P. v. Morgande

Filed 5/26/06  P. v. Morgande CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

            Marvin Sims was murdered and his body dumped in a marsh along Highway 37 in Solano County in 1998.  The body was not identified until 2002, after an accomplice to the murder confided in a friend, and the friend reported the crime to the police.  Defendant Begoia Ray Morgande and two accomplices were charged with Sims's murder.  The prosecution twice dismissed and refiled the charges against defendant after correcting discovery failures and securing witness testimony for trial.

            Trial commenced in July 2004.  The prosecution's key witness was the accomplice who had confessed to the crime, and who agreed to testify in exchange for reduced punishment.  The prosecution also introduced police testimony summarizing defendant's statements while in custody, including defendant's admission that he may have fought with Sims but did not know if he killed him.  Evidence that defendant assaulted a woman months before Sims's murder was introduced to prove motive.  The accomplice testified that defendant killed Sims because Sims failed in his assignment to dissuade the assault victim from testifying against defendant.  The jury convicted defendant of first degree murder and the court sentenced defendant to 50 years to life^[1] in prison.  (Pen. Code §  187, subd. (a) [all further section references are to this code except as noted].)

            Defendant challenges the judgment on numerous grounds.^[2]  Defendant contends that the trial court erred in finding that the earlier dismissal of charges against him was justified by excusable neglect, thus entitling the prosecutor to refile the charges prosecuted in this action.  (§§  1387, 1387.1.)  Defendant also contends that his police statements were involuntarily obtained despite a request for counsel; that his wife's hearsay statements were introduced in violation of his right to confrontation of witnesses; that an accomplice's testimony was coerced by a grant of leniency; and that evidence of another crime was wrongly introduced.  Defendant also accuses the prosecutor of multiple instances of misconduct.  Finally, defendant maintains that the evidence is insufficient to support the jury's verdict because accomplice testimony implicating defendant in the murder was without adequate independent corroboration.  We reject theses contentions and affirm the judgment.

facts

            In late 1997 and early 1998, Marvin Sims lived in Vacaville with several people, including defendant, defendant's future wife Shelisa Nichols,^[3] and Diona Woods.  At the time, Sims was a drug dealer, defendant was a pimp, and Shelisa and Woods were defendant's prostitutes and lovers.  In addition to dealing drugs, Sims was legally employed part time until January 20, 1998, when he worked his last day and was not seen again.

            On March 23, 1998, a male body was found floating near a pier in a salt marsh along Highway 37 in Solano County.  The man had been choked to death, and his body wrapped with a metal chain and weighted down with a 50-pound barbell plate.  A large wad of paper was stuffed in the back of the man's throat.  A pathologist opined that the man died by asphyxia, probably through deprivation of oxygen from choking on the wadded paper.  There was no evidence of manual strangulation, but the possibility could not be eliminated.  There were also no signs of intoxication, and no signs of a beating aside from one laceration on the forehead that could have occurred after death.  The body had been in the water for â€