.4th at pp. 1184-1185.)
We will order the parole revocation fine vacated.
DISPOSITION
The judgment is affirmed as modified. The parole revocation fine shall be vacated. In all other respects, the judgment is affirmed. The clerk of the superior court shall prepare an amended abstract of judgment to reflect this modification, and forward the amended abstract of judgment to the Department of Corrections.
We concur: KITCHING, J., ALDRICH, J.