P. v. Bush
Filed 3/5/12 P. v. Bush CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES STACY BUSH,
Defendant and Appellant.
B227828
(Los Angeles
County
Super. Ct.
No. SA070972)
APPEAL from
a judgment of the Superior Court
of
County, Katherine Mader, Judge. Affirmed.
Steven
Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Pamela C. Hamanaka and Lance E. Winters, Senior Assistant Attorneys General,
Paul M. Roadarmel and Baine P. Kerr, Deputy Attorneys General, for Plaintiff
and Respondent.
I. INTRODUCTION
Following a jury trial, appellant was convicted of
jury found he used a deadly weapon in the commission of the crime (§ 12022,
subd. (b)(1)). Five prior prison terms,
within the meaning of section 667.5, were found true by the trial court. Appellant was sentenced to a 5-year
determinate term plus a consecutive indeterminate term of 25 years to
life.
Appellant
contends reversal of the judgment is necessary because the trial court erred
by: admitting the testimony of a former
codefendant (Crystal Harmon); admitting Harmon’s plea agreement; denying his
denying his motion for a new trial. The
contentions lack merit and the judgment is affirmed.
II. FACTS
The victim,
Sean Parmley, was from Santa Rosa. He moved to the Los
Angeles area in 2007 and eventually began dating
Lesley Conway. Subsequently, his son
(Michael Miller) moved in with Parmley and began dating Crystal Harmon. Although Miller had an intimate relationship
with Harmon, he did not consider her to be his girlfriend. Miller believed Harmon understood he did not
want a serious relationship.
During
Christmas week in 2007, Parmley and Miller took a trip to Santa Rosa. Sometime after Christmas, but before their
return on December 29, Miller sent Harmon a text message indicating he was
ending their relationship and going to return to the Los Angeles area with his
former girlfriend—Christine Campbell.
This made Harmon very angry.
Parmley also returned with another woman (Mistry Lujan) but he and
Conway had an “open” relationship.
On December
30, Harmon waited in the parking garage of Parmley’s apartment complex for
Parmley and Miller to arrive. Because
she was very small, Harmon was able to slip through bent rails in the parking
gate and gain entry to the parking lot.
After the men arrived and entered Parmley’s apartment, Harmon slashed
the tires of Parmley’s car, “keyed” the side of the car, and proceeded to the basement
where she shut off the electricity to his apartment.
Harmon went to Gabe’s Bar and told
Conway what she had done to the vehicle.
At around 2 or 2:30 p.m., while still at the bar, Harmon sent Miller a
text message indicating she wanted to see marijuana they brought back from
Santa Rosa because Harmon had a possible buyer.
However, Harmon’s true reason for wanting to go to the apartment was to
see what Miller’s girlfriend looked like.
Harmon was told she could examine the marijuana. She went to the apartment and was provided
with marijuana. While in the apartment,
she told Parmley that he should remain indoors because there were people either
“looking for him” or “angry at him.”
Harmon returned to the bar. She recalled some of her clothes were at
Parmley’s apartment and became increasingly angry about them not being returned
to her. She spoke to Cherri Costill and
Deadra Wolicky about the issue.
Attempting to assist Harmon, Costill and Wolicky left the bar and went
to Parmley’s apartment in order to ask if Harmon could retrieve her
clothes. The women returned to Gabe’s
Bar after being told that Harmon did not have any clothes at the apartment but
that she was free to return to the apartment and look for missing items.
Harmon sent Miller text messages
indicating she had a New Year’s Eve present for him and that she had “met some
people [who] don’t like gentlemen from up north.” She told Conway, “They ruined my New Year’s
Eve. I’m going to ruin theirs.”
Sometime after 5:00 p.m., Harmon
was seen at a table with Costill, Alicia Ibarra, Madrigal, Wolicky and
appellant. Harmon was angry and ranting
about Miller returning to Los Angeles with another woman. Harmon pointed out that Parmley’s group had a
large quantity of marijuana and that someone should “jack them for their
weed.” She said, “if you go up there and
you just kill them, you can get the computers and everything else.” Harmon revealed the location of the
marijuana—in a cooler under a table.
Appellant asked where Miller and
Parmley “were from.” Harmon replied, “Up
north.” Appellant and Madrigal agreed to
retrieve Harman’s clothes from Parmley’s apartment.
Sometime after 8:00 p.m., Conway
went outside the bar and observed Harmon, Madrigal, Costill, Ibarra and
appellant leaving. Conway asked where
the group was going. Harmon pointed and
said “over there.”
Harmon, appellant and Madrigal
walked to Parmley’s apartment. Costill
and Ibarra stayed behind. The plan was
to steal the marijuana and retrieve Harmon’s clothes. During the walk, appellant obtained a knife
from Harmon. The three reached the
apartment and Harmon knocked on the door.
Parmley asked who was “there” and Harmon replied “Crystal.”
Parmley answered the door and said,
“Wait, wait, wait.” Appellant engaged in
an altercation with Parmley, grabbed him by the throat and said, “Shut the fuck
up or I’ll fucking shoot you.” Appellant
took out a knife, held Parmley by the neck, and used a swinging motion to
repeatedly stab Parmley.
Miller woke up to the sound of
Campbell and Lujan screaming. He ran
toward the door and was knocked down to the ground by an unknown person. Miller fought with Madrigal in the hallway. Madrigal eventually left whereupon Miller
observed Parmley on the ground in the hallway.
Miller and Lujan called 911.
Just before 9:00 p.m., Costill,
Ibarra, and Harmon returned to the bar—assisting Madrigal as he walked. There was blood on Madrigal’s forehead. When they reached the inside of the bar,
Conway grabbed a rag for the cut. As
Harmon walked by, she was smiling and made reference to the fact that Parmley
had been stabbed.
While en route to Parmley’s
apartment, Conway received a call from someone at the bar telling her to return
to the bar because “something . . . happened.” When she returned, several police officers
were present but the women who were previously with Madrigal had taken him to
the hospital. There was a substantial
amount of blood in the bathroom.
The police arrived at the apartment
and followed a trail of blood to Gabe’s Bar.
The bar was a “three to five minute walk” from the apartment. When the police reached the bar, they
discovered blood and a bloody rag in the bathroom.
After the stabbing, Crystal White
received a telephone call from appellant asking her to pick him up at the
intersection of Venice and Washington because he was injured. When she arrived, appellant’s fingers were
cut. He explained he had been in a bar
fight and attempted to take a knife away from another person. Appellant indicated he needed to go to a
hospital but the hospital was required to be out of the immediate area. When he reached the hospital he used a false
name and social security number.
Appellant told hospital personnel that he cut himself with a kitchen
knife.
After leaving Madrigal at the
hospital, Ibarra and Harmon proceeded to the home of Ibarra’s mother. Harmon was covered in blood and changed out
of her clothes. Ibarra spoke to appellant
on her cellular telephone. Appellant
told Ibarra, “Keep that f-ing bitch with you.”
At about 6:00 a.m., after speaking with her mother, Ibarra decided to go
to the police and told Harmon they should both speak to officers. Ibarra used the restroom and, when she
returned, Harmon was gone.
The following day, after receiving
an anonymous tip, police officers checked a dumpster in an alley near Gabe’s
Bar. In it they discovered Harmon’s
bloody pocket knife wrapped in tissue paper.
Parmley’s blood was on the knife.
The anonymous tip was from White who had been told of the whereabouts of
the knife from Costill.
Parmley did not survive the
attack. The causes of death were blood
loss and a collapsed lung.
III. DISCUSSION
A. Crystal Harmon’s Testimony was Properly
Admitted
Crystal Harmon was a codefendant in
this case. She was charged with murder
of Parmley, burglary and robbery. During the prosecution case, pursuant to a
plea agreement, Harmon pled guilty to being an accessory after the fact (§
32). The plea agreement provided: (1) in exchange for the plea, Harmon would be
granted probation and be given credit for time already served as long as she
testified truthfully at appellant’s trial; and (2) the determination of whether
the testimony was truthful would be made by the trial court.
Harmon testified at trial regarding
the events leading up to Parmley’s murder, her eyewitness account of appellant
stabbing Parmley, and events following the murder. Harmon was sentenced after the evidence was
presented. During Harmon’s sentencing
hearing, the trial court indicated it had a strong suspicion Harmon was
untruthful on a number of issues but it did not believe, beyond a reasonable
doubt, that Harmon testified falsely.
Thus, Harmon was granted probation pursuant to the plea agreement.
Appellant’s contention that the
trial court erred by permitting the prosecution to call Harmon as a witness is
without merit. Section 1099 allows a
prosecutor to make an application to the trial court to discharge a defendant
from criminal charges in order to allow the defendant to be a witness for the
prosecution. “‘“[N]o practice is more
ingrained in our criminal justice system than the practice of the government
calling a witness who is an accessory to the crime for which the defendant is
charged and having that witness testify under a plea bargain that promises him
a reduced sentence . . . .”’” (People
v. Jenkins (2000) 22 Cal.4th 900, 1010.)
This practice is a “matter wholly within the discretion of the trial
court . . . .” (
263.) Thus, we conduct a review of the
record to determine whether the trial court acted arbitrarily or capriciously
such that an abuse of discretion is established. (See People
v. Jordan (1986) 42 Cal.3d 308, 316.)
As explained below, we find no abuse of discretion.
It appears appellant’s concern
regarding the admission of Harmon’s testimony centers around his belief that
her testimony was unreliable due to: (1)
the favorable plea bargain she received; and (2) the inconsistencies that
existed among her accounts of the events to the police, at the preliminary
hearing, and at trial. However, the
existence of a favorable plea agreement did not render Harmon’s testimony inherently
unreliable. (See People v. Jenkins, supra, 22 Cal.4th at p. 1012.) Moreover, inconsistencies in a witness’s
testimony are commonplace in criminal trials.
Under these circumstances, the jury is properly instructed, as it was in
this case, that inconsistencies may be considered in assessing the weight and
credibility of the testimony. Neither a
favorable plea agreement nor inconsistencies in Harmon’s account of the events
demonstrate the trial court abused its discretion in allowing the testimony pursuant
to section 1099.
B. The Plea Agreement was Properly Admitted
Appellant contends the plea
agreement suggested the trial court vouched for the truthfulness of Harmon’s
testimony and, therefore, should have been excluded. He claims his position is fortified by the
prosecutor’s closing argument regarding the truthfulness of Harmon’s
testimony. Appellant is incorrect.
“[T]he
existence of a plea agreement is relevant impeachment
evidence that must be disclosed to the defense because it bears on the
witness’s credibility.
[Citation.] . . . ‘[W]hen an accomplice
testifies for the prosecution, full disclosure of any agreement affecting the
witness is required to ensure that the jury has a complete picture of the
factors affecting the witness’s credibility.’
[Citation.]” (
821 (“Fauber”
.) However, “Portions of an agreement irrelevantto the credibility determination or potentially misleading to the jury should,
on timely and specific request, be excluded.”
(Id. at p. 823.)
In
Fauber, the prosecutor and a witness
entered into a plea agreement requiring a particular sentence if the witness
pled guilty to a certain offense and testified truthfully at Fauber’s
trial. The agreement indicated, “‘“In
the event of a dispute, the truthfulness of [the witness’s] testimony will be
determined by the trial judges who presided over these hearings.”’” (Id.
at pp. 821-822, fn. 4.) Although our
Supreme Court ultimately found there was no possibility the admission of this
evidence prejudiced the defense, it did express the following concern: “The
provision . . . arguably carried some slight potential for
jury confusion, in that it did not explicitly
state what is implicit within it: that
the need for such determination would arise, if at all, in connection with [the
witness’s] sentencing, not in the process of trying defendant’s guilt or
innocence.” (Id. at p. 823.)
Here,
the applicable provision did
explicitly state that the trial court’s assessment was relevant only to
sentencing and would not occur until that time.
The jury was properly instructed that the trial court’s “only
role . . . with respect to
this . . . witness’s credibility is when the trial is over, [the court] decide[s] whether or not
[the court] believe[s] for purposes of punishment that this witness has been
truthful.” (Italics added.)
Contrary
to vouching for Harmon’s testimony, the trial court expressly indicated it had
had not reached the point where it was required to assess the credibility of
Harmon’s testimony. Moreover, the trial
court instructed the jury, both when Harmon testified, and at the close of the
evidence, that the jury was solely responsible for assessing Harmon’s
credibility. There is nothing in the
record to demonstrate the jury was ever made aware of the trial court’s
ultimate findings on Harmon’s credibility or her sentence.
The prosecutor’s argument to the
jury that direct examination and cross-examination combine to create a “truth
pressure cooker” and that “[w]itnesses will seldom be able to allude the keen
perception of the court and the jury,”
does not add any weight to appellant’s contention. Nothing in this portion of the argument refers
to Harmon’s testimony or suggests the trial court vouched for the credibility
of Harmon.
Appellant’s argument that the plea
agreement was inadmissible as improper judicial vouching lacks merit. Moreover, we find, as our Supreme Court did
in Fauber, that the admission of the
plea agreement did not prejudice the defense.
In light of the instructions given, the jury could not have reasonably
understood Harmon’s plea agreement relieved it of the duty to decide whether
her testimony was credible. (
C. The Non-Statutory Motion to
Dismiss
Prior to the commencement of
Crystal Harmon’s trial testimony, her counsel revealed to the prosecutor that
Harmon had indicated she: (1) knew Bush
and Madrigal were going to Parmley’s apartment to steal his marijuana; and (2)
told the men of the location of the marijuana.
The prosecutor and the trial court expressed concern over this
revelation because Harmon’s plea bargain was offered, in part, due to the
impression that she had been a “frightened girl” who “was at the mercy of” men
who had “just [gone] crazy.” After some discussion
about the issue, including an exchange about whether the prosecutor was going
to move to withdraw Harmon’s guilty plea, the trial court took a break in order
to allow the prosecutor and Harmon’s counsel to speak with Harmon.
When court resumed, there was no
discussion of withdrawing Harmon’s plea.
However, defense counsel made an oral motion to dismiss “based on state
and federal due process grounds.”
Counsel offered an argument that spanned 21 lines of reporter’s
transcript. In sum, he maintained the
magistrate who held appellant to answer following the preliminary hearing did
so based on “credibility judgments” and Harmon’s initial account that she did
was not “part of any type of conspiracy to rob or harm in any way the occupants
[of the apartment].” Having learned this
portion of Harmon’s account of the events preceding the murder had changed,
counsel appeared to take the position that Harmon’s testimony formed the basis
for the holding order yet was inherently unreliable.
Latching on to trial counsel’s
argument, appellant contends the trial court erred by denying the motion. He maintains the magistrate incorrectly held
him to answer following the preliminary hearing because Harmon’s testimony was
“necessarily false.” His claim lacks
merit.
Errors concerning a preliminary hearing are subject to
limited review. “Denial of a substantial
right at the preliminary hearing renders a defendant's commitment illegal and
entitles him to a dismissal of the information on timely motion. [Citations.]
Deprivation of a substantial right is properly addressed by a section
995 motion when the error is visible from the ‘four corners’ of the preliminary
hearing transcript. By contrast, an
error that is not known or visible at the hearing
itself . . . may be called to the court’s attention through
a nonstatutory
motion to dismiss. [Citations.]” (People
v. Duncan (2000) 78 Cal.App.4th 765, 772.)
It appears defense counsel’s short oral argument to
the trial court amounted to an attempt to make a nonstatutory motion to
dismiss. Although counsel articulated an
inconsistency between Harmon’s testimony at the preliminary hearing and the
testimony she was about to offer at trial, said inconsistency did not
demonstrate appellant was deprived of a substantial right at the preliminary
hearing. Indeed, appellant cites no
authority for the proposition that a nonstatutory motion to dismiss should be
granted simply because a witness who testified at a preliminary hearing is due
to testify at trial and make one or more statements that are inconsistent with
his or her preliminary hearing testimony.
His motion to dismiss was properly denied.
D. The Motion for New Trial
Appellant argues the errors he
asserts on appeal required the trial court to grant his motion for a new
trial. However, of the errors raised on
appeal, the only error articulated in the new trial motion was the alleged
judicial vouching of Harmon’s testimony.
Appellant has forfeited his claims that the new trial motion should have
been granted on grounds that were omitted from the motion made in the trial
court. (See People v. Marks (2003) 31 Cal.4th 197, 229.) In any event, we have rejected the claims on
appeal. For those same reasons, they did
not warrant a new trial. (See
Cal.4th 1, 127.) Appellant has failed to
demonstrate the trial court abused its discretion in denying his motion for new
trial.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
KUMAR,
J.
We concur:
TURNER,
P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
parties do not dispute that following.
Appellant was initially charged in case number SA066499 with committing
crimes related to Parmley’s murder. A
preliminary hearing was conducted in which Harmon testified. Appellant was held to answer for the offenses
but the case was dismissed and refiled by the prosecution. In the second filing, Harmon was added as a
defendant. A second preliminary hearing
was conducted, pursuant to Proposition 115, wherein Harmon’s prior preliminary
hearing testimony was admitted. We grant
appellant’s request to take judicial notice of the portion of the first
preliminary hearing containing Harmon’s testimony, but only as a record of what
Harmon said in her testimony, not for the truth of what she said. (See Evid. Code, § 452, subd. (d);
168, 178; People v. Murray (1978) 77
Cal.App.3d 305, 307.)
