P. v. Faulk
Filed 1/11/13 P. v. Faulk CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
OPAL LEANNE FAULK,
Defendant
and Appellant.
E055002
(Super.Ct.No.
FVI1002100)
OPINION
APPEAL from the Superior Court of
County. John M.
Tomberlin, Judge. Affirmed.
Reed Webb, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant, Opal
Leanne Faulk, was sentenced to three years in prison
being an accessory to murder after the fact.
In 1988 defendant had helped her then-husband escape responsibility for
the shotgun murders of his two elderly employers. In this appeal, defendant contends the trial
court improperly imposed a restitution fine to reimburse the victims’ daughter
for funeral expenses. Specifically,
defendant argues that the facts behind her conviction for being an accessory to
murder after the fact exclude her from being the cause of the victims’ funeral
expenses.
In 1988, Hulon “Pappy†Hughes and
his wife, Elaine, operated a roofing business from their property in Apple Valley, on
which were situated a number of mobile homes and outbuildings. The Hughes’ lived in one of the mobile homes,
as did several of their employees, including defendant and her husband Harold
Toney.
title="">[3] On October 11, 1988, Pappy fired Toney and told him to clean up his place and move
out. Toney called Pappy a son of a bitch
and used other profanity. Pappy slapped
or backhanded Toney in the face. Pappy
was 72 years old at the time and used a wheelchair and sometimes a cane. Toney was enraged and told Pappy, “If you
want trouble, you’ve got it coming.â€
Pappy said he might have to get a gun and Toney told him “I guess I have
to get my gun too.†Toney either grabbed
Pappy or it appeared that he might do so.
Other employees rushed to Pappy’s aid.
The next morning, a roofing
contractor telephoned twice and spoke with both Pappy and Elaine about picking
up a roofing sample. Directly after the
second phone call, the contractor made the three or four minute drive to the
property, entered the Hughes’ trailer through the open front door, and found
the couple dead, each with a gunshot wound to the head. While calling 911, the contractor saw
defendant outside through the rear window walking toward her trailer. After going outside, the contractor called
out to defendant, but she did not answer him.
The responding Sheriff’s deputy
arrived moments later. The customer was
waiting outside the trailer and told the deputy there were two gunshot victims
inside and two people behind the trailer.
The deputy looked inside the Hughes’ trailer and saw Hughes slumped over
in his wheelchair and Elaine leaning against the trailer’s back wall, both
obviously dead. The deputy notified the
dispatcher by radio to confirm the reported double homicide, then drove his
patrol car around to the back of the Hughes’ trailer to where several other
trailers were located.
The deputy found defendant “walking
around in a confused state†between her trailer and the Hughes’ trailer and
appearing to be “confused and upset.â€
When questioned, defendant told the deputy that Toney was inside their
trailer. The deputy placed defendant in
his patrol car and called for backup.
The backup deputies spent 15 to 20 minutes coaxing Toney out of his
trailer using a loudspeaker. They told
him to come out with his hands up. Toney
eventually emerged with his hands up, appearing “agitated and sweaty†and kept
repeating that he “didn’t do it.†The
deputies had not asked Toney about the murders and it was unclear how he knew
about them. The deputies arrested Toney.
The subsequent investigation
revealed that the Hughes’ did not trust banks and consequently kept large
amounts of cash on hand to pay for expenses, including business expenses and
employee pay. Both Hughes’ wallet and
Elaine’s purse were missing at the time of their murders and were never
found. Both defendant and Toney gave
varying and inconsistent accounts of their whereabouts on the morning of the
murders. They were held in custody for
two days, but the District Attorney’s office did not file charges. Defendant and Toney moved to Kentucky, where
they eventually parted. Defendant
married and moved to Georgia.
In May of 2010, Sheriff’s deputies
working cold cases spoke with a man in Kentucky who had
known Toney for 20 years, and had known defendant while she lived with Toney in
Kentucky. The man stated that Toney
had bragged to him many times that he had gotten away with killing an elderly
couple in California with a shotgun. Toney said
he shot them while he was high on methamphetamine, that he took $13,000 in cash
from their bodies, and hid the gun in a barrel of oil as he ran back to his
trailer. Toney became very excited each
time he told the story. Deputies spoke
with a second witness from Kentucky who stated that Toney had once confirmed to her when she asked him
about it that he had killed the elderly couple.
Another witness told investigators that he had run into Toney a few
weeks after the murder. Toney was a drug
user and normally did not have any money, but that day he was wearing new
boots, had a new motorcycle helmet and “had money to spend.†The witness said that Toney had looked at him
and “smirked.â€
Sheriff’s deputies went to Georgia
twice to interview defendant, the first time on May 28, 2010 and the second time on September 13, 2010. At the time she lived with
her husband of 17 years and her stepson.
Defendant gave several accounts of what she and Toney had been doing the
morning of the murders. These accounts
varied from each other and from defendant’s statements in the days after the
crime. In the days after the crime,
defendant told detectives that Toney had not left their trailer all morning. Defendant stated that she had gone over to
the Hughes’ trailer in the morning to borrow their car, but did not go in
because they appeared to be busy with a man on a telephone. When re-interviewed in 2010, defendant
initially stated that it was Toney who had gone over to borrow the Hughes’ car
that morning and she had stayed inside the trailer. When confronted with this discrepancy and
witness statements that she had been seen outside the morning of the murders,
defendant said she must have forgotten who had gone over to the Hughes’ trailer
to borrow their car.
After the second interview, the deputies arrested defendant and she
remained in custody in Georgia until being transferred to San Bernardino County Jail on December 14, 2010.
title="">[4]
On September 14, 2010, the People filed a complaint charging defendant and Toney with two
counts of murder (Pen. Code, § 187, subd. (a)).
court issued a warrant for defendant’s arrest.
On November
22, 2010, the People filed an amended
complaint charging defendant with murder.
The trial court again issued a warrant for defendant’s arrest and set
bail at one million dollars. Defendant
was arraigned on December 15, 2010 and pled not
guilty. On April 21, 2011, the People filed an information charging defendant with two counts
of murder (§ 187). On June 22, 2011, defendant pled guilty to being an accessory after the fact to
murder (§§ 32, 187, subd. (a)). The plea
agreement included a Harvey
uncharged activity or dismissed counts to be considered for restitution
purposes. On September 6, 2011, the trial court sentenced defendant to three years in prison. The court also ordered defendant to pay
restitution of $10,000 to the victims’ daughter to reimburse her for funeral
expenses and $2,800 to the San Bernardino County Victim’s Restitution
Fund. Defense counsel objected, arguing
that defendant “took no part in any actions which led to the death of these
poor people†and “[t]here’s no linkage to her being responsible for the crime
which leads to these expenses.†The
trial court rejected these arguments based on the existence of the
followed.
Defendant argues the trial court
erred when it ordered her to pay restitution
to the Victim’s Restitution Fund for funeral expenses. Defendant reasons that, because she committed
her accessory crime after the victims
were already dead, and because restitution liability for an accessory to murder
after the fact is limited to the direct and immediate economic losses that
funeral expenses. The People counter
that the trial court properly imposed victim restitution pursuant to the
she pled no contest, in which she agreed that uncharged activity or dismissed
counts, including the two murder charges, may be considered for restitution
purposes.
We see no way to get around the fact
that defendant signed a Harvey
waiver, in which she specifically agreed that dismissed counts may be
considered for restitution purposes.
Such an arrangement is specifically authorized in subdivision (b) of
section 1192.3: “If restitution is
imposed which is attributable to a count dismissed pursuant to a plea bargain,
as described in this section, the court shall obtain a waiver pursuant to
from the defendant as to the dismissed count.â€
Defendant has cited to no authority stating that a defendant
paying restitution to victims who have suffered an economic loss resulting from
dismissed counts. It is defendant’s
burden to prove error on appeal, and she has not carried her burden here.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] On September 6, 2011,
defendant was sentenced to three years, with credit for 718 days (later changed
to 722 days)
name="_ftn2" title=""> [2] The facts of the crime and
investigations are taken from the preliminary hearing transcript and the
probation report
