Filed 4/11/07 P. v.Diaz CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent,
CHARLES ANTHONY DIAZ et al.,
Defendants and Appellants.
(Mendocino County Super. Ct.
Nos. 9934592, 9934593,
9934595, & 9934596)
Defendant Charles Anthony Chuck Diaz was convicted by a jury of the murder of Dallas Grondalski (Pen. Code, 187, 189) with the use of a knife (Pen. Code, 12022, subd. (b)); and he and defendants Sammie Lester, Robert L. Huffman, and Mary Ann Hodgson, were convicted by the jury of conspiracy to obstruct justice (Pen. Code, 182, subd. (a)(5)) in connection with Dallass murder, and the murders of her father, Billy Grondalski, her mother, Patti Grondalski, and her stepbrother, Jeremy Vandagriff. On defendants appeals from the conspiracy convictions, we hold that those convictions must be reversed for lack of substantial evidence of an overt act in furtherance of the conspiracy within the period of the statute of limitations. On Diazs appeal from the murder conviction, we find one evidentiary error that was harmless beyond a reasonable doubt, and conclude that his other arguments lack merit, as we discuss below. The murder conviction is therefore affirmed.
A. Prosecution Case
The bodies of Billy Grondalski, Patti Grondalski, 17-year-old Jeremy Vandagriff, and five-year-old Dallas Grondalski were found around 10:00 p.m. on Monday, October 6, 1986, by firefighters who responded to a fire in their Fort Bragg home. Billy, Patti, and Jeremy had been killed with gunshots to the head. Dallas had received a fatal gunshot wound to the chest, and fatal stab wounds. The fire had been set with gasoline and camping fuel.
Billy Grondalski left the Vallejo chapter of the Hells Angels motorcycle club in July 1986, and had an In 84, Out 86 tattoo commemorating his time in the club. A number of people left or were expelled from the Vallejo Hells Angels in 1986 in the aftermath of a fight with the Oakland Hells Angels chapter, and by Labor Day of that year there were only four members of the Vallejo chapter: defendant Diaz, Gerald Butch Lester (defendant Sammie Lesters husband), Randy Spears, and Gary Newman. Butch was the chapter president and Diaz was the sergeant at arms; former FBI agent Tim McKinley, an expert on the Hells Angels, said that [t]he sergeant at arms of each chapter is responsible for enforcing the rules, collecting fines, if necessary engaging in fisticuffs or some form of violence. Billy originally left the club in good standing, but his status was later changed to bad standing. McKinley explained that, whereas someone who was out in good standing could have an in date tattoo and out date tattoo, someone out in bad standing had to have his club tattoos removed or covered up. He said that those out in bad standing were likely to be beaten up, and were subject to having their property, including everything remotely associated with the club, taken from them.
The Grondalski family lived with Pattis sister, Debbie Kast, in Martinez in August and September 1986. Kast testified that John Gerhart, a Hells Angel, and Johnny Vaughn, a person who ran errands for the club, came by her house in September and asked her to tell Billy that he was not supposed to be in Martinez and that he had to see Butch. In late September, the Grondalskis started moving their possessions to Fort Bragg, where Billy had found a home and planned to start a towing business. Kasts son Brian Johnson, a close friend of Jeremys who helped with the move, recalled that the [f]irst and only time [hed] seen Billy scared was on the way to Fort Bragg. Patti told Kast that the club thought Billy owed them money; Billy told Kast that he would handle the matter later because he did not feel like having his face smashed in, his legs broken, and his tattoo torn off. The Grondalskis were at Kasts house on Saturday, October 4, planning to spend the night, but left abruptly before dinner after receiving a phone call. That was the last time Kast saw them alive. When she went to their Fort Bragg home after learning of the murders, she found a bag in the backyard with unopened packages of flower bulbs and fishing lures, and a receipt showing that the items had been purchased on 10:16 a.m. on Sunday, October 5.
Police investigation into the Grondalski murders stalled by 1989. McKinley testified that the murders, and especially the killing of Dallas, hit a lot of Hells Angels wrong; the homicides were over the top and hit their gag reflex a little bit too hard. However, he said that loyalty to the club was probably the single most important thing within the Hells Angels value system. Both prosecution and defense witnesses said that it was dangerous to testify against the Hells Angels. John Gerhart, a 73-year-old retired Hells Angel, testified that he did not know why Billy was killed or which Hells Angels were involved in the murders, and would not say even if he did.
There was a break in the case in February 1994 when Charlie Haas, a former Sonoma Hells Angel awaiting sentencing on federal drug and weapons charges, offered to provide information about the killings. Haas was granted immunity in connection with the Grondalski case other than for the murders, and he hoped to have his 30-year federal sentence reduced in exchange for his testimony. He testified against Butch, who, after two mistrials, was convicted in 1997 of murdering Billy, Patti, Jeremy, and Dallas, and he testified against defendants herein.
Haas, along with the Vallejo Hells Angels and most of the Sonoma Hells Angels, participated in a motorcycle run to Parkers Resort in Guerneville, a party attended by well over 100 people that was held from Friday, October 3 to Sunday, October 5, 1986. Haas said that on Sunday morning at the run he went over to an RV where he heard that the Vallejo chapter was having a meeting. Butch came out of the RV and told Haas that they had found Billy and were going up to see him about his club debt, tattoo, and motorcycle. Butch and Diaz got into a pickup truck, with their motorcycles in the back, and left the run about 10:30 a.m.
Haas said that about 2:00 a.m. Monday he got a call from Butch who said that he had a problem and needed to see him. When Haas met Butch about noon that day at the home of defendant Huffman, a Sonoma Hells Angel, Butch told him that he and Billy had a fight, he had a gun to Billys face, and the gun went off accidentally. He then shot and killed Patti and Jeremy, while Diaz cut Dallass throat. When it appeared that Dallas was not dying quickly enough, Butch shot her as well. Butch was worried about having left DNA, fingerprints, or shell casings at the house, and Haas suggested burning the house down. Butch got the keys to Huffmans van, he and Haas obtained six gallons of gasoline, they drove to Fort Bragg, poured gas throughout the house, and ignited the gas with a cigarette and matchbook.
Haas said that he went to see Diaz the following Thursday, and asked him whether [Y]ou guys destroyed everything and got rid of everything and you didnt keep anything.  And he said, No, dont worry about it. Everythings been melted down and burnt and taken care of. About nine or 10 days later, Haas again asked Diaz whether everything ha[d] been taken care of, and Diaz assured him, Its all covered.
Mendocino County Sheriff Phillip Pintane, who had worked on the case since 1994, testified that Haas provided the first information indicating that the killings took place on Sunday, October 5, rather than Monday, October 6, the day of the fire. Dr. Fred Walker, a forensic pathologist, examined the bodies at the crime scene, performed the autopsies on them, and originally certified the date of death as October 6. He was asked by Pintane to reevaluate his opinion, and revised it in 1995 or 1996 to conclude that the murders occurred on October 5, rather than October 6. He said that he was relatively inexperienced in 1986, and should have performed more tests at that time. John Boyd, a senior criminalist with the California Department of Justice, examined blood stains from the scene and concluded that they had originally dried, then been wetted while the fire was being put out, and were in the process of re-drying when the bodies were examined.
Mike Tankersley, another key witness, surfaced in February 1996 when he was arrested in Arkansas on a fugitive warrant. Tankersley had been expelled from the Sonoma Hells Angels in 1987, and had fled the state to escape retribution from the club and avoid criminal prosecution. When plainclothes officers drove up in an unmarked vehicle to arrest Tankersley at his Arkansas home, he was shot by the officers after he got in a pickup truck and rammed the vehicle trying to escape. He was charged in Arkansas as a result of this incident with three counts of attempted capital murder that carried a maximum aggregate sentence of 90 years. After he testified against Butch, those charges were reduced to three counts of aggravated assault, and he was sentenced pursuant to a plea bargain to serve six years in Arkansas, with three and a half years suspended, concurrent to any California sentence, and he escaped prosecution on two outstanding California warrants.
Tankersley testified that Butch and Diaz approached him at the Parkers run and Butch asked if he would drive them to Billys place. Tankersley did not want to leave the run, so he lent them his Blazer with the understanding that he could use their motorcycles while they were gone. When he next saw Diaz at the run, Diaz told him, It went bad. It went wrong. Theyre all dead. He and Diaz and Butch went into a cabin to talk about what had happened, and Butch said that he pulled his gun after Billy made a move, and because he wasnt used to a .45 . . . he killed Billy and then he had to shoot Patti and the boy and then that Chuck [Diaz] killed little Dallas. Tankersley said he looked at Diaz and asked him, Why? and Diaz replied, I had to. I had to, Mike.
Tankersley said that Butch gave me the gun to get rid of it. He drove home with the gun, and met up with Butch and Sammie Lester. Butch said that he wanted Tankersley to burn down the Grondalskis house. Tankersley did not want to drive because he had been drinking and taking a lot of drugs on the weekend of the run, so Butch said that Sammie would drive him. Tankersley and Sammie then went to his friends motorcycle shop, where Tankersley melted the gun with a torch. He and Sammie then picked up some gasoline, and started driving toward Fort Bragg. However, when he and Sammie stopped for drinks in Ukiah, he decided he was not going to go to Fort Bragg, and they turned around and went home.
Tankersley acknowledged that, around the time of the murders, he was making a living selling drugs and collecting debts, and regularly carried a knife and a hammer. Tankersley had given Billy the tow truck Billy planned to use in his towing business. Tankersley admitted leaving California on Billys motorcycle after the murders; he said that he had given Billy the motorcycle, and gotten it back from him before he died.
Dick Roach (Roach), defendant Hodgsons husband, testified that he went with Hodgson and his son, Patrick Roach, to the Parkers run in an RV. Roach was a member of the Modified Motorcycle Association (MMA), a group that, according to Lieutenant Pintane, had a close relationship with the Hells Angels. Roach recalled seeing Tankersley at approximately 10:00 to 10:30 a.m. on Sunday popping wheelies on Diazs motorcycle. Tankersley told Roach that if Chuck [Diaz] and Butch dont get back from Fort Bragg with my Blazer, its my bike. At around 3:00 p.m. on Sunday afternoon, Butch came to the RV, asked for a fresh pot of coffee, asked Patrick Roach to leave, and then washed his hands and forearm with the coffee. About an hour later, Roach saw Butch talking to Sammie and noticed that Sammie was upset.
Roach was convicted in 1987 of manufacturing methamphetamine, and he first talked to law enforcement about the Grondalski case in 1994, when Pintane came to his house with Roachs parole officer. Roach said that he would not have talked to Pintane but for the presence of the parole officer. Roach had twice tested positive for drugs, and had been warned that a third positive test would result in his re-incarceration. When Roach tested positive a third time after being interviewed by Pintane, he was allowed to perform community service in lieu of going to prison.
Roach said that after he and Hodgson returned from the Parkers run, Hodgson received a call from Carl Dulinsky, another MMA member, and she went over to Dulinskys shop, where she and Dulinsky burned something.
Dulinsky testified that he met Hodgson at his shop after returning from the Parkers run, and she told him that she had received evidence of a murder in Fort Bragg from Diaz and Butch that needed to be destroyed. She handed him a bag containing a piece of flesh; she told him it was a tattoo that had been cut out of a victim, and added, the whole family was murdered too, they were witnesses. Dulinsky got some wood and gas, and burned the piece of flesh in a 55-gallon drum.
Randy Spears testified that, at some point after Billy left the club, he and the other Vallejo Hells AngelsDiaz, Butch and Newmandrove to Billys home in Martinez, spoke with Patti, and told her to have Billy contact them. He said they wanted to speak to Billy about his tattoo and about Hells Angels stickers he was selling. He said that when he left the Parkers run on Sunday morning he looked for Diaz and Butch, but could not find them. He saw Diaz later that day, around 5:00 to 7:00 p.m., at Newmans house.
In a November 1987 taped statement that was played at trial, Spears said that when he was leaving the run and asking if anyone had seen Diaz and Butch, someone said, [T]hey headed toward Fort Bragg. He testified that he spoke with Diaz after hearing about the murders and asked him, Hey, didnt you guys go up there on Sunday? Diaz replied that [W]e started to go up on Sunday, and we had a flat tire . . . so we stopped and got something to eat while the tire was being repaired . . . and then we turned around and headed back home. When Spears recounted this conversation in his November 1987 statement, he said that he had the conversation with Butch, not Diaz. He testified that he was not thinking straight at the time because he had just been arrested and told that he faced 45 years in prison. He said the interviewing officer, Detective Gourley, told him that they would go easy on him if he cooperated. Spears said that he tried to appear cooperative while protecting the club; after the interview, Gourley told him he would receive no benefit from the statement because he had not provided any new information.
Ricky Paulson, with whom Billy had lived for a time in 1986, testified that before Billy moved to Fort Bragg, Butch and Newman came by his house and asked him to tell Billy that he had to move out of Contra Costa County. After Paulson got back from a trip to Fort Bragg helping Billy move, Butch and John Gerhart came over and asked where Billy could be found and he told them where Billy was living.
Mark Linn, who had prospected for membership in the Vallejo Hells Angels, went to the Parkers run and testified that he saw Diaz and Butch get into a Blazer, with two other people he could not identify, and leave the run before 9:30 a.m. on Sunday. Linn testified that when he was talking with Hodgson a day or two after the run, she said, Shit happens when the murders were reported on TV.
Brian Webster, a hang-around (pre-prospect) for the Vallejo Hells Angels in 1986, went to the Parkers run and stayed there until early Sunday afternoon. He testified that when he got up on Sunday between 8:00 and 9:00 a.m., he noticed Diaz and Butch had left the run, and saw Tankersley riding Diazs motorcycle.
Larry Sibiski, a Vallejo hang-around until the summer of 1986 and a member of the MMA, testified that he and MMA member Henry Light were at Lights home at some point in October or November 1986, when Diaz and Butch came over, and Butch warned them not to talk about the Grondalski murders or associate his or Diazs name with them. Butch pulled Sibiski aside and said he did not need an alibi from him because Sammie would provide one. The visit left Light shaking, and Sibiski afraid because he didnt want to be next. Sibiski testified that Diaz regularly carried a hammer, and that Diaz, like all the Hells Angels, regularly carried a long knife.
Pintane testified that Hodgson admitted, in a statement after her arrest in November 1999, that she had burned the tattooed skin with Dulinsky. Dulinsky told her that he had gotten the skin from Sammie. Hodgson said there had been ranting and raving about Billy owing money, but [t]hey didnt mean [for] it to happen that way . . . the whole purpose of the trip [was] to remove the tattoo. She recalled Butch disappearing from the run without his motorcycle, and Tankersley revving up a motorcycle and racing around on it. She remembered making coffee and being told theyre just going to wash their hands with it. She said that, after she made the coffee, I was told that I dont know anything. She said she scrub[bed] patchessymbols worn by Hells Angels on their vests and jacketsthat she received from Butch. She knew one was Butchs. The other patch was a smaller, you know, vest size.
Pintane said that when he interviewed Tankersleys wife, Debrah Hanson, before Tankersley was arrested, she stated that Tankersley was angry when he returned home from the Parkers run and told her, I cant believe it. Those guys used my Blazer to go up to Fort Bragg, and they killed the whole family.
Pintane said that when he was transporting Huffman from Sonoma County jail to Ukiah for a November 1999 court appearance, Huffman said, Why did them guys have to pick my house to come to?
Pintane indicated that it takes about two hours and fifteen minutes to two hours and forty minutes to drive from the Parkers resort to Fort Bragg.
Butch Lester was called as a prosecution witness, but he declined to testify, citing his Fifth Amendment rights and a pending petition for habeas corpus. He was held in contempt to no effect after refusing to answer a series of questions. Before being excused he taunted the judge, saying, You going to put me in jail?
Haas, described in the testimony as a serious individual whose main thing was to twist heads, and Tankersley, a flamboyant Hells Angel likened admiringly by a witness to the outlaw Jessie James, were impeached with their considerable histories of criminal conduct. Tankersley, Roach, Spears, Paulson, and Linn were impeached with prior inconsistent statements; and Tankersley admitted lying on various occasions.
B. Defense Case
The defense introduced the videotaped testimony of Tommy Lewis, a former Hells Angel who was serving a 45-years-to-life sentence in federal prison for drug offenses, and was considered to be too dangerous to transport to the trial. Lewis said that he traveled from Virginia to California in 1993 and visited Haas, who was a partner in his drug business. Haas told Lewis that he and Tankersley had committed murders, and that he wanted Lewis to find Tankersley and dispose of him because he knew too much and was a loose cannon. According to Lewis, Haas said that he and Tankersley went to the home of an ex-member to retrieve money and other property, there was an altercation, Haas shot the ex-member, and he and Tankersley killed the rest of the family. Haas said he shot all of the victims, and Tankersley cut one of the childrens throats. They set fire to the house right after the murders with gasoline they found on the property or took out of their motorcycles. Lewis said he was shocked by Haass story, and refused to help him with Tankersley.
Richard Brown, a friend of Tankersley who lived near the Parkers resort, said that Tankersley came by his house around 8:00 a.m. on the Sunday before the Grondalski murders, said that he had just come back from cleaning something up, and that Brown would find out about it soon enough.
Barbara Zemlyak testified that Diaz took her daughter to breakfast on Sunday morning at the Parkers run, and that Diaz and his ex-wife or girlfriend, Deborah Diaz, stayed at the run that afternoon to help with the cleanup. Ed Labrada and Sharolyn Hall said that they went to breakfast with Diaz around 10:00 to 11:00 a.m. that Sunday. Deborah Diaz said that she and Diaz went to bed around 4:30 a.m. on Sunday, and that he woke her up around 8:30 to 9:00 that morning. After they had breakfast she stayed in town and he returned to Parkers, where she saw him about two and a half hours later. They attended a birthday party for Zemlyaks daughter at Parkers that afternoon, stayed at Parkers through the cleanup, and went home in the late afternoon. Judy Leija, who was leasing Parkers at the time of the run, said that Diaz participated in the Sunday cleanup, and recalled seeing Diaz at the resort throughout the day.
Patrick Roach remembered going to the Parkers run with his father Dick Roach and his stepmother Hodgson, and seeing Diaz popping wheelies on a motorcycle. He told Pintane that, while it was possible that it might have been someone else, he could have sworn it was Diaz, not Tankersley, who was being stupid on his bike.
Tankersley, Dulinsky, and Roach admitted using methamphetamine, as well as alcohol during the Parkers run; Tankersley and Roach said that they did not sleep at all over the weekend. Dr. David Smith, an expert in drug addiction, testified that someone who is using methamphetamine and is sleep deprived would have distorted perceptions and be susceptible to suggestion. He opined that heavy methamphetamine users like Tankersley, Dulinsky, and Roach were very unreliable historians.
Dulinsky gave conflicting accounts of how he came into possession of the tattooed flesh, but eventually remembered it being handed to him in a bag. Haas testified that he saw blood on Billys body where the tattoo had been removed; he had not mentioned that detail on the five previous occasions he testified about the Grondalski murders, and said that he had only recently remembered it. Forensic psychologist Robert Shomer, and expert in memory and perception, opined that such purportedly recovered memories were unlikely to be accurate. He said that memories are affected by motivation and drug use, and that they fade over time. He said that memories are not necessarily accurate just because they are detailed.
Haas said that Butch was worried about having left DNA evidence at the crime scene. Attorney Jeffrey Thoma testified that DNA evidence was first used in court in the United States in 1987, and that while there had been newspaper articles about DNA before the fall of 1986, few people at that time would have known about the work in that field.
Brian Websters former girlfriend, Joan Porter, said that when Webster heard about the Grondalski murders, he told her that Butch had left the Parkers run, but Diaz had not.
Terry Linn called her husband Mark a bullshitter.
Brown, Zemlyak, Leija, and Patrick Roach were impeached with prior inconsistent statements, criminal conduct, or both.
None of the defendants testified.
C. Deliberations and Sentencing
The trial lasted two months, and the jury deliberated for three and a half days before returning the verdicts.
Diaz was sentenced to 29 years to life in prison, representing 25 years to life on the murder conviction, plus the upper term of three years on the conspiracy conviction, plus a one-year enhancement for use of a knife in the commission of the murder.
Hodgson was sentenced to the upper term of three years on the conspiracy conviction.
Huffman had previously been sentenced to 16 years in Sonoma County case number SCR28834, plus two years in Sonoma County case number SCR30525; the judgment in this case added one year eight months to those sentences: one-third the midterm of eight months on the conspiracy conviction, plus one year for a prior prison term enhancement Huffman admitted at trial (Pen. Code, 667.5, subd. (b)).
Sammie had previously been sentenced to four years in Solano County case number FCR-201143; the judgment in this case added two years eight months to that sentence: one-third the midterm of eight months on the conspiracy conviction, plus two years for an on-bail enhancement she admitted (Pen. Code, 12022.1, subd. (b)).
A. Conspiracy Convictions
In order to convict a defendant of conspiracy to obstruct justice, the prosecution is required to prove beyond a reasonable doubt that a conspirator committed an overt act in furtherance of the conspiracy. (People v. Russo (2001) 25 Cal.4th 1124, 1135.) It must also be proven, by a preponderance of the evidence, that an overt act occurred within the period of the statute of limitations. (People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 27; People v. Crosby (1962) 58 Cal.2d 713, 728.) The statute of limitations for conspiracy to obstruct justice is three years (Pen. Code, 182, subd. (a), 801); the original indictment in the case was filed on November 1, 1999. The prosecution was thus required to show that an overt act in furtherance of the conspiracy occurred after November 1, 1996, three years before the indictment was filed.
Two overt acts were alleged in the third amended indictment: (1) On or about November 30, 1996, unknown persons acting in concert with, and at the direction of, defendants threatened Terri Linn, the wife of Mark Linn, in an effort to induce Mark Linn to give false testimony.  (2) On December 11, 1996, in a Mendocino County Superior Court proceeding pertaining to this matter, [Hodgson] willfully provided false testimony.
As to the first of the two overt acts allegedthe threat made to Terri Linnwe find no substantial evidence that the threat occurred during the requisite timeframe, as we now explain.
Mark Linn testified that he was warned through his wife Terri not to testify in Butch Lesters first trial or I was going to disappear. He said that the threat was conveyed to him after he was subpoenaed in Butchs case, and just before he testified in that case on December 16, 1996. He said that he did not know when the threats were conveyed to Terri.
Terri Linn testified in a conditional examination about two encounters she had with Hodgson: in the first, Hodgson told Terri that Diaz needed Marks motorcycle to pay for legal fees; in the second, Hodgson called Mark a rat, showed Terri some court transcripts, and said that Mark was ratting [some Hells Angels] off. Although Hodgson did not ask Terri to tell Mark to change his testimony, Terri knew that Hodgson hung around [Hells Angels] a lot, and Hodgsons statements made her concerned for Marks safety. Terri testified further that, around the time of the second encounter with Hodgson, Diazs close friend Sandy Cook told her Mark should leave Vallejo for his own safety. Terri said she told Mark that she thought his life might be in danger and that he better keep his mouth shut.
Terri initially responded, [Y]eah, when asked whether she remembered seeing Hodgson sometime in maybe late 1996, and was later questioned more closely on the timing of the encounters. With respect to the first encounter, her testimony was as follows: Q. [A]nd that was when, 1995?  A. I dont know.  Q. Well, about a year before you met Lieutenant Pintane?  A. Yeah.  Q. If your statement with Lieutenant Pintane was in December of 96, it would be sometime in 95, correct?  A. Uh-huh. As for the second encounter, she testified: Q. [N]ow, the second incident, how long after the first incident did it take place?  A. Its hard for me to remember. I dont know. God, my mind is justI dont remember my years. Its really hard.  Let me see . . .  The Court: Dont speculate. If you dont know, you dont know.  [A.] Its just around 96.  [Q.] Okay. Sometime in 96, but Im asking you, how long after the first occasion when  A. Several months.
Terri admitted having problems with her memory, which she attributed to her liver disease and medications she was taking. Terri recounted another statement to her by Cookthat Mark would be dead by now if it werent for youwhich she said at one point was made around the time in 1996 when Hodgson called Mark a rat, and said at another point was made in 1984 or 1985, around the time Mark stopped prospecting for membership in the Hells Angels.
On this record, it would be entirely speculative to find that Terri received any threats after November 1, 1996. Since Mark was told of the threats before he testified, and he did not testify until December 16, 1996, it is possible that the threats could have been made after November 1 of that year, but there was no evidence from which to find that the threats were more likely than not made after that date. Mark did not know when the threats were made, and Terri could only remember the threats occurring around 96. Her testimony suggested nothing more specific than that the threats may have been made several months after December 1995, and whether several may have meant as many as 10 or 11 months is entirely unclear.
Under the Peoples theory, Terri would have had to convey the threats to Mark sometime between November 1 and December 16, 1996, within a few weeks after they were made, but there was no evidence as to how quickly or even when the threats were conveyed. Terri was not asked how soon she told Mark about the threats after they were made, and it would be mere conjecture to make any finding as to the length of that interval. At oral argument on appeal, the People submitted that the jury could reasonably infer that Terri promptly conveyed the threats to Mark because they were the sort of information a wife would want to share with her husband, but, insofar as it appears from the record, there could have been a considerable delay in conveying the threats. Terri said that she and Mark were fighting and not talking much at the time, and she might not, in any event, have wanted to worry him with what could happen if he testified until he was actually subpoenaed.
Possibility, speculation, and conjecture are not sufficient proof, even of matters that need only be proven by a preponderance of the evidence (see generally Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651; Regents of University of California v. Public Employment Relations Bd. (1990) 220 Cal.App.3d 346, 359; 1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, 35, p. 184), and that is all we have here as to the timing of the threats made to Terri Linn. The record is devoid of reasonable inferences, i.e., a deduction of fact that may logically and reasonably be drawn from another fact or group of facts, to establish credible circumstantial evidence of when the threats were made. Therefore, those threats cannot support the conspiracy convictions.
As for the other alleged overt act within the statute of limitationsHodgsons false testimonyfour lines of transcript were the sum total of the prosecutions showing. At a preliminary hearing on January 8, 1996, Hodgson was asked whether she knew Haas and answered, No, I dont. At trial on December 11, 1996, she was asked the same question and answered, Yes. This testimony does not constitute substantial evidence of the requisite overt act for a number of reasons.
First, the answers to the two questions demonstrated at most that Hodgson testified inconsistently, not that she deliberately lied on one of the occasions. (See People v. Russo, supra, 25 Cal.4th at p. 1131 [conspiring defendant must have specific intent to commit elements of target offense].) We do not know if Hodgson was questioned about the inconsistency, and the reason for the inconsistency is unclear. Insofar as it appears from the record, Hodgson may simply have recovered her memory in December 1996 of something that she had forgotten in January of that year.
Anticipating this conclusion, the Attorney General cites the reasoning in People v. La Salle (1980) 103 Cal.App.3d 139, 152, that [w]here an inconsistency appears between a defendants testimony and his prior statements, it may reasonably be inferred that defendant has deliberately falsified on both occasions . . . . This reasoning is incorrect, however, insofar as it suggests that such an inference can invariably be drawn. For instance, while the statements I did/did not carry a gun on the night of the murder are inconsistent, one of them would be true and not falsified. (See also, e.g., In re Imbler (1963) 60 Cal.2d 554, 561 [change in testimony alone merely showed that witness had changed his mind].) Whether it is reasonable to infer that inconsistent statements are deliberate lies will depend on the particular circumstances, none of which were disclosed here. The questions [D]id you know Charlie Hass? and the answers No and Yes were simply read to the jury from prior transcripts, entirely out of context. No deliberate falsehood was established.
Second, even if it could be inferred that Hodgson had deliberately lied on one of the two occasions, it appears that she was untruthful in January 1996 when she denied knowing Haas, not in December 1996 when she admitted that she did know him. Haas evidently knew Hodgson because he identified her in court at the trial. Hodgsons husband, Roach, evidently knew Haas because he recalled seeing Haas, whom he called one of the two Chucks from Santa Rosa, at the Parkers run. It seems likely that Hodgson, like her husband, would have known Haas. This likelihood was strengthened by Hodgsons involvement in methamphetamine dealing, and Haass and Roachs mutual association with Hells Angel Buck Garrett. Roach said that he had made methamphetamine for Garrett, and Roach and Hodgson were convicted in Oregon federal court of methamphetamine trafficking. Haas, who was also convicted of methamphetamine offenses, said that he spoke to Oregon authorities on a case up there that happened with Buck Garrett. Thus, all of the evidence indicated that Hodgson was probably being truthful in December 1996 when she admitted knowing Haas.
Third, even if it could be found that Hodgson deliberately provided false testimony when she said she knew Haas, it is not apparent how that lie would have furthered the conspiracy to obstruct justice. (Pen. Code, 184 [overt act is done to effect the object of the conspiracy]; CALJIC No. 6.10 [act is committed to accomplish object of conspiracy]; CALCRIM No. 415 [act is done to help accomplish agreed upon crime].) The People offer no theory other than to assert that Hodgson could be found to have lied in her own self-interest. But we fail to see why it was in Hodgsons interest to admit knowing Haas; she would have been better off distancing herself from someone who had acknowledged playing a major role in the cover up of the murders.
Therefore, Hodgsons December 1996 testimony did not qualify as an overt act in furtherance of the conspiracy, and the conspiracy convictions must be reversed for failure to prove that an overt act transpired within the limitations period. The related enhancements against Sammie Lester and Robert Huffman must also be reversed. (See, e.g., People v. McElrath (1985) 175 Cal.App.3d 178, 191; People v. Allen (1978) 77 Cal.App.3d 924, 927, fn. 1, 939.)
B. Murder Conviction
(1) Pre-Indictment Delay
Diaz argues in supplemental briefing that the court erred in denying his motion to dismiss the case on due process grounds because of the delay in prosecution. As has been indicated, the murders occurred in October 1986, but the indictment was not filed until November 1999. Diaz contends that he was prejudiced by the pre-indictment delay, and that the delay was unjustifiable.
Delay in prosecution that occurs before the accused is arrested or the complaint is filed 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. (People v. Catlin (2001) 26 Cal.4th 81, 107.) Prejudice . . . may be shown by the loss of a material witness or other missing evidence or fading memory caused by lapse of time. (People v. Archerd (1970) 3 Cal.3d 615, 640.) The showing of prejudice requires some evidence and cannot be presumed. (Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151.) If the defendant makes such a showing, the burden shifts to the prosecution to justify the delay (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911, and the court then balances the harm to the defendant against the justification for the delay (People v. Catlin, supra, 26 Cal.4th at p. 107) to determine whether the defendant has been denied due process. The extent of the prejudice suffered and the reasonableness of the delay are questions of fact, and the ruling on the motion to dismiss must be upheld if it is supported by substantial evidence. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 911-912.)
The claims of prejudice below were: (1) loss of Diazs telephone records, routinely destroyed by the phone company after seven years, which allegedly would have shown that Diaz often called Butch and other Hells Angels before the murders; this evidence would have been offered to prove that there was nothing unusual about the record of calls between Diaz, Butch, and other club members immediately after the murders; (2) loss of Diazs employment records by virtue of the closing of the Mare Island Naval Shipyard; those records allegedly would have shown that, for several weeks immediately preceding the murders, he was in San Diego working rather than in Vallejo looking for Billy as the prosecution maintained; and (3) loss of allegedly exculpatory witness testimony through death, disappearance, or faded memories. On appeal, Diaz adds that some prosecution witnesses admitted having memory problems and lacking any independent recollection of what transpired in 1986.
Diaz made a lesser showing of prejudice than the one labeled weak in People v. Catlin, supra, 26 Cal.4th at page 109. The defendant in Catlin at least presented evidence in support of the motion. (Id. at pp. 107-108; Garcia v. Superior Court, supra, 163 Cal.App.3d at p. 151 [evidence of prejudice is required].) Here, nothing was offered other than assertions in a memorandum of points and authorities. The allegedly unavailable records would have had relatively little probative value in any event. Frequent phone calls between Diaz, Butch, and other Hells Angels before the murders would have been merely cumulative of other proof that club members were a close knit group. Working in San Diego before the murders would not have precluded Diaz from looking for Billy or killing Dallas on the weekend. The significance of the allegedly unavailable testimony was never demonstrated because the motion did not specify what any of the testimony would have been. Witnesses cited on appeal whose recollections had faded by the time of trial all testified for the prosecution, so their lapsed memories were at least as much a problem for the prosecution as for the defense.
The prosecution argued, and the court evidently agreed, that the showing of prejudice was insufficient to require any justification for the delay. This implied finding was supported by substantial evidence and must therefore be upheld.
We note further that there were reasonable justifications for the delay if any were required. Initial investigations into the murders were unsuccessful, and the case against Butch and Diaz did not begin to build until Haas came forward in 1994. Tankersley, another crucial witness, was not located until after the first preliminary hearing in January 1996, and a second preliminary hearing, in July 1996, was thus required before Diaz could be held to answer. Investigative delay is justified, and fundamentally unlike delay undertaken by the Government solely to gain tactical advantage over the accused. (United States v. Lovasco (1977) 431 U.S. 783, 795.)
After Diaz and Butch were arraigned in August 1996, Diaz insisted on being tried separately from Butch, and agreed that Butch would be tried first. Butch was convicted in a third trial, ending in November 1997. Diazs trial was thereafter continued, at his request or without his opposition, until January 4, 1999. Diaz cannot complain of the delay from the August 1996 arraignment to the January 4, 1999 trial date because he either caused that delay or acquiesced in it. (People v. Archerd, supra, 3 Cal.3d at p. 640 [relevant considerations include who caused the delay].)
Former Mendocino County District Attorney Susan Massini dismissed the case on January 4, 1999, after having been defeated for re-election by Norman Vroman, who had served as Butchs defense counsel. Included in the record is Massinis declaration explaining the reason for the dismissal. Before the election, she had planned to personally prosecute Diaz, as she had Butch. When she told Diazs counsel in December 1998 that the Attorney General would need to take over the prosecution because of Vromans representation of Butch, counsel said that Diaz would not continue to waive time and would demand a trial date in January or February 1999. She dismissed the case because the Attorney General could not have been ready for trial within the time Diaz demanded. It thus appears that there were reasonable grounds for the dismissal, and that the decision was not simply a dilatory tactic. The delay the dismissal occasioned was also justified. The Attorney General convened the grand jury in October 1999, within a reasonable time after the dismissal given the complexity of the case, and secured the indictment on November 1, 1999. (People v. Archerd, supra, 3 Cal.3d at p. 640 [prosecution is entitled to reasonable time . . . in preparation of a case for submission to the grand jury].)
We note also that other murder prosecutions have been authorized despite lengthy delays comparable to the one here. (People v. Catlin, supra, 26 Cal.4th at pp. 106, 109-110 [nine-year delay was justified]; People v. Archerd, supra, 3 Cal.3d at p. 620 [11-year delay was considerable but . . . adequately explained by the record].)
The court did not err in denying the motion to dismiss for delayed prosecution.
(2) Corroboration of Accomplice Testimony
Diaz contends that his murder conviction must be reversed because it rested on the uncorroborated testimony of accomplices. (Pen. Code, 1111 [accomplice testimony must be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense]; People v. Belton (1979) 23 Cal.3d 516, 526 [statute is intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility].)
The court gave CALJIC instructions on accomplice testimony, including No. 3.10 (AccompliceDefined), No. 3.11 (Testimony Of Accomplice Must Be Corroborated), No. 3.12 (Sufficiency Of Evidence To Corroborate An Accomplice), and No. 3.16 (Witness Accomplice As A Matter Of Law). The jury was instructed under CALJIC No. 3.10 that [a]n accomplice is a person who is or was subject to prosecution for the identical offense charged in Count 2 [conspiracy] against the defendant on trial by reason of . . . being a member of a criminal conspiracy. The jury was instructed under CALJIC No. 3.16 that [i]f the crime of conspiracy to obstruct justice was committed by anyone, witnesses Charles Haas, Michael Tankersley, Carl Dulinsky, and Gary Newman are accomplices as a matter of law and their testimony is subject to the rule requiring corroboration.
As the quoted instructions imply, Haas, Tankersley, Dulinsky, and Newman were accomplices to the conspiracy only, not to the murder. Consequently, there was no need for corroboration of their testimony concerning the murder. This conclusion is supported by the decision and discussion in People v. Felton (2004) 122 Cal.App.4th 260. The defendant in that case was convicted of felony child endangerment and of attempting to make a criminal threat. The childs mother was an accomplice to the endangerment offense, and recipient of the attempted threat. The defendant argued that failure to give accomplice instructions was prejudicial as to the attempted threat conviction, which was based entirely on the mothers testimony. However, the court held that no corroboration was required for the mothers testimony about the attempted threat because she was not an accomplice as to that specific offense. (Id. at p. 273.) The court reasoned:
Penal Code section 1111, by its terms, is offense-specific. It defines an accomplice as one who is liable to prosecution for the identical offense; to support [a] conviction, it requires that the accomplices testimony be corroborated by evidence tend[ing] to connect the defendant with the commission of the offense . . . . (Italics added.) For example, in People v. Tenner (1944) 67 Cal.App.2d 360, the evidence showed that a prostitute orally copulated the defendant, but she resisted when he tried to sodomize her. The appellate court reversed the defendants oral copulation conviction, on the grounds that the prostitute was an uncorroborated accomplice. However, it affirmed his attempted sodomy conviction, noting: The evidence relating to the second count . . . presents a different kind of case. [A]fter the other acts were committed the appellant attempted an act of sodomy. The resistance of the prosecutrix and her prevention of the act removed her from the role of an accomplice . . . . (Id. at p. 363; accord, People v. Boyce (1980) 110 Cal.App.3d 726, 736 [testimony of the defendants accomplice in sale of stolen property did not require corroboration as to initial receiving of the property]; People v. Wynkoop (1958) 165 Cal.App.2d 540, 546 [testimony of the defendants accomplice in first burglary did not require corroboration as to second and third burglaries].)
Defendant argues that, if [the mother] was an accomplice to felony child endangerment, she had a motive to make [him] look as bad as possible on both counts. Be that as it may, the bare existence of such a motive is insufficient to trigger the corroboration requirement. Indeed, this is a corollary of the rule that Penal Code section 1111 is offense-specific. Similarly, a person who has committed a related but not identical offense need not be corroborated (People v. De Paula (1954) 43 Cal.2d 643, 648), even though he or she may be trying just as hard as an accomplice would to curry favor or to shift blame. (People v. Felton, supra, 122 Cal.App.4th at p. 273.)
This reasoning and these authorities apply equally here. In contrast, none of the cases on which Diaz reliesPeople v. Coffman and Marlow (2004) 34 Cal.4th 1, 104; People v. Slaughter (2002) 27 Cal.4th 1187, 1203; People v. Garceau (1993) 6 Cal.4th 140, 183; and People v. Garcia (2000) 84 Cal.App.4th 316, 326addressed whether corroboration was required for accomplice testimony about offenses in which the accomplice did not participate. Since Haas, Tankersley, Dulinsky, and Newman were not involved in the murder, their testimony on that offense did not require corroboration.
There was ample corroboration in any event. Diazs argument to the contrary is premised on the incorrect assertion that Spears and Roach were also listed in the CALJIC No. 3.16 instruction among the accomplices as a matter of law. In fact, the court denied defendants request to include them in that instruction. (See RT 2893.) Unlike Haas, who admitted setting fire to the house, Tankersley, who admitted melting the gun, and Dulinsky, who admitted burning the tattooed flesh, neither Spears nor Roach was obviously involved in the conspiracy to obstruct justice. The defendant bears the burden to prove by a preponderance of the evidence that an individual is an accomplice, and no such showing was made here as to Spears or Roach. (People v. Belton, supra, 23 Cal.3d at p. 523; People v. Tewksbury (1976) 15 Cal.3d 953, 967-969.) It was open to defendants under CALJIC No. 3.10 to claim that those witnesses were accomplices notwithstanding the courts refusal to find them accomplices as a matter of law (see Use Note to CALJIC No. 3.10 (Apr. 2006 ed.) p. 110 [No. 3.10 is unnecessary if witness is an accomplice as a matter of law]; see generally People v. Coffman and Marlow, supra, 34 Cal.4th at p. 104 [whether witness is accomplice is generally a question of fact for the jury]), but they made no such contention in their closing arguments. Nor has Diaz attempted to explain on appeal why those witnesses should be deemed to be accomplices. Thus, Spears and Roachs testimony need not be corroborated, and can serve to corroborate the accomplice testimony.
Haass and Tankersleys testimony that Diaz left the Parkers run with Butch to go to Fort Bragg was corroborated by: Spears testimony that Diaz told him they had started to go up to Fort Bragg before getting a flat tire; Spears testimony that, when he looked for Diaz and Butch before leaving the run, someone told him they were headed toward Fort Bragg; and Roachs testimony that Tankersley told him at the run that Diaz and Butch had gone to Fort Bragg. Tankersleys testimony that Diaz and Butch took his Blazer to Fort Bragg and left their motorcycles at the run was corroborated by: Roachs testimony that Tankersley told him at the run that Diazs motorcycle would be his if Diaz and Butch did not return with his Blazer; Linns testimony that he saw Diaz and Butch get into a Blazer and leave the run; Roachs and Websters testimony that they saw Tankersley riding Diazs motorcycle at the run; Hodgsons statement that Butch disappeared from the run but his bike remained there; andconsidered in conjunction with Roachs testimony that Tankersley was popping wheelies on Diazs motorcycle, and Patrick Roachs testimony that someone was being stupid on his bikeHodgsons statement that Tankersley was revving up and racing around on a bike. The physical evidence, which showed that all of the victims had been shot, and that Dallas had also been stabbed, corroborated Haass account of the killings. Sibiskis testimony that Butch had warned him, in Diazs presence, not to associate their names with the murders tended to corroborate Haass and Tankersleys testimony that Diaz and Butch were responsible for the killings.
The evidence required to corroborate accomplice testimony may be slight and entitled to little consideration when standing alone. (People v. Szeto (1981) 29 Cal.3d 20, 27; see also People v. Gurule (2002) 28 Cal.4th 557, 628 [the law requires only slight corroboration of accomplice testimony].) Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant. (People v. Szeto, supra, 29 Cal.3d at p. 27.) The evidence is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Fauber (1992) 2 Cal.4th 792, 834; e.g., People v. Lewis (2001) 26 Cal.4th 334, 371 [pathologist corroborated alleged accomplices description of murder].) Moreover, [u]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal. (People v. Szeto, supra, 29 Cal.3d at p. 27, italics in original.)
The physical evidence and the cited testimony of Spears, Roach, Linn, Webster, and Sibiski were properly admitted and tended to connect Diaz with Dallass murder in a way that could reasonably satisfy a jury that Haas and Tankersley were telling the truth about Diazs culpability. There would thus have been sufficient corroboration if any were required.
(3) Hearsay Evidence
Diaz contends that the court committed Crawford (Crawford v. Washington (2004) 541 U.S. 36) error in admitting statements made by Hodgson to Lieutenant Pintane. Under Crawford, testimonial hearsay must be excluded under the confrontation clause unless the defendant has had an opportunity to cross-examine the declarant and the declarant is unavailable as a witness. (Id. at p. 68.) Testimonial hearsay includes statements made in police investigations where the primary purpose of the questioning is to establish facts for later prosecution. (Davis v. Washington(2006) ___ U.S. ____ [126 S.Ct. 2266, 2273-2274] (Davis).)
The statements in question were Hodgsons admissions after her 1999 arrest that she scrub[bed] patches and made coffee for washing after Butch returned to the Parkers run. Hodgson told Pintane: I did scrub patches. I cleaned patches. I cant be positive about who they belonged to. I knew one was Butchs. The other patch was a smaller, you know, vest size. I made coffee, and it didnt matter how strong it was because theyre just going to wash their hands. Thats what it was for. These statements were testimonial hearsay because they were made in response to police investigative questioning about the crimes long after they were committed. (Compare Davis, supra, ___ U.S. at p. ____ [126 S.Ct. at p. 2273] [statements are nontestimonial when primary purpose of interrogation is to enable police assistance with ongoing emergency].)
The admissibility of Hodgsons testimony was addressed at an Evidence Code section 402 hearing during the trial, three weeks after the Crawford decision was filed. Diaz did not object to admission of the statements at issue under Crawford, but instead raised Aranda (People v. Aranda (1965) 63 Cal.2d 518)-Bruton (Bruton v. United States (1968) 391 U.S. 123) issues with respect to other statements made by Hodgson that might have incriminated him. (See generally People v. Fletcher (1996) 13 Cal.4th 451, 455-456 [discussing Aranda, Bruton, and Richardson v. Marsh (1987) 481 U.S. 200; no confrontation violation if codefendants confession is redacted to eliminate any reference to defendants existence, even if confession may incriminate defendant when considered in conjunction with other evidence; substitution of neutral pronoun for defendants name may suffice unless, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant].) The prosecution proposed to edit Hodgsons statement in several places to substitute the word he or him for Diaz; Diaz objected that he would still be identifiable despite the changes; and the court agreed to all of the revisions Diaz requested.
Diaz argues with respect to the newly-challenged statements that it must have been perfectly obvious to the jurors that [he was] the other person with the smaller vest who washed his hands with [Butch] . . . . (See Gray v. Maryland (1998) 523 U.S. 185, 196 [codefendants statements are improperly admitted if they obviously refer directly to someone, often obviously the defendant, and . . . involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial].) If the statements about coffee and patches were obviously incriminating to Diaz as he now maintains, then he should have objected to them below on Aranda-Bruton, if not Crawford, grounds. The argument has no merit in any event.
Hodgsons statement that they were going to wash their hands with coffee did not refer directly to anyone, and since there was no evidence that anyone other than Butch washed his hands with coffee, her use of the plural pronoun appears to have been casual and imprecise. Even if the statement could have been taken to imply that someone other than Butch cleaned up with coffee after the murders, it was not apparent who that other person was. The statement about cleaning a vest smaller than the one worn by Butch likewise implicated no one in particular, and encompassed all Hells Angels who were smaller than Butch. The statement could have referred to a host of people other than Diaz, including Tankersley, known as Little Mike, who appears from a