Opinion
C054011 C054462
8-4-2008
THE PEOPLE, Plaintiff and Respondent, v. SEAN ALAN OBRIEN, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. TYLER ADAM DICKSON, Defendant and Appellant.
Not to be Published
A jury convicted defendants Sean Alan OBrien and Tyler Adam Dickson of first degree felony murder arising from the robbery and burglary of a home and the killing of one of the homes residents. Defendants appeal, claiming the following errors: (1) the trial court wrongly denied a motion for new trial in light of insufficient evidence supporting the verdict, new evidence presented after the verdict, and evidence that the prosecution had violated Brady v. Maryland (1963) 373 U.S. 83 (Brady); (2) the court erred in not disqualifying the prosecutor due to the Brady violation; (3) the court erred in not instructing the jury on the elements of robbery; and (4) the defendants prison sentences were unconstitutionally disproportionate. Except to vacate the robbery special circumstance finding, we affirm the judgment.
FACTS
Prosecution
1. William Wellman
William Wellman testified for the prosecution against defendants OBrien and Dickson pursuant to a plea bargain. Under the terms of that agreement, Wellman agreed to testify truthfully and to plead guilty to first degree murder. The agreement was conditioned on the understanding that if the trial court determined that Wellman testified truthfully, the court would reduce Wellmans conviction to second degree murder, and the district attorneys office would recommend that Wellman be released when he was eligible for parole.
At the time of their crimes, Wellman was 20 years old; Dickson was 17; and OBrien was 16. Wellman had been friends with Dickson for about two and a half years. They both enjoyed riding BMX bikes together. Dickson told Wellman they were going to go to a home where some people a little older than they lived, and they would steal some dirt bikes and marijuana. To carry out the plan, Wellman slept over at Dicksons house on February 25, 2003.
Wellman woke up the morning of February 26, 2003, at roughly 7:00 a.m. Their plan was for Dickson to go to school that morning, then meet Wellman at a video store located at the top of Oak Hill Road. Wellman drove to the store and waited until Dickson showed up. By the time Dickson arrived, Wellmans truck had run out of gas, so they rode in Dicksons truck and went to the house of a friend, Shawn Santelio. They stayed there for about 20 minutes, and then they drove to defendant OBriens house.
An Independence High School administrator stated that school started at 7:55 a.m. Records for February 26, 2003, indicated Dickson was present at the beginning of school, but he reported to the office complaining of feeling ill. A call was made at 8:08 a.m. to his home to contact a parent, but it was unsuccessful. Dickson then checked himself out of school.
Shawn Santelio was a good friend of Dicksons and an acquaintance of Wellmans. Santelio testified that in late February 2003, Dickson and Wellman stopped by his house in the morning and asked if he wanted "to go jack some dirt bikes." He said no. He did not remember if they came over more than once that day.
Wellman had never met OBrien prior to this time. He and Dickson stayed at OBriens house for about 30 to 40 minutes, talking about what was going to happen. OBrien explained he thought no one would be in the home they were going to burgle. He said they would find money, marijuana, and dirt bikes there. Dickson had not known what the plan was until they discussed it with OBrien.
Wellman was not wearing a watch that day and had no place to be, so he "wasnt really keeping track of time." On cross-examination, he said they stayed at OBriens house "ten minutes at most."
These discussions took place in OBriens bedroom. Wellman noticed there was an aquarium in the room that contained exotic fish such as piranhas. He also noticed a couch or love seat in the room.
Wellman did not know when they arrived at OBriens house except that it was sometime after 8:00 a.m. He did not know how long after 8:00 a.m. they had arrived.
From OBriens house, the trio proceeded to the Big Horn Gun Shop located on Forni Road, a trip of about five minutes. They rode in Dicksons truck, with Dickson driving. OBrien brought along a shotgun he had wrapped in a blanket. OBrien asked Wellman if he would buy shotgun shells, since Wellman was the only person over 18 years old.
The three went inside the gun store, and Wellman asked the clerk for some shotgun shells. He did not know what type of shells to get, so OBrien told the clerk what they needed. The box of shells did not cost more than five dollars. The trio was inside the store no more than five minutes.
From the gun shop, the young men drove to a home located on Treasure Lane, off of Green Valley Road. Dickson drove, and OBrien gave Dickson directions. OBrien stated they were going to go inside when they got to the house. He also said that if anyone was there, he was going to blow them away.
Dickson pulled into the homes driveway, and he parked the truck with the front end facing the house. A white Toyota pickup was parked in the driveway. The three got out of the truck. OBrien proceeded to the front door. He knocked twice, but no one answered. He walked back to the truck and said, "I dont think anybody is home, anybody is here." He grabbed the shotgun, and all three of the men went to the door.
The front door was open. As they walked inside, a man came out of a side bedroom holding a rifle. The man asked, "What are you doing in my house?" Wellman and Dickson quickly turned around, exited the house, and ran back to the truck. Dickson started the truck up, and as he was doing that, Wellman heard a gunshot from inside the house.
Dickson had put the truck into reverse and had started backing up when OBrien came out of the house, waving and yelling, "Hes dead." Dickson drove the truck back towards the house and got out. He left the truck running, and he told Wellman to turn the truck around. Wellman complied and then went inside the house.
Inside, Wellman saw the victim lying on the floor. Dickson was standing and holding the victims rifle, and OBrien was standing and holding the shotgun. Wellman grabbed a marijuana pipe from a table in the living room and put it in his pocket. He then saw Dickson and OBrien standing in front of a door down the hallway. OBrien said, "This is the room we want to get into." This was not the same room the victim had come out of. Wellman joined the other two. Dickson kicked open the door, and Wellman and OBrien went into the room.
Wellman grabbed some marijuana from inside a dresser, and OBrien took "a lot" of cash from inside a box in the dresser. Dickson then reappeared at the door, and Wellman said, "We should get out of here." The three left the house.
Once inside the truck, they put the victims rifle and the shotgun under the seat. OBrien took the cash out of his pocket. He tried to count it but "there was so much adrenaline" that he could not concentrate. He gave about $200 to Wellman.
While driving away on Forni Road, one of the boys suggested they get rid of the victims rifle. Wellman told them there was a pond coming up. They stopped at the pond. OBrien got out and threw the rifle into the water.
They then drove back to OBriens house. They smoked the marijuana Wellman had stolen. They agreed that they would not talk about what had happened again. After about 20 minutes, Wellman and Dickson left and went to Shawn Santelios house. On the way there, Dickson told Wellman he was sorry for getting him into this.
On cross-examination, Wellman stated he had no idea what time the three men arrived back at OBriens house after throwing away the rifle in the pond, but if he had to say, it was probably around 11:00 a.m. This differed from the time frames Wellman gave to investigating authorities in his first two interviews with them. In those interviews, Wellman stated that Dickson picked him up at Independence High School that morning sometime between 10:00 a.m. and 11:00 a.m., and that they threw the rifle into the pond sometime between 1:30 p.m. and 2:00 p.m. The jury saw a videotape of the first interview and heard an audiotape of the second interview.
2. Jesse Pine
Jesse Pine resided at the Treasure Lane home in February 2003. The house had two levels, a main level and then a basement. The garage was in the basement level. Three dirt bikes, one street motorcycle, and a few jet skis were stored in the garage.
Pine lived at the Treasure Lane home with Tim Dreher, Eric Rootness, and Kyle Smelser. Pines and Smelsers bedrooms were located on the main floor across the hall from each other. Smelsers bedroom windows looked out the front of the house towards the driveway and the stairway leading to the house. Smelser owned an off-white Toyota pickup.
At that time, Pine used marijuana, and he sold it to his roommates and friends. One person to whom he sold the drug on occasion was Rootnesss stepbrother, Frankie Silici. Silici would come to the Treasure Lane house to purchase marijuana. Oftentimes, Silici would bring a friend or two with him. One of the friends he brought to the house was defendant OBrien. Pine did not know Wellman or Dickson, and he had no knowledge that either of them had ever visited his house.
Pine left the house for work on February 26, 2003, at around 6:40 a.m. He locked his bedroom door before leaving. Smelsers truck was parked in the driveway when he left. Pine returned home from work at about 3:50 p.m. that day. Smelsers truck was still parked in the same location. Pine was surprised to find the homes front door wide open.
Upon walking in the house, Pine saw Smelser lying on the floor. He ran over and discovered that Smelser had been shot. He began running around the house, looking for anyone and anything. In Smelsers bedroom, he saw an empty gun case on the bed. He noticed the door to his own bedroom had been kicked open. $ 3,000 in cash was missing from inside his dresser drawer. A large amount of marijuana that he stored in his backpack was still in his room, but his marijuana pipe that he kept on a table in the living room was missing. Pine called 911.
3. The investigation
Deputy Jim Applegate from the El Dorado Sheriffs Department was the first law enforcement officer to arrive at the scene. He found the victim lying on the floor with a gunshot wound to the left side of his head. The body was cool to the touch. Applegate noticed the beginning of lividity, or pooling of the blood, in the victims fingers.
At approximately 6:00 p.m. on February 26, 2003, forensic pathologist Curtis Rollins, M.D., arrived at the crime scene and examined the victims body. He concluded the victim had died from a shotgun wound to the head. Death had occurred approximately six to eight hours prior, or between 10:30 a.m. and 12:30 p.m. that day, and more likely closer to 12:30 p.m. He also concluded the distance between the end of the firing guns barrel and the victim was between three and four feet.
During the autopsy, Dr. Rollins recovered a plastic shot cup or shot-wad from the wound. He explained the shot-wad is a component of the shotgun shell that is used to hold the pellets together until it opens and lets the pellets out. Dr. Rollins also recovered numerous bird shot pellets.
Detective Paul Moschini of the El Dorado County Sheriffs Department interviewed defendant Dickson on March 4, 2003. Dickson had requested the interview. In this interview, Dickson did not admit to any personal involvement in the killing. Moschini interviewed Dickson a second time on March 7, 2003. At that time, Dickson admitted to going to the Treasure Lane house where Smelser was murdered. Dickson said he went there to "rip off" dirt bikes, money, and marijuana. He drove his own truck to the house. He had never been to the house before.
Dickson told Moschini that when he arrived at the house, a white Toyota pickup truck was parked in the driveway. Dickson stated that after he entered the house, a man came out of a room wearing a dark pair of pants but no shirt. He was carrying a .22 rifle. The man said, "What the fuck are you doing here?" Thinking there was going to be a gunfight, Dickson ran out of the house. After leaving the house, Dickson said, he went to a pond located on Forni Road for the purpose of throwing away the .22 rifle.
Dickson informed Moschini that Wellman was with him when this happened. Dickson had called Wellman and asked him to come along for reassurance because he did not want anything to go wrong.
Dickson showed Moschini the location from where the rifle was thrown into the pond. After Dickson showed Moschini the pond, he took the detective to Wellman. Moschini arrested Wellman.
Deputy sheriffs searched the pond off Forni Road to locate the gun. The divers located the rifle in six feet of water about 17 feet off the shore and near a turnout from the road. The weapon was a Winchester .22 caliber long rifle. It was not loaded.
4. J.D. Petty
Jonathan or "J.D." Petty was a friend of OBriens from when the two attended Union Mine High School. They would hang out together all day. Petty also was an acquaintance of Dicksons from school, but he did not know Dickson very well. In February 2003, Petty loaned OBrien a .20 gauge shotgun. He thought it was either a Winchester or a Remington.
The day before he loaned the gun to OBrien, Petty had been at OBriens house. OBrien had a box of clay pigeons in his room. He told Petty that he and a couple of his cousins were going trapshooting the next day and they were short one gun. He asked Petty if he could borrow his gun. Petty agreed to drop it off the next day on his way to school.
Petty gave the gun to OBrien the next morning. Petty called OBrien from his cell phone at 7:55 a.m. on February 26 when he arrived at OBriens driveway. After Petty pulled up to the house, OBrien came out and got the gun. The gun was wrapped in blankets or beach towels. Dried mud was caked on the butt of the stock from when Petty had used the gun for duck hunting.
At 11:25 a.m. that same day, OBrien called Petty and left Petty a message to call back. Petty did so at 11:28 a.m. OBrien told Petty he could pick up the shotgun. Petty went to OBriens house after school to retrieve the gun. Two friends of his, Clifton Sargent and Michael Carrick, were there when he arrived. OBrien gave Petty the gun and the towels separately. The gun appeared to have been wiped down. There was no mud on the stock.
The Independence High School administrator confirmed that Petty attended school on February 26 from 7:55 a.m., the time school started, until 2:00 p.m.
OBrien also gave Petty a box of Winchester .20 gauge shotgun shells. The boxs price tag indicated it had been purchased at the Big Horn Gun Shop. One shell was missing from the box. Petty asked OBrien about the missing shell. OBrien said he had shot it into a hillside to see what it would do. This explanation did not seem right to Petty because of the way OBrien had spoken about going trapshooting with his cousins. He thought OBrien would know what a shotgun would do if he shot it into a hill.
Over the next few days, Petty heard of the killing, and he began hearing rumors that OBrien was the person who did it. He connected these rumors with the fact that one shell was missing from the box of ammunition OBrien gave him, and, with his friends Sargent and Carrick, "kind of put things together." Worried that he possessed the murder weapon, Petty, along with Sargent and Carrick, went to a relatives property, smashed the shotgun on a rock, and threw the broken pieces into a ravine. They also threw the ammunition and its box into the ravine.
Later, Petty showed Detective Paul Moschini where he had disposed of the gun, and he assisted the detective in searching the area. Moschini recovered parts of the shotgun, 13 shotgun shells, and a gray Winchester shotgun shell box that had a price tag of $4.99 from Big Horn Gun Shop.
Terry Fickies, a criminalist for the state Attorney General, compared the shot-wad and the pellets recovered from the victim by pathologist Dr. Rollins to one of the recovered unfired Winchester shotgun shells. Fickies determined the wadding was consistent in color, composition, and design to the wadding from the unfired shell. He also concluded the pellets recovered from the victim were consistent with the pellets from the live round.
5. Frankie Silici
Frankie Silici, Eric Rootnesss stepbrother, was a friend of OBriens. In early 2003, they were hanging out together nearly every day. Silici testified that prior to February 2003, he had taken OBrien to the Treasure Lane home on two occasions. On both occasions, he purchased marijuana from Pine. He also took OBrien down into the homes garage to see Rootnesss new motorcycle.
On February 26, 2003, Silici called OBriens home telephone number at 10:11 a.m. from his cell phone. OBrien did not have a cell phone at that time of which Silici was aware. Silici did not testify as to the contents of this first phone call or whether he actually reached OBrien. OBrien called Silicis cell phone that same day at 11:45 a.m. and left a message indicating he did not have any marijuana. OBrien called Silici again at 12:17 p.m. indicating he now had marijuana.
6. Chantell Michaud
Chantell Michaud was a close friend of OBriens. She would speak with him on the phone a few times a week. On February 26, 2003, she called OBrien at his home at about 10:30 a.m. and spoke with him. OBrien told her he was going to get some marijuana, money and dirt bikes that day. He said the place where he would get these things had roommates but he did not think they would be home. He told Michaud he was leaving after their phone call.
Michaud spoke with OBrien that evening at about 6:00 or 7:00 p.m. She asked him if everything had gone okay. OBrien said, "No, it didnt go okay." He told her he did not want to talk about it over the phone.
Later that evening, Michaud saw a report of Smelsers murder on the television news. The next day, she called OBrien and tried to discuss the news report with him. He acknowledged he had seen the news report. She asked him if that was what went wrong the day before. He did not answer her. In an interview prior to trial and shortly after the crime, Michaud told sheriffs detectives that OBrien had actually answered her question. When she asked if the murder was what went wrong, OBrien said, "Yeah." "Pretty much."
7. Richard Anschutz
Richard Anschutz was a close friend of OBriens. OBrien called Anschutz at 11:31 a.m., February 26, 2003, and left a message. Anschutz returned the call at 11:34 a.m. During that conversation, OBrien told Anschutz he had $2,500 and wanted to purchase some marijuana. Anschutz asked OBrien where he got the money. OBrien said, "I dont want to tell you over the phone."
Anschutz and OBrien spoke again with each other at 12:06 p.m., 12:11 p.m., and 6:00 p.m. that day. All of these calls concerned Anschutzs efforts to find someone to sell OBrien some marijuana. During either the 6:00 p.m. call or another call two days later, OBrien informed Anschutz that he no longer needed marijuana.
8. Richard Lacerte
Richard Lacerte was another good friend of OBriens. Their families socialized and traveled together. OBrien called Lacerte at 11:32 a.m. on February 26, 2003. Lacerte returned the call at 11:47 a.m. to OBriens home. Telephone records for that same date show Lacerte called OBrien at 5:37 p.m. and OBrien called Lacerte at 9:30 p.m. During one of those conversations, OBrien told Lacerte that he had "a couple grand" and was going to purchase some marijuana. He did not explain how he obtained the money, nor did he ask Lacerte if he knew where he could buy the drugs. Also during one of those calls, OBrien explained that his mother had found his marijuana pipes, and she was going to send him to school in Oregon.
9. Amanda OBrien
Amanda OBrien is defendant OBriens sister. She and OBrien had originally planned for her to stop by OBriens house on February 26, 2003, at 1:30 p.m. so that OBrien could install a stereo in her car. At 11:47 a.m. on that day, however, OBrien called Amanda and asked her to come by earlier. She and her daughter arrived at the house sometime between 12:15 p.m. and 12:30 p.m. that afternoon.
When she arrived, OBrien was on the front porch smoking marijuana with Clifton Sargent, Michael Carrick, and Treva Fudge. She had not met any of these people before that day. A few minutes after she arrived, Carrick took Fudge back to school. At around 1:00 p.m., they ordered pizza from Round Table Pizza. Carrick left to pick up the pizza at approximately 1:15 p.m., and returned some 45 minutes later, an unusually long time to make that trip. Amanda left the house around 2:30 p.m.
10. Clifton Sargent
Clifton Sargent was a friend of OBriens though J.D. Petty, and he was an acquaintance of Dicksons from school. He also was Michael Carricks cousin. On February 26, 2003, Sargent went to OBriens house around noon. Carrick was there, as was OBriens sister, Amanda, and a small child. At one point, OBrien took Sargent aside and showed him a "wad of cash." Sargent asked OBrien where he got it. OBrien said he killed someone for it. Sargent thought OBrien was joking and he laughed. Sargent did not tell Petty or Carrick about OBriens comment because he did not believe it.
At trial, Carrick asserted his Fifth Amendment privilege and did not testify.
Sargent stayed at OBriens house for a couple of hours. He watched OBrien install a stereo in Amandas car. They ordered a pizza and hung out. Sargent also saw OBrien give a shotgun and a box of ammunition to J.D. Petty. He thought this occurred around the day of the car stereo installation or within the next couple of days. Sargent confirmed that he, Petty and Carrick destroyed Pettys shotgun.
Sargent, OBrien, and Carrick contacted someone that afternoon about purchasing some marijuana. That same day or shortly thereafter, the trio met Nate McKelvie, an acquaintance of Carricks, to purchase marijuana. OBrien had the money for that transaction, and Sargent was "pretty sure" it was the same money OBrien had showed him before. At some point, OBrien had told Sargent he wanted to use the money to buy marijuana.
Sargent was interviewed by detectives twice. He lied during the first interview, but met with detectives a second time the same day. During the second interview, Sargent stated that OBrien had in fact told him how much cash was in the wad of money; a little less than $2,400.
In that same interview, Sargent relayed a conversation he had had with OBrien, where OBrien told him he planned to go to a house to get marijuana at a time when no one would be home. OBrien also told Sargent that the guy was not supposed to be there. When OBrien went inside the house, the man came out with a .22 rifle. It was a standoff, and OBrien said he fired first because he was standing there with a gun being pointed at him.
11. Carl Christoffersen
Carl Christoffersen was working at Big Horn Gun Shop in February 2003. He testified that the store opened on weekday mornings at 10:00 a.m. He recalled selling a box of shotgun shells in February 2003 to a tall young man who was accompanied by two younger and shorter men. They were the first customers in the door that day, right after the store opened.
Detective Tom Hoagland of the El Dorado County Sheriffs Department testified that he showed Christoffersen photos of OBrien, Dickson, and Wellman in March 2003. Christoffersen identified Wellman as possibly the tall young man to whom he had sold the box of shotgun shells.
12. Experimental evidence
Detective Hoagland also testified that, based on information he obtained from the investigation, he attempted to determine how long it would have taken for OBrien, Dickson, and Wellman to make the round trip from OBriens house to the Treasure Lane home and back to OBriens. He drove from OBriens house to the Big Horn Gun Shop, where he allowed time for purchasing the ammunition to occur. Then he drove to the Treasure Lane house, and he allowed five minutes for the murder and robbery to occur. From there, he drove down Forni Road and stopped for five seconds to simulate the throwing of the rifle into the pond. He then drove back to OBriens house. Hoagland performed these drives around 10:00 or 10:15 a.m. He drove four different routes for reaching these places in order. The times for each route were 36 minutes, 39 minutes, 40 minutes, and 47 minutes, respectively.
OBriens Defense
OBrien testified on his own behalf. He claimed he awoke on February 26, 2003, at 10:15 a.m. when Frankie Silici called him. After showering, he called Chantell Michaud around 10:30 a.m. He called her to make arrangements to see her that day or the next day because she was going into Juvenile Hall soon. They spoke for two or three minutes.
OBrien did things around the house until 10:45 a.m., when he called Silici back. He left a message that he was going to be home that afternoon. Earlier, he had informed Silici that he would be at his mothers automobile repair shop that afternoon installing his sisters car stereo, but his plans had changed. He then started getting things ready for the stereo installation.
OBriens testimony was the only evidence of a phone call by him to Silici at 10:45 a.m. Silicis cell phone bill showed that no calls were made to or from Silicis cell phone on February 26, 2003, between 10:11 a.m. and 11:45 a.m.
Sometime during the morning, OBrien had called Michael Carrick. Carrick called him back at around 11:15 a.m. Carrick was going to come over, hang out, and smoke some marijuana.
A little before 11:30 a.m., OBrien called Richard Anschutz, and left him a message to call him back. Then he called Richard Lacerte to see if he knew where Anschutz was. After that call, Anschutz called OBrien back at about 11:35 a.m.
Around 11:45 a.m., OBrien called Silici again to inform him he had no marijuana and that Silici should not come over after school as he was planning to do. Then OBrien called his sister, Amanda, to tell her to come over earlier because he was going to be home and not doing anything.
He called Lacerte again and told him he was trying to get some marijuana. He explained he had some money from selling pot on prior occasions, and that Carrick was also supplying some money.
At around 11:45 a.m., Clifton Sargent arrived at OBriens house. Five minutes later, Carrick and Treva Fudge arrived. They came over to hang out and because Carrick had some money to put towards buying marijuana.
At around 12:15 p.m., OBrien called Silici again. He told him that he did have some marijuana now. Carrick and Sargent both had brought some with them.
By 12:30 p.m., Amanda had arrived with her daughter. OBrien, Sargent, Carrick, and Fudge were on the front porch smoking marijuana when Amanda arrived. Shortly afterward, Carrick took Fudge back to school, and OBrien began installing the stereo in Amandas car. The installation took about an hour and a half to two hours. Afterward, the group ate pizza, and then Amanda left.
OBrien, Sargent, and Carrick then went to Sargents house. There, Sargent contacted his cousin, Nate McKelvie, to purchase marijuana. They ended up purchasing $2,000 worth. Carrick supplied $1,200, and OBrien supplied $800. OBrien had obtained the money from selling marijuana. He also had obtained money by withdrawing cash from his mothers bank account. On four occasions during February, OBrien had taken his mothers ATM card without her permission and used it to get a total of $1,400 from her account.
McKelvie was called as a defense witness, but he asserted his Fifth Amendment privilege and did not testify.
Anthony Campana had known OBrien for six years. He purchased marijuana from OBrien over a period of three months that ended about two weeks before the killing. He thought he may have bought marijuana from OBrien 15 times, each time buying a $20-bag.
Carrick made contact with McKelvie at around 3:30 p.m. that afternoon. OBrien, Sargent, and Carrick met McKelvie in El Dorado Hills, and then met up with McKelvies dealer at about 5:00 p.m. They purchased about a half-pound of marijuana. They drove back home and divided up the marijuana. The three then went out and played pool. At about 8:00 p.m., Carrick and Sargent dropped OBrien off at his home.
Two days later, OBrien was taken to Oregon to attend a boarding school where he could rehabilitate from his marijuana addiction. He was attending this school when he was arrested.
OBrien admitted that he and Silici had gone to the Treasure Lane house around three times to purchase marijuana from Silicis stepbrother, Eric Rootness. OBrien did not buy the drug from Jesse Pine. Rather, he would give the money to Silici, who gave the money to Rootness, who then gave Silici the drugs. OBrien said he did not know Pine sold marijuana or kept a large sum of cash in his bedroom.
Eric Rootness confirmed this method of handling the drug purchases. After Silici gave him money, Rootness gave the money to Pine, who then gave Rootness the drugs to give to Silici. Rootness had seen OBrien and Silici at the Treasure Lane house three or four times. Rootness saw OBrien at least once use the hallway that led to the bedrooms in order to get to the bathroom.
OBrien denied asking Petty for a shotgun during the last week of February 2003. He admitted knowing defendant Dickson, but he said they never socialized or hung out together. He did not know William Wellman. OBrien denied the statements ascribed to him by Chantell Michaud. He denied driving to the Treasure Lane home on February 26, 2003, and he denied killing the victim.
On cross-examination, OBrien admitted that he did not tell the police when they met with him on March 1, 2003, many of the details he recited in his trial testimony. He claimed his memory of the events was now better at trial than it was three days after February 26 because he had been thinking about the case.
The defense recalled Detective Hoagland as a witness. Hoagland had been present during three law enforcement interviews of William Wellman. The first two were recorded; the third was not as it was just for trial preparation. During the third interview, however, Wellman provided some new facts. He revealed that he felt the time frame for the events was different from what he said in the first two interviews. Wellman also discussed the interior of OBriens room, and he mentioned for the first time the existence of a fish tank.
Dicksons Defense
Defendant Dickson also testified on his own behalf. He attended Independence High School daily from 8:00 a.m. until about 1:00 p.m., and then he went to his job. He met William Wellman in his freshman year. They spent time riding BMX bikes and four-wheeling in Dicksons truck. He was also friends with Michael Carrick.
A few days before February 26, 2003, Carrick called Dickson. They chatted for a few minutes, and then Carrick handed the phone to OBrien. Dickson did not know OBrien well. He had seen him hanging out with Carrick, Clifton Sargent, and J.D. Petty.
OBrien asked Dickson what he was doing on Wednesday [the 26th] and if he could borrow Dicksons truck. Dickson said he needed his truck for work. Dickson had also planned to skip school that morning and take Wellman four-wheeling. Dickson agreed to drop OBrien off at a friends house. OBrien had said he had purchased a dirt bike and was going there to pick up some marijuana and money. OBrien gave Dickson instructions on how to get to his house.
Tuesday evening, Wellman stayed over at Dicksons house so they could leave in the morning to go four-wheeling. Dickson told Wellman that before they left, he had to drop a friend of Carricks off at his buddys house.
Wednesday morning, both boys drove their trucks to the Lions Hall parking lot. Dickson walked to his school, while Wellman waited in his truck. Dickson checked himself out of school after only a few minutes, lying to the office staff that he was sick. He went back to the parking lot. He and Wellman got in Dicksons truck, and they drove into Placerville for some donuts and hot chocolate. Then they drove to OBriens house. Dickson could not recall what time they arrived.
Dickson introduced Wellman to OBrien. OBrien showed the boys his own truck, and then they went inside the house to OBriens room. Dickson described the room as having a fish tank, a truck seat and a little end couch. There was some conversation about OBriens fish. Wellman picked up a clay pigeon and talked with OBrien about shooting. At one point, OBrien asked if it would be all right to return his brothers shotgun. Dickson saw no problem with that. OBrien also asked if they could stop by the Big Horn Gun Shop.
The three left in Dicksons truck. Dickson thought they had spent five or 10 minutes at OBriens house. Dickson noticed OBrien had placed something on the floorboards that was wrapped in a blanket, but he did not know at that time what it was.
They drove to Big Horn Gun Shop. All three went inside and looked around for a minute. Then Wellman asked the storekeeper for a box of shells. Dickson could not remember any discussion prior to entering the store about who would purchase shells.
Back in the truck, OBrien gave Dickson directions. At this time, there was no indication to Dickson that a robbery was going to take place.
Dickson parked his truck next to a white pickup truck already parked in the driveway. OBrien got out of the truck and knocked on the door. He opened the door, then came back to the truck, saying, "I believe my buddy is home." He picked up the gun with the blanket, unwrapped it, and said, "Come on in. I can get your $20 for gas." The three walked up to the house.
Immediately after they walked in, someone came out of a bedroom with a rifle and said, "What the fuck are you doing in my house, Sean?" Dickson and Wellman turned and started to leave. The last thing Dickson saw before he left was two guns pointing at each other.
Dickson and Wellman got into Dicksons truck. Wellman crouched down. Dickson scrambled for his keys and tried to start the truck. As soon as he started the truck and put it in gear, OBrien came out of the house, pointed the gun at them, and said, "Stop or Ill shoot. Hes dead. Hes dead. Hes dead." OBrien directed Dickson to come back to the house and to have Wellman turn the truck around.
From the doorstep, Dickson heard OBrien going through drawers and cabinets. Dickson did not go back inside the house, but Wellman did. OBrien slammed open a bedroom door and said, "Come here." Both OBrien and Wellman went into the room for less than a minute. Someone yelled, "Lets get the hell out of here," and the three ran to the truck. OBrien was carrying the shotgun. Dickson did not see who was carrying the rifle.
OBrien directed Dickson to drive to a pond on Forni Road. While driving there, OBrien said J.D. Petty had given him the shotgun. At the pond, OBrien opened the door and threw the rifle into the pond.
They drove back to OBriens house. OBrien said he did not want to see either Dickson or Wellman again. They were not to tell anyone about what happened. He got out and slammed the door. That was the last time Dickson saw him.
Dickson and Wellman drove back to Lions Hall. They drove their trucks to a gas station and had a brief discussion. Then Dickson went to work.
Procedural history
The jury found OBrien and Dickson guilty of first degree murder. (Pen. Code, § 187, subd. (a).) It found true the special circumstances that the murder was committed during the course of a robbery and during the course of a residential burglary. (§ 190.2, subd. (a)(17)(A) & (G).)
Hereafter, undesignated section references are to the Penal Code.
The jury also determined that OBrien intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), and (d). As to Dickson, the jury determined that a principal in the offense was armed with a firearm during the commission of the crime within the meaning of section 12022, subdivision (a)(1).
Prior to sentencing, OBrien filed a motion to disqualify the trial court judge, Daniel Proud, on the ground that the judge was a potential witness in OBriens yet-to-be-filed motion for new trial. OBrien argued that while serving as defense counsel in an earlier case, Judge Proud may have obtained incriminating information regarding the prosecutions pathologist in this case, Dr. Rollins, that should have been disclosed here under Brady but was not. Ultimately, we issued a writ of mandate directing the trial court to grant the motion to recuse Judge Proud. (OBrien v. Superior Court, C049141.)
While the writ proceedings were pending in our court, OBrien filed a motion to disqualify the El Dorado County District Attorney and the trial prosecutor based on the same Brady violation.
Responding to our writ, the trial court assigned the case to Judge Douglas Phimister for "all pending motions." If Judge Phimisters rulings resulted in a new trial, the new trial would be heard by Judge Jerald M. Lasarow.
OBrien filed a motion for new trial. He argued a new trial was required on the following grounds: insufficient evidence supported the verdict; there was newly discovered evidence or trial counsel rendered ineffective assistance for failing to present this evidence; the prosecutions alleged Brady violation; and juror misconduct.
The trial court denied both the motion to disqualify the district attorney and the motion for new trial.
The trial court sentenced OBrien to a prison term of life without parole on the murder count, and a consecutive determinate sentence of 10 years for the firearm enhancement under section 12022.53, subdivision (b).
The court sentenced Dickson to a prison term of 25 years to life, plus one year for the firearm enhancement under section 12022, subdivision (a)(1).
Both defendants appeal. OBrien raises the following issues:
1. The trial court wrongly denied his motion for new trial because:
a. His conviction is not supported by substantial evidence;
b. He presented newly discovered evidence that necessitated a new trial; and
c. The prosecution violated Brady by not disclosing the impeaching evidence concerning Dr. Rollins (and, OBrien also argues, the trial court erred when it denied his motion to recuse the district attorney due to the Brady error).
2. The trial court erred when it failed to instruct the jury on the elements of robbery.
Dickson also seeks reversal due to the alleged Brady error.
In addition, both defendants claim their prison sentences are disproportionate to their crimes and thus constitute cruel and unusual punishment prohibited by the federal and state Constitutions.
We address each argument in turn and provide additional facts as necessary.
DISCUSSION
I
Sufficiency of the Evidence
OBrien sought a new trial in part on the ground that his conviction was not supported by substantial evidence. He claims the testimony of the prosecutions own witnesses was so contradictory that it proved his innocence. Specifically, OBrien asserts the prosecutions witnesses established his alibi by their conflicting accounts of the times when certain actions happened. He also claims that Wellmans failure to mention phone calls OBrien received while Wellman was in OBriens home, coupled with Wellmans time estimates, narrows the time within which OBrien could have committed the crime to an impossibly short period. We conclude that despite disparate recollections of time, the prosecutions witnesses did not establish OBriens innocence, and substantial evidence supports his conviction.
A. Additional background information
The prosecution argued there was a time gap in OBriens alibi defense. Witness testimony and telephone records purported to show that OBrien was home the morning of the murder at least up until approximately 10:30 a.m., when Michaud called him at home; and he also was home at approximately 11:25 a.m., when he called Petty. The prosecution claimed defendants committed the murder sometime between 10:30 a.m. and 11:25 a.m.
In his new trial motion, OBrien argued there was no time gap in his alibi. He attempted to make this showing by emphasizing contradictions in the prosecution witnesses testimony. First, he argued that if Wellman and Christoffersens estimates of time were correct, OBrien could not have been one of the men who purchased a box of shotgun shells at the Big Horn Gun Shop the morning of the murder.
Wellman claimed he and Dickson arrived at OBriens house sometime after 8:00 that morning, and they stayed there for 30 or 40 minutes, or, as Wellman testified on cross, 10 minutes. They then drove to the Big Horn Gun Shop, a five-minute drive away. Using Wellmans estimates of time, the trio would have arrived at the gun shop no later than 9:45 a.m.
Christoffersen, the gun shop employee, testified that three young men came into the store the morning of the murder "right after" the store opened at 10:00 a.m. and purchased a box of shotgun shells with cash.
Other witnesses, however, placed OBrien at home during that time. Silici testified that he called OBrien at home at 10:11 that morning. His cell phone records noted the call. Michaud stated she called OBrien at 10:30 that morning and spoke with him. Thus, OBrien argues, if Wellman and Christoffersens statements of time are correct, OBrien could not have been with Wellman and Dickson that morning in the gun shop.
The second purported contradiction on which OBrien focuses is the absence in Wellmans testimony of any mention of OBrien receiving phone calls while Wellman was at OBriens house. Wellman testified that while he and Dickson were at OBriens home, the three chatted with each other about what they were going to do. Wellman said nothing about OBrien receiving two phone calls during that time. Michaud, however, specifically recalled speaking with OBrien at 10:30 a.m. by phone, and that OBrien stated he had not left yet to go get some marijuana.
Wellman also said nothing in his testimony about phone calls OBrien both made and received after the three men returned to OBriens house. Wellman said they remained at OBriens house after the shooting for about 20 minutes and smoked the marijuana they stole from the victims dresser. Wellman made no mention in his testimony of OBrien making or receiving calls during that time.
However, cell phone records purported to show that OBrien was busy on the phone from 11:25 a.m. He placed a call to Petty at 11:25, received a call from Petty at 11:28, called Anschutz at 11:31, called Lacerte at 11:32, and called Silici at 11:45.
Moreover, even though Wellman claimed they were smoking marijuana during that time, OBrien told others he did not possess any marijuana then. In a call with Anschutz at 11:34, OBrien said he was trying to buy marijuana. He left a message on Silicis cell phone at 11:45 saying he did not have any marijuana. At 12:17, he told Silici that he now had some marijuana, presumably that which Carrick and Sargent brought when they arrived at the house.
From these claims, OBrien jumps to conclude that because Wellman said nothing about any phone calls while he was at OBriens house, Wellman could not have been at the house when the calls and purported conversations may have occurred. OBrien claims that as a result, Wellman would have had to have been there no sooner then 10:30 after Michaud called, and, after the shooting, no later than 11:25 when OBrien called Petty.
Having concluded Wellman was not at OBriens home when the phone calls were made, OBrien then incorporates into this conclusion Wellmans testimony as to the time he actually spent at OBriens house, and he concludes it would have been impossible for OBrien to have committed the crime. If Wellman and Dickson arrived at OBriens house at 10:30 and stayed there for 30 minutes before going to the gun store, they would not have left the house until approximately 11:00 a.m. Also, if they returned to the house and stayed for 20 minutes until 11:25, they would have had to have returned to the house no later than 11:05 a.m. Thus, OBrien asserts, according to Wellmans own testimony, the alleged 55-minute gap was filled by Wellmans presence in OBriens home. It would have been impossible for OBrien to have driven to the gun shop, driven to the Treasure Lane house, committed the murder, and returned to his home in a matter of five minutes.
In denying the new trial motion, the trial court acknowledged there were "many, many inconsistencies" within Wellmans testimony. "On the other hand," the court stated, "the jury heard evidence from Mr. Wellman regarding certain facts from which they could conclude the verdict that they rendered."
The court considered the conflicting testimony on times, but it believed that the jury determined that the time was not significant. "In the discovery, Mr. Wellman had been on Disability. Hed been off of work for a few times, and I think its common knowledge that when you dont go to work every day, when you dont have any place you have to be, days of the week even become confused as to what day it might be, much less time." "[I]f you look at all of his answers carefully," the court stated, "hes really not sure about time." The jury heard and considered all of the conflicting testimony on issues of time and made its decision.
At one point, the court stated that Wellman as a witness "is a nightmare." "Hes malleable enough that he will change his time based upon whos asking the questions."
The court also commented on Christoffersens testimony. It recognized that Christoffersens testimony as to time was inconsistent with other witnesses testimony. However, it found that "the inconsistencies are not significant, that the events occurred with the shop opening at approximately 10:00, and early that morning, after he opened, the transaction occurred."
B. Analysis
We review a trial courts denial of a motion for new trial under the abuse of discretion standard where the motion questioned the sufficiency of the evidence. "On a motion for a new trial, a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. (People v. Davis (1995) 10 Cal.4th 463, 524.) `A trial courts ruling on a motion for new trial is so completely within that courts discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation.] (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)" (People v. Lewis (2001) 26 Cal.4th 334, 364.)
The trial court did not abuse its discretion by denying OBriens motion for new trial on the basis of the sufficiency of the evidence. It independently weighed all of the evidence, resolved conflicts in light of the record, and satisfied itself that the evidence as a whole was sufficient to sustain the verdict.
The trial court recognized that the case against OBrien consisted of the testimony of one of his criminal comrades, Wellman, who laid out their crimes in detail, and that most of his testimony was strongly corroborated by physical evidence and by undisputed testimony by witnesses, including some of OBriens friends. Not only was the prosecutions case further supported by OBriens damaging admissions, it was bolstered by the testimony of codefendant Dickson, who told the jury that OBrien participated in the crimes and was the person who shot the victim.
In light of this overwhelming state of the evidence, conflicts over the timing of events did not concern the trial court, and they do not cause us concern. Where the evidence is in conflict, we presume the judgment is correct and we do not reweigh the evidence in the manner of a trial judge on a motion for new trial. (6 Witkin & Epstein, Cal. Criminal Law (3d. ed. 2000) Criminal Appeal, § 149, p. 396.)
The trial judge weighed Wellmans estimates of time and found them lacking. Wellman admitted he was not keeping track of time that day, was not wearing a watch, and was not sure of his time estimates. He changed his statement of the relevant times. The court did not abuse its discretion in discounting Wellmans testimony on this point.
The court also was well within its discretion to reject OBriens argument concerning Wellman not commenting on any phone calls OBrien made or received in his presence. Neither the prosecution nor the defense asked Wellman if he had heard or seen OBrien use the telephone while he was at OBriens house. Thus, he was never given a specific opportunity to discuss that point. And the fact that he did not talk about phone calls does not mean the phone calls did not occur. Logic does not support OBriens contention that Wellmans not referencing the phone calls in his testimony means Wellman could not have been present when the phone calls occurred.
Despite rejecting Wellmans testimony as to time frames, the court determined that Wellmans testimony regarding the substance of the crime was strongly supported by the evidence and entitled to great weight. To review the major points that corroborated Wellmans testimony: defendant Dickson testified he drove Wellman to OBriens house. He then drove the three of them to the Big Horn Gun Shop where Wellman bought a box of shells. Then, following OBriens directions, he drove them to the Treasure Lane House. Inside the house, he saw the victim approach them, and he saw OBrien and the victim pointing guns at each other. Moments later, OBrien told him the victim was dead. He saw OBrien carrying a shotgun as they left the house. He drove them to a pond, where he saw OBrien toss the victims rifle into the water. Dickson later directed authorities to that pond, and the authorities retrieved the victims rifle.
J.D. Pettys testimony corroborated Wellmans and Dicksons testimony. He loaned OBrien his dirty shotgun on the morning of the murder, thinking OBrien was going to use it for trap shooting. He retrieved the gun that afternoon. The gun had been wiped down. OBrien also gave him a box of shotgun shells with one shell missing, and he curiously stated he had shot one shell to see what it would do. Later, Petty would lead authorities to where he disposed of his gun and the box of shells. The shells were from the Big Horn Gun Shop, and the characteristics of the unused shells matched those of the shell used to kill the victim.
OBriens own statements to his friends incriminated him and supported Wellmans testimony. He told Chantell Michaud that morning he was leaving to get cash, dirt bikes, and marijuana. He admitted to her later that day that things had not gone well but he did not want to talk about it over the phone. When asked by Michaud the following day whether the murder she had heard about was what had not gone well, OBrien indicated it was.
After the murder, OBrien showed Clifton Sargent a large wad of money and said he had killed someone for it. He told Richard Lacerte that day he had a "couple of grand" and wanted to buy marijuana with it. He also told Richard Anschutz that day he had $2,500 and wanted to buy marijuana. When Anschutz asked him where he got the money, OBrien said he did not want to talk about it over the phone. Pine testified that approximately $ 3,000 was taken from his dresser drawer, and Wellman stated that OBrien gave him approximately $200.
In an interview with authorities, Clifton Sargent stated that OBrien had actually told him how much was in the wad of money; about $2,400. Also, OBrien confided in Sargent that no one was supposed to be home when he went into the house, but Smelser had come out of his room with a rifle. OBrien said he fired first because Smelser was pointing a gun at him.
OBrien himself testified he had been to the Treasure Lane house before to purchase marijuana. His friend, Frankie Silici, had taken him there and shown him some dirt bikes in the homes basement. Eric Rootness, a resident of the home, remembered seeing OBrien use the bathroom in the hall that was adjacent to Pines bedroom. All of this evidence, in conjunction with and strongly corroborative of Wellmans testimony, as the trial court found, is more that sufficient to sustain OBriens murder conviction.
OBrien claims the trial court made a number of incorrect factual assertions when it was ruling on his new trial motion. None of these misstatements, however, establish the trial court abused its discretion in denying his new trial motion, nor do they diminish the more than sufficient evidence against OBrien.
For example, the court stated that Michaud testified that OBrien had "a couple of grand to buy marijuana." Michaud did not say that. When asked if OBrien had a big wad of money in his wallet, she said, "No, not whatsoever."
The court stated OBrien would not have wanted Michael Carrick to testify. The defense, though, had subpoenaed Carrick to testify for OBrien. He did not testify because he refused to do so.
The court mentioned that OBriens mother, Debra OBrien, corroborated Wellmans testimony that OBrien had a couch or love seat in his bedroom. Debra actually stated the love seat had been removed from the room two or three weeks earlier.
The court said that Debra OBrien or someone in her home had removed the clay pigeons from OBriens room. Debra denied that OBrien had clay pigeons in his room.
Finally, the court mentioned that a detective had testified as to a prior theft of a gun by OBrien, use of phone records to create a false alibi, and OBriens presence when his mother presented those phone records. However, the detectives testimony on these points was part of an in limine motion hearing and was not before the jury.
These discrepancies do not establish an abuse of discretion by the trial court in denying OBriens new trial motion, nor do they consequentially affect the trial courts analysis of the overwhelmingly sufficient evidence. As the trial court noted, "In reviewing the transcripts and the records, and if, in fact, any commentary I make is inconsistent with that, its only because Ive been working on this case for roughly 90 days and the material obviously is quite voluminous. I did not have the benefit of participating in the trial itself, and so if anything disagrees in the record with what Ive said, the record is obviously what is important." And the record manifestly contains sufficient evidence to support the jurys verdict. The court did not abuse its discretion in denying OBriens motion for new trial on the basis of sufficiency of the evidence.
II
Newly Discovered Evidence
OBrien also sought a new trial on the basis of newly discovered evidence. This evidence consisted of the following: (1) evidence of telephone calls OBrien had engaged in on the day of the murder during the previously discussed time gap in his alibi defense; i.e., between 10:30 and 11:25 a.m.; (2) testimony from a different pathologist that questioned Dr. Rollinss estimate of the time of death; (3) evidence that defendant Dickson and Michael Carrick were the ones who formulated the plan to burglarize the Treasure Lane house and were prepared to execute the plan one day earlier; and (4) evidence of OBriens demeanor after he shot the victim.
The trial court concluded the asserted evidence did not justify a new trial. It determined that the defense had not been diligent in seeking to obtain the evidence prior to trial, and that the evidence was cumulative.
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: `"1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." [Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 212, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Regarding the reasonable diligence requirement, a defendant is not entitled to a new trial merely because evidence that was not presented at trial is sought to be offered on retrial. (People v. Dyer (1988) 45 Cal.3d 26, 52.) "The evidence generally must be newly discovered," and it must not have been able to have been discovered with reasonable diligence before trial. (Ibid., original italics.) However, if the defendant did not have a fair trial on the merits, and the newly discovered evidence would probably produce a different result on retrial, the trial court "should not seek to sustain an erroneous judgment imposing criminal penalties on the defendant as a way of punishing defense counsels lack of diligence." (People v. Martinez (1984) 36 Cal.3d 816, 825, fn. omitted.)
We review the trial courts decision and consideration of these factors under the abuse of discretion standard. (People v. Turner, supra, 8 Cal.4th at p. 212.) We conclude the trial court did not abuse its discretion in denying the new trial motion based on OBriens proposed new evidence.
OBrien does not raise an argument of ineffective assistance of counsel as part of this appeal. He claims he will raise it in a petition for writ of habeas corpus to be filed with this court.
A. Telephone calls during time gap
1. Phone call to Edward Winslow
In support of his motion for new trial, OBrien submitted declarations attesting to two phone calls he allegedly made between 10:30 a.m. and 11:30 a.m. the day of the murder. The first declaration was by Edward Winslow. At the time of the murder and the trial, Winslow worked as a service manager at Cameron Park Automotive, a business owned and operated by OBriens mother, Deborah OBrien. In his February 2006 declaration, Winslow stated that at 10:49 on the morning of the murder, February 26, 2003, he processed a credit card transaction for a customer. He attached a copy of a debit sale receipt to his declaration that noted the time of sale as 10:49 a.m. While Winslow was processing that sale or very soon afterwards, OBrien called the shop and asked for his mother.
Winslow stated that prior to trial, OBriens counsel called him and asked if OBrien had called the garage the day of the murder. Winslow said he had. Counsel asked what time OBrien had called. Winslow estimated it was between 9:30 a.m. and 11:00 a.m. He was busy at that moment but if he had a chance to look at the paper work from that morning, he could be more precise. Counsel responded that if Winslow was not sure when OBrien called, counsel could not use him as a witness. At trial, counsel told Winslow he was not needed as a witness.
To counter Winslows declaration, the prosecution submitted a declaration by Detective Paul Moschini, dated August 12, 2006, regarding an interview the detective had with Winslow that day. Winslow stated that when OBriens attorney called, he could not recall what time OBrien had called the shop the day of the murder. However, after trial, OBriens new attorney and a private investigator contacted him about the phone call. They provided him with a "daily log" for the day of the murder. (He did not explain what the daily log was.) Winslow stated that after reviewing the daily log, he was able to say that he received OBriens phone call at 10:49 a.m. Winslow also stated that OBriens phone call was not listed on the daily log.
The trial court rejected this evidence, questioning its credibility and its availability prior to trial. It noted that Deborah OBrien had access to all of this information prior to trial. She also had actively assisted her son in his defense, including producing cell phone records. The court reasoned that since these records were always available to her and she would have understood their significance, the information could have been produced earlier, suggesting the court disbelieved it.
The court also noted a conflict with OBriens own testimony. The court claimed that OBrien stated he made a phone call at 10:45 a.m. to Frankie Silici. This misstated the testimony. OBrien said he called Silici at 11:45 a.m. Silici confirmed he received a call at 11:45 a.m. However, nowhere in his own testimony did OBrien say he called his mothers shop that morning between 10:30 and 11:30 a.m.
2. Phone call to Michael Carrick
The second declaration OBrien introduced regarding a phone call he allegedly made during the time gap was a declaration by Michael Carrick. Carrick, we recall, refused to testify at trial. This particular declaration, dated October 27, 2005, was in the form of a declaration for a civil case brought by the victims family, Smelser v. OBrien (Super. Ct. El Dorado County, No. PC 20040078), but it was not stamped as filed. The declaration was prepared by attorney Joseph J. Wiseman, the attorney representing OBriens mother, Deborah OBrien, in the civil action. In the declaration, Carrick claimed that at about 11:14 a.m. on the day of the murder, he received a call on his cell phone from OBrien. During the call, OBrien simply confirmed that Carrick would go over to OBriens house later that day. Carricks cell phone bill noted that Carrick received a call at 11:14 a.m. the day of the murder. The call lasted two minutes.
To support this evidence, OBrien attached to his motion a transcript of an interview law enforcement officers conducted with Carrick on March 5, 2003. In that interview, Carrick stated, without specifying a time, that OBrien called him in school on the day of the murder and told him to come over to OBriens house. Carrick said he left school about 15 or 20 minutes early and went to OBriens house. He arrived there between 11:45 a.m. and 12:00 noon.
At trial, OBrien claimed that he called Carrick "some time that morning," and Carrick called him back around 11:15. Carricks phone bill, however, indicates Carrick called OBrien at 11:44.
In opposition, the prosecution submitted a declaration also by Carrick, this one dated August 9, 2006. In this declaration, Carrick stated attorney Wiseman tricked him into signing the earlier declaration. In September 2005, he had refused to sign a declaration stating OBrien called him at 11:14 a.m. the day of the murder because he could not remember what time OBrien had called. He was later subpoenaed for a deposition. His brother Patrick drove him to the deposition.
When they arrived, Wiseman told Carrick the deposition was cancelled but that he wanted to speak with him. Wiseman and another attorney interviewed Carrick and wanted to know what time OBrien had called him that morning. Patrick sat in on the interview. Carrick repeatedly told the attorneys he did not know what time OBrien called. He finally agreed to sign a declaration stating he received a call from OBrien on the morning of the murder, but it would not specify the time of the call. Before he signed it, Wiseman said he needed to change a date on the declaration. When he returned with the corrected declaration, Carrick signed it without reading it. Days later, he reread it and noticed the time of 11:14 a.m. was on it.
Carrick stated in this new declaration that he cannot say what time he received the call from OBrien. Carricks new declaration stated: "[I]f pinned down, I would have to say the phone call was later that morning because I remember getting out of school shortly after the phone call. At that time I was getting out of school at 12:00." His brother Patrick also declared that he remembered Carrick telling Deborah OBriens lawyers repeatedly that he did not remember what time OBrien had called him on the day of the murder.
Ruling on Carricks declaration from the civil action, the trial court implied the evidence was cumulative, was available to be discovered prior to trial, and that if presented at trial, it would have been severely impeached. It noted the jury had not had the benefit of any of Carricks testimony because he asserted his constitutional privilege. However, OBrien had testified that Carrick had called him at around 11:14 that morning and the jury had an opportunity to consider that call. The court stated that defense counsel had an opportunity to review the transcript of Carricks interview with law enforcement, and clearly any testimony from Carrick was available to defense counsel prior to trial. Indeed, the court noted, the problem with Carrick testifying was that in his interview, he stated OBrien had $2,700 the day of the shooting. No surprise, then, that OBriens defense counsel indicated before trial that he would not be calling Carrick as a witness. Carrick was not on OBriens witness list.
Carrick also stated in the law enforcement interview that OBrien told him he robbed "Frankies brothers roommate," and he had taken money and some marijuana out of a top drawer. Later that day, OBrien purchased a half-pound of marijuana from Nate McKelvie for $2,000. Carrick told detectives that OBrien named Dickson as the driver and that Dicksons friend Will had been involved. OBrien admitted to pulling the trigger when he walked in the house and a guy "pointed a gun in my face."
3. Analysis
The trial courts rulings on the effect of the Winslow and Carrick declarations did not constitute an abuse of discretion. The court reasonably determined that the contested evidence could have been discovered prior to trial. In fact, defense counsel attempted to discover Winslows testimony prior to trial, but did not follow through with his inquest, probably because it was not by then "fully developed." Moreover, counsel possessed Carricks original statement that OBrien had called Carrick earlier that morning at an unspecified time prior to school letting out. Not surprisingly, as the statement then existed, OBrien did not pursue it at trial.
In addition, the evidences questionable veracity diluted its strength to create a different outcome. The trial court was required to weigh the evidence, and it could reasonably have found it lacking. The timing of Winslows statement when he and his log were so easily accessible at all times to Deborah OBrien, along with Carricks and his brothers challenges to Carricks declaration prepared by Deborah OBriens lawyer, Joseph Wiseman, were adequate bases for the trial court to question the evidences credibility. The court did not abuse is discretion in concluding the alleged new information did not justify a new trial.
B. Testimony from a different pathologist
1. Additional background information
In support of his new trial motion, OBrien submitted a declaration by Paul W. Herrmann, M.D., a certified forensic pathologist who worked at the Alameda County Coroners Office. Following his review of the evidence presented at trial, Dr. Herrmann questioned the conclusions reached by the prosecutions coroner, Dr. Rollins, as to the victims time of death. In his opinion, the victim died sometime between 7:00 a.m. and 2:00 p.m. on February 26, 2003, with an unlikely possibility that he died between 2:00 p.m. and 3:00 p.m.
Dr. Herrmann disagreed with Dr. Rollinss analysis on three factors used to determine time of death: body temperature, lividity, and rigor. As to body temperature, he noted that Dr. Rollins had not accounted for the fact that the front door to the Treasure Lane house had been open from the time of the crime until Jesse Pine returned home at 4:00 p.m. According to police, the weather that day was rainy with temperatures in the 50s. Although the thermostat in the hallway next to the victim read 68 degrees, Dr. Herrmann believed the body was exposed to the colder outside air through the open front door. Combining this fact with the facts that the victim was clothed only from the waist down and was not overweight, Dr. Herrmann concluded that the bodys coolness at 6:00 p.m. when Dr. Rollins examined it would support a time of death as late at 2:00 p.m. that afternoon.
Lividity was also an issue. In Dr. Herrmanns experience, lividity usually came on fairly quickly and would be visible within a couple of hours. Dr. Rollins stated lividity was present when he examined the body. Deputies reported seeing lividity when they saw the body at 4:12 p.m. Dr. Herrmann stated these reports of lividity were consistent with a time of death between as early as 7:00 a.m. and as late as shortly before the body was discovered.
As to rigor, Dr. Herrmann stated rigor appeared in the smaller muscles first, usually within four hours, but this could vary widely. A deputy on the scene said there was no rigor mortis when he examined the body. Dr. Rollins claimed there was "1+ rigor mortis in the upper extremities" when he examined the body at 6:18 p.m. If the deputy was correct, Dr. Herrmann asserted, then the time of death could have been as late as 2:00 or 3:00 p.m. If Dr. Rollins was correct, he saw only the early stages of rigor and his estimate would not rule out a time of death as late as 2:00 p.m. or somewhat later.
From these points, Dr. Herrmann concluded that the range of time of death was from three to 10 hours before Dr. Rollins examined the body at 6:18 p.m., or from 8:18 a.m. to 3:18 p.m. While he agreed with Dr. Rollinss statement that the time of death was closer to the six-hour mark (about 12:18 p.m.), he further added the time of death could very well have been closer to the three-hour mark.
OBrien argued that this new evidence was particularly relevant in light of Wellmans testimony at trial where he stated for the first time that the events of the day happened before noon. In interviews with police at the time of his arrest, Wellman stated the shooting happened after noon. The inconsistency between Wellmans earlier statements and Dr. Rollinss time-of-death testimony disappeared at trial when Wellman stated the events happened before noon. Dr. Herrmanns proposed testimony, OBrien argued, supported the truth of Wellmans earlier statements and impeached Dr. Rollinss testimony.
In his opposition, the prosecutor argued the defense had considered calling an expert witness to counter Dr. Rollinss expected testimony, and after meeting with the witness decided against it. He claimed, in a footnote to his argument, that on at least one occasion, defense counsel told the prosecutor that he had met with, and decided not to call, an expert on this subject.
The trial court relied upon the prosecutors argument in support of its decision against Dr. Herrmanns declaration. It stated this was the type of information of which defense counsel was aware when he considered hiring his own pathologist, "but Im sure that [defense counsel], in reviewing the testimony of Mr. Wellman and the other exhibits that existed, decided that he could establish a time line which would at least create an alibi for Mr. OBrien."
2. Analysis
The court did not abuse its discretion in rejecting a new trial on the basis of Dr. Herrmanns declaration. Defense counsels statement to the prosecutor that he considered hiring a pathologist attests to us that the information contained in Dr. Herrmanns declaration was available and discoverable prior to trial with any degree of diligence.
Moreover, Dr. Herrmanns testimony included the time gap between 10:30 and 11:35 a.m. within his estimated time of death, and, thus, would not likely have resulted in a different verdict. Dr. Herrmann agreed with Dr. Rollinss statement that the time of death was closer to 12:00 noon than an earlier time. Also, contrary to Dr. Herrmanns assertion, Dr. Rollins appeared to have considered the cooler ambient temperature. He stated the room temperature was "about 50 to 60 degrees" at the time he viewed the body, even though the thermostat registered 68 degrees. "It was cool when we walked in," Dr. Rollins testified. Thus, Dr. Herrmanns opinion was cumulative, and it did not establish that Dr. Rollinss estimate of the victims time of death was incorrect. We conclude the trial court did not abuse its discretion in denying a new trial on the basis of Dr. Herrmanns testimony.
C. Evidence that Dickson and Carrick formulated the plan
1. Additional background information
In his new trial motion, OBrien introduced evidence purporting to show that defendant Dickson and Michael Carrick formulated the plan to burglarize the Treasure Lane home a day or two beforehand, and they did so without OBriens knowledge. The evidence consisted primarily of a declaration by an investigator for the defense, Gale Kissin, regarding statements made to her by acquaintances of Dickson and Wellman, and by police reports of other burglaries allegedly committed by Dickson and Carrick.
Investigator Kissin declared she interviewed David Calesterio, Royce Clayton, Vince Cole, Todd Kingsbury, J.D. Petty, and Zack Wright. OBrien claimed the statements by these persons established that Dickson, Wellman, and Carrick had been to the Treasure Lane home before the shooting. Calesterio told Kissin he had been to the Treasure Lane house with Wellman several times, usually when they were "going to the river." Clayton told Kissin he was 75 to 80 percent sure he had seen Wellman at the Treasure Lane house before, and he identified a picture of Wellman as a person he had seen at the house. Clayton, however, was killed before Kissin could obtain a declaration from him.
Cole told Kissin that Dickson was a marijuana dealer whose source of supply was a resident at the Treasure Lane house. Kingsbury claimed Jesse Pine was Dicksons source, but Kingsbury did not know where Pine lived. Petty told Kissin that he had been to the Treasure Lane house before, but he was not sure if Wellman had been there. Wright told Kissin he saw Dickson at the Treasure Lane house during a party.
Kissin also declared she interviewed Andy Walker, Jordan Burnworth, and Brittany Carrick. OBrien asserts these statements established that Dickson and Carrick planned the burglary. Walker told Kissin that two weeks before the shooting, Dickson told him of a plan to steal some marijuana plants, and that he might be coming into some dirt bikes. Dickson asked Walker if he wanted to come with him. Walker just walked away. Walker believed that Wellman might have been present during the conversation.
Burnworth told Kissin that he was present during the conversation between Walker and Dickson. He thought, but was not sure, that Wellman was also present. When Dickson asked if they wanted to get some dirt bikes cheap, Burnworth said no.
Brittany Carrick, Michael Carricks sister, told Kissin that Carrick had told her and their mother that he was originally supposed to drive to Treasure Lane instead of Dickson. They were going to steal dirt bikes, and Carricks Bronco was big enough to carry them. The plan allegedly failed because Carrick was caught trying to leave school by his probation officer, who threatened to revoke Carricks probation if he missed any more school time. As a result, Carrick stayed in school on the 25th and the 26th and did not assist Dickson with the burglary. School records confirmed Carricks attendance at school on the 26th. Carrick was relieved he had not gone to Treasure Lane.
OBrien also submitted police reports of other burglaries involving Dickson and Carrick. One involved Carrick and others going to a rural home and stealing marijuana. Another involved a Richard Mortensen, who showed up at Steven Kingsburys home with Dickson in Dicksons truck with items stolen from a rural home. In an interview with investigator Kissin, Mortensen stated that Dickson and two others, one of whom may have been Shawn Santelio, had participated in this burglary.
Prior to trial, OBrien filed an in limine motion to admit evidence of nine other crimes committed by Dickson, Carrick, J.D. Petty, Clifton Sargent, or Chantell Michaud. The prosecution agreed that Carrick, Petty, and Sargent could be impeached with evidence of prior burglaries. The trial court ruled that if Carrick did not testify, OBrien could not introduce evidence of other burglaries committed by Carrick because they were too dissimilar to the instant crimes under Evidence Code section 1101, subdivision (b).
In opposition, the prosecution submitted declarations by many of the persons interviewed by Kissin, disputing her recitation of their statements. In particular, Calesterio declared that at no time did he tell Kissin that he had been to the Treasure Lane house with Wellman. He had no knowledge that Wellman or Dickson had ever been to the home, and he had never been to the home.
Cole declared that he did not tell Kissin that Dickson was a marijuana dealer whose source of supply was one of the Treasure Lane house residents. Cole stated that if Dickson had a supplier, he did not know who it was or where the person lived.
Kingsbury declared that he never knew who was Dicksons source for marijuana. He did not recall Dickson ever telling him that Pine was his source. He did not know if Dickson had ever been to Pines house.
The court considered the evidence but gave little credibility to the statements made to the defense investigator. It found the evidence, at best, may have shown that Wellman stopped by the Treasure Lane house before with others while on his way to the river, but it otherwise dismissed the evidences probative value.
The court also commented on the evidence of other similar burglaries. It dismissed the evidence concerning Carrick, as Carrick was not a suspect in this case. It recognized Dicksons participation in another crime and considered that fact.
2. Analysis
The court did not abuse its discretion in denying a new trial on the basis of this evidence. Nowhere in the record does OBrien establish that he could not have discovered any of this evidence prior to trial with a reasonable degree of diligence. Indeed, the information about the prior burglaries was known to counsel, as attested by the motion in limine filed before trial to admit the information into evidence.
It is unlikely this evidence would have resulted in a different verdict. There is no dispute that Carrick did not participate in the actual robbery and shooting. Also, the speakers interviewed by Kissin directly challenged the statements she attributed to them, including statements that they had seen Dickson and Wellman at the Treasure Lane house. We conclude the trial court did not abuse its discretion in denying a new trial in light of this information.
D. Evidence of OBriens demeanor
1. Additional background information
Finally, as new evidence in support of his motion for new trial, OBrien submitted a declaration by Dr. Mary Ann Kim, a clinical psychologist. Dr. Kim examined OBrien in May 2004 after the jury had rendered its verdict, and she put him through a battery of psychological tests. She concluded OBrien was an extremely bright but emotionally immature 17-year-old boy who did not have the psychological makeup to be calm and appear normal after shooting the victim at close range. In her opinion, OBrien could not premeditate murder, and even if cornered, would not murder another person and then rob him. He was not a sociopath.
OBrien argued that Dr. Kims opinion, coupled with testimony by witnesses that OBrien "[s]eemed like Sean to me" and did not appear upset or excited the afternoon of the shooting, would have created a reasonable doubt in the minds of the jurors that OBrien shot the victim.
The trial court viewed Dr. Kims testimony from the perspective of whether defense counsel had a tactical reason for not retaining a clinical psychologist to testify at trial. The court concluded he did. OBriens defense was that he was never at the Treasure Lane house the day of the shooting. With that defense, the court stated, OBrien had no reason to place his state of mind into issue. "And so [defense counsel] made a tactical decision not to retain a clinical psychologist who would simply say, `By the way, Mr. OBrien doesnt have the mind set to be involved in this sort of activity. What would that evidence have added to the benefit of the jury considering he wasnt there?"
2. Analysis
The courts analysis effectively answered the question of whether the new information would have resulted in a different verdict, and the court implicitly concluded the evidence would not have done so. Even if Dr. Kims opinion would have established that OBrien would not have been calm after the shooting, as some witnesses claimed he was, there was other evidence indicating in fact OBrien was not so calm after the shooting.
Wellman stated OBrien was unable to count the money after the robbery because there was so much adrenaline. Dickson testified that when the trio arrived back at OBriens house, OBrien told them he did not want to see either of them again, and that they were not to tell anyone about what happened. OBrien slammed the car door shut as he left them. That evening, OBrien refused to talk over the phone with Chantell Michaud about what had gone wrong earlier that day when he went to get the dirt bikes and marijuana.
Another fact that likely played into OBriens composure was his use of marijuana after the shooting — something Kim did not discuss. Wellman claimed the three boys went back to OBriens house after the shooting and smoked the marijuana they had taken from the Treasure Lane house. OBrien smoked more marijuana after Clifton Sargent and Michael Carrick arrived at his house. Thus, OBrien would have been under the influence of marijuana when he was speaking and meeting with his other friends.
We conclude the trial court did not abuse its discretion by denying the new trial motion on the basis of Dr. Kims proposed testimony.
III
Brady Error
Both defendants claim their convictions should be reversed because the prosecution failed to disclose allegedly material information concerning the prosecutions pathologist, Dr. Rollins, and his history of abusing narcotic pain relievers. They claim the information was material because they could have used it to challenge Dr. Rollinss credibility and his opinion as to the time of death, thereby resulting in a reasonable probability of a different result. We disagree. The information was not material to this case.
A. Additional background information
1. Disclosure at trial
On the morning he was to testify at trial, Dr. Rollins testified at an Evidence Code section 402 hearing held in chambers. The prosecutor, Joseph Alexander, asked three questions:
"Q. Dr. Rollins, this morning you told me in my office that you have a prior history of drug abuse; is that correct?
"A. True.
"Q. And do you currently use or abuse narcotics?
"A. No.
"Q. How long has it been that youve been sober?
"A. March 18, 2001. Its coming up on three years." The prosecutor asked no further questions.
In a March 2005 declaration, Alexander stated that he had no knowledge of Dr. Rollinss drug problem prior to that morning of trial. He had spoken with Dr. Rollins by telephone and met with him in person, and on none of those occasions did Dr. Rollins disclose any prior drug problems or criminal actions as a result of those problems. On the morning he was scheduled to testify, Dr. Rollins met with Alexander and asked him if he thought the defense would cross-examine him concerning his "Brady" history. Alexander asked Dr. Rollins what he meant. Dr. Rollins told him he had a history of substance abuse. Alexander told Dr. Rollins he knew what "Brady" referred to, but he did not tell Dr. Rollins that he already knew about Dr. Rollinss "Brady" information or his "Brady packet." Because they were due in court, Alexander did not question Dr. Rollins further. Upon arriving at court, Alexander informed the trial judge and opposing counsel that a matter had come up that needed to be addressed outside the presence of the jury. They met in chambers, where Alexander explained off the record his earlier conversation with Dr. Rollins. He said he did not know any details concerning Dr. Rollinss history of substance abuse, and he suggested they hold an evidentiary hearing on the record where defense counsel could examine Dr. Rollins on the information Dr. Rollins gave to Alexander that morning.
Under cross-examination, Dr. Rollins testified that his drug of choice was Demerol. He had originally been working for Sacramento County when he took a job as the chief medical coroner in a county in northern Arizona. He completed a five-month in-house rehabilitation in Georgia, and he resigned his Arizona position upon completing his treatment. He returned to Sacramento County. In December 2001 he resumed his previous employment with the Sacramento County Coroners office.
Dr. Rollins stated that as a condition of his current employment, he is subject to random urine tests once a week. None of these tests have been positive since he resumed work for Sacramento County.
Neither the prosecution nor counsel for either defendant asked Dr. Rollins any further questions.
In light of the testimony, the trial court (Judge Proud) ruled that Rollinss history of drug abuse was not to be raised in front of the jury. When asked if they had a problem with that ruling, both defense counsel replied they did not.
As discussed above, Dr. Rollins proceeded to testify as to the cause and time of death. He placed the time of death at sometime between 10:30 a.m. and 12:30 a.m. This evidence was significant. No physical evidence directly placed OBrien at the crime scene, and OBrien, relying on prosecution witness testimony, proffered an alibi for his whereabouts the day of the murder up to 10:30 a.m. and after 11:25 a.m. Dr. Rollinss opinion placed the time of death within the 55-minute gap in OBriens alibi defense.
2. Posttrial discovery
During an October 15, 2004, posttrial hearing, OBriens new defense attorney stated that Dr. Rollins had suffered "felony convictions" in Arizona. Prosecuting attorney Alexander stated in a subsequent declaration that defense counsels October 2004 statement was the first time he had heard that Dr. Rollins might have a criminal history.
After that hearing, Alexander did some more investigation, and he obtained from Dr. Rollins a number of documents regarding a criminal case in Arizona that had been prosecuted against him. Alexander immediately faxed these documents to defense counsel on October 20, 2004. The documents included a December 2001 "Stipulated Guilty Plea" filed in Coconino County Superior Court, Arizona, by which Dr. Rollins pled guilty to possessing drug paraphernalia, a misdemeanor, and to possession or use of narcotic drugs, a felony.
Also included was a January 2002 minute order from the same Arizona court ruling on Dr. Rollinss plea. The court accepted Dr. Rollinss plea only as to the misdemeanor, but it adjudged him guilty of the pleaded crimes. For the misdemeanor count, the court suspended imposition of sentence and placed Dr. Rollins on probation for one year. As to the felony count, the court stated it was "deferring acceptance of the plea agreement for a period of one year, giving [Dr. Rollins] time to complete the California Physician Diversion Program."
In response to this disclosure, OBrien, on November 29, 2004, filed a motion for discovery. Among other items, he sought to obtain a list of all cases in which Dr. Rollins had been called as a prosecution witness by the El Dorado County District Attorneys office.
The prosecution opposed the motion for discovery. It asserted Dr. Rollins had not suffered a felony conviction; his misdemeanor conviction did not involve conduct amounting to moral turpitude; the People had not engaged in a pattern or practice of concealing Dr. Rollinss drug problems, and the evidence was not material. It claimed the People were not aware of any felony or misdemeanor convictions against Dr. Rollins until defense counsel raised the issue in October 2004.
As part of its opposition to the discovery motion, the prosecution submitted an order issued by the Arizona court on March 10, 2003, dismissing Dr. Rollinss plea to the felony possession charge. In that order, the court noted it had deferred accepting the plea for one year, and that under the plea agreement, it was to dismiss the charge if Dr. Rollins complied with the terms of the California Medical Boards diversion program. Dr. Rollins had complied. The court thus terminated his probation term, vacated the felony plea, and dismissed the felony charge with prejudice.
The trial court granted the request for discovery in part, including the request for the list of cases in which Dr. Rollins testified. According to the Attorney General, the prosecution informed the defendants of two such cases. One was a 1999 case entitled People v. Williams. The defense attorney in that case was Judge Proud, who at that time was in private practice.
3. Motions to recuse trial court and district attorney
Defense counsel asked Judge Proud to submit to an interview to determine whether he received materials on Dr. Rollinss criminal record from the district attorneys office during the 1999 Williams case. The judge refused. Defense counsel then filed a motion to disqualify Judge Proud from any further participation in this case.
In his verified answer to the motion, Judge Proud stated that when he was defense counsel in the Williams case, he had no knowledge of Dr. Rollinss criminal record. He did not recall whether the issue of Dr. Rollinss substance abuse came up during the case.
The motion to recuse was heard in Placer County Superior Court, and that court denied the motion in February 2005. However, in November 2005, our court issued a writ of mandate directing the trial court to grant OBriens motion to disqualify Judge Proud. In April 2006, the presiding judge of the El Dorado Superior Court assigned all further matters in this case to Judge Phimister.
Meanwhile, in April 2005, OBrien filed a motion to recuse prosecutor Alexander and the El Dorado County District Attorneys Office on the ground the prosecutor had failed to disclose Dr. Rollinss criminal history prior to trial. To prove the district attorney had knowledge of Dr. Rollinss history prior to OBriens 2004 trial, OBrien submitted into evidence documents faxed from the Sacramento County District Attorneys office to Gary Lacy, El Dorado County District Attorney. The fax was sent on September 30, 2002. The documents included minutes from the Arizona Board of Medical Examiners meeting of March 6, 2002, where that board placed Dr. Rollins on administrative probation for five years. The fax also included news articles from the Arizona Daily Sun detailing Dr. Rollinss arrest and subsequent guilty plea.
After Judge Phimister took over the case in April 2006, OBrien submitted additional evidence in support of his motion to recuse the district attorney. He submitted a May 2006 declaration by Cynthia Besemer, Chief Deputy District Attorney for Sacramento County. She declared she instructed her secretary to fax the materials on Dr. Rollins to El Dorado County District Attorney Lacy in 2002. Her office was familiar with Dr. Rollins and had opposed his rehiring by the Sacramento County Coroner. Besemer received assurances from the Coroner that Dr. Rollins would not work on any coroners case that could lead to criminal court proceedings.
Besemer said it was her offices practice to provide information to defense attorneys about Dr. Rollinss drug problems and criminal conviction in every case because it believed it constituted Brady material.
In 2002, she learned that the Sacramento County Coroners Office contracted to perform autopsies for other counties, including Amador County and El Dorado County. She was informed that Dr. Rollins would be performing autopsies in those counties that could lead to criminal proceedings. Thus, she faxed to the district attorneys in those counties the package of materials discussed above.
Besemer recalled speaking with Lacy by telephone before she faxed him the materials. She did not recall the exact conversation, but her purpose was to inform Lacy of Dr. Rollinss situation so that Dr. Rollinss possible testimony would not damage Lacys prosecutions.
Besemer spoke again with Lacy after she had given the same information on Dr. Rollins to OBriens defense attorney. She told Lacy she had to provide the documents to OBrien because they were public. She had provided the same information to defense counsel in her cases where Dr. Rollins would testify. According to Besemer, Lacy stated it was not a problem because he did not consider the information to be Brady material.
In addition to the declaration by Besemer, OBrien attached a declaration from Amador County District Attorney Todd Riebe as support for his motion to recuse. Riebe declared that in September 2002, he received a telephone call from Sacramento County District Attorney Jan Scully informing him of Dr. Rollinss drug problems and his Arizona convictions. He also received from her a fax with the same documents received that month by Lacy.
4. Motion for new trial
In July 2006, OBrien filed his motion for new trial. In addition to the grounds discussed above, one of the grounds for new trial was the prosecutions alleged Brady violation for not disclosing Dr. Rollinss criminal record. In support of the motion, OBrien included, among other documents, a December 2004 declaration by Dr. Rollins. Dr. Rollins claimed that the morning he was to testify in trial, he informed prosecutor Alexander about his prior problems with Demerol and that he had been through rehabilitation. According to Dr. Rollinss declaration, Alexander stated he was aware that Dr. Rollins had a "Brady package," and he suggested they have a discussion with opposing counsel and the judge about it on the record.
OBrien also submitted a transcript from a 2002 Alameda County Superior Court trial, People v. Daveggio and Michaud, in which Dr. Rollins testified as a witness. Under voir dire, Dr. Rollins admitted he had recently concluded he was addicted to Demerol. He began using Demerol without a prescription in 1988, although he had experimented with other drugs.
Dr. Rollins generally would use drugs one to three times a year, taking, as he called it, a "mini vacation" when he did not have any tests or exams pending and was at home isolated from other people. He would use drugs that he had bought and paid for himself through the coroners office. He would place them in a location he was allowed to have them under his certificate from the federal Drug Enforcement Authority. When he would use the drugs, he would simply remove them from his stock and administer them to himself.
Dr. Rollins first sought treatment for his addiction in 1998. At that time, he had been in a long-term romantic relationship, and when he realized the relationship would end, he overdosed on the drug, nearly killing himself. After treatment, he was free of Demerol for about a year and a half, until around 2000. He relapsed for a week after deciding to leave Sacramento and look for another job.
The next, and last, time Dr. Rollins improperly used Demerol was in January 2001 in Arizona. He entered a treatment program in Georgia for five months. After completing the treatment, he was indicted by a grand jury and he entered his plea. He voluntarily joined a diversion program for a year, which included group therapy meetings twice a week.
Following Dr. Rollinss testimony, the Alameda County court accepted Dr. Rollins as an expert in the area of forensic pathology.
The prosecutor opposed OBriens motion for new trial. He did not dispute that the information on Dr. Rollinss criminal background should have been given to the defense prior to trial. He argued, however, that the failure to disclose did not deny OBrien a fair trial. The criminal information was not material because it would allow impeachment on only a collateral issue. As it was, Dr. Rollins testimony at trial was a "serious blow" to the Peoples case. He testified the time of death was between 10:30 a.m. and 12:30 p.m., but was likely closer to 12:30 p.m. OBrien had an "undisputed alibi for his whereabouts from 11:30 a.m. until after the victims body was discovered."
Dr. Rollinss criminal history, the prosecution argued, did not call into question the validity of Dr. Rollinss expert opinion on the time of death. However, the prosecutor acknowledged the evidence concerning Dr. Rollins was not adequately investigated or provided to the defense prior to trial.
5. Trial courts rulings
The trial court held a hearing on both the motion to recuse the prosecutor and his office and the motion for new trial. At the hearing, the prosecutor stated the People were not contesting whether Besemer had a phone conversation with Lacy or that she faxed documents concerning Dr. Rollins to Lacy. Lacy claimed he did not recall receiving them, but the fax number on the cover page was the number for the fax machine that sits next to his desk.
The trial court denied the motion to recuse the prosecutor or his office, concluding no Brady violation occurred because the withheld information was not admissible. It noted Dr. Rollinss criminal information was in the prosecutions possession prior to trial. However, Dr. Rollinss only conviction in Arizona was for a misdemeanor. There was no felony conviction because the Arizona court never accepted the plea agreement as to the felony plea, it deferred entry of the plea, and it ultimately dismissed that charge with prejudice. And, the court determined, the charged crimes, whether felony or misdemeanor, did not involve moral turpitude.
The court also determined Dr. Rollins was not on probation at the time of the autopsy. Even though he had not yet petitioned the Arizona court to set aside his plea, his one-year probationary period had expired by the time he performed the autopsy.
The court stated the question before it was whether the district attorneys office should be recused for not providing sufficient information to allow the defense to examine Dr. Rollins on his past drug use and what effect, if any, it had on his ability to perform the autopsy. It concluded the in-trial disclosure was sufficient to enable the defense to question Dr. Rollins on his ability to perform. It believed Judge Proud would have denied admission of the Arizona court history under Evidence Code section 352. The district attorneys office could have done better handling discovery in this case, but its actions did not warrant recusal.
The trial court also denied the motion for new trial. When it did so, the court again addressed the Brady issue. It noted that all violations of Brady do not automatically result in a verdict being set aside. A reversible violation must concern evidence that was material. Here, the evidence of Dr. Rollinss Arizona criminal case was not admissible, and thus not material, because there was no felony conviction that could be used for impeachment purposes and probation had terminated.
The court stated materiality was limited to whether Dr. Rollins, a former addict, was under the influence of a controlled substance when he performed the autopsy or formed his opinions. That issue was reviewed in the Evidence Code section 402 hearing at trial. The Arizona information would have allowed the defense only to ask additional questions about Dr. Rollinss drug use. It would not have established that Dr. Rollins was under the influence of drugs at the time he performed his autopsy or formed his opinions in this case. It would have established only that he had been addicted to Demerol at one time, had been in treatment, and had tested regularly without positive test results.
"So if theres a Brady issue," the court said, "the Brady issue was resolved based upon this Courts finding that the evidence — the additional information, while possibly material, would only have been used to be cumulative to further evaluate the ability of Dr. Rollins to perform his examination of the decedent." Knowledge of the evidence would not have changed the case, the court concluded, "in that it is significantly inadmissible, and at best would go to the issue of cumulative evidence."
B. Analysis
In a Brady claim, conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim, are subject to independent review. Findings of fact are entitled to great weight when supported by substantial evidence. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
"In Brady, the United States Supreme Court held `that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady, supra, 373 U.S. at p. 87.) The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107 ), that the duty encompasses impeachment evidence as well as exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676 ), and that the duty extends even to evidence known only to police investigators and not to the prosecutor (Kyles v. Whitley (1995) 514 U.S. 419, 438 ). Such evidence is material `"if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (Id. at p. 433.) In order to comply with Brady, therefore, `the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in the case, including the police. (Kyles, supra, 514 U.S. at p. 437; accord, In re Brown (1998) 17 Cal.4th 873, 879.)
"`[T]he term "Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called "Brady material" — although, strictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. (Strickler v. Greene (1999) 527 U.S. 263, 281-282 , fn. omitted.) Prejudice, in this context, focuses on `the materiality of the evidence to the issue of guilt or innocence. (United States v. Agurs, supra, 427 U.S. at p. 112, fn. 20; accord, U.S. v. Fallon (7th Cir. 2003) 348 F.3d 248, 252.) Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible (cf. Wood v. Bartholomew (1995) 516 U.S. 1, 2 ), that the absence of the suppressed evidence made conviction `more likely (Strickler, supra, 527 U.S. at p. 289), or that using the suppressed evidence to discredit a witnesss testimony `might have changed the outcome of the trial (ibid.). A defendant instead `must show a "reasonable probability of a different result." (Banks v. Dretke (2004) 540 U.S. 668, 699 .)" (People v. Salazar, supra, 35 Cal.4th at pp. 1042-1043.)
"Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 907-908, original italics.)
There is no dispute that Lacy, the district attorney, had a duty to inform his deputies of what he knew about Dr. Rollins, or that the prosecutor had an obligation to learn of any evidence known by Dr. Rollins that would be favorable to the defense. Dr. Rollins was acting on the governments behalf in this case, and information regarding his prior drug abuse was potentially favorable to the defense as impeachment evidence. The district attorney had a duty to investigate and learn all he could about this evidence so he could determine how to comply with his Brady obligations. In this case, the district attorney had actual knowledge, and he downplayed and disregarded it for whatever reason. He and his office did not fulfill their responsibility here. Their failure to do so, however, while it casts them in a bad light, does not end our discussion.
To establish a violation of Brady, the defendants still had to show that the nondisclosed information was material, i.e., had the information been disclosed to the defense, there is a reasonable probability of a different result. Defendants fail to make that showing. The result would not have changed because much of the evidence was inadmissible as impeachment evidence. That which was admissible would not have led to a different outcome. Moreover, disclosure would not have altered, indeed, it did not alter, the defendants trial strategies.
The Arizona misdemeanor conviction was not admissible. Misdemeanor convictions are admissible subject to the relevance requirement of moral turpitude. (People v. Wheeler (1992) 4 Cal.4th 284, 296.) Possession of narcotic paraphernalia is not a crime of moral turpitude. (People v. Cloyd (1997) 54 Cal.App.4th 1402, 1409.) Defendants would not have been allowed to impeach Dr. Rollins with the misdemeanor evidence.
The conditional Arizona felony possession plea was not admissible because it did not result in a conviction, had been dismissed due to the condition occurring, and, in any event, did not involve moral turpitude. The Arizona court never accepted Dr. Rollinss plea, and it ultimately dismissed the felony charge with prejudice. In short, there was no felony conviction and no admissible misdemeanor conviction to introduce for impeachment purposes. And, standing alone, Dr. Rollinss conduct of being addicted and unlawfully possessing narcotics did not involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317.) Thus, this conduct was not admissible for impeachment purposes.
Defendants claim Dr. Rollinss testimony in the Alameda County case, where he gave a history of his drug abuse and explained how he obtained the drugs, shows that Dr. Rollins lacked judgment and engaged in dishonest conduct. However, narcotic addiction not related to the specific autopsy or to the period of time of observation of the pertinent facts or testimony is not admissible without expert testimony showing a detrimental effect on the witnesss abilities. (People v. Pargo (1966) 241 Cal.App.2d 594, 600; People v. Bell (1955) 138 Cal.App.2d 7, 11-12.) "[S]uch evidence is inadmissible unless testimony of the use of heroin or any other drug tends to show that the witness was under the influence thereof either (1) while testifying, or (2) when the facts to which he testified occurred, or (3) that his mental faculties were impaired by the use of such narcotics." (People v. Hernandez (1976) 63 Cal.App.3d 393, 405.)
Defendants made no offer of proof showing Dr. Rollins was under the influence of drugs while he examined the victim, performed the autopsy, prepared his report, or testified at trial. They also offered no expert testimony showing Dr. Rollinss past drug abuse somehow affected his ability to make honest medical judgments and observations when he was called upon to do so in this case. Thus, the additional evidence of Rollinss drug use would not be admitted for impeachment purposes.
Even if Dr. Rollinss testimony as to how he obtained the drugs had been admissible, it would still fail the materiality requirement. Dr. Rollins explained in his Alameda County testimony that he purchased the drugs through the coroners office, stored them there in an authorized storage location, and used them without a prescription. For purposes of argument only, we assume Dr. Rollinss abuse of his medical credentials and the county coroners office indicates a character trait of dishonesty and moral turpitude.
Disclosure of this information and impeachment of Dr. Rollins with it, however, would not have created a reasonable probability of a different outcome. When we consider this evidence in conjunction with all of the evidence in this case, our confidence in the verdict is not undermined.
First, it is doubtful the evidence would have undermined the jurys belief in Dr. Rollinss testimony of the time of death. Dr. Rollins had no motive to lie about the time the victim died, and, indeed, the estimated time frame of death included times when OBrien claimed to have an alibi. Nothing in the record suggests any reason why Dr. Rollins would fabricate the time of death.
Second, the incriminating evidence in the record is overwhelming. Defendant Dickson testified that he, Wellman, and OBrien, who was armed with a shotgun, drove to the Treasure Lane home to get drugs, dirt bikes and cash. They stopped at the Big Horn Gun Shop along the way and acquired shotgun shells. He and Wellman ran out of the house when OBrien and the victim were pointing guns at each other. OBrien exited the house carrying the shotgun and told them the victim was dead. They threw the victims rifle into a pond. Dickson later showed law enforcement officers where they had disposed of the victims rifle, and the rifle was later retrieved from that location. Dicksons testimony corroborated the major points of Wellmans testimony.
Even without Dr. Rollinss testimony, there remains a 55-minute gap that OBrien cannot fill with the testimony in the record. The time estimates given by the witnesses, the experimental evidence of the time to make the route likely used by the defendants, and the lack of an alibi for those 55 minutes are sufficient grounds to support the verdict. Testimony as to how Dr. Rollins obtained narcotics two years earlier would not have undermined this evidence.
Dickson additionally complains that had the evidence of Dr. Rollinss prior drug use been disclosed, he likely would not have testified on his own behalf. But, as already explained, most of the nondisclosed evidence was inadmissible, and the disclosed evidence was ruled inadmissible. We doubt Dicksons decision to testify would have changed had he known about the manner in which Dr. Rollins obtained his drugs two years previously, as that information had little bearing on the credibility of Dr. Rollinss time-of-death assessment here.
Our confidence in the verdict is further strengthened by Dr. Herrmanns substantial corroboration of Dr. Rollinss estimated time of death.
We thus conclude defendants have not satisfied their burden of establishing materiality in order to prove a Brady violation. As a result, the trial court did not err in denying a new trial on this basis.
We also conclude the trial court did not abuse its discretion in denying OBriens motion to recuse the district attorney on account of the alleged Brady error. A motion to recuse a district attorney "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." (§ 1424, subd. (a)(1).) This language establishes a two-part test: (1) is there a conflict of interest; and (2) is the conflict so severe as to disqualify the district attorney from acting? (People v. Conner (1983) 34 Cal.3d 141, 148-149.)
A conflict, for purposes of section 1424, "`exists whenever the circumstances of a case evidence a reasonable possibility that the DAs 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. [Citation.] But however the conflict is characterized, it warrants recusal only if [it is] `so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings. [Citation.]
". . . [W]hether the prosecutors conflict is characterized as actual or only apparent, the potential for prejudice to the defendant — the likelihood that the defendant will not receive a fair trial — must be real, not merely apparent, and must rise to the level of a likelihood of unfairness." (People v. Eubanks (1996) 14 Cal.4th 580, 592, original italics.)
Here, the prejudice to OBrien from the district attorneys and his staffs failure to investigate and disclose the impeaching information about Dr. Rollins does not rise to the level of a likelihood of unfairness. This is because, as already discussed, the evidence was not material to the case. Most of the evidence was inadmissible, and evidence of how Dr. Rollins obtained the drugs and where he stored them would not have undermined his testimony, which was substantially corroborated by Dr. Herrmann in its single most critical point — the time of death.
Moreover, nothing in the record indicates the district attorney would have prosecuted this case differently. The knowledge of Dr. Rollinss history did not create a reasonable possibility that the district attorney would not exercise his discretionary functions in a fair manner. The trial court did not abuse its discretion in denying the motion to recuse the district attorney and his office, and the motion for new trial, on the basis of Brady.
IV
Failure to Instruct on the Elements of Robbery
The Attorney General acknowledges the trial court did not instruct on the elements of robbery. Specifically, the court did not inform the jury that robbery constitutes the taking of property from a person against his will, by force or fear, and with the intent to permanently deprive that person of the property. (CALJIC No. 940.) The Attorney General admits that this failure to instruct constituted error with respect to the robbery special circumstance.
As a result of this error, OBrien claims the jurys general verdict of felony murder must be set aside because, he argues, we cannot determine whether the jury reached its verdict by relying exclusively on an insufficient ground, the robbery charge. Relying on Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, 1085 (Lara), OBrien asserts that this error is structural and not amenable to harmless error review. Accepting the test announced in Lara for purposes of argument only, we conclude the error was harmless under an exception in the Lara test because in this instance we in fact can determine with certainty that the jury reached its verdict on at least one valid ground.
California courts and the federal Ninth Circuit Court of Appeals disagree over a reviewing courts scope of review when a jury was instructed with alternate legal theories for reaching a general verdict, one of which is invalid or erroneously described. Traditionally, California has reviewed such error under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 21 [17 L.Ed.2d 705, 708-709]. (People v. Lee (1987) 43 Cal.3d 666, 673-676.) In Lara, however, the Ninth Circuit proclaimed that such error was structural and reversible per se. (Lara, supra, 455 F.3d at p. 1086.)
We need not weigh in on this disagreement because both court systems agree that the rendition of such alternative instructions is harmless where the reviewing court can determine with certainty that the jury relied upon the legally correct theory in reaching its verdict. (People v. Guiton (1993) 4 Cal.4th 1116, 1130; People v. Kelly (1992) 1 Cal.4th 495, 531; Lara, supra, 455 F.3d at p. 1085.)
Indeed, the Lara court, in finding this exception governed the case before it, stated it thusly: "`[R]eversal is not required if "it is absolutely certain" that the jury relied upon the legally correct theory to convict the defendant. [Citations (emphasis in original)]. [Citation.] (`The cases in which [the requirement to reverse] has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jurys decision rested. [Italics in original.] We [the Ninth Circuit] have applied this `absolute certainty principle in several habeas cases. [Citations.]" (Lara, supra, 455 F.3d at p. 1085.)
California courts describe the test similarly. The error is harmless when "it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory." (People v. Guiton, supra, 4 Cal.4th at p. 1130.) "An instructional error presenting the jury with a legally invalid theory of guilt does not require reversal . . . if other parts of the verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory." (People v. Pulido (1997) 15 Cal.4th 713, 727.)
On petition for writ of habeas corpus, the Ninth Circuit in Pulido v. Chrones (9th Cir. 2007) 487 F.3d 669, 675-676, concluded the California Supreme Court in People v. Pulido, supra, 15 Cal.4th 713, erred in applying harmless error analysis to affirm the defendants conviction where the jury had been instructed on alternate theories. The federal court stated the error occurred because the instructions on all of the alternate theories were in error. Thus, the court could not determine with absolute certainty that the jury had convicted the defendant on a proper theory. The courts decision, however, did not alter the state Supreme Courts formulation of the exception for affirming the verdict where a court can determine with certainty that the jury relied upon a proper theory. The United States Supreme Court has granted certiorari of the Ninth Circuits decision. (Chrones v. Pulido (2008) 170 L.Ed.2d 274.)
Here, we can determine the jury necessarily convicted OBrien on a legally correct theory — felony murder in the commission of a burglary. The trial court fully instructed the jury on the elements of burglary, including the requirement of specific intent. OBrien does not dispute this. The jury determined OBrien was guilty of this crime, and pursuant to the instruction on felony murder, it determined he was guilty of murder. Because we can determine that the verdict rested on at least one correct theory, the trial courts failure to instruct on the elements of robbery is of no consequence to the murder charge. (People v. Kelly, supra, 1 Cal.4th at p. 531.)
OBrien disagrees with our conclusion. He asserts that because the felony-murder instruction described murder as the unlawful killing of a human being during the course of a "robbery or burglary," and because the jury did not indicate which ground it relied upon, there is a possibility the jury reached its verdict based on the uninstructed robbery theory. That possibility, however, is not dispositive in this case.
The felony-murder instruction did not require the jury to convict OBrien only on one of the two possible theories. The jury could convict him on either theory or both theories. Here, there is no doubt that the jury convicted him on both theories, as it found true the special circumstance allegations for robbery and burglary. There is also no doubt that the burglary conviction rested on correct and complete instructions. Thus, we can determine with absolute certainty that the jury relied upon a legally correct theory to convict OBrien of murder. That the other possible theory the jury relied upon was not legally correct is of no moment.
V
Proportionality of Prison Sentences
Both defendants claim their respective prison terms are disproportionate to their crimes, as that concept is established in Ewing v. California (2003) 538 U.S. 11 (Ewing) and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), and thus violate the federal and state constitutional prohibitions against cruel and unusual punishment. We disagree.
"A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.) We find defendants are unable to meet this burden and their sentences withstand constitutional scrutiny.
The California Constitutions prohibition of cruel or unusual punishment prohibits imposing a criminal sentence which is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; see also Dillon, supra, 34 Cal.3d at p. 478; Cal. Const., art. I, § 17.) The federal test is similar. (Ewing, supra, 538 U.S. at p. 23.)
We use a three-pronged approach to determine whether a particular sentence is grossly disproportionate. First, we review "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch, supra, 8 Cal.3d at p. 425.) Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. (Id. at p. 426.) Third, and finally, we compare the challenged punishment to punishments for the same offense in other jurisdictions. (Id. at p. 427.) The importance of each of these prongs depends upon the facts of each specific case. (In re DeBeque (1989) 212 Cal.App.3d 241, 249.) Indeed, we may base our decision on the first prong alone. (Dillon, supra, 34 Cal.3d at pp. 479, 482-488.)
The seminal case in this area is, of course, Dillon. Since both defendants rely on this case, we briefly review it. The defendant there was a 17-year-old boy with no criminal record. He and two friends attempted to steal marijuana from a field. The owner discovered them and threatened to shoot them with a shotgun if they returned. Weeks later, they did return, only this time, they brought reinforcements, several of whom were armed, including the defendant. They also armed themselves with a knife, a baseball bat, sticks, masks, rope, and strips of sheeting to help accomplish the planned robbery. (Dillon, supra, 34 Cal.3d at p. 451.)
The boys spread out and hid. One of the boys accidentally discharged his shotgun twice. Hearing the shots, the defendant feared his friends were being shot. At the same time, the fields owner was approaching the defendants group, carrying a shotgun. Defendant saw the owner and thought the owner had seen him. As the owner approached, he shifted his gun, leading defendant to believe the owner would shoot him. Panicked, defendant lowered his .22 caliber rifle to his waist and began firing. He stopped firing when the owner fell. Then he fled the scene. The owner was hit nine times, and he died a few days later. (Dillon, supra, at pp. 451-452, 482-483.)
The jury did not want to convict on first degree murder, but it felt compelled to do so under the felony-murder rule as the elements of attempted robbery had clearly been satisfied. Without legal authority, the jury recommended the court sentence the defendant to the Youth Authority. (Dillon, supra, at pp. 484-485.) The trial court agreed, noting its concurrence with the jurys sentiments, and it sentenced the defendant to the Youth Authority. It noted expert testimony at trial established the defendant was intellectually and emotionally immature for a 17-year-old boy, he was not a dangerous person, and he had no criminal record. It believed the defendant had been trapped in a situation of his own making and had acted out of panic and fear. (Id. at p. 486.)
The Court of Appeal, however, reversed. It held that a minor convicted of first degree murder was ineligible as a matter of law for commitment to the Youth Authority. As a result, the court had no alternative under the governing statutory regime except to sentence the defendant to life in prison. It ordered the trial court to sentence the defendant to life imprisonment in the state prison. (Id. at pp. 486-487.)
The Supreme Court determined the life sentence was unconstitutionally disproportionate. It relied on the fact that both the judge and the jury believed the sentence was disproportionate in light of the facts that defendant had no prior record, had acted out of panic, and had been determined to have been an unusually immature youth. The court further noted that the conviction was based on the felony-murder rule, which required a showing of intent only to commit the underlying felony. It observed that none of the other boys were convicted of any degree of homicide or sentenced to a state prison term. (Dillon, supra, 34 Cal.3d at pp. 450, 482, 488.)
Both defendants here claim their sentences are as disproportionate, if not more so, than the sentence at issue in Dillon under similar circumstances. Both were minors convicted of first degree felony murder arising from the burglary of a home in search for marijuana. Neither defendant here had a prior criminal record.
Expert testimony on OBriens behalf tended to show he was extremely intelligent but emotionally immature. His expert claimed he had experienced moderate emotional delay in his development due to his voluntary drug use.
Moreover, OBrien, like the defendant in Dillon, was caught in a trap of his own making. Witnesses claimed OBrien told them that after he entered the house, he was caught in a standoff with the victim pointing a gun at him. He did not know who would shoot whom, so he shot first, killing the victim. Despite these similarities to Dillon, OBrien was sentenced to life without parole plus 10 years, a more severe sentence than that overturned by the Dillon court.
Regarding Dickson, a group of tests performed on him while he was in the third grade indicated he had an auditory memory deficit that on some tasks left him performing at a kindergarten level. On his 11th grade Standardized Testing and Reporting (STAR) performance report, Dickson performed "far below basic" in the subjects of English-language arts and United States history. He did not perform well in other areas that were tested.
Moreover, Dickson was not the shooter. He ran out of the house the moment they encountered the victim with his gun. Nevertheless, his sentence of 25 years to life was nearly the same as the overturned sentence given to the Dillon defendant, who was the shooter in that crime.
Other facts, however, distinguish this case from Dillon. Unlike the defendant in Dillon, these defendants proceeded to complete the intended burglary and theft of approximately $ 3,000, plus illegal drugs, felonies all, after committing the murder. Both defendants stepped over the victims body to execute their conspiracys target offense.
The defendants destroyed evidence together and covered up their crimes. Aware of the significance of their violent misdeeds, they disposed of the victims rifle in the pond. OBrien also returned Pettys shotgun, which he borrowed specifically to commit these offenses, after wiping it clean. He also gave Petty the box of shotgun shells defendants bought before going to the house, minus one shell.
The trial court recognized both the seriousness of defendants crimes and their differing degrees of culpability. Unlike Dillons friends, who were not convicted of murder or felony murder, both OBrien and Dickson were convicted of first degree felony murder. OBrien, who actually pulled the trigger, received the harsher sentence.
Indeed, the trial court here had no other choice. The Legislature has determined that minors tried as adults who are convicted of first degree felony murder can be punished in only one of two ways: life with parole, or life without parole. Given the conscious, deliberate, conspiratorial nature and scope of OBriens and Dicksons shared crimes, followed by a cold and calculated escape and destruction of evidence, we may not here cross the boundary established by the constitutional separation of powers doctrine and enter into the sacred, intrinsically legislative domain of defining crimes and their punishments. We may do so in very narrow circumstances, unlike here, only when a punishments unconstitutionality "`clearly, positively, and unmistakably appears." (People v. Wingo (1975) 14 Cal.3d 169, 174.)
DISPOSITION
The robbery special circumstance as to both defendants is reversed. In all other respects, the judgment against both defendants is affirmed.
We concur:
SCOTLAND, P. J.
BLEASE, J.