P. v. Alcantara

Filed 12/30/09 P. v. Alcantara CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Thomas I. McKnew, Jr., Judge. Modified in part; remanded in part; affirmed in part.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant John Alcantara was convicted, following a jury trial, of the 1983 first degree murder of Robert Bennett in violation of Penal Code section 187, subdivision (a). The trial court sentenced appellant to 25 years to life in state prison. The court ordered appellant to pay a parole revocation fine of $10,000 pursuant to section 1202.45 and a $10,000 restitution fine pursuant to section 1202.4

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial and by admitting evidence of his potentially intimidating conduct in 1983, blood evidence, photographs of the victim with his family, and the preliminary hearing testimony of witness Al Hatten. Appellant also contends that the parole revocation and restitution fines imposed in this case are improper. We order the parole revocation fine stricken and the matter remanded for a restitution hearing. We affirm the judgment of conviction in all other respects.

Facts

On February 16, 1983, shortly after 10:30 a.m., Robert Bennett drove his work truck (with appellant as a passenger) into an area of brush at the Whittier Narrows treatment facility. He was never seen again. Bennett was an assistant superintendant for maintenance at the Los Angeles Sanitation Department. Appellant was a grounds maintenance worker.

Bennett's wife reported him as a missing person around midnight that night. The next morning, Sheriff's Department Detective Cecilia Kienast went to the Sanitation Department's San Jose Creek facility to investigate. Bennett's office was located at that facility. His car was in the parking lot there, and appeared to have been there overnight. His assigned work truck was not at the facility.

The Sheriff's Department conducted an investigation of the disappearance. Although a large amount of blood was found near the area where Bennett was last seen, Bennett's body was not found and no charges were brought in connection with the disappearance.

Some additional investigation was done in 2001. In 2004, Al Hatten, the foreman of appellant's work crew, told detectives that appellant had confessed to the murder. In 2004 and early 2005, other Sanitation Department employees revealed new details about appellant's conduct in 1983. In 2005, appellant was charged with Bennett's murder. Appellant's ex-wife then contacted detectives and told them that appellant had confessed to her in 1983 that he had killed Bennett.

At trial, much of the evidence against appellant's activities came from the testimony of David Rivas, who in 1983 was a grounds maintenance worker on the same crew as appellant. Rivas testified that Bennett's disappearance was a very big deal and that he had a very strong memory of that disappearance. Rivas did not reveal key elements of events on the day of Bennett's disappearance until he was re-interviewed by police in 2001 and 2004.

On February 16, 1983, Rivas went to Bennett's office early in the morning to tell Bennett that he believed that appellant had threatened him about applying for the foreman's job. The job was soon to become vacant when the current foreman, Al Hatten, left. Appellant was interested in the job, and he told Rivas that it would be in Rivas's best interest not to apply for the job. When Rivas told Bennett about appellant's comment, Bennett became angry and told Rivas that he would come out to the Whittier Narrows facility that morning and talk to appellant about the situation. Rivas did not tell police of this early morning encounter until 2004, however.

Other employees were aware of Bennett's unhappiness with appellant's work performance. Max Augustus testified that Bennett discussed with him appellant's bad attitude, poor performance and tendency to be a bully. Augustus was a manager in plant operations and maintenance who was senior to Bennett. Lloyd Wilkison, who shared a cubicle with Bennett, overheard a conversation between Bennett and appellant on February 15, 1983 in which Bennett told appellant: "There's no way that you're foreman material." Bennett also said: "I'm not going to put up with any more of this." Appellant said: "That's a bunch of crap." On the morning of February 16, Bennett told Wilkison that appellant was disruptive and not getting his work done and one or two "more screw ups" was all it would take to get appellant "out the door."

After his conversation with Bennett, Rivas, appellant and Mike Moniz checked out equipment and materials needed to perform ground maintenance at the Whittier Narrows facility. Rivas's assignment was to edge and mow small sections of the facility grounds. The men took at least a mower, an edger and a weed eater. They had bags, although Rivas could not remember if the bags were already on the truck or if they got them along with the equipment. The three men then went to Whittier Narrows.[1]

Bennett left his office at the San Jose facility about 9:30 a.m. He told Ernest Larson that he was going to Whittier Narrows to tell appellant that there was no way he was getting the foreman's job. Larson did not convey this information to police until 2004. As he left, Bennett told Tim Ruggio that he would be back in a couple of hours to give Ruggio a new assignment. Bennett drove off in his Sanitation Department pick-up truck. Neither man ever saw Bennett again.

According to Rivas, Bennett arrived at Whittier Narrows that morning in a tan work pick-up truck. He pulled the truck up next to Rivas and appellant, who were working in the same area. Bennett said to appellant, "John, I need to talk to you. Please get John, I need to talk to you. Get in the truck." Bennett's tone was firm but not friendly. Appellant looked unhappily surprised. Bennett then drove the truck down the road that went into an area of vegetation that workers called the jungle.

The jungle consisted of eight to ten foot trees with heavy undergrowth. The vegetation in the jungle was allowed to grow naturally; almost no maintenance was done on it. Roundup weed killer would not be used in the jungle.

The jungle was adjacent to Rosemead Boulevard, where there was an entrance to the plant. There was a fence along Rosemead Boulevard, but there was an area where there was no fence or gate. It was possible to leave the jungle (and the plant) by driving out in that area, over a curb. Rivas had never seen Bennett or anyone else leave that way.

Rivas never saw Bennett again. He next saw appellant about 90 minutes later, in a truck with Al Hatten. It was unusual for appellant to be away from the work site for so long. Hatten came up to Rivas and asked him if he knew why appellant had been outside the facility on Rosemead Boulevard jogging toward the facility's gate. Rivas did not know.

According to Adame, who had been riding in the truck with Hatten, when they encountered appellant on Rosemead Boulevard he did not have on a shirt. He was breathing hard and perspiring. Hatten stopped the truck and asked appellant what he was doing. Appellant replied that Bennett had instructed him to check the weeds outside the fence and spray Roundup on them.

When Adame got back to the Whittier Narrows facility, appellant told him to go to San Jose Creek and get a shovel and an axe. Adame did so. This was an unusual request. When Adame returned with the tools, appellant took them and took over the dump truck that Adame had been driving.

At some point after appellant returned to Whittier Narrows, Rivas saw him go into one of the buildings there and come out with clear plastic bags. This was unusual. Rivas next noticed appellant in a dump truck with Mike Davis, another grounds maintenance worker. The two men picked up trash bags and debris from a large fallen branch from the area in front of a control building, then drove off in the dump truck toward the jungle area. Adame also remembered appellant driving the dump truck toward the jungle.

When interviewed by police in 2004, Rivas revealed for the first time that he then went to the second floor of the control building to use the rest room. On his way to the rest room, he saw the dump truck head out into a dirt area near the jungle, go past a big cypress tree, stop, then back up toward a couple of palm trees. When he came out of the rest room about 10 or 15 minutes later, he saw that the dump truck was still in the same area. At that time the truck was backed up toward the jungle.

About 15 minutes later, while working in front of the control building, Rivas saw the dump truck come by to pick up some more bags from in front of the building. About 1:15 or 1:30 p.m., appellant and Davis left the facility in the dump truck. Rivas assumed that they were going to the dump, although it was unusual for appellant to go there. The truck returned about 2:45 or 3:00 p.m. In Rivas's experience, a trip to the dump would usually take about 45 minutes to complete.

Later that night, Bill Hundley, Bennett's supervisor, called Rivas at home.[2] He told Rivas that Bennett had not come back and asked when Rivas had last seen Bennett. Rivas told him that he had last seen Bennett driving off with appellant.

Bennett was not at work the next day. Rivas, Moniz and Brian Turpen drove to the Whittier Narrows facility in the late afternoon or early evening and parked on the road near the jungle. They found a set of tire tracks which were consistent with the dump truck and followed the tracks on foot into the jungle area. Rivas came to an area where he saw shovel marks in the ground. He moved the dirt around a little with his hands and noticed that his fingers were becoming damp and red. The substance on his fingers smelled like blood. One of the men contacted Augustus, who was acting as the liaison to the Sheriff's Department in the investigation of Bennett's disappearance. As a result, Detective Kienast came to the site that evening.

Rivas told police for the first time in 2004 that he found a second set of tire tracks along the fence parallel to Rosemead Boulevard and what looked like scrapings from a bumper at the exit point from the jungle. In Rivas's opinion, the tracks came from a pick-up truck and the scrapes were consistent with the damage that driving over the bumper would cause to such a truck.

At trial, Mike Moniz, who went to Whittier Narrows with appellant and Rivas on February 16, 1983, did not have as clear a memory of events. He testified that Bennett came to the facility that morning, had a conversation with appellant, and drove off, but could not remember if appellant was with Bennett. Moniz testified that he did not see appellant much that day, which was unusual. When Moniz saw appellant later that afternoon, appellant said that he and Davis were going to the landfill. This was unusual, as appellant never did work like that. Moniz believed appellant and Davis returned to the plant later in the afternoon, possibly around 2:45 p.m. or later.

Moniz gave the same account of following the tire tracks the next day and finding blood as Rivas had given.

Detective Kienast took samples of the blood from the soil and had them tested. The blood was type A human blood. Bennett had donated blood to the Red Cross a few weeks before his disappearance. Detective Kienast obtained this blood from Kaiser Hospital. It was type A blood. About nine percent of the population has type A blood. Appellant and Davis both had type O blood.

Bennett's work truck was found in the Jolly Rogers parking lot at the Puente Hills Mall about 7:00 p.m. on February 17. No blood was found on it.

Blood was later discovered on the bed of the dump truck driven by appellant on February 16, on a shovel checked out by Adame, and on the tongue of appellant's left boot. The blood on the shovel was type A. The blood on the truck and appellant's boot was human, but very little information could be obtained from that blood. The blood in the truck had characteristics found in 57 percent of the population, including Bennett.

Jay Hunnell, a weigh scale operator at the landfill, confirmed that a black and orange stake bed dump truck had come to the landfill on the afternoon of February 16, 1983. The truck was covered with a tarp, which was unusual. There was only one person in the truck, which was also unusual. That person was not appellant. Hunnell identified the driver from a photograph as Mike Davis. A receipt prepared by Hunnell showed that the truck was a Sanitation Department truck numbered 7126. The time of the transaction was shown as 14:13 (2:13 p.m.).

The Puente Hills Landfill was soon excavated to search for Bennett's body. It was not found.

Detectives Joseph Raffa and Gilbert Parra interviewed a number of Sanitation Department workers about the events of February 16. When the case was re-opened in 2001, it was discovered that the detectives did not interview some witnesses who had pertinent information and that some witnesses who were interviewed had withheld some information.

Appellant and Davis were interviewed at length in 1983.

Detective Raffa first interviewed appellant on February 18, 1983. In that interview, appellant said on the day Bennett disappeared, appellant saw him around 11:00 a.m. Appellant was in front of the control room at the Whittier Narrows plant. Bennett drove up to appellant and gave him instructions. Appellant entered Bennett's pickup truck and they drove into the jungle. Bennett told him to spray along the fence adjacent to Rosemead Boulevard and the perimeter area around the brush. Bennett then drove southbound along the fence parallel to Rosemead Boulevard, over the curb to exit the plant through the gate and drove southbound on Rosemead Boulevard. Appellant never saw Bennett again.

Appellant walked back to the main plant where he saw David Rivas. Appellant then saw Hatten and Adame in Hatten's pick-up truck. Appellant went to the landfill in the dump truck at approximately 2:30 p.m. Appellant gave the landfill ticket to Hatten when he returned. Appellant did not use an axe that day.

During a second interview, on February 22, 1983, appellant gave Detective Raffa a more detailed account of the events of February 16. Appellant said that he had left the San Jose facility with Moniz, Davis and Rivas on the morning that Bennett disappeared. They went to breakfast and arrived at Whittier Narrows at 8:30 a.m. Rivas edged the lawns. When Rivas finished, appellant mowed the lawns. When Bennett arrived at approximately 10:30 a.m. or 10:40 a.m., appellant saw him drive north into the plant. Ten minutes later, appellant and Rivas were in front of the control building when Bennett drove by and appellant waved him down to ask if Rivas should mow behind the tanks. When Bennett said he should, appellant told Rivas to do so. Appellant then got into the truck with Bennett, who drove into the jungle. Bennett told appellant that the citrus tree branches had fallen and needed to be picked up. Bennett also told appellant that four gallons of Roundup should be used to spray the center area of the jungle and by the fence on Rosemead Boulevard. Bennett then drove along the inside border to Rosemead Boulevard and dropped him off after going over the curb and out through the gate. Bennett left between 11:10 a.m. and 11:15 a.m.

Appellant then walked out of the plant and onto Rosemead Boulevard to check the area Bennett had said he wanted sprayed. On the way out, he had asked Moniz if he had seen Rivas. At that point, appellant saw Adame and Hatten pull up in the truck. When Hatten asked him what he was doing, appellant told him Bennett had instructed him to spray the area along the road. Appellant also told Hatten that Bennett had said he should purchase four gallons of Roundup. Hatten laughed and said it was a waste of money. Later that morning, appellant and Hatten drove to the area outside the fence where Bennett had wanted him to spray. He did not eat lunch and stayed with Hatten in the truck. Appellant again looked for Rivas without success and then saw him mowing the lawn. Afterwards, Rivas and Adame placed debris in the truck.

Hatten told Adame to take the truck to the San Jose facility and to return in the dump truck. When Adame returned, he had a shovel, an ax and a rake, which either appellant or Hatten had asked him to get because there was a fallen juniper tree that needed to be cut up. Appellant drove the dump truck into the jungle with the tools and picked up branches with Davis but did not have enough time to deal with the juniper tree. They drove in the "general area" where the blood was later found. Appellant did not say that Bennett had suffered an injury and had bled. Davis and appellant drove to the San Jose facility, where they placed the tools on the hood of the dump truck. At approximately 2:20 or 2:25, they drove to the landfill, where they dumped the load. By 3:05 p.m., the entire crew returned to the San Jose facility, and appellant noticed Bennett's sanitation district truck was not there.

When appellant was re-interviewed by police in 2004 and 2005, he repudiated key parts of his 1983 statement, including his acknowledgement that he drove away with Bennett.

The detective also interviewed Davis on February 18, 1983. Davis said that he saw Bennett talking with Rivas and appellant. Davis shortly thereafter went to lunch with Adame in the crew cab truck. They experienced clutch problems and returned to Whittier Narrows. The crew cab was returned to the main camp and the dump truck was brought back to Whittier Narrows. They returned to the main plant with the dump truck and appellant between 1:30 and 2:00 p.m., and cleaned the crew cab truck. Davis went to the Puente Hills Landfill to dump the load. He stopped at a liquor store on the way back to Whittier Narrows, then returned to the plant and met the rest of the crew.

Davis was interviewed a second time on February 22, 1983. Davis said he went to the landfill around 10:00 a.m., and then returned. Later that day, he returned to Whittier Narrows with the dump truck. Davis resumed cutting up a tree. The chain saw leaked so he had to stop. Davis then raked leaves. Appellant told Davis they were going to the San Jose Creek Plant to take the debris left on the crew cab truck to the landfill. Before leaving, Davis and appellant drove the truck northbound on the plant road into the field to clear brush and broken branches around a citrus tree. They loaded the truck and drove out the main gate. They did not drive across the field to the area of dense brush where the blood stain was found. Davis then drove the dump truck to the landfill. Appellant rode as a passenger. They dumped the entire load.

Davis died before trial. His statements to detectives were read into the record.

The district attorney believed that there was insufficient evidence for a prosecution and did not file charges against anyone in 1983.

Detective Davis of the cold case unit re-opened this case in 2001. He re-interviewed Rivas in November of that year. Rivas revealed his rest room observations of the dump truck for the first time.

In 2004, Detective Davis again interviewed Rivas. Rivas revealed his early morning meeting with Bennett for the first time. He also revealed his observations of the second set of tire tracks and the scrapings. Rivas also stated that appellant telephoned him several days after Bennett's disappearance and asked: "Aren't you going to ask me if I did it?" Rivas did not ask. Rivas also claimed that on at least two occasions before Bennett's disappearance, appellant had threatened to kill Bennett or Augustus. Rivas's only explanation for his failure to reveal this information earlier was that he had forgotten.

In 2004, Al Hatten was interviewed by Detective Davis. The interview was videotaped. Hatten stated that appellant had confessed to shooting Bennett in the back of the head while they were in the jungle area and with the help of another person, cut up Bennett's body, put the pieces into trash bags and taken the bags to the dump. Hatten's description of the helper matched Davis. Hatten claimed that appellant repeated more than once that he alone shot Bennett.

That same year, Jim Fluegal, Ernie Larson, Steve Reedy and Reuben Rios all revealed new information to detectives. Fluegal, who was not interviewed in 1983, told police that Bennett and appellant did not like each other and that Bennett had been trying to get rid of appellant. Fluegal stated that appellant asked him for details of the police investigation. At one point, appellant asked him: "Do you want to know what happened?" Fluegal did not want to know.

Larson told police that on either the day of or the day after Bennett disappeared, appellant asked him where the main sewer line at the Whittier Narrows treatment plant went. Appellant had never before displayed any interest in the sewer lines. A few days later, when many employees were searching the landfill for the body, appellant said that "they'll never find him up there."

Reedy was an operator at the Whittier Narrows treatment plant in 1983. He told police that appellant approached him on the day of Bennett's disappearance and asked questions about how wide the sewer line was and what would happen if something large was put in the sewer. Reedy replied that anything larger than 48 inches would get stuck. Appellant had never before asked Reedy about the sewer lines.

Ruben Rios worked at the Puente Hills Landfill in 1983. He had previously worked for Bennett and with appellant. Rios said that about a week after Bennett's disappearance, Rios asked appellant if he killed Bennett. Appellant replied: "If I killed the motherfucker, ain't nobody gonna find him." Appellant said the police were trying to set him up, but they would never catch him. He did not deny committing the crime.

In May 2005, Bill Murphy, who had been a treatment plant operator at Whittier Narrows in 1983, spoke with police. He told them that appellant approached him on the day of Bennett's disappearance and asked where the sewer line in front of the Whittier Narrows plant went. Appellant had never before asked Murphy about the sewer lines. A day or two after Bennett's disappearance, appellant asked Murphy if police would need a body to prosecute him.

Appellant was arrested on November 30, 2005 for Bennett's murder. The Sheriff's Department held a press conference on December 2, 2005, detailing the arrest and asking for anyone with additional information about the case to contact the department.

On December 3, 2005, Denise Palumbo contacted police after learning from her sister that appellant had been arrested. She had been dating appellant in 1983 when Bennett disappeared. She and appellant watched a newscast about the search for a missing person being conducted at the Puente Hills Landfill. Appellant told her that the missing person was someone he worked with. He said: "I shot and killed him." He laughed and added: "Chopped him up, put him in the [landfill]." Palumbo did not take appellant seriously. Police did not contact her in 1983, and she did not tell anyone about the statement. Palumbo and appellant got married soon thereafter, but divorced in 1984. In 2004, Palumbo moved to Colorado and appellant thereafter called Palumbo after a long period with no contact. He told her that he wanted a copy of their annulment papers because he was getting re-married. He also stated that he was a minister. Palumbo called her niece Stephanie Trotter and told her about appellant's strange call. She also told her that appellant had once told her that he killed his boss.

Discussion

1. Denial of motion to dismiss

Before trial, appellant brought a motion to dismiss the charges against him on the ground that the delay in filing charges against him had denied him a fair trial in violation of his federal and state right to due process of law. The trial delayed ruling on the motion until after the close of evidence. At that time, the trial court denied appellant's motion to dismiss. Appellant contends that the trial court abused its discretion in so ruling.

"'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. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.' [Citation.]" (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Prejudice is not presumed even from a delay of over 20 years. (Ibid.)

Prejudice may be shown by loss of material witnesses, loss of other evidence or faded memories of witnesses. (People v. Butler (1995) 36 Cal.App.4th 455, 466.) "[S]peculation about prejudice because potential witnesses' memories have failed or because witnesses and evidence are now unavailable is insufficient to discharge defendant's burden. [Citation.] A particular factual context must be established in which a specific claim of prejudice can be evaluated." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.)

The trial court found that appellant had not demonstrated prejudice. As we discuss in more detail below, we find the trial court's ruling to be supported by substantial evidence and agree with it. (Peoplev.Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 912; see Peoplev.Mitchell (1972) 8 Cal.3d 164, 167 [standard of review for motion to dismiss for denial of speedy trial]; see also Peoplev.Hill (1984) 37 Cal.3d 491, 499 [same].)[3] Further, even if we assume for the sake of argument that appellant suffered some slight prejudice from Davis's death, we would find the justification for the delay outweighs any harm to appellant.

A. Prejudice

i. Alibi witness - Davis

Davis provided partially exculpatory evidence for appellant in his statement to police in 1983. He died before the case was re-opened. Appellant claims that Davis's death left him unable to obtain further exculpatory evidence from Davis or to rehabilitate Davis after he was impeached at trial. He also claimed that he was prejudiced by being forced to read Davis's statement at trial rather than produce a live witness.

Davis was not with appellant when appellant drove off with Bennett. He could not provide any exculpatory evidence for the time of the killing.

Davis did provide some favorable evidence for appellant, telling detectives that he was with appellant when appellant drove the dump truck near the jungle area and claiming that they did not go near the area where the blood was found. He also provided favorable evidence by stating that he and appellant went to the San Jose plant before going to the landfill and that they stopped at a store on the way back from the landfill. This helped account for the length of time the two men were away from Whittier Narrows, which was a matter of suspicion.

Davis's testimony did not quite mesh with appellant's statement, however. Appellant acknowledged driving the dump truck in the general area where the blood was later found. Further, two separate witnesses testified that Davis came to the landfill by himself on the afternoon of February 16.

It is merely speculation for appellant to claim that if Davis had been alive at the time of trial, he would have stuck to his account of events at trial, let alone been able to rehabilitate himself or provide additional exculpatory evidence for appellant. At that point, Davis would be faced with the knowledge that two witnesses testified that appellant confessed to the killing, and one of those witnesses indicated that Davis helped dispose of the body, two other witnesses testified that Davis came to the landfill alone, and the prosecutor viewed Davis as an accessory after the fact.[4] He would have a strong incentive to seek a deal for himself. However, we will assume for the sake of argument that Davis would have stuck to his story. We would still see only slight prejudice to appellant from Davis's death.

Davis's account, if credited, showed only that appellant could not have disposed of the body in the manner argued by the prosecutor. No one went in the jungle that day except for appellant and Bennett. There was nothing to have prevented appellant from returning after work and disposing of the body in some other manner. Appellant asked many questions about the sewer lines that day.

ii. Third party culpability - Modica

Notes taken by Roberts, an investigator in this case, of a telephone call from a Sergeant Schmiedekie in 1983 show that the sergeant was contacted by Jim Modica about Bennett's disappearance. Jim's cousin and then room-mate Joe Modica worked for the Sanitation Department in 1983 and was on disability before and possibly during the time of Bennett's disappearance. The notes indicate that Jim said that Joe confessed to killing Bennett. Sgt. Schmiedekie was not one of the investigators in this case. Roberts's notes of his conversation with the sergeant were found in the case file when the case was re-opened. By that time, Sgt. Schmiedekie had died.

When Jim was interviewed in 2005 by Detective Davis, he denied making such a statement to the sergeant. Joe was also interviewed in 2005 and denied having problems with Bennett or confessing to killing him. Jim also testified in a Evidence Code section 402 hearing during this trial that he did not make such a statement and did not remember Joe making such a statement. He believed that if he had heard Joe make such a statement, he would have moved out of the house and told his friend Roger about the statement. He did neither.

Appellant contends that the delay rendered him unable to investigate whether Joe Modica killed Bennett. There is no reason to believe that appellant would have uncovered evidence to implicate Modica. The prosecutor represented that Sanitation Department records showed that Joe was not working on the day of the disappearance. On the morning of the disappearance, Bennett left his office and went to Whittier Narrows. That was the last place where Bennett was seen, and he was last seen with appellant. Taking as true appellant's claim that Bennett drove off down Rosemead Boulevard, Larson and Ruggio testified that Bennett did not return to his office. It would be highly speculative to believe that Joe encountered Bennett by chance away from his place of work and in a place where no one could observe him killing Bennett. Further, Joe supposedly asked Jim for an alibi for the evening of February 16, but Bennett had disappeared that morning. This strongly suggests that while Joe was worried about being viewed as a suspect, he was not the killer. If he were, he would be expected to seek a more useful alibi.

iii. Faded memories of witnesses

Appellant contends that the faded memories of Morgan, Martinez, Hunnell, Hatten and Adame prevented him from conducting meaningful cross-examination of those witnesses.

The memories of Morgan, Martinez and Hunnell were clear on the key points of their testimony. Morgan testified that Adame checked out two shovels and an axe but did not return the axe. Martinez and Hunnell testified that Davis came to the landfill in the afternoon by himself.

Appellant points to testimony by Morgan about appellant's explanation for the missing axe. The prosecutor impeached Morgan on this topic. Morgan told detectives in 1983 that appellant said he last saw the axe on a flat bed truck outside Bennett's office at lunchtime. At trial, the prosecutor reminded Morgan of this statement after Morgan testified that appellant told him that the axe must have fallen off the truck. Appellant does not explain why one statement would be more favorable to him than the other, or how his inability to inquire further in this area was prejudicial.

Appellant points out that Hunnell's testimony about the presence or absence of a tarp and the commonness of tarp usage did not match his statement to police in 1983. Hunnell's contradictory statements were explored at trial. Appellant does not explain how he could have cross-examined Hunnell further on this topic.

Appellant appears to complain that Martinez's police statement was read into the record and so appellant was unable to cross-examine him. Martinez did testify, but his testimony and statement to police were not key parts of the case. Hunnell testified on the same topic, appeared to have a good memory of events, and stated that he was positive that Davis was alone at the landfill in the afternoon. Thus, there was very little if any prejudice to appellant in being unable to discredit Martinez. Further, even if appellant had been able to discredit both witnesses and show that appellant accompanied Davis to the landfill, he would at most have shown that the prosecutor's theory about the disposal of the body was incorrect. As we discuss, supra, there were other ways appellant could have disposed of Bennett's body.

Adame had limited recollection of events on February 16, but he did testify from his own memory about key events on February 16, including coming across appellant jogging on Rosemead Boulevard and appellant's request for an axe. Appellant himself corroborated other aspects of Adame's statement to police in appellant's own statements to police in 1983. For example, appellant told police that Bennett told him to spray Roundup along the edge of the jungle.

We discuss appellant's claim about Hatten's lack of memory in more detail in section 5, infra. There we conclude that there was no prejudice to appellant from the memory loss.

iv. Jolly Roger/liquor store

Appellant contends that the delay rendered him unable to conduct his own investigations at the Jolly Roger and the market/liquor store/deli where he and Davis stopped on the way back from the landfill. He contends that there might have been security cameras at those locations that might have provided exculpatory evidence. He also contends that market employees might have remembered him and Davis.

This is speculation. There is no way to know how wide-spread security cameras were in 1983. However, even if we assume that such cameras were wide-spread and present at both locations and that the police could have charged appellant within weeks of Bennett's disappearance, there is no reason to believe that the Jolly Roger or the market would have kept their videotapes that long. No crime had occurred at either location. Even assuming that employees at the market remembered appellant and Davis coming into the store and remembered how long they stayed, this could only account for a fraction of the time the two were gone and could at most show that appellant did not dispose of Bennett's body in the manner argued by the prosecutor.

v. Blood evidence

Appellant contends that he was unable to conduct an independent investigation to determine whether the blood recovered by Detective Kienast from Kaiser was actually Bennett's blood. He also claims that since the blood samples were destroyed, he could not subject them to DNA testing to determine whether the blood in the ground and on the truck and shovel matched Bennett's blood.

Appellant is simply speculating that an investigation or testing would have produced favorable evidence. As we discuss in section 3, infra, there is no reason to suspect that Bennett's blood donation was improperly handled. Thus, there is no reason to believe that an investigation by appellant in 1983 would have revealed that the blood labeled as Bennett's was in fact someone else's. The blood in the ground was fresh and there is no reason to believe that it came from anyone other than Bennett. The samples from the truck, shovel and appellant's boot could not be tested accurately; there is nothing to suggest that DNA testing was even possible. Thus, there is no reason to believe that appellant was prejudiced by his inability to subject that blood to DNA testing.

vi. Tire tracks

Appellant contends that Detective Kienast did not adequately measure or document the locations in the jungle to determine if it was possible for Rivas to see appellant in the jungle as he claimed. Similarly, there were no measurements of the dump truck or Bennett's pick-up truck to confirm that they left the tire tracks discovered in the jungle.

Appellant is speculating that the existence of such information would lead to favorable information for him. Rivas and Moniz testified that Bennett drove off toward the jungle with appellant and did not drive back out through the area where they were working. Appellant himself stated in 1983 that he drove into the jungle with Bennett in Bennett's truck, and that Bennett drove out over the curb and onto Rosemead. There was also no real dispute that appellant drove the dump truck toward the jungle. Only two sets of tire tracks were discovered, and at least part of both sets of tracks were in areas where appellant acknowledged the trucks were driven.

B. Justification

There was ample justification for the delay. Bennett's body was not found in 1983, and the possibility existed that Bennett was not dead. Appellant's coworkers were afraid of appellant and some were not forthcoming when they spoke with police in 1983. Rivas and Hatten in particular withheld key pieces of evidence. A number of other witnesses did not tell police about incriminating admissions by appellant. The District Attorney found the case too weak to prosecute and there were no remaining leads to explore.[5]

In 2004, the cold case unit was able to re-consider the case. Re-interviews of witnesses elicited significant new evidence. There is no way to determine whether such interviews would have been successful earlier. Rivas was interviewed in 2001, but did not make a complete disclosure of his observations until 2004. Even in 2004, Hatten was reluctant to tell police about appellant's confession. And even after appellant's unusual telephone call to Palumbo after her 2004 move to Colorado which indirectly reminded her of his confession, she did not contact police until after appellant's 2005 arrest.

Appellant appears to argue that the state should have re-interviewed witnesses before 2004. "It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (People v.Nelson, supra, 43 Cal.4th at pp. 1256-1257.) We "may not find negligence by second-guessing how the state allocates its resources." (Id. at p. 1256.)

Appellant contends that his case is similar to People v. Boysen (2007) 165 Cal.App.4th 761 and that the reasoning of that case requires dismissal of his case. Like this case, Boysen involved a murder case which was not prosecuted for over 20 years. The lost witnesses in that case were crucial to the defense, however. Boysen's wife stated Boysen returned home on the night of the murder at 10:30 p.m. Naples, a neighbor of the victim and a credible witness, told police that she heard a gunshot between 11:15 p.m. and midnight. Another neighbor, Borden, told police that she heard the engine of a small car around 11:30 p.m. on the night of the murders. Both women died before trial. The testimony of these women, together with Boysen's wife's testimony, would have established an alibi for Boysen for the time of the murder. Appellant had only one potential defense witness, Davis, and Davis did not provide an alibi for the murder itself. Davis's statement precluded only the theory of body disposal argued by the prosecutor. Thus, Davis was not a crucial witness.

Appellant also contends that there are similarities between the lost opportunity to investigate third-party culpability in Boysen and his inability to investigate Joe Modica and also between lost evidence in Boysen and lost evidence in this case. Few details are provided of the potential third-party culpability or lost evidence in Boysen, and so we do not find comparisons to that case useful. We can only say that Modica's possible culpability was highly speculative and the lost evidence identified by appellant not significant.

2. Evidence of appellant's conduct towards his coworkers

Appellant contends that the trial court abused its discretion under Evidence Code section 352 in admitting evidence (a) that he bullied and intimidated his coworkers and (b) exhibited odd sexual behavior in 1983 and earlier. He also contends that the trial court abused its discretion in admitting (c) out-of-court statements about appellant's statements and actions around the time of the murder. Appellant further contends that the trial court erred in denying his motion for a mistrial based on the admission of that evidence. He contends that the rulings require reversal. We agree that the trial court abused its discretion in admitting some of the evidence, but do not agree that reversal is required.

a. Bullying

Appellant contends that the trial court erred in admitting evidence of acts of bullying and intimidation by appellant against his coworkers in 1982 and 1983 because only two witnesses testified that they felt intimidated by appellant and neither withheld evidence from police out of fear of appellant. We see no error.

Appellant is correct that most witnesses testified that they were not intimidated by appellant. However, as the prosecutor pointed out, those witnesses testified that everyone else was intimidated by appellant. The trial court agreed: "[T]he witnesses are leaving the impression that they are macho, and that they displayed no weakness, and they weren't afraid of [appellant]." The court opined: "That's human nature." The court found that "[I]t would appear in its totality that there were crew members or the crew were afraid of this man."

We agree that it is more than reasonable to find that all the crew members were afraid of appellant. The jury was free to believe each witness's testimony that all the other workers were afraid of appellant and disbelieve that witness's testimony that he himself was not afraid of appellant.

Appellant contends, in the alternative, that even if his coworkers were afraid of and intimidated by him, that evidence was not relevant because he did not challenge the credibility of late-disclosing witnesses during his cross-examination. Appellant did not make this claim in the trial court. To the contrary, at the beginning of trial, appellant acknowledged that instances of misconduct would be relevant if it was shown that a witness was afraid of appellant and so did not come forward with information. At the end of the trial, in making his motion for a mistrial, appellant again acknowledged that appellant's misconduct would be relevant if witnesses did not come forward with information because they were afraid of appellant. Thus, appellant has forfeited his claim that the evidence would be relevant only if he challenged the credibility of late-disclosing witnesses on cross-examination.

Assuming for the sake of argument that this claim were not forfeited, we would find no error. The failure of witnesses to give information to the police for 17 to 22 years after the murder would raise questions in the mind of any reasonable juror. The prosecutor was entitled to offer an explanation for the witnesses' delay in revealing information. (See Evid. Code, 785 [credibility of witness may be supported by party calling the witness].)

b. Sexual misbehavior

The trial court admitted evidence from two witnesses of specific instances of inappropriate sexual behavior by appellant. Augustus, a senior manager at the Sanitation Department, testified that numerous employees had complained that appellant masturbated or simulated sodomy in front of them and also that he engaged in unwanted grabbing. This evidence was offered by the People as being relevant to showing intimidation by appellant. Augustus testified that some employees viewed the sexual acts as "pranks or jokes," but other employees viewed them as "threats" and "intimidation." The trial court instructed the jury that the testimony was not admitted to show the employees were telling the truth, but that they had complained about appellant.

Ruggio testified that on one occasion appellant walked through the lunchroom to the changing room with his penis sticking out of the front of his pants. There were four or five employees in the lunchroom at the time.

The prosecutor then sought to introduce testimony by Larson that appellant would place his penis on the lunchroom table and wipe his sweaty behind on people when they bent over. The trial court found that "insofar as intimidation, I think it's very prejudicial for that purpose, very prejudicial and it is I think it can inflame the jury against [appellant] because of his obscene, filthy behavior as opposed to the perhaps less evidentiary, probative value it might have to show it's intimidation. [] We have direct intimidation testimony. We have that." The court excluded the evidence, explaining: "I find it is more prejudicial than evidentiary."

After the court's ruling, one witness, Rivas, testified without objection that he had seen appellant "engage in some unusual sexual conduct" at work and that he had informed Augustus about this.

We agree with appellant that the trial court's reasoning concerning Larson's testimony was equally applicable to Ruggio's testimony. Further details of appellant's misconduct were not relevant and had the potential for prejudice. Rivas's more general testimony did not have any prejudicial details and we see no harm to appellant from its admission.

We see no probability or possibility that the admission of Ruggio's testimony contributed to the verdict in this case, or that appellant would have received a more favorable outcome in the absence of that testimony. The jury received a limiting instruction not to consider Augustus's testimony for the truth of the matter asserted. Given the jury properly knew that employees had complained that appellant had engaged in sexual misconduct, the flashing described by Ruggio was an extremely mild version of such conduct.

c. Statements about Bennett's and appellant's conduct

Appellant contends that the trial court erred in admitting evidence of unduly prejudicial out-of-court statements, and that the court's limiting instructions about that evidence were not effective.

As we explain in more detail, infra, some of the statements identified by appellant did not require a limiting instruction. In the case of other statements, we see no reason to believe that the court's limiting instructions would not be effective. We see no abuse of discretion by the trial court in the admission of this evidence and no prejudice to appellant under any standard of review.

i. Augustus

Augustus testified that Bennett told him that he had problems with appellant, specifically that appellant did not always follow directions. Augustus also testified that Bennett told him that appellant was "kind of a bully." Augustus himself described appellant as a poor performer.

We see no reason that the jury could not follow the limiting instruction that the statements were not offered for the truth of the matter asserted in them. Evidence that a person is not a good worker does not evoke the sort of intense emotional response that could render a jury unable to follow the court's instructions. Further, under the circumstances of this case, it did not matter whether Bennett was correct in his assessment of appellant's work performance or not, or even whether he actually believed that appellant was a poor worker. Bennett told appellant and others that he believed that appellant was a poor worker. In other conversations, Bennett indicated his intent to take personnel actions against appellant. This gave appellant a motive to kill Bennett.

Augustus also testified that after Bennett disappeared, the Department conducted a personnel review of appellant. The review involved interviewing appellant's coworkers. Augustus was present during the interviews. Valerie Hall, a manager in the personnel department, took notes. Using Hall's notes to refresh his recollection, Augustus testified that the employees stated that they observed appellant committing acts of sexual misconduct, specifically masturbation, simulated sodomy and unwanted grabbing. The employees also stated that appellant brought guns to work, pointed them at people and discharged the guns. Appellant also physically assaulted people. Some employees viewed the conduct as pranks or jokes; others viewed it as intimidation. In May 1983, the District prepared a letter listing these incidents and gave it to appellant with a choice to resign or be terminated. Appellant left.

The court admitted the employee interviews not for the truth "but the fact these statements were said at a formal personnel proceeding conducted by the Sanitation District." To the extent that appellant questioned employees' credibility for not relating these incidents to police, the fact that they did tell the District about them shortly after Bennett's disappearance does have some relevance. Assuming for the sake of argument that the limiting instruction about the interviews was ineffective, we would see no prejudice to appellant. Many of appellant's coworkers testified at trial about these same acts.

ii. Wilkison

Lloyd Wilkison shared an office with Bennett. Wilkison testified that around the time Bennett was killed, Bennett told him that appellant disrupted the crew and prevented work from getting done. The day before Bennett was killed, Wilkison overheard a conversation between Bennett and appellant. Bennett said: "There's no way that you're foreman material." He also said: "I'm not going to put up with any more of this." The morning Bennett was killed, he told Wilkison that appellant was out the door if he made one or two more mistakes. The court instructed the jury that the statements relating to appellant's performance were not offered for the truth of the matter asserted, that is appellant was a poor worker. The statement about appellant being out the door was admitted as a statement of future intent.

We see no reason that the jury could not follow the limiting instruction. As we discuss, supra, evidence that a person is not a good worker is not inflammatory. Further, the jury had no incentive to ignore the limiting instruction as it was the fact of Bennett's statements that was important, not the truth of them or even Bennett's belief in them.

iii. Rios

Appellant contends that Rios testified that he told Detective Davis in 2006 that appellant said: "If I did do it, they won't find the body." There is no evidence of such a statement. The prosecutor did ask Rios if he made such a statement, but appellant objected to the question and Rios did not answer. The prosecution then re-phrased the question, asking Rios if he took appellant's statement to mean that appellant was in essence confessing to the murder. Rios replied that he viewed appellant's decision to make that statement rather than deny that he had killed Bennett as a confession. Thus, there was no testimony about a 2006 statement to Detective Davis.

To the extent that appellant contends that any recounting of his own statement was inadmissible hearsay, he is mistaken. His statement was admissible as an exception to the hearsay rule pursuant to Evidence Code section 1220. To the extent that appellant contends that Rios's reaction to appellant's statement was hearsay, he is mistaken. Rios's testimony about his own thoughts was not hearsay. No limiting instruction was necessary to satisfy the rule against hearsay.[6]

iv. Moniz

Moniz testified that Rivas told him that he saw appellant in the jungle on the day Bennett disappeared. The statement was not admitted for the truth of the matter, that is to prove that appellant was in the jungle. The court instructed the jury that the statement was offered to explain why Moniz, Rivas and Turpen searched the jungle following Bennett's disappearance. It is not clear that such an explanation was necessary. Nevertheless, there is no reason to believe that the jury was unable to follow the limiting instruction. Further, Rivas later testified about this topic. Thus, even if the instruction were ineffective, the admission of testimony about Rivas's statements would be harmless, as the jury had direct non-hearsay evidence of Rivas's observations and appellant had the opportunity to cross-examine Rivas on those observations.

v. Adame's statement to Detective Raffa

Adame had little detailed memory of the events surrounding Bennett's disappearance. Detective Raffa, reading from his interview notes, testified that Adame told him in 1983: "[Appellant] also asked Hatten about taking dump truck No. 7126 to Whittier Narrows. Apparently, Hatten said no because the truck remained parked across from the maintenance office."

Adame's statements to the detective were hearsay, but admissible as past recollection recorded pursuant to Evidence Code section 1237. Appellant's statement to Hatten was an additional layer of hearsay, but was admissible as a party admission pursuant to section 1220. The reference to Hatten saying "no" does not purport to be a recounting of a statement by Hatten. Adame is clearly stating his own belief that Hatten denied appellant use of the truck because the truck remained in its parking place. Further, the trial court did give a limiting instruction that statements made to Adame were not being offered for the truth of the statement. Thus, even if jurors did understand Adame as recounting a verbal statement by Hatten, they were properly instructed on how to view such a statement. We see no reason that the jury could not follow this instruction.

vi. Detective Raffa's sewer testimony

Detective Raffa testified that he interviewed "numerous individuals who mentioned [appellant] having made comments about the sewer on the day or the days after Bob Bennett's disappearance." The trial court admitted the statement for the limited purpose of showing why police acted as they did in their investigation.

In a murder investigation in which the body has not been found, it is important that the prosecution provide details of all of the investigation to show that the victim is not still alive and the police did not overlook any other potential suspects along the way. Even assuming for the sake of argument that the limiting instruction was ineffective, we would see no prejudice to appellant. Numerous witnesses, including Reedy, Larson and Murphy, testified at trial that appellant asked questions or made comments about the sewers. Thus, there was ample properly admitted evidence before the jury of appellant's sewer statements. Detective Raffa's statement was at most a summary of that evidence and not prejudicial.

3. Blood evidence

Appellant contends that the trial court erred in admitting evidence concerning a blood sample obtained from Kaiser Hospital and analyzed by the Los Angeles Police Department, and that this error requires reversal. We see no abuse of discretion in the admission of the blood evidence.

"In a chain of custody claim, '"[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. []The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for,because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence