Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07162
RAYE, J.In 1972 12-year-old Shannon Ritter was murdered while babysitting. The case remained unsolved until January 2007, when an information charged defendant James Calvin Gaines with murder. After eight days of deliberations, a jury found defendant guilty. Sentenced to life in prison with the possibility of parole, defendant appeals, alleging various errors on the part of the trial court: (1) admitting evidence of defendant’s prior offense, (2) denying his motion to dismiss for precharging delay, (3) not granting use immunity to a witness, (4) failing to receive the witness’s prior statement, (5) denying defendant’s postverdict Marsden motion, and (6) sentencing error. We shall correct the abstract of judgment, but in all other respects we affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
Over 30 years separate the death of Shannon Ritter and the arrest and conviction of defendant. Ritter babysat in an apartment in the same complex in which defendant lived with his family. When the case was reopened in 2006, defendant’s DNA was found on a cigarette butt in the apartment where the murder took place. Defendant admitted visiting the apartment, but only when the regular babysitter, not Ritter, was there.
An information charged defendant with first degree murder and alleged the murder was committed in the perpetration or attempted perpetration of a lewd or lascivious act upon or with the body of a child under the age of 14 years. (Pen. Code, §§ 187, subd. (a), 288, 189.) A jury trial followed.
All further statutory references are to the Penal Code unless otherwise indicated.
The Murder of Shannon Ritter
On the evening of September 29, 1972, Margie Doporto hired Shannon Ritter to babysit her young children at Doporto’s apartment. Doporto was a young married woman who lived in the apartment complex with her four children. When Doporto’s husband, who was in the military, was away, she often had male visitors.
Doporto died before trial.
The night Ritter babysat at Doporto’s apartment, her friend, 17-year-old Mary Ellen Koone, stopped by to check on her. Ritter came to the door and told Koone “there was somebody in the house and she was very uncomfortable about it.” The man had rung the doorbell and asked for Doporto. Ritter told Koone the man insisted on waiting in the apartment for Doporto to return.
Koone stepped in front of the door and saw a black male sitting on the couch, watching television. Koone had never seen the man before but guessed he was between 17 and 20 years old, of a build slighter than medium. Seated, he appeared to be about five feet three inches to five feet six inches tall.
Koone offered to have her mother come over and “run him off,” but Ritter declined. Ritter said she “would be too embarrassed” if she sent him away and the man turned out to be a friend of Doporto.
Koone asked Ritter the man’s name. Ritter asked the man, who responded that his name was Robert and he was a high school sophomore. Ritter asked Koone to come into the apartment, but Koone declined, saying she had to return home to check on her own baby. Koone was the last person, other than the slayer, to see Ritter alive.
A few hours later, Doporto’s neighbors, Everett and Jacqueline Hipsher, were awakened by Doporto’s knocking at their door. Everett walked over to Doporto’s apartment and went inside. He saw water flowing down the stairs. Everett climbed the stairs and looked into the bathroom. In the tub he saw hair floating on top of the water. Everett soon realized there was a person in the water.
Deputy Sheriff Ron Goesch and his partner were dispatched to Doporto’s apartment and found Ritter’s body in the bathtub. Ritter was nude, lying on her left side with her face in the water near the running faucets. Rigor mortis had begun to set in.
Goesch found Doporto’s children asleep in different bedrooms. They were moved to a nearby apartment prior to the deputies’ searching Doporto’s apartment.
In the living room, sheriff’s deputies discovered Ritter’s clothing piled on one end of the couch where Koone had seen the man sitting. Ritter’s bra was still fastened, her underwear was inside out, a t-shirt was partially inside out, and one pant leg was wadded up. Ritter’s shoes were on the floor at the other end of the couch. Both shoe soles were damp.
Sheriff’s deputies found three cigarette butts next to an overturned ashtray near the shoes. Two of the cigarette butts were Salem brand. On a nearby table lay a pack of Salem cigarettes, three of which were missing. A deputy described the house as “messy” and “dirty.”
The pathologist who conducted Ritter’s autopsy testified Ritter died from a combination of manual strangulation and drowning. Ritter’s body had been submerged long enough to develop a condition known as “skin slip,” which the pathologist testified is often the result of being in hot water.
An examination of Ritter’s body revealed two deep bruises on the right side of her head and abrasions on her lip, chin, and neck. The throat and neck injuries indicated Ritter had struggled while being strangled. The lip injuries could have been caused by Ritter’s falling against something or being hit with something. In addition, Ritter’s hyoid bone had been damaged.
The autopsy also revealed petechial hemorrhaging in the whites of Ritter’s eyes, which occurs when significant pressure resulting from something tight around the neck causes tiny blood vessels to break. Petechial hemorrhaging also was present on the surface of Ritter’s lungs and heart and on her chest, which, along with expanded lungs, pointed to death by drowning. The pathologist found a “frothy foam” around Ritter’s mouth, another indication of drowning.
The pathologist’s findings comport with Ritter’s being strangled into unconsciousness and then placed in the bathtub and drowned.
Ritter’s fingernails, which were “bitten... down quite low,” yielded no scrapings from her attacker.
The pathologist found no evidence of rape or sodomy. However, the examination of Ritter’s body yielded a series of linear lesions on one breast, around the areola. The lesions were possibly created by an instrument with a small rectangular end, but not by a fingernail or tooth. The injuries had been inflicted prior to Ritter’s death.
The Subsequent Investigation
Defendant’s Interviews
Defendant, 23 years old at the time of the murder, lived with his wife and three children in the same apartment complex where Ritter was killed. Defendant’s apartment was across a yard from Doporto’s. He was an enlisted airman assigned to a nearby United States Air Force base.
The morning after the murder, sheriff’s deputies interviewed defendant. Defendant told them he spent the entire night watching his two children, leaving only once to go to the market. One of the investigating deputies noticed something she considered unusual: defendant’s shirt throbbed as though his heart was beating very hard and fast.
Later that day, Koone and her father were in the laundry room at the apartment complex. Koone’s father told her a man was staring at her. Koone looked at the man and realized he resembled the man she had seen the night before with Ritter. That afternoon, Koone identified defendant in a photographic lineup as the man in Doporto's apartment the night of the murder. The lineup was composed of photographs of eight individuals.
Sheriff’s deputies again interviewed defendant. After waiving his Miranda rights, defendant offered a different version of his movements the night of the murder. Defendant stated he dropped off his wife and one child at the bus station. He remained at home with the other two children. After putting them to bed, he went to a store near the apartment complex and was cited for shoplifting a bottle of liquor.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
Later, he tried to go to the noncommissioned officers club for a drink but was turned away. He returned home and checked on the two children. He then went to an apartment in the same complex to visit a friend. The friend was not home and defendant returned to his apartment. Defendant took a shower and went to bed.
Defendant denied having been in Doporto’s apartment the night of the murder. However, a week earlier he had visited Ricky Wright in Doporto’s apartment while Wright babysat for Doporto.
Defendant subsequently identified Ricky Wright as Doporto’s regular babysitter.
A few days after the murder, another sheriff’s deputy interviewed defendant. During this interview defendant stated he had met with Ricky Wright in defendant’s apartment, not Doporto’s. He denied ever being in Doporto’s apartment.
The following day sheriff’s deputies arrested defendant, advised him of his Miranda rights, and interviewed him again. Defendant said he had talked to Doporto on several occasions. Again, he denied being in the apartment the night of the murder. Defendant began to sob “uncontrollably” and the deputy cut the interview short.
Deputies interviewed defendant again late that evening. During the interview, defendant told them he purchased a pack of Salem brand cigarettes after dropping off his wife at the bus station the night of the murder. Defendant was released for lack of evidence.
Defendant and his wife both told sheriff’s deputies that defendant usually smoked Salem cigarettes.
Strother’s Arrest
Approximately one week later, a detective took Koone to a nearby military base to see if she could identify the man she saw inside Doporto’s apartment and in the laundry room. They ran across Doporto at the base. At the noncommissioned officers club in a crowd of approximately 200 people, Doporto pointed to a man named John Strother and said, “that’s him.”
The detective pointed in the direction of Strother and asked Koone if she saw “anybody that is familiar.” When Strother turned toward them, Koone got upset, started shaking, and turned and walked away. Koone told the detective she was “certain that was the guy she saw.”
Detectives arrested Strother for Ritter’s murder. Strother had an airtight alibi, supported by seven witnesses who confirmed he had been with them the night of the murder. Accordingly, Strother was released.
At trial, Koone testified she identified Strother solely based on his size, five feet three inches, and race. Koone also testified she did not become visibly shaken until she saw Strother’s face.
Gaines is five feet eight inches tall according to the probation report. In her statement to police, Koone estimated the stranger in Doporto’s apartment was five feet six inches tall.
Detectives also showed Koone yearbooks from the local high school, since the man in the apartment said his name was Robert and he was a high school sophomore. Koone selected three photos, stating one looked the “most like” the intruder.
Sheriff’s deputies also interviewed 15-year-old Craig Neall after he was seen looking over a fence near Ritter’s apartment in the early morning hours the day after the murder. Neall, who lived in the complex near Doporto’s apartment, told the deputies he had been walking his dog and had ducked down because dogs were not allowed in the apartment complex. Neall’s shoes and the bottom of his pants were damp, and he appeared to have dressed in a hurry. Neall’s father confirmed that he had told his son to walk the dog.
Michelle Clendenin, the tenant of an apartment a few doors away from Doporto’s apartment, was also interviewed in the early morning hours after Ritter’s body was found. Clendenin stated she had been awakened an hour earlier by someone knocking on her door. When she opened the door, she saw a male Negro walking away. The man was approximately five feet eight inches tall. He turned and asked her what was going on. She recognized him as a previous resident of the apartment complex.
A deputy sheriff came by and asked if “they lived there.” The man falsely stated that he did. After the deputy left, the man asked if he could come in. Clendenin refused, and the man told her, “I am not going to kill you or anything.” The man continued to try to talk his way into the apartment. Clendenin again refused and slammed the door. Clendenin described the man as 30 years old and weighing about 175 pounds.
After Strother’s release, the case went dormant. All property taken from the murder scene was logged into the sheriff’s department property warehouse. This included the three cigarette butts found on the floor.
Frances D. Assault
Three years after Ritter’s murder, defendant assaulted 20-year-old Frances D. Defendant offered Frances a ride as she walked home from a friend’s house. Defendant drove her to a deserted parking lot and offered her $20 to have sex with him. When Frances refused, defendant knocked her to the ground, beat her savagely, and began choking her.
Frances’s screams attracted the attention of Dr. Kenneth Ozawa and his family, who had pulled into the parking lot. Ozawa happened to be Frances’s physician, and the parking lot was adjacent to medical buildings he owned. Ozawa activated his high beams and drove toward the only other car in the parking lot, beside which a man crouched. The man jumped up, got inside the car, and sped away. Ozawa managed to note the license number.
Ozawa found Frances on the ground, seriously injured. Frances’s eye socket was broken and she required facial reconstruction.
Questioned by sheriff’s deputies later that evening, defendant told them he had been home all night, except for a brief trip to the market with his wife and children. However, defendant’s wife stated she had not gone to the market with him, although their children had. When confronted with this discrepancy, defendant admitted lying. An examination of defendant’s car revealed blood spots and smears. Pine needles found inside the car matched those found at the crime scene.
The deputies arrested defendant. In a later interview, defendant said Frances “reached her hand down into a bundle she was carrying and demanded money.” Defendant hit Frances and pulled her out of the car to defend himself. Defendant denied intending to commit any “sexual acts against the victim’s wishes.” Defendant was tried and convicted for the assault.
In 2006, when questioned about the assault and whether the victim had a weapon, defendant said she “pulled something out of her purse.” Defendant struck Frances in reaction to what he believed was a threat.
The Case Reopens
In 2006 the sheriff’s department reopened the investigation of Ritter’s murder. Detectives reexamined physical evidence and tested it against reference samples from defendant and Ricky Wright, Doporto’s regular babysitter.
Koone ruled out Wright as the man in Doporto’s apartment the night Ritter was killed. However, Wright had been involved in a child molestation case in the 1980’s, which caused the detectives to give him a second look.
Wright was convicted in 1986 for lewd and lascivious acts upon his five-year-old son. He was convicted in 2006 for lewd and lascivious acts upon two other minors. It was stipulated that shortly after the murder, detectives interviewed an individual who provided a verified alibi for Wright for the time of the murder.
Analysts at the Serological Research Institute analyzed the DNA found on two hairs and three cigarette butts found at the murder scene. Mitochondrial DNA, the DNA inherited through the maternal line, can be traced to all maternal descendents. Mitochondrial DNA is useful when samples are degraded and cannot be tested for nuclear DNA.
The analysis of the two hairs yielded no mitochondrial DNA results. Two of the three cigarette butts did not have sufficient DNA for nuclear testing. One of the two cigarette butts yielded enough mitochondrial DNA to test. The DNA did not match either defendant or Ricky Wright.
The third cigarette butt contained enough nuclear DNA to test. Nuclear DNA can produce results that are exclusive to only one person or that person’s identical twin. The nuclear DNA testing ruled out Wright. However, at every point where a comparison could be done, the DNA on the cigarette butt matched defendant’s DNA sample. This profile proved to be such a rare one that the chances of a match with any person other than defendant were in the quadrillions.
Defendant did not testify. The defense offered a series of stipulations and the videotape recording of an interview of defendant.
Verdict and Sentence
After eight days of deliberations, the jury found defendant guilty of murder. The court sentenced him to life in prison with the possibility of parole. Defendant filed a timely notice of appeal.
DISCUSSION
ADMISSION OF EVIDENCE OF 1975 ASSAULT
Defendant argues the court erred in admitting evidence of his 1975 assault against Frances D. Defendant argues there is little evidence that Ritter’s murder was motivated by sex; therefore, the admission of the offense against Frances was, in essence, a “bootstrapping” of another sex crime to show defendant’s propensity to commit the murder, which was not sex related. Defendant also argues such evidence cannot be admitted where the charged crime is felony murder not based upon a felony sexual offense.
Background
The initial information in this case charged defendant with premeditated murder, but prior to the preliminary hearing, the information was amended to include the allegation that the “murder was willful, deliberate and premeditated, and was committed in the perpetration or the attempted perpetration of a lewd or lascivious act upon or with the body of a child under age 14 years....” (§ 187, subd. (a).)
During the preliminary hearing, the parties discussed the amended language. The prosecution argued the assault on Frances D. was admissible under Evidence Code section 1108. The court stated: “We’re both aware that the law allows you to bring in this type of evidence....” The magistrate deleted the additional allegations.
Following the preliminary hearing, the amended information realleged the lewd and lascivious language, despite the prior deletion. Defendant moved to dismiss based on this language in the information.
At the hearing on the motion, the prosecution argued the added language was necessary to allow introduction of the Evidence Code section 1108 evidence. The court denied defendant’s motion to dismiss, finding sufficient evidence from the preliminary hearing to support a finding that the murder was committed during the commission of a lewd or lascivious act upon a child. The evidence included the fact that there was no preexisting relationship between defendant and Ritter; Ritter’s clothes appeared to have been forcibly removed; and the unusual mark on Ritter’s breast, which was consistent with sexual assault.
At trial, defendant objected on Evidence Code section 352 grounds to the evidence concerning his assault on Frances D. The court overruled the objection and allowed the evidence. The court noted the evidence of the 1975 assault occurred relatively closely in time to the charged offense and was highly probative given its violent, sexual nature. The court noted that “the young girl was nude, was located at a different location from her clothes, had the clothes removed and there was some type of trauma to her breast or touching to her breast that there is enough there as well to find sexual inference to support the conclusion that this has probative value to the issue of whether or not there is a propensity for Mr. Gaines to engage in a sexual assault. [¶] That probative value then becomes substantial in the context of these facts. Prejudicial effect is slight.”
Discussion
Evidence Code section 1108 allows propensity evidence to be used in cases involving sexual offenses. Specifically, the statute provides that if the defendant is charged with committing a sexual offense, then evidence that the defendant committed other sexual offenses in the past is admissible, unless the trial court determines it should be excluded pursuant to the weighing provisions of Evidence Code section 352. Section 1108 contrasts with the traditional view that propensity evidence should not be admitted in determining a defendant’s guilt. (Evid. Code, § 1101, subd. (a); People v. Lopez (2007) 156 Cal.App.4th 1291, 1295.)
Under Evidence Code section 1108, a “sexual offense” is a crime that involves, among other things, lewd and lascivious acts with a child under the age of 14 years. (Evid. Code, § 1108, subd. (d)(1)(A); Pen. Code, § 288, subd. (a).) The court must closely scrutinize the evidence under Evidence Code section 352, weighing its probative value against its prejudicial impact. (Evid. Code, § 1108; People v. Falsetta (1999) 21 Cal.4th 903, 907.) We review the trial court’s ruling for an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).)
Evidence Code section 1108 allows propensity evidence to be used in cases involving sexual offenses. Defendant challenges the admission of the 1975 incident, arguing Ritter’s murder was not sexually motivated and therefore section 1108 was inapplicable.
Defendant contends no medical evidence exists supporting the inference that the murder was sexual in nature. We disagree.
As defendant notes, the autopsy revealed no evidence of rape or sodomy. Examination of smears taken from Ritter’s body yielded no evidence of sperm. However, Ritter’s body bore a series of linear lesions on one of her breasts, around the areola. The pathologist did not know how the lesions were inflicted, but ruled out either by tooth or by fingernail.
Defendant argues: “Of course, if the marks had been motivated by sexual interest, the probable mechanism would have been the very ones the pathologist ruled out: fingers or teeth.” Therefore, defendant concludes, the lesions do not support a finding that the murder was sexually motivated.
What defendant minimizes is the location of the lesions on Ritter’s bare breast. Ritter sustained these injuries prior to her death. Regardless of what caused the lesions, their location points to the sexual nature of the crime.
Defendant also challenges the evidence that Ritter was unclothed when found as pointing to a sexual motive for her murder. According to defendant, Ritter was nude because she was in the bathtub: “If the perpetrator was going to put her in the tub -- say, to try to make the death appear to be an accidental drowning -- he was certainly going to take her clothes off first.”
The trial court was not compelled to accept defendant’s theory of a nonsexual motive for removing Ritter’s clothing when the evidence suggested otherwise. Ritter’s clothes were found in the living room; her nude body was found in the tub in the upstairs bathroom. The clothes showed signs of having been hastily removed: some articles were inside out, others were wadded up, and Ritter’s bra hook was still fastened. Although the police criminalist testified there were no indications the clothes had been “ripped off,” he based this conclusion on a lack of tears in Ritter’s clothing. Ritter’s nude body and the condition of her clothing point to the sexual nature of Ritter’s murder. The court did not err in admitting the evidence under Evidence Code section 1108.
In contrast, the balance of the prejudicial impact of the 1975 assault weighed against its probative value is somewhat more problematic. The attack against Frances D. was highly probative. Both Ritter’s murder and the assault on Frances were violent and of a sexual nature. In both cases, separated by only three years, a young, vulnerable female was attacked.
The prejudicial impact of defendant’s assault against Frances D. was also quite high. The People contend that since Frances survived the assault, the other crime was not more inflammatory than the charged crime. However, the assault, as recounted by Frances and other witnesses, was particularly brutal, resulting in a week in the hospital, reconstructive surgery to her face, and lingering vision problems. The fact that Frances survived the assault does not vitiate the impact of the evidence.
Although the balance of probative value against prejudicial impact may be close, we cannot disturb the court’s exercise of its discretion in the absence of a showing that the court exercised that discretion in an arbitrary, capricious, or patently absurd manner. (Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Given the probative value of the evidence despite its potential prejudice, the court’s ruling was neither arbitrary nor capricious.
In a supplemental brief, defendant argues the evidence of the 1975 assault is not admissible under Evidence Code section 1108 because the charged crime of murder is not covered by that section.
Defendant relies on People v. Walker (2006) 139 Cal.App.4th 782 (Walker). In Walker, the defendant was charged with the murder of a prostitute. At trial, the court allowed the introduction under Evidence Code sections 1101 and 1108 of several prior sexual assaults committed by the defendant. (Walker, at pp. 789-792.)
The trial court admitted the evidence of Walker’s prior crimes under Evidence Code section 1108, subdivision (d)(1)(E). “Section 1108, subdivision (d)(1), defines ‘sexual offense’ as a crime under the law of a state or of the United States involving either conduct proscribed by a series of enumerated Penal Code sections or nonconsensual sexual contact. It also includes in the definition, in subdivision (d)(1)(E), any crime that involves ‘[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.’” (Walker, supra, 139 Cal.App.4th at pp. 797-798.)
The Walker court framed the issue before it: “whether [Evidence Code] section 1108, subdivision (d)(1)(E)’s inclusion in the definition of sexual offense of crimes that involve ‘[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person’ authorizes use of evidence of other sexual offenses when the circumstances under which a violent crime has been committed suggests the defendant derived sexual pleasure or gratification from the victim’s pain, even though sexual pleasure or gratification is neither a necessary element of the charged offense nor alleged in the information as an enhancement or aggravating factor.” (Walker, supra, 139 Cal.App.4th at p. 799.)
Walker acknowledged the court in People v. Pierce (2002) 104 Cal.App.4th 893 indicated the answer to that question might be yes. However, Walker's analysis of the language of Evidence Code section 1108, subdivision (d)(1)(E) pointed to a construction that limits its application to crimes in which deriving sexual pleasure or gratification through inflicting physical pain is an element of the charge and not simply a circumstance of the crime’s commission. (Walker, supra, 139 Cal.App.4th at p. 800.)
According to Walker, “[Evidence Code s]ection 1108, subdivision (a), limits the statute’s scope to criminal actions in which the defendant is ‘accused of a sexual offense’; and subdivision (d)(1) defines ‘sexual offense’ to mean ‘a crime... that involve[s]’ certain categories and enumerated types of sexual misconduct. In ordinary usage these terms connote that the requisite sexual transgression must be an element or component of the crime itself without regard to the evidence establishing a specific violation.” (Walker, supra, 139 Cal.App.4th at p. 800.)
Walker also cited a situation it termed “analogous,” the admissibility of a prior felony conviction that involves moral turpitude to impeach a witness’s credibility. In this context, the Supreme Court has held that a witness’s prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317.) According to Walker, “By a parity of reasoning, whether a crime involves deriving sexual pleasure or gratification from inflicting physical pain should also be determined from the elements of the offense alone and not from the evidence establishing a particular violation of the law.” (Walker, supra, 139 Cal.App.4th at p. 800.)
Recently, the Supreme Court revisited the issue in People v. Story (2009) 45 Cal.4th 1282 (Story). In Story, the defendant was convicted of first degree murder based on a felony murder theory with underlying offenses of rape and burglary. The murder took place in 1976; the defendant was charged after the case was reopened in 2001. (Id. at pp. 1285-1288.) Over the defendant’s objection, the trial court admitted evidence of four other sexual assaults the defendant had committed, two prior to the murder and two following the murder. The defendant challenged the admissibility of this evidence and the appellate court reversed, citing Walker. (Id. at pp. 1288-1289, 1291.)
The Story court summarized Walker and found: “Walker is distinguishable because the defendant in Walker, although charged with first degree murder, was convicted of second degree murder, and the opinion gives no indication the prosecution sought a first degree murder conviction on a rape-felony-murder theory. It appears the only theory in that case that would have made the charged crime a sexual offense under [Evidence Code] section 1108 was that the evidence suggested the defendant had killed for sexual pleasure or gratification. Walker recognized that sometimes murder can qualify as a sexual offense under section 1108, for example, if rape-related special circumstances are alleged. [Citation.] (Here, no special circumstances were alleged, no doubt because the law in effect in 1976 providing for special circumstances had been declared unconstitutional. [Citation.]) Walker did not involve, or discuss, the question whether an open murder charge prosecuted as first degree murder on a rape-felony-murder theory is a sexual offense under section 1108. Nevertheless, the Court of Appeal extended Walker to this case.” (Story, supra, 45 Cal.4th at p. 1292.)
The Supreme Court declined to decide whether Walker correctly interpreted Evidence Code section 1108, instead declaring: “As we have explained, first degree felony murder with rape the underlying felony involves, as an element, conduct proscribed by Penal Code section 261, the statute defining rape, or at least an attempt to engage in that conduct. Accordingly, even assuming, without deciding, that Walker was correct in limiting the applicability of [Evidence Code] section 1108 to offenses in which sexual misconduct is an element or component of the crime itself, the Court of Appeal erred in extending its holding to this case.” (Story, supra, 45 Cal.4th at p. 1292.)
Here, defendant was charged with killing Ritter with malice aforethought, and it was alleged that the murder “was committed in the perpetration or the attempted perpetration of a lewd or lascivious act upon or with the body of a child under age 14 years in violation of Section 288 of the Penal Code,” such that it was first degree murder within the meaning of Penal Code section 189. Penal Code section 288 is one of the offenses enumerated in Evidence Code section 1108, subdivision (d)(1). The Story court held: “[Evidence Code] section 1108 applies at least when the prosecution accuses the defendant of first degree felony murder with rape (or another crime specified in § 1108, subd. (d)(1))....” (Story, supra, 45 Cal.4th at p. 1294.) Therefore, Evidence Code section 1108 applies in the present case.
PRECHARGING DELAY
Defendant contends the court erred in denying his motion to dismiss based on precharging delay, arguing the case against him should have been brought after his conviction for assaulting Frances D. in 1975. According to defendant, the critical evidence tying him to Ritter’s murder was not the DNA evidence from the cigarette butts, but the attempted rape and strangulation of Frances D. Defendant also contends DNA technology was generally accepted by at least 1991, 15 years before the People charged him with Ritter’s murder. Therefore, nothing justified the People’s three-decade delay in charging him with Ritter’s murder.
Background
Prior to trial, defendant filed a motion for dismissal on the grounds of precharging delay. The court deferred ruling until after the trial.
In a postverdict hearing, the court denied the motion. The court found defendant failed to establish prejudice, since defendant did not show evidence had been lost or that he was unable to pursue a line of investigation that might have led to exculpatory evidence. The court also concluded there was no evidence the prosecution delayed for tactical advantage.
Although the court found no prejudice, it also discussed justification for the delay. The court stated that even if the delay was prejudicial, there was “compelling and powerful evidence” that the delay was justified: until 2003 no DNA test existed that could test the minute quantity of DNA on the cigarette butt. The cigarette butt was tested in 2006. The court noted the three-year delay was justified by the large backlog of cases in which testing needed to be done.
Discussion
A lengthy delay from the time a crime is committed to the time a defendant is charged or arrested may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The burden then shifts to the prosecution to justify the delay. The court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. Prejudice is not presumed from delay that occurs before arrest or accusation, and unless the defendant establishes prejudice, no justification need be shown. (People v. Catlin (2001) 26 Cal.4th 81, 107 (Catlin); People v. Reeder (1984) 152 Cal.App.3d 900, 909-910.)
Prejudice may be shown by the loss of material witnesses because of lapse of time. In addition, loss of evidence because of fading memory as a result of the delay may constitute prejudice. (Catlin, supra, 26 Cal.4th at p. 107; People v. Morris (1988) 46 Cal.3d 1, 37.) The more reasonable the reason for delay, the more prejudice the defense must show to require dismissal. (People v. Conrad (2006) 145 Cal.App.4th 1175, 1185.)
Whether delay is unreasonable and prejudicial presents a question of fact. We uphold the trial court’s determination as supported by substantial evidence. (People v. Boysen (2007) 165 Cal.App.4th 761, 777 (Boysen), People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 (Dunn-Gonzalez).)
Defendant argues the long delay in filing charges against him prejudiced him because of both his own memory loss and the death of several potential witnesses. We find merit in defendant’s contentions.
The prosecution, in closing argument, underscored defendant’s lack of memory in his 2006 interview, in which he stated he couldn’t recall statements made in 1972. According to the prosecution’s argument, defendant’s lack of memory reflected either a guilty conscience or a lack of truthfulness. It is possible that the three decades between the initial interview in 1972 and the interview in 2006 affected defendant’s ability to remember, an impact prejudicial to defendant’s case.
In the 2006 interview, which the prosecution played for the jury, defendant did not recall ever going into Doporto’s apartment, nor did he remember Ricky Wright. Defendant did not recall being arrested, being cited for shoplifting, or smoking cigarettes, except “maybe” some of his wife’s.
Not surprisingly, the passage of time also saw the passage of several witnesses in the case. In particular, Doporto, who hired Ritter to babysit and who incorrectly pointed out Strother at the base, died prior to trial. The death of a material witness may constitute prejudice. (Boysen, supra, 165 Cal.App.4th at pp. 778-780.)
The People contend defendant offers “only speculation” about what Doporto might have testified to. However, Doporto had knowledge of Wright, who babysat for her on various occasions. Doporto might have corroborated defendant’s statement that he had visited Wright in Doporto’s apartment. Such testimony would have suggested a less sinister explanation for defendant’s DNA on the cigarette butt found in Doporto’s apartment.
Doporto’s death, coupled with alleged gaps in defendant’s memory of the events surrounding the murder, constitutes prejudice stemming from the lengthy delay between the murder and defendant’s arrest and trial. Since the delay prejudiced defendant, we balance the People’s justification for the delay against the prejudice to defendant.
Defendant contends the People cannot justify the delay, since the evidence on which they relied was available years or decades earlier. First, defendant argues his arrest in the 1975 assault was even more probative than the DNA found on the cigarette butts. The 1975 incident showed a common plan or scheme in the method of attack: both Ritter and Frances D. were strangled. According to defendant, the 1975 incident, in conjunction with the statement by eyewitness Koone and the other evidence obtained in 1972, “provided all that was needed to rearrest” defendant.
We are not persuaded by defendant’s construct of the evidence against him. While defendant’s 1975 attack on Frances D. provided evidence of his predilection to violence, more is required to show the prosecution’s delay was unjustified.
“In balancing prejudice and justification, it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule ‘would subordinate the goal of orderly expedition to that of mere speed.’ [Citation.]” (Boysen, supra, 165 Cal.App.4th at p. 777.) As compelling as the 1975 attack might have been to indicate defendant’s tendency toward violence, it by no means provided assurance that defendant’s guilt of Ritter’s murder could be proved beyond a reasonable doubt.
The People filed charges against defendant after DNA testing of evidence found at the murder scene. However, according to defendant, this evidence was available three years earlier, in 2003. Therefore, the three-year delay in testing was unreasonable.
We disagree. Prior to deciding defendant’s motion, the trial court considered the declaration of the prosecution’s DNA expert. The expert stated that prior to 2003, DNA testing could not be performed on a minute quantity of DNA in a mixed, degraded sample such as that found on the cigarette butts in Doporto’s apartment. Testing prior to 2003 would not have been definitive. The cigarette butts were not tested until 2006 because of the tremendous backlog in cases to be tested using the more accurate method. Such a delay, given the circumstances, was not unreasonable.
The question as to whether delay in charging a defendant is unreasonable and prejudicial is a factual question. We uphold the trial court’s ruling if supported by substantial evidence. (Dunn-Gonzales, supra, 47 Cal.App.4th at pp. 911-912.) Here, although the delay resulted in prejudice to defendant, this prejudice was outweighed by the justification for the delay. We find no error.
GRANT OF IMMUNITY TO WRIGHT
Defendant argues the court erred in declining to order or grant use immunity to Wright. According to defendant, the court should have ordered him acquitted unless the prosecution granted use immunity to Wright because the prosecutor’s refusal of immunity distorted the fact-finding process. Defendant also argues the court should have exercised its own inherent authority to grant use immunity to Wright.
Background
When called by the defense at trial, Wright invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Wright’s attorney informed the court that Wright had previously been a suspect, and his testimony could be used against him if he were ever prosecuted for Ritter’s killing. The court found Wright’s invocation of his Fifth Amendment right proper but agreed to consider the issue again after briefing by the parties.
Defendant filed a motion for judicial use immunity. The court denied the motion. The court found the prosecution was not trying to distort the fact-finding process by not granting Wright immunity. The court also concluded that Wright’s potential testimony would not exculpate defendant. Wright would testify he told police in 1972 that defendant had been in Doporto’s apartment three days before Ritter’s murder, testimony which tended to explain the presence of the cigarette butt with defendant’s DNA on it. However, the court noted there was already evidence before the jury that defendant told officers he had been in the apartment about a week before the murder.
Wright told police in 1972 that while he was in Doporto’s apartment babysitting, defendant was one of the people who “walked right in when they felt like it.” According to Wright, defendant had last been in Doporto’s apartment three days before the murder when “he entered the apartment and just stood by the door.” Defendant left after 10 minutes.
The court further observed that if Wright testified, he could also be asked about his statement that defendant “paid attention to young girls in a sexual way in the sense that he would comment to the effect such things as he wished they were older.” The court found Wright’s potential testimony cumulative of defendant’s and also likely to introduce testimony damaging to defendant.
Discussion
The decision to initiate a request for immunity rests exclusively with the prosecution. The defense does not have the right to obtain immunity for a defense witness over the prosecution’s objections. (Daly v. Superior Court (1977) 19 Cal.3d 132, 146; People v. Cooke (1993) 16 Cal.App.4th 1361, 1366-1368.)
Despite this rule against defense-initiated immunity, courts recognize that prosecutorial misconduct and intimidation may cause a witness to invoke the Fifth Amendment, depriving the defendant of his or her due process right to a fair trial. “A defendant’s constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf.” (In re Martin (1987) 44 Cal.3d 1, 30 (Martin).) To neutralize such misconduct, the court may dismiss the action unless the prosecution agrees to grant the witness use immunity. (United States v. Lord (9th Cir. 1983) 711 F.2d 887, 891; United States v. Herman (3d Cir. 1978) 589 F.2d 1191, 1204.)
A defendant is not required to show that the prosecution acted in bad faith or with improper motives. (U.S. v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1087 (Westerdahl).) Instead, the defendant must show that the evidence sought from the witness in question was relevant and that the prosecution distorted the fact-finding process by denying immunity to the potential witness. (Id. at p. 1086.) The California Supreme Court in Martin stated the defendant need only show that the prosecution “engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify....’ [Citations.]” (Martin, supra, 44 Cal.3d at p. 31.)
Here, defendant argues that by not granting Wright immunity, the prosecution distorted the fact-finding process, requiring the court to order an acquittal. Defendant contends Wright’s statement that defendant often visited him when he babysat Doporto’s children and had stood in the doorway of the apartment three days before the murder “explained away” the DNA on the cigarette found in the ashtray after the murder. According to defendant, if he “could have smoked the cigarette at Doporto’s apartment on just about any day shortly before the murder, the butt had almost no probative value in establishing that he was there the very night of the murder.”
As to the court’s observation that defendant had already admitted to officers that he had been in Doporto’s apartment, rendering Wright’s testimony cumulative, defendant claims Wright’s statement was more exculpatory than defendant’s statement to officers.
However, Wright stated defendant came to the apartment three days before the murder and stood at the door; Wright did not place defendant inside the apartment. Faced with this limitation on Wright’s testimony, defendant claims the jury “could reasonably infer that he stepped into the room to put out his cigarette before he left.”
In addition, defendant states he contradicted himself in interviews with officers as to whether he had ever been in Doporto’s apartment. Therefore, Wright’s testimony provided the essential corroboration that defendant visited Wright in Doporto’s apartment at least once before the murder.
However, the court, in denying defendant’s motion, also cited Wright’s statement that defendant “frequently paid close attention to young girls and made comments about how he wished they were older.” Defendant attempts to defuse the impact of such a statement, arguing his “purported comment that he wished young girls were ‘older’ is readily explained as a [sic] nothing but an idle response to Wright’s own obsessive comments [about young girls].”
Wright’s testimony would have corroborated defendant’s statement that he was in Doporto’s apartment on occasions other than the night of the murder. However, Wright’s testimony would also have introduced defendant’s attentiveness to young girls and comments about them. On balance, the trial court did not err in denying defendant’s motion. Wright’s testimony about defendant’s presence in the apartment, while relevant, basically corroborated defendant’s own testimony. In contrast, Wright’s testimony about defendant’s interest in young girls significantly bolstered the prosecution’s case against defendant. Given the dual nature of Wright’s testimony, we cannot find the prosecution “distorted the judicial fact-finding process by denying immunity to the potential witness.” (Westerdahl, supra, 945 F.2d at p. 1086.)
Defendant also argues the court should have exercised its own inherent authority to grant use immunity to Wright. The California Supreme Court has not directly addressed the issue of whether courts possess the authority to confer immunity on potential witnesses absent the consent of the prosecution. However, in dicta, the Court stated: “if immunity for a defense witness is ever constitutionally compelled, it is so compelled only when the witness’s testimony is both clearly exculpatory and essential to an effective defense, and when no strong governmental interest weighs against the grant of immunity.” (People v. Cudjo (1993) 6 Cal.4th 585, 620 (Cudjo); see People v. Lucas (1995) 12 Cal.4th 415, 460-461; People v. Stewart (2004) 33 Cal.4th 425, 468-469.
Our review of Wright’s potential testimony reveals it is not “clearly exculpatory and essential to an effective defense.” (Cudjo, supra, 6 Cal.4th at p. 620.) Wright corroborated defendant’s own statement that he visited Doporto’s apartment prior to the murder. However, Wright’s testimony did not exculpate defendant in Ritter’s murder; instead, it bolstered defendant’s alternative explanation for the presence of defendant’s DNA on the cigarette butt, that defendant left it on an occasion other than the night of the murder. Under Cudjo, Wright’s testimony would not support the trial court’s granting of use immunity.
FAILURE TO ADMIT WRIGHT’S PRIOR TESTIMONY
In a related claim, defendant argues the trial court erred in failing to admit Wright’s prior statement after denying defendant’s request for use immunity. According to defendant, the court’s failure to admit the statement violated his rights to a fair trial, to present a defense, to confrontation, and to due process. In support, defendant cites Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297], in which the United States Supreme Court held that the exclusion of crucial defense evidence violates a defendant’s right to due process.
Here, however, as we have explained, Wright’s prior statement to police placing defendant in the apartment before the murder was not a crucial piece of evidence. Wright’s statement corroborated defendant’s own statement placing him in the apartment prior to the murder. As such, it bolstered defendant’s argument that the cigarette butt on which the matching DNA was found was left in the apartment prior to the night of the murder. We find no error.
MARSDEN MOTION
Following the verdict, defendant filed a motion seeking a new trial based on the ineffectiveness of trial counsel.
Background
The trial court held an in camera hearing with only defendant and defense counsel present. Defendant stated defense counsel did not believe there were grounds for a new trial motion. Defendant sought appointment of new counsel.
The court then held a Marsden hearing. (Marsden, supra, 2 Cal.3d 118.) Defendant set out several instances in which defense counsel failed to act that defendant believed constituted grounds for a new trial based on defense counsel ineffectiveness. The trial court discussed each point with defense counsel and defendant. The court then denied the motion. Defendant claims the trial court erred in denying his Marsden motion.
Discussion
After a defendant requests a new trial based on ineffective assistance, the trial court should hold a Marsden hearing to determine whether to appoint new counsel. The trial court should appoint substitute counsel if the record shows defense counsel failed to provide adequate representation, or if defendant and counsel have become embroiled in an irreconcilable conflict. We review the trial court’s decision for an abuse of discretion. (People v. Smith (1993) 6 Cal.4th 684, 692-694.)
To show ineffective assistance of counsel, a defendant must show counsel made serious errors and that counsel’s performance prejudiced the defendant. The defendant must establish that but for counsel’s ineffectiveness, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].)
Defendant asserts defense counsel’s ineffectiveness in two areas: counsel’s failure to arrange for DNA analysis of six hairs found on Ritter’s body and counsel’s failure to introduce evidence that Ritter’s boyfriend had threatened to kill her. These deficiencies, defendant contends, revealed defense counsel was not providing adequate representation.
Ten hairs were removed from Ritter’s body. Six of the hairs were reddish brown, Caucasian head hairs and were inconsistent with the hair of Ritter, defendant, or Wright. No DNA analysis was performed on the six hairs.
At the Marsden hearing, defendant argued defense counsel was ineffective in failing to test the six hairs. The trial court asked defense counsel about the lack of testing. Defense counsel responded: “I’m at a bit of a loss. We had DNA expert counsel on that. [Defense DNA expert counsel Blasier]... I don’t have the authority on these types of cases, on the panel cases, to do anything with the DNA. We’re required and mandated to have a DNA attorney and it’s their preference or their determination as to what to do. However, sitting through the entire trial I don’t think there was any dispute that those were Caucasian hairs and there’s no way they could be [defendant’s], so the DNA would never match [defendant], so having a DNA result saying they didn’t match him seems to be futile to me, but, again, that would be Mr. Glasier’s [sic] area.”
Defendant argued the hairs should have been tested to ascertain to whom they belonged. Defendant told the court: “That DNA could have brought the killer. [¶] He left his hairs on the body. But we’re going to dismiss it because it wasn’t me. And these are very significant things, the hairs to be on her body, I think.”
The court considered defendant’s argument and determined: “With regard to the six hairs, Mr. Blasier is not here. The dominant evidentiary value of the hairs, of course, is that there was someone other than the defendant that was in proximity to this victim. That evidence was before the jury. [¶] There’s always a strategic decision involved as to whether or not you do tests to get more information than exclusion information, that is, exclusion that it wasn’t the defendant. [¶] You, for example, can do a test and then determine that the hair would be a female or some other innocent party given the sexual nature of this crime. And then instead of having evidence which is arguably exculpatory with one line of inferences, it turns out to have really no evidentiary value at all. [¶] In any event, there’s not a failure rising to the level of a Marsden, failure by defense counsel in that regard. [¶] It was argued very powerfully in the closing argument. I thought it was the strongest part of the closing argument by the defense in regard to who that hair belonged to and that argument was there without further testing and without the inherent risk that further testing might eliminate the use of that. And that argument was available without further testing that might eliminate the usefulness of that argument.”
Defendant acknowledges that the trial court questioned defense counsel about the lack of DNA testing of the six hairs. However, defendant faults the trial court for not questioning the DNA expert counsel, Blasier, arguing this amounted to an abuse of the court’s discretion.
We disagree. Defense counsel stated Blasier was in charge of the DNA evidence. However, defense counsel also stated there was no dispute that the hairs did not belong to defendant, “so having a DNA result saying they didn’t match him seems to be futile to me....”
Defendant discounts defense counsel’s explanation, arguing: “Asking for a tactical explanation of an attorney who had no responsibility to make a tactical decision is tantamount to not asking for an explanation at all. When the court learned that the decision was Blasier’s, it should have arranged for Blasier to appear and respond.”
We do not read a trial court’s responsibility under Marsden so narrowly. The court is required to question counsel in order to evaluate whether defendant’s claim of ineffective representation is tenable. (People v. Panah (2005) 35 Cal.4th 395, 432.) Here, defense counsel, while acknowledging that DNA counsel made the final decision, explained that based on “sitting through the entire trial,” he believed DNA testing of the six hairs would have been futile.
The trial court accepted this explanation, noting defense counsel argued strenuously during closing argument that the six hairs, which did not belong to defendant, pointed to a third party as the murderer. As the court explained, further testing might well have destroyed defendant’s ability to point to a third party as the possible culprit.
The court questioned defense counsel, obtained an explanation the court found tenable, and rejected defendant’s argument on this issue. We find no abuse of discretion.
Defendant also argued defense counsel should have introduced evidence that Ritter’s boyfriend had threatened to kill her. The court questioned defense counsel about the asserted threats. Defense counsel stated the boyfriend could not be located, but noted the jury learned of the threat through Koone’s cross-examination. The court concluded defense counsel was able to “elicit this information through another witness, that the boyfriend, in fact, said something to that effect or to the effect that ‘I will kill you’ or ‘When you’re killed, I will be at your funeral.’”
During cross-examination, Koone could not recall Kenneth Bryson, Ritter’s boyfriend. Nor could Koone remember being in a car with Bryson and Ritter when “anybody... grabb[ed Ritter] by the neck and threaten[ed] to kill her.” Koone did not recall telling officers that “he” said “Don’t worry, Shannon, if I kill you[,] I’ll go to your funeral.”
Later during the trial, the prosecution questioned an investigator who worked on the case in 2006. The investigator stated he did not consider Bryson a suspect because the last known person seen with Ritter was an African-American male. Bryson was not African-American.
During closing argument, defense counsel mentioned Bryson’s threat, describing it as “[i]nteresting.” Defense counsel argued officers did not investigate Bryson because he was not African-American, despite the fact that the hairs found on Ritter were not from an African-American.
Defendant argues defense counsel’s failure to introduce evidence that Bryson threatened to kill Ritter revealed defense counsel performed deficiently at trial. According to defendant, the threat, coupled with the unidentified hairs from Ritter’s body, provided evidence a third party killed Ritter.
However, the jury was aware of the alleged threats. The prosecution asked Koone, “But if you told the cops that he grabbed [Ritter] about the neck and said quote ‘Don’t worry, Shannon, if I kill you. I’ll go to your funeral,’ you don’t recall that?” Koone responded, “No, I do not recall that....” Although Bryson could not be located, and the statement to officers was not admitted into evidence, the jury heard the content and context of the threat Koone reported to officers in 1972.
The court questioned defense counsel regarding defendant’s complaints, and defense counsel provided explanations the court found reasonable. The trial court did not abuse its discretion.
SENTENCING ERROR
Finally, defendant asserts three sentencing errors. The People agree with defendant’s contentions.
The court awarded defendant 389 days of credit for actual days in presentence custody. However, defendant is entitled to two more days: one day for the day of his arrest in 1972 and one day because the probation calculation is off by a day.
The court failed to award custody credits under section 4019. As defendant points out, the statute eliminating conduct credits for murders does not apply to his 1972 offense. (§ 2933.2, subd. (d).) Therefore, defendant is entitled to 194 days of conduct credits.
Finally, the abstract of judgment should be amended to conform to the actual sentence imposed, which was life in prison with the possibility of parole. The abstract incorrectly reads life without possibility of parole.
Therefore, the abstract of judgment must be corrected to reflect a total of 391 days of presentence credits; 194 days of conduct credit; and a sentence of life in prison with the possibility of parole.
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect 391 days of presentence credits, 194 days of conduct credits, and a sentence of life in prison with the possibility of parole, and to send a certified copy of said corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, Acting P. J., CANTIL-SAKAUYE, J.