PEOPLE v. THOMAS

Filed 5/2/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

Story continued from Part I ..

Appellant contends the last response by Kennedy was necessarily based upon hearsay because he had previously testified that he did not know why appellant was upset, he had not heard appellant say why he was upset, but he had been told by April Meredith and others at the house that appellant was upset about a missing briefcase. However, appellant did not object to this testimony and therefore forfeited his claim. (Peoplev.Williams (1997) 16 Cal.4th 153, 208.)

Moreover, it appears that Kennedys testimony on this point was based upon a recollection refreshed by the prosecutors leading question, not by hearsay. Before this testimony, the prosecutor told Kennedy she was not asking about what anybody told you, but specifically what you remember and you observed. Kennedy heeded this direction, as shown by his subsequent answers in which he repeatedly stated appellant was angry about something that was missing. This echoed his original testimony that appellant was upset about something that was missing. This assessment of the situation was apparently based upon Kennedys personal observation, not on hearsay, as indicated by Kennedys original testimony that appellants anger about the missing item caused Kennedy to ask Tom-Tom if everything was okay before he and Davis left the Meredith house that night. In addition, after the prosecutor successfully led Kennedy to the briefcase, he remembered appellant said that somebody better come up with his briefcase.

As for the first segment of testimony challenged by appellant, the court should have sustained appellants objection. April Meredith was not asked, and did not testify, about what she said to Kennedy or anyone else who had been at the house on the night in question. Nor was she asked whether she had told anyone that appellant was asking Tom-Tom and Ronnie who stole his weed and briefcase. She was asked whether she told Officer Wright that appellant was arguing with Tom and Ron about the -- about Donalds briefcase that was missing? April replied that she did not remember. However, this testimony differs from the later question to Kennedy in several particulars, including the identity of the person to whom she spoke; the nature of the interaction between appellant and the victims; the accusation that the briefcase was stolen, as opposed to simply missing; and the inclusion of weed as an object that was stolen. Although inconsistency in effect, not express contradiction, is all that is required (People v. Ervin (2000) 22 Cal.4th 48, 84), the differences between Aprils testimony and the question answered by Kennedy are too numerous and extensive to deem them effectively inconsistent.

Moreover, a witnesss testimony that she does not remember an event is not inconsistent with a prior statement describing the event. (People v. Ervin, supra, 22 Cal.4th at p. 84.) If the record provides a reasonable basis for concluding that the witnesss claimed memory loss is evasive and untruthful, inconsistency is implied and the prior statement is admissible. (Id. at pp. 84-85.) Although the record provides ample reasons to doubt the veracity of April Merediths claim she forgot virtually everything about the crimes, it is plausible that she would not remember whether she had made a particular statement to Officer Wright 25 years earlier. Accordingly, inconsistency should not be implied under the circumstances.

The courts erroneous admission of the evidence does not require reversal unless it is reasonably probable appellant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, 353, subd. (b); Peoplev.Earp(1999) 20 Cal.4th 826, 878; Peoplev.Watson (1956) 46 Cal.2d 818, 836.) There is no reasonable probability of a more favorable result here, as Kennedy subsequently gave an affirmative response to virtually the same question: Did [appellant] ever ask Ron and Tom-Tom, who stole his briefcase? Appellant did not object to this testimony. Appellant argues the inclusion of weed in the impermissible question was significantly more damaging . . . because the implication that there was marijuana in the briefcase supports a view that appellant would be homicidally angry over its theft. However, the possibility that marijuana was in the briefcase was introduced through Kennedys statement to the police on the night of the crimes. Chumley read the statement to the jury, and in it Kennedy said appellant had been asking the victims who stole his weed and briefcase. In addition, Sanchez testified that Meredith told her that before the shootings, appellant told her his briefcase, containing cash and marijuana, was missing. In addition, Wright read Merediths statement to the police on the night of the crimes, in which she said that appellant argued with the victims about his missing briefcase. In light of all of this evidence, the admission of the hearsay statement could not possibly have prejudiced appellant.

Appellant forfeited his due process claim by failing to object on this ground in the trial court. Moreover, because the error was not prejudicial, the admission of the statement could not possibly have rendered his trial so fundamentally unfair that it violated due process.

3. Admitting evidence of appellants 1977 grand theft conviction

was harmless error.

At trial, appellant sought to preclude the prosecution from impeaching him with evidence of his 1977 grand theft conviction. The trial court analyzed the issue according to both pre- and post-Proposition 8 law and concluded the conviction was admissible because appellant had not led a legally blameless life, in that he had fled California and sought to avoid contact with the authorities, and the offense was of a sort involving moral turpitude and bearing upon appellants honesty and integrity. Appellant contends the ruling was error and violated due process.

The parties correctly agree that pre-Proposition 8 law applies because the charged crimes occurred before the passage of Proposition 8 in June, 1982.^[1] (People v. Smith (1983) 34 Cal.3d 251, 262.)

Before Proposition 8, the trial court had discretion to admit or exclude prior felony convictions for purposes of impeachment, subject to the provisions of Evidence Code section 352. (People v. Beagle (1972) 6 Cal.3d 441, 453.) Relevant factors for the courts analysis included, but were not limited to, whether the prior conviction rested upon dishonest conduct that related to credibility, the nearness or remoteness in time of the prior conviction, the similarity between the charged offense and the prior conviction, and the potential effect of the defendants failure to testify. (Ibid.) However, the general rule was that prior felony convictions bearing on veracity were admissible. (Ibid.) On appeal, the courts decision is reviewed for abuse of discretion. (Id. at p. 454.)

Because theft crimes reflect dishonesty (People v. Gurule (2002) 28 Cal.4th 557, 608), appellants prior conviction strongly related to credibility. The great dissimilarity between the prior conviction and the charged offenses also weighed in favor of its admission, as it created no risk the jury would conclude that appellant was predisposed to acts of lethal violence.

Appellant decided to testify, despite the impeachment with his prior conviction. We therefore need not consider what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. (People v. Beagle, supra, 6 Cal.3d at p. 453; see also People v. Foreman (1985) 174 Cal.App.3d 175, 182.)

The critical factor in this case was the extreme remoteness of appellants prior conviction. As a preliminary matter, we reject respondents argument that because appellant was still on probation for his 1977 conviction, it was still active and therefore not remote. The rationale for impeaching a witness with a prior felony conviction is that the conviction may, somehow, be relevant to the witness veracity. (People v. Castro (1985) 38 Cal.3d 301, 314.) In other words, a prior conviction may reflect a character trait of dishonesty. (People v. Antick (1975) 15 Cal.3d 79, 98.) Matters pertaining to the sentence imposed for a conviction, such as probationary status, have no similar tendency to reflect dishonesty or a lack of integrity. Therefore, only the date of appellants offense and conviction, not its ongoing legal consequences, should be considered.

The trial court found, and respondent argues, that appellant had not lived a legally blameless life since his 1977 conviction, as shown by his flight and/or avoidance of contact with the authorities. When the court made this ruling, most of the evidence about appellants departure from California, attempts to avoid arrest while here, and use of a false name had not been introduced. Detective Brandenburg had testified that he had learned that appellant had been arrested recently in Cleveland, Ohio, and that he had been arrested in Oklahoma in 2001, when he showed police a Michigan drivers license bearing the name of John Lee Glass. In addition, appellants recorded interview with Brandenburg had been played for the jury. In that interview, appellant stated that at some time nearer the commission of the charged crimes, Detective Preston had told him the police could not find any witnesses and said, were gonna drop the case. Appellant also stated that he went home to Los Angeles every time a contracts over and lived in Los Angeles until he got a new contract. Appellant claimed that his passport and drivers license still reflected his mothers address, where he stayed when he was in Los Angeles.

Generally, a claim that a defendant has not led a legally blameless life is based upon intervening convictions or incarceration. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.) No intervening incarceration or convictions were established here. Evidence that appellant was out of state for portions of the intervening time period and obtained and used a drivers license bearing a false name was not comparable to proof of an intervening conviction, or even a probation or parole violation. Convictions and violations of probation and parole represent adjudications that have been reached after a fact-finding process that complies with the requirements of due process. They are generally established through official records. As such, they constitute a trustworthy form of proof of misconduct. In this case, there had been no adjudication, or even an express finding, that appellant had fled the jurisdiction or avoided contact with the authorities. Indeed, the evidence before the court when it ruled on the prior conviction was subject to differing or dual interpretations: appellant left the state, but not permanently, and it may have been for work rather than, or in addition to, a desire to avoid arrest on the charged offenses. The evidence of flight did not satisfy the standard of proof beyond a reasonable doubt, and perhaps not even a preponderance of the evidence standard.^[2] Nor did his arrests amount to proof of criminal conduct. An arrest is really nothing more than an allegation, not an adjudication, of misconduct. Accordingly, we conclude that the evidence does not support the trial courts conclusion that appellant had not led a legally blameless life since his 1977 conviction.

The extreme remoteness of appellants conviction severely diminished its probative value regarding appellants credibility. A conviction which the defendant suffered many years before, [e]ven one involving fraud or stealing, is at best very weak evidence that he is perjuring himself at trial. [Citation.] (People v. Antick, supra, 15 Cal.3d at p. 98.) Accordingly, we conclude the trial court abused its discretion by permitting appellant to be impeached with his 29-year-old conviction for a 30-year-old offense.

The courts erroneous ruling, however, does not require reversal unless it is reasonably probable appellant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, 353, subd. (b);People v. Antick, supra, 15 Cal.3d at p. 99; Peoplev.Watson, supra, 46 Cal.2d at p. 836.)

Appellant testified that his briefcase disappeared for awhile on the night in question, but he was not upset about this, as April Meredith had just put it in the other room, and she brought it back to him before he left. He never accused the victims of taking it. As he attempted to leave the Meredith house, Bradford placed a gun against his back and said, You dont think youre gonna leave with that money in that briefcase. Anderson was standing nearby, holding a bowl. Appellant offered to give them his money, but withdrew his gun from his briefcase, rather than his wallet. Anderson dropped the bowl and grabbed appellants wrist, and they wrestled, as Anderson attempted to draw his own gun from his waistband. Bradford merely stood by and watched, as he was drunk. Appellant placed Anderson in a headlock, but as they struggled, appellants gun accidentally fired. At that time, appellants gun was pointed downward, toward Andersons head, and was about an arms length away from Andersons head.

Bradford then jumped toward appellant, and appellant shot at him and ran out the front door. Appellant did not know if he had struck or missed Bradford.

Appellants story about the shootings was contradicted by Bradfords testimony, and Bradfords testimony was corroborated in part by Kennedys testimony that appellant was angry that his briefcase was missing and questioned the victims about it. In addition, April Meredith told Officer Wright just after the crimes that appellant argued with the victims about his missing briefcase. Meredith also told Wright that appellant shot Anderson while he was kneeling down, which was consistent with Bradfords testimony and the medical examiners testimony regarding the bullet trajectory. Meredith and Bradford were also consistent that Bradford was holding Merediths baby at the time of Andersons shooting. Appellant testified no children were present at the Meredith house that night. Apart from the 1977 felony conviction, appellants credibility was probably damaged in the eyes of the jury by his admission that he had obtained a drivers license under a false name and presented it to the police in Oklahoma. Together with the significant contradictions, appellants testimony was not highly credible.

Given the strong and consistent evidence against appellant and the fact that the prior conviction was not for a violent crime or gun crime, it is not reasonably probable he would have obtained a more favorable result had the court excluded evidence of his 1977 conviction.

Appellant forfeited his due process claim by failing to object on this ground in the trial court. Moreover, because the error was not prejudicial, the admission of the statement could not possibly have rendered his trial so fundamentally unfair that it violated due process.

[[Begin published portion.]]

4. Instructing the jury with CALJIC instructions was not error.

Appellants jury was instructed with CALJIC instructions, without objection by either party. Appellant contends the adoption of the CALCRIM instructions rendered the CALJIC instructions outdated, and their use constituted structural error.

The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006. At the time of appellants trial, former rule 855(e) of the California Rules of Court (now renumbered rule 2.1050) provided that [u]se of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.

Under former rule 855(e), the trial court probably should have used the CALCRIM, not the CALJIC instructions. However, the use of the CALCRIM instructions was not mandatory, but merely strongly encouraged and recommended. Neither party requested the use of the CALCRIM instructions, or even made mention of them. Had appellant or respondent asked the court to use the CALCRIM instructions, the court probably would have done so.

The Judicial Councils adoption of the CALCRIM instructions did not render any of the CALJIC instructions invalid or outdated, as appellant claims. CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Councils adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. No statute, Rule of Court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions.

Appellants attempts to show the superiority of two CALCRIM instructions to their CALJIC counterparts does not demonstrate that the CALJIC instructions the trial court used incorrectly stated the law, were hopelessly confusing to the jury, or were otherwise erroneous or inadequate.

CALJIC No. 2.23, as given at appellants trial, provided as follows: The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may consider in weighing the testimony of that witness. Appellant argues the trial court should have given CALCRIM No. 316, which provides, If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witnesss testimony. The fact of a conviction does not necessarily destroy or impair a witnesss credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. A comparison of the instructions reveals that they say precisely the same thing. The second sentence in each is identical. Although the wording of the other two sentences in the new instruction is arguably superior, it does not inform the jury of any principle not stated in CALJIC No. 2.23.

Similarly, appellant argues the court should have used CALCRIM No. 505 in lieu of CALJIC No. 5.12. because the new instruction more clearly states that a killing in self-defense means the defendant is not guilty of murder. In pertinent part, CALCRIM No. 505 states, The defendant is not guilty of (murder/[or] manslaughter/attempted murder/[or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/[or] defense of another). Appellants jury was instructed, in pertinent part, that The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [] 1. That there is imminent danger that the other person will either kill him or cause him great bodily injury; and [] 2. That it is necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself. (CALJIC No. 5.12.) That a homicide committed in self-defense was justifiable and not unlawful was reiterated to appellants jury in CALJIC No. 5.13. CALJIC No. 5.15 told the jury that, Upon a trial of a charge of murder, a killing is lawful if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty. In CALJIC No. 8.10, appellants jury was told that in order to convict him of murder, the prosecution was required to prove that [t]he killing was unlawful, and [a] killing is unlawful, if it is neither justifiable nor excusable. Accordingly, appellants jury was repeatedly told that a justifiable killing was not murder, and a killing in self-defense was justifiable. Although the organization and wording of CALCRIM No. 505 may be superior to the collection of CALJIC instructions, appellants jury was indisputably informed of the principle for which appellant argues.

Accordingly, we conclude that the trial court did not err by instructing the jury with legally valid and acceptably worded CALJIC instructions.

Even if this were error, it would not constitute structural error, which refers to an error that affects the framework within which the trial proceeds and therefore defies harmless error analysis, rather than simply an error in the trial process itself. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) Structural errors in the criminal context include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendants race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous jury instruction on reasonable doubt. (Ibid.) The prejudicial impact, if any, of an error consisting of the use of one form of a jury instruction correctly stating the law, as opposed to another instruction also correctly stating the same legal principles, can readily be assessed. Such an error does not affect the framework within which the trial proceeds, but is simply an error in the trial process itself.

Because the instructions given were correct statements of the relevant legal principles, the purported error was necessarily harmless. Appellants jury was neither incorrectly nor inadequately instructed.

[[End of published portion.]]

5. Denying appellants motion to reduce the verdict to second

degree murder was not an abuse of discretion.

At sentencing, appellant asked the trial court to reduce the verdict to second degree murder. The court considered the motion, stated it found the evidence sufficient to support the verdict, and therefore denied the motion. Appellant contends this was error, as there was insufficient evidence of premeditation and deliberation.^[3]

In considering a motion to reduce a verdict to a lesser degree offense, based upon a claim of insufficiency of evidence, the trial court is required to independently reexamine the evidence. (People v. Longwith (1981) 125 Cal.App.3d 400, 414, disapproved on another ground in People v. Barnum (2003) 29 Cal.4th 1210.) Such a motion is addressed to the courts discretion. (Ibid.) Because appellants contention on appeal is tantamount to a challenge to the sufficiency of the evidence, the whole record is reviewed in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v.Ceja (1993) 4 Cal.4th 1134, 1138.)

Appellant was charged with and convicted of first degree murder with premeditation and deliberation. Premeditation requires that the act be considered beforehand. Deliberation requires careful thought and weighing of considerations for and against the act. (Peoplev.Mayfield (1997) 14 Cal.4th 668, 767.) The extent of the reflection, not the length of time, is the true test. These processes can occur very rapidly, even after an altercation is under way. (Ibid.; Peoplev.Sanchez (1995) 12 Cal.4th 1, 34.)

Three types of evidence that typically support a finding of premeditation and deliberation are planning activity, a prior relationship with the victim or conduct from which a motive could be inferred, and a manner of killing from which a preconceived plan could be inferred. (Peoplev.Anderson (1968) 70 Cal.2d 15, 26-27.) However, these categories are not prerequisites, but simply guidelines to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations, rather than an unconsidered or rash impulse. (Peoplev.Sanchez, supra, 12 Cal.4th at pp. 32-33.)

Appellant argues that, under either his or Ronald Bradfords version of events, the killing was a rash, impassioned act by a drunken, angry man, with no planning of any sort. However, anger does not negate the existence of premeditation and deliberation. (People v. Manriquez (2005) 37 Cal.4th 547, 578.) In addition, there was evidence of planning activity. Just after the crimes occurred, April Meredith told Officer Wright that appellant argued with the victims about his missing briefcase, left the house, and returned with a chrome handgun. Bradford testified that just before the shootings, appellant walked into the den, locked the door, and then pulled out his gun. On the night of the crimes, Bradford told Wright that appellant argued about his missing briefcase, left the house, and returned carrying a handgun. Going to his car to retrieve an obviously loaded gun and locking a door so the intended victims could not readily escape demonstrated planning.

The testimony and prior statements of Kennedy and Bradford and the prior statement of April Meredith all provided evidence of motive, i.e., appellant was angry because his briefcase was missing, and he believed Anderson and/or Bradford had taken it. No prior relationship between the victims and appellant was necessary.

In addition, appellants manner of killing Anderson and his subsequent attempt to kill Bradford also suggested premeditation and deliberation. Bradfords testimony and the contemporaneous statements by April Meredith and Bradford indicated that the argument over the briefcase had temporarily terminated, appellant left to retrieve his gun, approached Anderson as he was kneeling down cleaning the coffee table, and shot him in the side of the head. Appellant then chased Bradford through the house, found him hiding in a closet, and shot him.

Accordingly, there was substantial evidence from which a jury could find, beyond a reasonable doubt, that appellant considered his conduct beforehand and gave careful thought to and weighed considerations for and against shooting Anderson. The evidence therefore supports the verdict, and the trial court did not abuse its discretion by denying appellants motion to reduce the verdict to second degree murder.

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

BOLAND, J.

We concur:

RUBIN, Acting P. J.

FLIER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1, 2, 3 and 5 of the Discussion.

^[1] Proposition 8 on the June 1982 California primary election ballot added section 28, subdivision (d) . . . , to article I of the California Constitution. That section provides, inter alia: Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding . . . .   (In re Lance W. (1985) 37 Cal.3d 873, 879.)

^[2] This analysis is not inconsistent with treatment of the same evidence in the context of the delay issue, as the question there was whether the delay was justified, not whether appellant had, in fact, fled the jurisdiction and taken steps to avoid arrest.

^[3] Respondent directs its argument solely to whether there was sufficient evidence of malice aforethought.