Opinion
2d Crim. No. B158889.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. SEAN JEFFREY RICHSON et al., Defendants and Appellants.
Janice Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Sean Jeffrey Richson. Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant Eric Lamont Nicholson. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Sean Jeffrey Richson and Eric Lamont Nicholson guilty of first degree murder (Pen. Code, § 187, subd. (a)) and second degree robbery (§ 211). The jury also found true special circumstances allegations as to each defendant (§ 190.2, subd. (a)(17)), that Nicholson personally discharged a handgun in the commission of the robbery causing death (§ 12022.53, subd. (d)) and that a principal was armed with a handgun (§ 12022, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Nicholson to life without the possibility of parole for the murder-robbery (§ 190.2, subd. (a)(17)) plus 25 years to life for personally discharging a handgun causing death (§ 12022.53, subd. (d)). The trial court also imposed additional enhancements. With some modification of the additional enhancements we affirm.
Because Richson was a minor at the time of the offense, the trial court sentenced him to 25 years to life (§ 190.5, subd. (b)) plus one year for a principal armed with a handgun (§ 12022, subd. (a)(1). We affirm.
FACTS
Pablo Ponce Juarez was employed at the Astroburger restaurant in Gardena. One of his duties included closing the restaurant at night.
On April 17, 2000, Maria Manahan was driving by the restaurant sometime after 9:00 p.m. She saw a Hispanic male put his hands behind his head. An African-American man stood behind him. A third man sat at a table.
Manahan decided to find a telephone to call the police. While she was looking for a telephone, she saw a man standing with his hands in his pockets. When she looked at him, he looked away toward the restaurant. She became frightened and drove on. She called the police when she got home.
Gardena police responded to a call of a robbery in progress. When an officer arrived at the restaurant, he saw Juarez lying on the floor in a pool of blood. He also saw two cash registers with their cash drawers pulled out.
Other officers saw Nicholson and Richson walking near the restaurant. After checking the descriptions of the suspects, the officers shined the patrol car spotlight on the subjects. As soon as the spotlight illuminated Nicholson and Richson, they ran toward an apartment complex.
After a short pursuit, Richson complied with the officers order to stop. Nicholson hid in the apartment complex carport. Eventually, Nicholson complied with the officers orders to come out of hiding.
At the time of Richsons arrest, he was carrying a white plastic bag. Inside the bag police found a brown cloth glove, $180 and Juarezs wallet. During a booking search of Richson, police found a dark brown glove, a black bandana and a cutting tool. Near Nicholsons hiding place police found a .38-caliber revolver. The revolver contained five live rounds and one expended round. Police also found Juarezs gold necklace about six inches away from Nicholson as they handcuffed him. Police found keys to the restaurant in the shrubbery between the restaurant and the apartment complex.
After the police handcuffed Richson and Nicholson at the scene, they put paper bags on their hands to preserve any gunshot residue (GSR). A sheriffs department criminalist later tested Richson and Nicholson for GSR. Nicholson tested positive for one particle unique to gunshot primer residue. This indicated Nicholson either handled a gun, fired a gun, had been in close proximity to a discharging firearm or had otherwise been in contact with GSR. Tests disclosed no particles on Richson.
Criminalists found an expended bullet in Juarezs clothing. The firearms examiner was unable to determine whether the bullet was fired from the .38-caliber gun found where Nicholson was hiding. He testified, however, that the expended bullet was similar to a bullet found in the gun. They both had a surface content that was primarily zink. Neither the examiner or other experts in his laboratory were familiar with ammunition of this type.
Police obtained a videotape from the restaurants security system. The tape shows Juarez with his hands on his head and a man standing behind him. Another man is in the restaurant. Juarez took money out of the cash register drawers. At one point, Juarez is kneeling with his hands behind his head. The two men leave the restaurant. A short time later, the two men reenter the restaurant, go out of the cameras view for a moment and leave the restaurant again. One has a white plastic bag. The arresting officer testified that the two men on the videotape were similar in appearance to Richson and Nicholson at the time of their arrest.
Neither defendant put on an affirmative defense.
DISCUSSION
Nicholsons Appeal
I
Nicholson contends he was denied his right to due process and self-representation when the trial court denied him a meaningful opportunity to prepare an adequate defense.
On March 8, 2001, Nicholson made a motion to represent himself. The court granted the motion and appointed Randy Short as standby counsel. On August 30, 2001, the court changed Shorts status to advisory counsel on Nicholsons request. On January 24, 2002, the court granted Nicholsons request to have Short appointed counsel of record. Trial began on April 3, 2002.
Nicholson argues that he was denied telephone access, the ability to have experts appointed, the exercise of his self-representation privileges in jail and access to sufficient funds. He relies on Milton v. Morris (9th Cir. 1985) 767 F.2d 1443. There a defendant representing himself had no counsel, no access to a library, to a legal assistant, to an investigator and had only limited access to a telephone. In determining he was denied the right to defend himself the court stated, "An incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense." (Id. at p. 1446.)
But our Supreme Court stated in People v. Jenkins (2000) 22 Cal.4th 900, 1001, "Affording a defendant a lawyer to act as advisory counsel adequately protects the right identified in the Milton case. [Citations.]" Here the trial court appointed Short as advisory counsel on August 30, 2001.
Nicholson concedes that generally the appointment of advisory counsel adequately protects a pro se defendants right to prepare for trial. He argues, however, that the record must reflect the advisory counsel actually aided the defendant. But we are not persuaded advisory counsels efforts must appear on the record. Nicholson cites no authority to support the argument. Moreover, one would not expect aid given by advisory counsel to appear on the record.
Nicholson points to his complaint of January 24, 2002, that he had not seen Short , his advisory counsel. But when Short replied that he had seen Nicholson in county jail and in court lock-ups, Nicholson stated that this was once every 90 days. Short stated that he saw Nicholson two weeks ago, and told him he would give him any help or advice he needs. Thus the record reflects that Nicholson and his counsel had been in contact. It is true the contact was not frequent enough to satisfy Nicholson. But Nicholsons personal dissatisfaction does not show he received inadequate assistance.
Nicholson claims he did not voluntarily give up his right to represent himself. Instead, he requested that Short be made co-counsel. The trial court denied the request stating, "You both will not be speaking on your behalf in front of the jury." The court told Nicholson he must choose to represent himself or have Short appointed as his counsel. Nicholson stated, "It cant be me because Im not allowed to do what Ive got to do." The court asked, "Then its Mr. Short?" Nicholson replied, "If thats how you feel." The court then appointed Short as counsel and terminated Nicholsons pro se status.
Nicholson cites no authority for the proposition that the trial court erred in refusing to appoint Short as co-counsel. Nor was Nicholson forced to accept Shorts appointment as counsel by any extrinsic impediments to self-representation. Short had been Nicholsons advisory counsel for months prior to his appointment as counsel of record. As we have stated, the appointment of advisory counsel adequately protected his right to effective self-representation. Nicholsons statement "If thats how you feel" shows, when read in context, that Nicholson voluntarily accepted Short as his counsel.
II
Nicholson contends the trial court erred in permitting expert opinion on the likelihood of police officers transferring GSR to suspects.
The prosecution called Robert Keil, a senior criminalist with the Los Angeles County Sheriffs Office, as an expert in GSR. Nicholson objected to Keils proposed testimony that the likelihood of transferring GSR from police officers to suspects was small. The objection was that the experts opinion was based on an unreliable article.
The article was written by Keils coworker. The article discussed a study of the hands of 43 police officers as the officers returned from their shifts. Of the 43 officers, 25 had no particles consistent with GSR, 18 had particles consistent with but not unique to GSR and 3 had particles unique to GSR. Keil admitted that the study was not done in a laboratory setting, no controls were used in the study, the officers were sampled on only one occasion and if the same officers were sampled on a different day, the studys results could be entirely different.
The trial court overruled the objection. Keil testified that although it was not an impossibility, he did not believe GSR transfer was a common occurrence.
An expert may base his opinion on "matter . . . whether or not admissible that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801, subd. (b).) A claim that expert opinion has been improperly admitted is reviewed on appeal for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
Here the study on which Keil relied falls short of a model for scientific investigations. Nevertheless, the study does not appear so without merit that we can say the trial court abused its discretion.
In any event, even if the trial court had committed error, the error would be harmless. Contrary to Nicholsons argument, the evidence was not so inflammatory as to implicate federal constitutional protections. Instead, the proper standard of review for the erroneous admission of expert testimony is whether it is reasonably probable Nicholson would have received a more favorable result in the absence of the error. (People v. Prieto (2003) 30 Cal.4th 226, 247, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Here the police saw Nicholson and Richson walking near the crime scene. Richson carried a bag containing cash and Juarezs wallet. When the police shined their spotlight on the pair, they ran. Nicholson attempted to hide. In Nicholsons hiding place, police found a gun of the type used to shoot Juarez. One bullet had been fired. They also found Juarezs gold necklace near Nicholson. A security videotape of the restaurant showed two men wearing clothes similar to those worn by Nicholson and Richson at the time of their arrest. The evidence of Nicholsons guilt was overwhelming.
Nicholson concedes that the evidence shows his general involvement in the charged crimes. He argues, however, that the GSR evidence was crucial in demonstrating that it was he and not Richson or some other person who actually fired the gun. Nicholsons personal use of the firearm was at issue in the special circumstances and firearm allegations.
But the police found the gun in Nicholsons hiding place, not on Richson or some other person. Even more convincing is the security videotape. Although facial features cannot be discerned, Nicholson and Richson can be identified by the clothes they were wearing at the time of their arrest. It is true the tape does not show the actual shooting. But Nicholson is the only person holding a gun on Juarez. Even without the GSR evidence, there is no reasonable probability Nicholson would have obtained a more favorable result.
III
Nicholson contends the trial court misinstructed the jury on the special circumstances allegation. The trial court instructed:
"To find that the special circumstance referred to in these instructions as murder in the commission of a robbery is true, it must be proved, first, the murder was committed while the defendant was engaged in the commission of robbery;
"Or second, the murder was committed in order to carryout or advance the commission of the crime of robbery, or to facilitate the escape therefrom, or to avoid detection. (Emphasis added.)
"In other words, the special circumstance referred to in these instructions is not established if the robbery was merely incidental to the commission of the murder."
Nicholson argues and the Attorney General concedes, it was error to state the elements of the special circumstances allegation in the disjunctive. The only question is whether the error is harmless. The test for prejudice in the erroneous omission of an element in a special circumstance instruction is harmless beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at pp. 256-257.) Here the test is met.
Our Supreme Court found a similar error harmless in People v. Raley (1992) 2 Cal.4th 870, 903-904. There, among other factors, the court noted that the last paragraph of the special circumstances instruction clarifies the previous paragraphs, and makes it unlikely the jury was confused.
Moreover, here the evidence points to only one reasonable conclusion. Nicholson and Richson murdered Juarez to facilitate their escape from the scene of the robbery and to avoid detection. Nicholson and Richson would have feared that Juarez could identify them. In addition, they were on foot and could not go far in a short period of time. Thus they had a motive to shoot Juarez to prevent him from calling the police and identifying them.
In contrast to the strong evidence of motive, there is no evidence that, as Nicholson argued to the jury, he might have "flipped out" and decided to kill somebody, or that he just did not like Juarez. Nor is there evidence that he accidentally shot Juarez. In fact, the jury found that the murder was willful, deliberate and premeditated. The error was harmless beyond a reasonable doubt.
IV
Nicholson contends the trial court erred in imposing three, one-year enhancements pursuant to section 667.5, subdivision (b).
The parties agree the trial court erred in imposing the one-year enhancements in addition to five-year enhancements pursuant to section 667.5, subdivision (a). (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) The only question is whether the one-year terms should be stricken or stayed.
The Attorney General points out that California Rules of Court, rule 4.447, provides that "No finding of an enhancement shall be stricken . . . because imposition of the term is . . . prohibited by law . . . . The sentencing judge shall impose sentence . . . and shall thereupon stay execution of so much of the term as is prohibited . . . ." Nicholson points out, however, that under the same circumstances in Jones, our Supreme Court ordered the trial court to strike the one-year term imposed pursuant to section 667.5, subdivision (b). (People v. Jones, supra, 5 Cal.4th at p. 1153.) Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by our Supreme Courts decision. We order the one-year terms imposed pursuant to section 667.5, subdivision (b) be stricken.
V
Nicholson contends the trial court erred in imposing and staying sentences on enhancements pursuant to section 12022.53, subdivisions (b) and (c) and section 12022, subdivision (a)(1).
The trial court imposed a 25-year to life term for personally discharging a firearm in the commission of a robbery causing death, pursuant to section 12022.53, subdivision (d).
Section 12022,53, subdivision (f) provides in part, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section."
The Attorney General argues the trial court was correct in imposing and staying the prison terms. He cites section 12022.53, subdivision (h), which provides, "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
But subdivision (f) of section 12022.53 clearly prohibits the imposition of sentence on more than one subdivision of the section or on section 12022. It does not allow a sentence to be imposed and stayed. Section 12022.53, subdivision (h) prohibits striking an allegation or finding. It does not prohibit striking a sentence that should never have been imposed. The sentences imposed pursuant to section 12022.53, subdivisions (b) and (c) and section 12022 must be stricken.
VI
Nicholson contends the trial court erred in imposing a parole revocation fine.
Section 1202.45 requires the trial court to impose a parole revocation fine in "every case where a person is convicted of a crime and whose sentence includes a period of parole . . . ."
Here the court sentenced Nicholson to life without the possibility of parole. In such a case, the Legislature did not authorize a parole revocation fine because, absent the extremely unusual circumstance of a grant of clemency, there will be no parole. The Attorney General points out, however, that the trial court sentenced Nicholson to an additional term of 25 years to life. But the additional life term makes parole even less likely. It would be absurd to interpret section 1202.45 as allowing a parole revocation fine where a defendant receives a sentence in addition to life without the possibility of parole (See People v. Oganesyan (1999) 70 Cal.App.4th 1178 [life without the possibility of parole plus additional sentence does not require parole revocation fine].)
Richsons Appeal
VII
Richson contends he was denied a fair trial when the trial court excluded Nicholsons statement exonerating him.
Officer Eric Williams transported Nicholson from the scene of arrest to the police station. Williams told Nicholson that Richson is only 13 years old and that he ruined Richsons life. Williams could not remember Nicholsons exact reply, but it was something to the effect, "[Richson] had nothing to do with it. It was all me." Williams did not include the statement in his police report because Nicholson had not been advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436.
Richson sought to have the statement admitted as a declaration against Nicholsons penal interest. (Evid. Code, § 1230.) The trial court excluded the statement as untrustworthy and as more prejudicial than probative. (Evid. Code, § 352.)
The focus of the declaration against interest exception to the hearsay rule is the trustworthiness of the declaration. (People v. Frierson (1991) 53 Cal.3d 730, 745.) A determination of trustworthiness involves an understanding of the way human beings actually conduct themselves under the circumstances in which the declaration was allegedly made. (Ibid.) We review the trial courts determination of trustworthiness for an abuse of discretion. (Ibid.)
In People v. Frierson, supra, 53 Cal.3d at page 745, the trial court excluded as untrustworthy a statement by a codefendant assuming sole blame for a crime in which the defendant and others allegedly participated. In upholding the exclusion, our Supreme Court stated the trial court could reasonably find the declarant wanted to protect his friend at little risk to himself.
Similarly, here the trial court could reasonably find Nicholson made the statement at little risk to himself. He was caught by the police near the scene of the crime with a gun and the victims necklace. At the time he made the statement, Nicholson must have known there was little chance of escaping culpability for the crime. The trial court did not abuse its discretion in excluding the statement.
In any event, even assuming the trial court erred, the error was harmless by any standard. The evidence of Richsons involvement in the crime was clear. Not only did Richson appear on the videotape showing him to be a willing participant in the robbery, but police caught him with a bag containing money and the victims wallet. No reasonable juror would find Nicholsons statement that Richson had nothing to do with the crime credible.
VIII
Richson contends the trial court applied an incorrect standard in ruling on his motion for acquittal.
In denying Richsons motion for judgment of acquittal, the court stated there is "sufficient evidence" to support the charges of murder, robbery and special circumstances as to each defendant. Richson argues the correct standard is not sufficient evidence but substantial evidence.
Section 1118.1 requires the trial court to enter judgment of acquittal where the evidence is "insufficient to sustain a conviction . . . on appeal." The trial court is presumed to know and apply the correct law. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We presume that when the trial court said there is "sufficient evidence," it meant sufficient evidence to sustain a conviction on appeal. Thus the trial court applied the correct standard.
In any event, the standard applied by the trial court is irrelevant. We determine de novo whether the evidence is sufficient to sustain the conviction on appeal. In deciding whether the evidence is sufficient, we review the whole record in a light most favorable to the judgment to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Richson argues that the videotape shows him present, but taking no active part in the robbery. Much of what occurs during the robbery is not captured by the surveillance camera, but the videotape shows Richson sitting down holding the bag into which Juarez was forced to put the money. Richson is waiting while Nicholson does something off-camera. When Nicholson is finished, they leave together. Richson is carrying the bag with the money as they leave the restaurant. After a short time, they return together and then leave again. When the pair were arrested by the police, Richson still had the bag. The evidence shows that Richson was not simply present, but was an active participant in the robbery.
Richson points out the special circumstances finding requires evidence that a person who was not the actual killer acted "with reckless indifference to human life and as a major participant" in the robbery. (§ 190.2, subd. (d).) Richson argues there is no evidence he helped plan the robbery, that he actively participated in taking the money from Juarez, that he knew Nicholson was armed prior to entry, that he knew Nicholson would act in a manner that involved risk to human life and no evidence that he actively assisted in harming Juarez.
But the jury could reasonably infer from Richsons active participation in the robbery that he and Nicholson had a prior plan or agreement. Richson must have known that Nicholson would have to be armed with some type of deadly weapon to convince Juarez to cooperate. If Richson did not know Nicholson had a gun prior to entering the restaurant, he certainly knew it shortly thereafter when Nicholson held the gun on Juarez. Yet, Richson made no attempt to break off his participation. He not only stayed throughout the robbery, but left and reentered the restaurant with Nicholson. Nor did Richson make any attempt to assist Juarez. Instead, Richson left with the money while Juarez lay dying.
There is substantial evidence to support the finding that Richson was a major participant in the robbery who acted with reckless indifference to Juarezs life.
Richson points out that he was only 14 years old and Nicholson was 34 at the time of the offense. He argues that it might be reasonably inferred that he acted under Nicholsons domination and control. Such inference might be made but nothing compels it. In reviewing the record for substantial evidence, we are required to draw only reasonable inferences that support the judgment. (See People v. Johnson, supra, 26 Cal.3d at p. 578.) The inference that Richson acted under Nicholsons domination does not support the judgment.
IX
Finally, Richson contends his 25-year-to-life sentence constitutes cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art I, § 17.)
Under the California Constitution, a sentence constitutes cruel and unusual punishment if it is so disproportionate to the offense for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478.) As an aid in determining whether a sentence constitutes cruel and unusual punishment, we engage in a three-part analysis. First, we examine the nature of the offense and the offender, paying particular attention to the danger each poses to society. Second, we compare the punishment with punishment for more serious crimes in the same jurisdiction. Third, we compare the punishment with the punishment imposed for the same offense in other jurisdictions. (People v. Almodovar (1987) 190 Cal.App.3d 732, 739-740, citing In re Lynch (1972) 8 Cal.3d 410, 425-427.)
Richson focuses on the nature of the offense and the offender. In considering the nature of the offense, we must consider not only the crime in the abstract but also the facts of the crime in the particular case. (People v. Dillon, supra, 34 Cal.3d at p. 479.)
First degree murder is, of course, the most serious of crimes. In considering the particular circumstances, however, Richson attempts to minimize his participation. For reasons previously stated we cannot agree. The evidence shows participation was commensurate with his punishment.
As to the nature of the offender, Richson points out that he was only 14 years old when he committed the offense. But his sentence takes his youth into account. Had he been an adult, his sentence would have been life without the possibility of parole. (§ 190.2, subd. (d).) As it is, he will be eligible for parole while he is still a relatively young man. Richson also points out that he has no prior record of serious offenses. But his lack of prior offenses pales to insignificance in light of the grievous nature of his present offense. Richsons punishment does not shock the conscience or offend fundamental notions of human dignity.
This case is unlike People v. Dillon, supra, 34 Cal.3d at pages 476 through 489. There, among other factors, the shooting was a "response to a suddenly developing situation that defendant perceived as putting his life in immediate danger." (Id. at p. 488.) Here there is no similar factor. Juarez was a threat to no one.
Richson also contends his punishment offends the ban on cruel and unusual punishment in the Eighth Amendment to the United States Constitution. Richson cites Solem v. Helm (1983) 463 U.S. 277, 290-291 for the proposition that the analysis under the federal Constitution is similar to the proportionality test applied under the California Constitution. Assuming that to be so, Richson points to no factors that would lead to a different result under the federal Constitution.
The continuing validity of Solems proportionality test was called into question in Harmelin v. Michigan (1991) 501 U.S. 957.
Nicholsons sentence is modified to strike the one-year prison terms imposed pursuant to section 667.5, subdivision (b), to strike the sentences imposed pursuant to section 12022.53, subdivisions (b) and (c) and section 12022 and to strike the fine imposed pursuant to section 1202.45. In all other respects the judgment is affirmed. The judgment as to Richson is affirmed.
Nicholson has filed a supplemental brief in propria persona. Where, as here, a defendant is represented by counsel of record, we need not consider briefs filed in propria persona. (See People v. Clark (1992) 3 Cal.4th 41, 173.) Nevertheless, out of an abundance of caution, we have reviewed Nicholsons supplemental brief. Nothing therein convinces us that a different result is warranted.
We concur: COFFEE, J., PERREN, J.