P. v. Rodriguez













Filed 10/10/12 P. v. Rodriguez CA 1/4

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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opinion has not been certified for publication or ordered published for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



DIVISION
FOUR




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THE PEOPLE, Plaintiff and Respondent, v. JORGE RODRIGUEZ et al., Defendants and Appellants.

A128678 (Alameda County Super. Ct. Nos. CH46925B, CH46925A)

I.
Introduction

Appellants
Jorge Rodriguez and Shawndra Star Boode (respectively, Rodriguez and Boode)
were jointly tried and each was convicted of two counts of href="http://www.fearnotlaw.com/">first degree murder (Pen. Code,
§ 187, subd. (a)).href="#_ftn1"
name="_ftnref1" title="">[1] The jury also found true two special
circumstances (murder committed in the course of a robbery and multiple
victims), which elevated both counts to special circumstance murder
(§ 190.2, subds. (a)(3); (a)(17)(A)).
The jury also found true various special allegations.href="#_ftn2" name="_ftnref2" title="">[2] Boode was sentenced to 120 years to life
without the possibility of parole.
Rodriguez was sentenced to serve 52 years to life without the
possibility of parole.

Rodriguez
and Boode each filed a separate appeal, joining in certain issues where
appropriate. Jointly, they contend the
court erred in refusing to dismiss a sitting juror for bias and in allowing
improper impeachment of their expert
witness. Appellants also challenge
the felony-murder special circumstance finding as overbroad and
unconstitutional (§ 190.2, subd. (a)).

Individually,
Rodriguez argues the trial court erred by admitting several out-of-court
statements by third parties implicating him in the murders. He additionally claims the court erred in
denying his postverdict motion for substitution of counsel under >People v. Marsden (1970) 2 Cal.3d 118,
123-124 (Marsden).

Individually,
Boode claims the court erred in denying her counsel’s motions to continue the
trial so that counsel could adequately prepare her defense. She also contends the court made several name="SR;469">errors in computing her sentence, and respondent concedes
that sentencing error occurred. We
accept the concession and will order Boode’s abstract of name="SR;477">judgment be modified to correct the name="SR;483">sentencing errors. In
all other respects, the judgments are
affirmed.

II.
Facts and Procedural History

The
prosecution’s theory of the case was that on or about January 17, 2004,
appellants shot and killed David and Catherine Brooks (Dave and Cathy), with
whom they were acquainted, in order to steal approximately $380,000 Dave had
recently received in settlement for an href="http://www.sandiegohealthdirectory.com/">on-the-job injury. The victims rented out rooms in their
Hayward, California home to help with the rent.
Boode rented a room from the couple.
The victims told many people, including Boode, that they were expecting
to receive a large sum of money. Each
victim died from a gunshot wound to the head at close range.

Two
of the prosecution’s chief witnesses, Peter Elisary and Jeffery DeTar, each
played a role in the murders and testified under grants of immunity.

Peter
Elisary knew Rodriguez growing up and knew that he was one of the leaders of a
criminal street gang. Elisary met Boode,
who was also gang affiliated, in January 2004 while taking drugs with other
people. At one time, he had a sexual
relationship with her.

Boode
told Elisary that Dave and Cathy were receiving a settlement check and that she
planned to rob them. Elisary initially
refused Boode’s invitation to participate in the robbery, but he eventually
relented because he had “feelings for her.”
Boode also asked Rodriguez to participate in the robbery. It was agreed that Rodriguez would be “the
muscle” or the “enforcer, to handle everything.”

On
the night of the murders, Elisary and appellants ingested methamphetamine and
discussed the robbery for about an hour.
At about “two, three, four in the morning,” appellants, accompanied by
Elisary, set out to commit the robbery.
Elisary drove a white Camaro, which was borrowed from Rodriguez’s
sister. Boode was armed with a .357
revolver. Elisary parked the Camaro on a
side street, out of sight from Dave and Cathy’s residence. Appellants both got out of the Camaro and
walked toward the residence while Elisary waited in the car.

Ten
to fifteen minutes later, appellants “speedwalk[ed]” back to the Camaro and got
into the car. Rodriguez appeared
“[n]ervous” and Boode appeared “nervous and scared.” Elisary drove the Camaro back to Rodriguez’s
residence. Boode immediately took a
shower and Rodriguez showered next.

Boode
described the murder to Elisary. Boode
said she demanded money from Dave and then “she shot Dave in the back.” She then heard a noise in the kitchen, turned
and saw Cathy, chased Cathy into the bedroom, and “just shot her” in the “neck
or facial area.” Later, Rodriguez
recounted his version of events to Elisary.
Rodriguez stated he “went behind Dave and was choking Dave” with a string
or cord. Rodriguez let Dave go, and Dave
tried to attack Rodriguez. In an attempt
to “make it look like a murder-suicide,” Rodriguez took the .357 revolver,
cleaned it, and “put it in Cathy’s hand and took a spent casing and put it on
her hand.”

Jeffery
DeTar also had a role in the murders and testified at trial under a grant of
immunity. During the relevant timeframe,
he rented a room from Dave and Cathy in their residence. DeTar testified that Boode was present when
Dave discussed the large disability settlement check he was expecting to
receive. When the certified letter
addressed to Dave arrived on January 14, 2004, DeTar answered the door and
signed for it. Dave opened the letter
and saw two checks. He then put the
checks into a desk drawer. The next day,
DeTar drove Dave to a liquor store to cash one check for $15,073. DeTar drove Dave and Cathy to stores to buy
clothes, cell phones, and video games.

Boode
said she wanted to take the couple’s money.
DeTar agreed to assist Boode, who he was trying to impress, by alerting
her when the couple was home alone.
Nonetheless, DeTar warned the couple that Boode and Elisary planned to
rob them but they just “blew it off that they wouldn’t do it.”

On
Saturday, January 17, 2004, the couple returned from another shopping spree,
and DeTar helped them unload.
Thereafter, DeTar called Boode on her cell phone to report that the
couple had arrived home and that DeTar planned to leave.

Later,
DeTar took a telephone call from Boode, who said, “I got that bitch.” DeTar also received four to five text
messages from Boode. One text message
received from Boode stated “777,” referencing a jackpot.

When
they were face-to-face, Boode reported to DeTar “[t]hat she had had a wrestling
match with Cathy in the hallway and that she had gotten her, that she had got
her in the bedroom.” Boode said that
Dave “had been shot also.” She explained
“[t]hey didn’t want anybody to be able to I.D. anybody.” Boode claimed they had found a check for
$500,000.

After
speaking with Boode, DeTar went to Dave and Cathy’s residence and knocked on
the door, but received no response.
DeTar looked through the window of Dave and Cathy’s bedroom and saw
“blood and stuff on the wall” and a body “in between the dresser and the
bed.” Later, when the police were
conducting an investigation, Boode instructed DeTar to tell police that there
was a fight between Cathy and Dave, that Dave hit Cathy, and “it looked like a
murder-suicide type thing.”

At
trial, Rodriguez’s sister, Ana Rodriguez, claimed not to remember key portions
of her out-of-court statement given to police about the murders. Specifically, Ana testified that she did not
recall telling Sergeant Mark Stuart, the lead investigator in the case, that:
(1) on the night of the murders, appellants and Elisary left in the white
Camaro after Ana loaned them the car; (2) she saw Boode with a black gun;
(3) she observed appellants and Elisary return in the white Camaro in the
early morning hours of January 17, 2004; (4) after they returned, she
observed Boode take her clothes off and put them into a garbage bag; (5) her
brother, Rodriguez, told her that he was the lookout, that the victims were
awake, that things got out of hand, and that the victims were screaming;
(6) Boode showed her a check for over $200,000; and that
(7) Rodriguez tore up the check after Ana told him it was no good and that
he should get rid of it.

The
prosecution presented physical evidence that when the coroner’s office moved
Dave’s body, they found a white telephone cord under his head and a black wool
cap under his body. The knit cap yielded
a “mixed DNA profile,” which meant that the DNA from multiple contributors was
found on the cap. Rodriguez could not be
excluded as a possible contributor to the DNA profile from the knit cap.

Neither
appellant testified at trial. In
appellants’ defense, they argued that the prosecution witnesses had made
numerous conflicting statements about the events in question, and could not be
trusted to give reliable testimony. They
characterized the prosecution’s chief witnesses as longstanding methamphetamine
users, whose testimony should be viewed as unreliable, self-interested, and
otherwise untrustworthy. To support that
theory, the defense presented the expert testimony of Dr. Stephen Pittel, a
forensic psychologist, regarding the effects of methamphetamine abuse on a
person’s memory, perception, and general reliability. Dr. Pittel testified that long-term users of
methamphetamine are “very, very unreliable in their memories because of the
effect of the drug.” He explained “their
attention is wandering all over the place and they’re constantly seeing and
hearing things that other people aren’t seeing and hearing.”

The
case was argued and submitted to the jury on March 30, 2010. After deliberating for two hours, the jury
convicted appellants of all counts, special findings, and special
circumstances. These appeals followed.

III.
Discussion

A. Denial of Request for Continuance

Boode
alleges that the trial court denied her counsel a reasonable opportunity to
prepare for trial, and consequently denied her constitutional rights to due
process and to a fair trial under the Fourteenth Amendment. She claims that her “defense counsel—a sole
practitioner with a single investigator to assist her, and an inadequate budget
for defense experts—had less than four full months to prepare for trial (from
October 20, 2009 to February 4, 2010), which time frame included the
Thanksgiving, Christmas and New Year’s holiday season.”

The
facts pertinent to this claim of error are as follows: On December 3, 2009, counsel Deborah Levy
filed a motion to continue trial and submitted a declaration stating, in part,
“I was appointed to represent Ms. Boode in the afternoon on October 20,
2009. At that time I knew it was a case
with enormous discovery. I agreed to
take the case, understanding that [Rodriguez] was not waiving time. In good faith, I told [the judge] that I
could be ready for trial on [December 7].
At this point that is just impossible.”

On
December 7, 2009, the presiding judge denied the motion for a continuance. Boode’s codefendant, Rodriguez, had invoked
his right to a speedy trial under the United States and California
Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15,
cl. 1) and would not waive time.
Therefore the case was sent to Department 7 so that the parties could
stipulate that trial had commenced, with the expectation that pretrial motions
and jury selection would actually commence sometime after January 4, 2010. Both appellants indicated that this was
acceptable.

Pretrial
motions were litigated on January 19, 21, 25, and 26, 2010. On February 1, 2010, voir dire
commenced. The attorneys started to
present evidence on February 22, 2010, approximately four months from the time
appellant’s counsel received the case.

After
the jury returned guilty verdicts, Boode filed a href="http://www.fearnotlaw.com/">motion for new trial indicating that
“[c]ounsel was not able to provide adequate representation due to her inability
to have sufficient time to prepare for trial.”
In denying Boode’s motion for new trial, the trial court indicated,
“[i]n terms of the ineffective assistance of counsel, this case came to this
department on December 7th. We did not
start taking testimony until February 22nd.
And the Court continued to give more time each time each of you asked
for time. [¶] I think during the
time [the prosecutor’s] dad was sick, you took a two-week vacation,
[Rodriguez’s defense counsel] was sick and also had a burglary in his office. We took time off in between for all of those
different things. [¶] And when we
started, everyone seemed prepared. You
didn’t seem to have any trouble cross-examining the witnesses, and things moved
smoothly.”

On
appeal, Boode complains that the trial court “refused to grant any outright
continuances of trial, despite three separate requests for such continuances;
instead, she kept adjusting the calendar for certain deadlines, and thereby
parceled out to [defense counsel] in dribs and drabs, a few more days here and
there for trial preparation.” She claims
“the trial court was overly concerned with keeping this trial on a preconceived
schedule, without regard to whether such rigid adherence to judicial economy
and expediency obviated appellant’s due process href="http://www.mcmillanlaw.com/">right to a fair trial, or her attorney’s
ability to present an effective defense.”
(Original boldface.)

In reviewing
appellant’s arguments, the relevant legal principles were recently set out by
our Supreme Court in People v. Fuiava
(2012) 53 Cal.4th 622 (Fuiava): “ ‘[T]he decision whether or not to
grant a continuance of a matter rests within the sound name="SR;22582">discretion of the trial name="SR;22586">court.
[Citations.] The party
challenging a ruling on a continuance bears the burden
of establishing an abuse of discretion,
and an order denying a continuance is seldom
successfully attacked. [Citation.] [¶] Under this state law standard, name="SR;22624">discretion is abused only when the name="SR;22630">court exceeds the bounds of reason, all circumstances being
considered. [Citations.] . . .
[Nevertheless, the] “trial court
may not exercise its discretion ‘so as to deprive the
defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.]” ’ [Citation.]”
(Id. at p. 650.)

In reviewing this record, we reach
the same conclusion reached by our Supreme Court in Fuiava: “The denial of a name="SR;23276">continuance was not an arbitrary insistence on
expeditiousness, but rather a reasoned assessment of the need for delaying the name="SR;23295">trial in light of the potential problems such delay might
cause.” (Fuiava, supra, 53 Cal.4th
at p. 651.) Because codefendant
Rodriguez had not waived his speedy trial rights, the trial court was in a
difficult quandary. Boode’s counsel
successively asked for continuances to adequately
investigate and prepare, often citing the large amount of discovery to be
studied. In ruling on the name="SR;4070">continuance requests, the trial court
was presented with two competing and conflicting constitutional interests. In addition to providing the right
to a speedy trial, the Sixth
Amendment provides a criminal defendant with the right to
assistance of counsel. (U.S. Const., 6th
Amend.; Gideon v. Wainwright (1963) 372 U.S. 335, 344.) “It has long been recognized that the name="SR;4145">right to counsel is the right to the
effective assistance of counsel.
[Citations.]” (McMann v.
Richardson (1970) 397 U.S. 759, 771, fn. 14.) The trial court was aware of the nature of
these conflicting rights and, although it granted name="SR;4193">counsel’s continuance requests, it did
so with continuances of a shorter duration than counsel
sought.href="#_ftn3" name="_ftnref3" title="">[3]

Moreover, in addition to showing
error, Boode must also demonstrate prejudice. Boode does not identify any particular
meritorious defense strategies or evidentiary objections that should have been
pursued, but were not, as a result of the denial of the continuance. She makes clear that she is “not arguing on
direct appeal that appellant’s trial counsel was ‘ineffective.’ This appellate challenge is solely based on
court error in refusing to grant that attorney’s requested continuances, which
were necessary for her to prepare a defense.”
(Boldface omitted.) Consequently,
she merely suggests some undefined prejudice should be “presumed,” which is
inconsistent with binding precedent requiring that appellant show actual
prejudice. (See People v. Zapien (1993) 4 Cal.4th 929, 972-973 [finding no
prejudice from denial of a continuance where there was no reasonable basis to
conclude from the defendant’s showing that the trial court’s ruling led to a
less favorable result for the defendant];
see also People v. Jenkins
(2000) 22 Cal.4th 900, 1039-1040.) For
the foregoing reasons, we conclude Boode has failed to establish that the trial
court abused its discretion or violated her constitutional rights by denying
her motions for a continuance.

B. Juror Bias

Boode
claims that she was deprived of her constitutional rights to a fair trial and
an impartial jury because the court refused to dismiss a juror after the juror
reported observing Rodriguez conduct himself in the courtroom in what she
perceived as a threatening manner. This
argument is joined by Rodriguez.

During
the trial, the court received a written message from Juror No. 8 saying that
she had seen something frightening and that she wanted to talk about it without
calling attention to herself. When Juror
No. 8 was questioned by the court outside the presence of the jury, the juror
said she had observed Rodriguez move his mouth to communicate with Elisary, one
of the prosecution witnesses who had been testifying, in what Juror No. 8
perceived to be a threatening and intimidating manner. Juror No. 8 expressed fear from seeing
Rodriguez give Elisary a “scary stare” and from “moving his lips and talking,
saying something, just barely moving his lips.”href="#_ftn4" name="_ftnref4" title="">[4] She stated she was “frightened” and the court
acknowledged that she was crying. The
trial court established that Juror No. 8 had not discussed her observations or
fears with any other juror, and the court instructed her not to do so. The trial court moved to allay any fear by
stating “we’ll just watch very carefully” and indicating the deputies would be
instructed “to make sure that the jurors are protected.”

When
asked if she would hold Rodriguez’s actions against him, Juror No. 8 replied,
“To be honest, I don’t know.” When
questioned whether she still could be fair and impartial, she replied, “I think
I could decide the facts, but I would be scared if we convicted him.” When asked if she could vote “not guilty” if
the People did not prove their case, she replied, “I think so,” which she then
defined as “in between” an affirmative and negative answer to that
question. In the end, she nodded her
head up and down and said, “I think so” in answer to the court’s question
whether she could “keep an open mind” despite what she had observed. The court denied appellants’ motion to excuse
Juror No. 8 for bias.

In
Boode’s postconviction motion for a new trial, she claimed that Juror No. 8
should have been replaced with an alternate.
In denying appellant’s motion, the court held that “[i]n terms of Juror
No. 8 being a fair juror, Juror No. 8 was brought into chambers with everyone
present. And the Court and everyone,
apparently to the Court, appeared to be satisfied that she could continue to be
a fair and impartial juror. I know that
you had some concerns about her, but once we spoke with her, the concerns were
alleviated.”

“A
sitting juror’s involuntary exposure to events outside the trial evidence, even
if not ‘misconduct’ in the pejorative sense, may require similar examination
for probable prejudice.” (In re
Hamilton (1999) 20 Cal.4th 273, 294-295.)
Section 1089 provides for a juror to be discharged, and replaced by an
alternate, if “upon . . . good cause shown to the court [the juror]
is found to be unable to perform his or her
duty . . . .”
“Before an appellate court will find error in failing to excuse a seated
juror, the juror’s inability to
perform a juror’s functions must be shown by the record
to be a ‘demonstrable reality.’ The court will not presume bias and will
uphold the trial court’s exercise of discretion on whether a seated juror
should be discharged for good cause under section 1089 if supported by
substantial evidence. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619,
659; Fuiava, supra, 53 Cal.4th at pp. 711-712.)

On appeal, Boode claims the answers
provided by Juror No. 8 demonstrate that she was biased and should have been
discharged because “not only did Juror [N]o. 8 candidly admit her fear of
Rodriguez (and of both defendants); she also admitted facts from which the
court should have inferred that this fear actually impaired Juror [N]o. 8’s
ability to serve.” We do not agree that
Juror No. 8’s inability to serve
as a juror was shown as a demonstrable reality. Despite her safety concerns, her name="SR;15912">responses to the court’s questions reflected
that Juror No. 8 intended to do
her best to give appellants a fair trial. “[A] juror like this one, who candidly states
his preconceptions and expresses concerns about them, but also indicates a
determination to be impartial, may be preferable to one who categorically
denies any prejudgment but may be disingenuous in doing so. A reviewing court must allow the name="SR;3255">trial court to make this sort of determination. The trial court is
present and able to observe the juror itself.
It can judge the person’s sincerity and actual name="SR;3285">state of mind far more reliably than
an appellate court reviewing only a cold transcript.” (People v. Hillhouse (2002) 27 Cal.4th
469, 488-489; People v. Wilson (2008)
44 Cal.4th 758, 780 (Wilson).)

Boode claims the court’s “overall
inquiry was inadequate.” She first
argues that the court should have granted defense counsels’ requests to make
follow-up inquiries of Juror No. 8 later in the proceedings to determine
whether she continued to be fearful and frightened.. However, we note that there is nothing (apart
from rank speculation) to indicate that Juror No. 8’s impartiality was tainted
by her earlier experience, or that she was unable to disregard Rodriguez’s
courtroom conduct and render a verdict based on the evidence. “One can always argue further name="SR;11090">questioning might yield different and more favorable
results, but that is a matter committed to the discretion of the name="SR;11109">trial court.” (>Wilson, supra, 44 Cal.4th at
p. 780.)

Next, Boode argues the trial court
denied her Sixth and Fourteenth Amendment
rights by failing to inquire of all sitting jurors whether they had witnessed
the same gestures by Rodriguez that caused fear in Juror No. 8, and whether
they had been affected by it. First, we
emphasize that Juror No. 8 indicated that she had not discussed the matter with
any other juror. Examining each juror
individually, therefore, would have drawn unnecessary attention to Rodriguez’s name="SR;3102">behavior, and possibly given rise to a claim that such inquiry
prejudiced the panel. (>People v. Hines (1997) 15 Cal.4th 997, 1054 [allegation that court’s
inquiry to jurors “prejudiced the entire panel”].)

Furthermore, even assuming that
other jurors observed Rodriguez making threatening gestures, we cannot assume
that they were similarly upset to the extent that they would not be able to
perform their duties as jurors.
Accordingly, we hold, as the court did in Fuiava, supra, 53 Cal.4th
at page 702, that “[t]he trial court did not abuse its discretion in the present
case by taking a ‘wait and see’ approach concerning whether any juror other
than Juror [No. 8] might have been affected” by Rodriguez’s courtroom
behavior. We conclude that the scope of
questioning into the possibility of juror bias in this case fell well within
the proper exercise of the court’s discretion.
No further inquiry was required.
(People v. Clark (2011) 52
Cal.4th 856, 971 (Clark).)

C. Error Under Aranda/Bruton

Rodriguez contends
the trial court erred under Bruton v. United States (1968) 391 U.S. 123 (Bruton)
and People v. Aranda (1965) 63 Cal.2d 518 name="SR;1592">(Aranda), when at his joint trial with Boode, the
court admitted statements made by Boode to a third party that were
incriminating to Rodriguez.href="#_ftn5"
name="_ftnref5" title="">[5]

During
the prosecutor’s direct examination of Jeffery DeTar, the following exchange
took place:

“Q. Now, did you get the keys from Shawndra
[Boode] at the gas station?

“A. Yes.

“Q. Did you talk to Shawndra at the gas station?

“A. Yes.

“Q. Did you talk to Shawndra about what happened
with Dave and Cathy at the gas station?

“A. Yes.

“Q. What did she say?

“A. She said—

“[Defense
Counsel]: Objection. Calls for hearsay.

“The
Court: Overruled.

“The
Witness: She said that they—

“[Defense
Counsel]: I request a limiting
instruction, Your Honor.

“The
Court: Make sure you just say what
Shawndra said to you.

“The
Witness: She said that >they had gotten into the house.

“[The
Prosecutor]: Did she say what happened
inside the house?

“A. Yes.

“Q. What did she say happened when she got into
the house?

“A. That they
had gotten him, popped him.” (Italics
added.)

The court then interjected, “Just
say what [Boode] said she did.”

Rodriguez argues
that DeTar’s use of the word “they” twice in the challenged passage directly
implicated Rodriguez and that the trial court erred in failing to sustain
hearsay objections, in failing to give a limiting instruction, and in failing
to strike DeTar’s offending testimony.

The Sixth Amendment to the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United States
Constitution, made applicable to the states through the Fourteenth Amendment,
provides that a criminal defendant has the right to be confronted with the
witnesses against him. (U.S. Const., 6th
Amend.) The Sixth Amendment right to
confrontation includes the right of cross-examination. (Pointer v. Texas (1965) 380 U.S. 400,
404; Fletcher, supra,
13 Cal.4th at p. 455.)

“A recurring problem in the
application of the right of confrontation concerns an out-of-court confession
of one defendant that incriminates not only that defendant but another
defendant jointly charged. Generally,
the confession will be admissible in evidence against the defendant who made it
(the declarant). (See Evid. Code,
§ 1220 [hearsay exception for party admissions].) But, unless the declarant submits to
cross-examination by the other defendant (the nondeclarant), admission of the name=BestSection>confession against the nondeclarant
is generally barred both by the hearsay rule (Evid. Code, § 1200) and by the
confrontation clause (U.S. Const., 6th Amend.).” (Fletcher, supra, 13 Cal.4th at p. 455, fn. omitted.)

The Aranda/name="SR;4999">Bruton rule addresses the href="http://www.fearnotlaw.com/">confrontation
clause issues raised by
the introduction of a defendant’s out-of-name="SR;5015">court statement in a joint trial with one or more
codefendants. In Aranda, the California Supreme Court
articulated a rule of criminal procedure prohibiting the introduction of a
nontestifying codefendant’s extrajudicial statement that directly or
inferentially implicates a jointly tried defendant, unless the statement is
redacted to eliminate the direct or inferential reference to the
defendant. (Aranda, supra, 63 Cal.2d at
pp. 530.) Aranda held the
admission of a nontestifying codefendant’s out-of-court confession, which
inculpates the defendant, is not rendered harmless by a jury instruction that
the evidence should not be considered against that defendant. (Id. at p. 526.) Instead, if the defendants are tried
together, either the statement must be redacted to remove direct and indirect
identification of the defendant, or it must be excluded altogether. (Id. at pp. 530-531.)

In Bruton,
the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United States
Supreme Court held that a defendant’s constitutional right to confrontation of
the witnesses against him is violated by admitting the confession of a
nontestifying codefendant that names and incriminates the defendant. This is so even though the jury is instructed
to disregard the confession in determining the nondeclarant defendant’s guilt
or innocence. (Bruton, supra, 391 U.S. at
pp. 135-136.)

Bruton’s scope was limited in Richardson
v. Marsh (1987) 481 U.S. 200 (Richardson). The court held that
“the Confrontation Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the [other] defendant’s name, but
any reference to his or her existence.”
(Id. at
p. 211, fn. omitted.) The
court reasoned that if a nontestifying defendant’s confession becomes
incriminating only when linked with other evidence, there is no “overwhelming
probability” that the jury will disregard a limiting instruction. Thus, under Richardson, only facially incriminating
statements violate the confrontation clause.
Statements that are incriminating only by connection to other evidence
do not. (Id. at
pp. 208-209.)

name="sp_999_10"> In name="SR;5716">Gray v. Maryland
(1998) 523 U.S. 185 (Gray), the United States
Supreme Court considered a redacted confession that fell
somewhere between the confessions at issue in Bruton
and Richardson. In name="SR;5747">Gray, “the prosecution . . . redacted the
codefendant’s confession by substituting for the
defendant’s name in the confession a blank space or the
word ‘deleted.’ ” (>Id. at p. 188.) The Gray court
concluded that simply redacting a confession to replace a
defendant’s name “with an obvious indication of deletion, such as a blank
space, the word ‘deleted,’ or a similar symbol,” is insufficient under Bruton
to eliminate the constitutional confrontation problem identified in Bruton. (name="SR;5824">Id. at
p. 192.)

The Gray court
explained: “Redactions that simply replace a name with
an obvious blank space or a word such as ‘deleted’ or a symbol or other
similarly obvious indications of alteration, however, leave statements that,
considered as a class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require
the same result.” (>Gray, supra, 523 U.S. at p. 192.)name="sp_999_11"> The Gray court
suggested that further redaction, beyond simply using a blank space, the word
“delete,” or a symbol in place of a proper name, could render a name="SR;6212">confession admissible in a joint trial. (Id. at p. 196.)

In our view, the portions of DeTar’s
testimony to the effect that Boode had recounted “they had gotten into the house” and “they had gotten him, popped him,” are similar to a proposed
redaction that the Gray court suggested would have satisfied the rule in
Bruton. The United States Supreme Court
suggested in Gray that a redaction that indicated that specific names
had been deleted, i.e., “ ’Answer: Me, deleted, deleted, and a few other
guys,’ ” was insufficient to protect the nondeclarant’s confrontation
rights, but that those rights would not have been implicated if the court had
provided the jury with the statement:
“ ’Answer: Me and a few other guys.’ ” (Gray, supra, 523 U.S. at p. 96, italics added.) The statement “[m]e and a few other guys”
indicates simply that multiple people may have been involved in the crime, as
did DeTar’s use of the word “they.” To
the extent the “they” was linked to Rodriguez through other evidence, no
confrontation clause violation arose. (Richardson, supra, 481 U.S. at
pp. 208-209.)

In any event, even if we assume that
the trial court erred in failing to sustain Rodriguez’s hearsay objection to
that portion of DeTar’s testimony in which he used the word “they” to describe
the perpetrators of the robbery murder, such error would not require reversal
of Rodriguez’s convictions, even under the harmless beyond a reasonable doubt
standard. (Chapman v. California
(1967) 386 U.S. 18.) It was clear from
all of the evidence that Boode had not acted alone in committing the robbery
murder; and it was Rodriguez’s DNA on the knit cap found under Dave’s body
which provided the proof necessary to establish his presence at the crime
scene––not DeTar’s use of the word “they” during his testimony. Consequently, we can say with confidence that
even if the court had not permitted the jury to hear the portion of DeTar’s
testimony, the result in this case would have been the same.

>D.
Admission of Enrique Huapaya’s Out-of-Court Statement>

Rodriguez
claims he was deprived of a fair trial, due process, and his right of confrontation
by the court’s erroneous admission of a police officer’s recitation of an
out-of-court declarant’s statements during the investigation of the murders
that were admitted to explain why the police investigation focused on
Rodriguez. Rodriguez argues that the
state may not do indirectly, under the guise of asking the police to describe
the course of their investigation, what it cannot do directly––place before the
jury the presumptively unreliable statement of a nontestifying declarant
implicating appellant in the crime.

At
trial, the prosecution was granted permission to read the preliminary hearing
testimony of witness Enrique Huapaya after he was deemed unavailable, following
the prosecution’s demonstration of due diligence to locate him. The testimony was read into the record in
question-and-answer form. Briefly,
Huapaya acknowledged that he had worked out a plea bargain for his cooperation;
that Rodriguez had made a number of very specific admissions to him after the
murders, including that “she went in there for some money and didn’t find
nothing, so stuff went off the hook, and she had to do what she had to do,” and
“some people . . . had to get put down.”

In
providing the jury background information for introducing Huapaya’s preliminary
hearing testimony, Sergeant Stuart testified about how Huapaya approached
police with information about the murders:
“Mr. Huapaya had been arrested for a drug possession, and he had told
the officers that arrested him that he had information about the murders.” Sergeant Stuart indicated that “Mr. Huapaya
was looking to talk to the detective or inspector who was investigating the
crime and, in turn, would want some type of consideration for the case which he
had been arrested for.” Subsequently,
Sergeant Stuart testified that during his interview with Huapaya about the
information he had about the murders, Huapaya reported that Rodriguez told him
(1) that “he got involved in the murders over dope and money;” and
(2) that the victims “were murdered because they could identify who had
robbed them.”

Rodriguez’s
counsel made an ongoing hearsay objection to Sergeant Stuart’s testimony
describing statements made by Huapaya during his police interview
that were not under oath and not subject to cross-examination. (Evid. Code, § 1200, subd. (a).) The prosecutor, however, argued that the
evidence was admissible on the nonhearsay basis that it explained the
subsequent conduct of the police, and the trial court admitted it on that
basis. The jury was admonished that the
challenged evidence was not being admitted for its truth but to show “what this
sergeant did in response to that information,” and it was given a limiting
instruction to that effect.

On
appeal, Rodriguez asserts that the good faith or
reasonableness of the police conduct was not at issue in this case and
therefore, the details of Huapaya’s out-of-court statements to Sergeant Stuart
were inadmissibly placed before the jury at trial. He claims “the prosecutor piled on additional
evidence of appellant’s guilt through [Sergeant] Stuart’s recitation of
Huapaya’s extrajudicial incriminating statements that were above and beyond the
properly admitted prior testimony of Huapaya.”
“The extrajudicial hearsay added the particulars that ‘[Rodriguez] said
he got involved in the murders over dope and money,’ and that the [victims]
‘were murdered because they could identify who had robbed them.’ That substantially greater level of detail
was both more incriminating and more likely to portray [Rodriguez] to the jury
as a calculating and ruthless killer, all to his detriment.”href="#_ftn6" name="_ftnref6" title="">[6]

In
the appropriate case, the fact that an
officer acted on information received in an out-of-court
assertion may be relevant to explain his conduct. However, the fact that an officer acted on
information obtained during the investigation may not be used as an indirect
method of bringing before the jury the substance of the out-of-court assertions
of the defendant’s guilt that would otherwise be barred by the hearsay rule. (Compare People v. Spivak
(1959) 166 Cal.App.2d 796, 812-813 [officer’s testimony that he had been told
that informant had gone to certain place was name="SR;6098">admissible to explain why he went to
that place] with People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110
[where police conduct not at issue, an eyewitness’s out-of-court statement to
police was erroneously admitted for the purpose of explaining police
investigation].)

A leading evidentiary treatise has
described the problem as follows: “One
area where abuse may be a particular problem involves statements by arresting
or investigating officers regarding the reason for their presence at the scene
of a crime. The officers should not be
put in the misleading position of appearing to have happened upon the scene and
therefore should be entitled to provide some explanation for their presence and
conduct. They should not, however, be
allowed to relate historical aspects of the case, such as complaints and
reports of others containing inadmissible hearsay. Such statements are sometimes erroneously
admitted under the argument that the officers are entitled to give the
information upon which they acted. The
need for this evidence is slight, and the likelihood of misuse great.” (2 McCormick on Evidence (6th ed. 2006) The
Hearsay Rule, § 249, p. 136.)

In examining this record, we agree
with Rodriguez that there was no true issue in the present case as to the
propriety of any action taken by Sergeant Stuart during his investigation of
the murders, and the trial court erred in admitting this evidence on this
basis. While we believe it was error to
admit Sergeant Stuart’s testimony recounting Huapaya’s out-of-court statements
to him, we believe it was manifestly harmless.
Other witnesses testified that the murders were motivated by a desire
for money and a belief that the victims would have to be killed because they
could identify the perpetrators.
Consequently, Sergeant Stuart’s testimony was cumulative with other
properly admitted evidence and therefore was harmless.

E. Unconstitutional Overbreadth of Felony-Murder
Special Circumstance

Appellants next jointly argue that
the felony-murder special
circumstance provisions in section 190.2, subdivision
(a)(17),href="#_ftn7" name="_ftnref7" title="">[7]
are not sufficiently different from the felony-name="SR;768">murder theory of first-degree murder. Therefore, the felony-name="SR;776">murder special circumstance
law does not conform to the
constitutional requirement that it narrow the name="SR;790">class of murders eligible for the href="http://www.fearnotlaw.com/">death penaltyname="SR;797"> or a sentence of life without the possibility of
parole. For this reason, they claim
section 190.2, subdivision (a) violates principles established in the cruel and
unusual punishment clause of the Eighth Amendment, and the due process clause of
the Fourteenth Amendment.

name="sp_999_1"> This argument suffers from two fatal
flaws. First, the Eighth Amendment’s name="SR;947">narrowing requirement has
been found not apply to life-without-parole sentences but only to sentences of name="SR;962">death. (Harmelin v.
Michigan (1991) 501 U.S. 957, 995-996.)
Because appellants received life-without-parole sentences, the name="SR;990">narrowing requirement does name="SR;993">not apply to their case.

Second, our Supreme Court “has
consistently rejected the claim that the statutory
special circumstances
. . . do not name="SR;1015">adequately narrow the class
of persons subject to
the death penalty. [Citations.]”
(People v. Pollock (2004) 32 Cal.4th 1153, 1195-1196; see, e.g., People
v. Abilez (2007) 41 Cal.4th 472, 528; People v. Catlin (2001) 26
Cal.4th 81, 158-159; People v. Marshall (1990) 50 Cal.3d 907, 945-946
[“the ‘triple use’ of the same facts—i.e., to support (1) the conviction
of first degree murder on a theory of felony name="SR;1098">murder, (2) the finding of the felony-name="SR;1105">murder special circumstance,
and (3) the imposition of the penalty of name="SR;1116">death” does not
violate due process or cruel and unusual punishment clauses of United States
Constitution].) Recently in People v.
Gamache (2010) 48 Cal.4th 347 the court reiterated, “ ’California
homicide law and the special circumstances listed in section 190.2 name="SR;1158">adequately narrow the class of murderers
eligible for the death penalty . . . .’ [Citations.]
Specifically, the felony-murder
special circumstance (§ 190.2,
subd. (a)(17)) is not overbroad and adequately
narrows the pool of those eligible for death. [Citation.]”
(Id. at p. 406.)

We are bound by Supreme Court
decisions that have rejected appellants’ arguments. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

F. Court’s Evidentiary Rulings with
Respect to Expert Witness Testimony on Effects of Methamphetamine Usage

Rodriguez
alleges he was denied his Sixth Amendment right to present a complete defense
by (1) the trial court “precluding [him] from establishing an adequate
foundation for Dr. Pittel’s opinions regarding the unreliability of testimony
from methamphetamine abusers”; and (2) in “permitting the prosecution to
unfairly impeach Dr. Pittel with irrelevant and prejudicial cross-examination
and argument.” Boode joins Rodriguez’s
arguments.

The testimony provided by
the prosecution witnesses who played a role in the crimes was obviously crucial
to the prosecution’s case against appellants.
Each of
these witnesses, along with appellants and the victims, were methamphetamine
users. The use of methamphetamine can,
obviously, affect the ability of a witness to perceive, to recall, and to
recount the events he or she has observed.
(1 Jefferson, Cal. Evidence
Benchbook (Cont.Ed.Bar 4th ed., 2010 supp.) Credibility of Witnesses,
§ 29.21, p. 598.1 [“Evidence that a witness was under the influence
of alcohol or narcotics at the time of the event about which he or she
testifies is admissible to prove an impaired capacity to observe and
remember”].) “Evidence of consumption of
narcotics” was
thus an appropriate subject of inquiry and impeachment “if
there is expert testimony substantiating the effects of
such use. [Citations.]” (People v. Rocha (1971) 3 Cal.3d 893,
901.) Appellants relied on
Dr. Pittel to provide such expert testimony, as his area of expertise is
establishing that long-term use of methamphetamine affects perception and
recall. Dr. Pittel testified, in his
opinion, long-term methamphetamine users are “very, very unreliable in their
memories because of the effects of the drug.”

In
order to establish a foundation for Dr. Pittel’s opinion, Rodriguez’s trial
counsel indicated that if given sufficient funds, she would have “attempt[ed]
to get a drug history from these witnesses so that Dr. Pittel can testify with
some substance as to the effects of this drug.”
When such funds were not forthcoming, counsel requested permission to
elicit the drug histories of the prosecution witnesses during their testimony,
so that Dr. Pittel could review and incorporate that information into his
own testimony. The trial court limited
counsel to asking each percipient witness, “what drugs they used and how long
they’ve used it, period” and whether they were “under the influence” during the
events described in their testimony. In
so ruling the court said, “We’re not delving into a whole bunch of stuff,
because this does not need to be a mini trial on their drug use within this
trial. I think it’s more time consuming
than necessary to go all into that, and it would be more prejudicial than
probative just to them as human beings.
I mean, it’s not really necessary.”
The trial proceeded with the defense asking the prosecution witnesses
questions about their use of methamphetamine and whether they had been using it
during the incidents they were testifying about.

On
appeal, appellants argue that they were seriously disadvantaged by the “severe
restriction” the trial court placed on questioning the prosecution witnesses
about their drug usage which “precluded the defense from establishing an
adequate foundation” for Dr. Pittel’s testimony. Because of the court’s ruling, Rodriguez
complains that “Dr. Pittel could only provide opinions at a generic level,
without any foundation for specifically addressing the likely effects on the
individual witnesses, based on their personal and idiosyncratic drug
histories.”

Section
352 of the Evidence Code provides as follows:
“The court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the
jury.” “We will not overturn or disturb
a trial court’s exercise of its discretion under section name="SR;2398">352 in the absence of manifest abuse,
upon a finding that its decision was palpably arbitrary, capricious and
patently absurd. [Citations.]” (People v. Jennings (2000) 81
Cal.App.4th 1301, 1314.)

The
state of the law on drug usage as impeaching evidence was summarized in People
v. Hernandez (1976) 63 Cal.App.3d 393. The court held that “proof of a narcotic
addiction, standing alone, is inadmissible to impeach the credibility of a
witness and that such evidence is not only collateral thereto but highly
prejudicial.” (Id. at p. 405.) Such
evidence is inadmissible unless there is evidence that “tends to show that the
witness was under the influence thereof either (1) while testifying, or
(2) when the facts to which he testified occurred, or (3) that his
mental faculties were impaired by the use of such narcotics. [Citation.]”
(Ibid., cited with approval in
People v. Panah (2005) 35 Cal.4th
395, 478.)

Consequently, while a witness’s drug
use is relevant in showing an impaired ability to observe, recollect or relate
pertinent events, a trial judge must deal with more general evidence of a witness’s
drug habit with some sensitivity. The
possibility that exploration of a witness’s drug addiction will generate
unwarranted prejudice and consume undue amounts of time on collateral matters
requires the judge to exercise discretion to keep the scope of such examination
within proper bounds. Under these
circumstances, we find no abuse of discretion in the trial court’s ruling
preventing defense counsel from probing further into the full extent of the
witness’s history of drug use. The jury
was informed of the facts bearing on the weight to be given the testimony of
these prosecution witnesses because of their use of methamphetamine; and we see
no error––and certainly no error rising to the level of a constitutional
deprivation––in the court’s decision to keep the scope of cross-examination
within proper bounds.

In his next argument, Rodriguez
claims Dr. Pittel was “unfairly demeaned as a witness” when the trial court
permitted the prosecutor to cross-examine him about his prior cocaine arrest in
1990 and to exploit that testimony in closing argument.

Toward the end of trial, the
prosecutor filed a written motion asking for permission to impeach Dr. Pittel
with a 1990 arrest by the Fairfield police for drug use. Attached to the motion was the police report
of the incident. At the time of the
arrest, Dr. Pittel was testifying as a defense drug expert in a murder
trial. His testimony was interrupted for
the noon recess. Dr. Pittel went to
his car, which was parked by a crosswalk in front of the Solano County Superior
Court courthouse. An off-duty Vallejo
police officer walked by and saw Dr. Pittel put something in his nose. The off-duty officer summoned a Fairfield
police officer, who arrested Dr. Pittel after finding that he possessed a
bindle of cocaine. While being arrested,
Dr. Pittel asked the police officer not to arrest him because it would ruin his
career. The Superior Court judge
presiding over the murder trial was notified, and Dr. Pittel was placed on a
no-bail hold for contempt of court.

The prosecutor argued that this
incident was a proper subject for impeachment because it was relevant to Dr.
Pittel’s “character for honesty and his attitude about testifying in
court.” The prosecutor went on to explain
“Dr. Pittel’s bad behavior reaches far beyond simple possession of drugs; his
choice to testify as a defense drug expert while high on drugs was not merely
dishonest; it showed utter contempt and disrespect for the judicial
process. . . .
Impeachment on this subject is of the highest possible probative value
and relevance because of the extreme moral turpitude that it
demonstrates.” (Fn. omitted.)

After hearing argument, the trial
court ruled that “Because this witness is testifying as an expert in this field
of drugs, I am going to allow you [the prosecutor] very limited [scope in]
asking him has he ever tried drugs, and then he can explain it was 20 years ago
or whatever it was, because I think that was egregious conduct. I think the probative value outweighs the
prejudicial [and] I think it does go to his credibility . . . .”

On direct examination, defense
counsel asked Dr. Pittel whether he had used any drugs, and Dr. Pittel stated,
that “I’ve also used cocaine recreationally many, many years ago, but nothing
in the last 20 or 25 years.” Thereafter,
on cross-examination, Dr. Pittel admitted that he had been arrested for using
cocaine. Dr. Pittel explained that on
December 26, 1990, he drove to Solano County Superior Court in Fairfield to
testify in a murder case after a midnight dinner for some close friends. He had to drive to the airport in the morning
because his daughter had to catch a 5:30 a.m. flight, so he was “out pretty
much all night.” He was “exhausted from
not having slept the night before” and wanted to take a nap in his car when the
court recessed for lunch, but he was concerned that if he fell asleep he
wouldn’t wake up in time to return to court.
Therefore, he took some cocaine that he had “confiscated from a client” to increase his alertness. He was observed and arrested. Dr. Pittel explained that the charges were
eventually dropped and he was never tried or convicted. Dr. Pittel described the event as “one of the
worse days of my life.” Upon further
questioning, Dr. Pittel indicated that he had used cocaine a total of three
times: “Once on that occasion, once in a
laboratory experiment, and once years before at a party.” He opined that the quantities that he used
and the infrequency, “would preclude any adverse effects at all.”

During closing argument, without
objection, the prosecutor argued, “Let’s talk about Dr. Pittel, our drug
expert, okay, the man who himself decided to do cocaine at the intermission of
a murder trial and a trial which he was testifying at as a drug expert. And where did he get that cocaine? He took it from one of his patients. This is the guy that . . . the
defense is asking you to rely heavily upon.”

On appeal, Rodriguez claims
“Dr. Pittel’s testimony would certainly have played a far more persuasive role
in the jury’s deliberations . . . if the prosecution had been
precluded from unfairly tarnishing his reputation and
testimony . . . .”

Our
Supreme Court recently explained in Clark,
supra, 52 Cal.4th 856 that “[a]
witness may be impeached with any prior conduct involving moral turpitude
whether or not it resulted in a felony conviction, subject to the trial court’s
exercise of discretion under Evidence Code section 352.” (Clark,
at p. 931, fn. omitted.)
Nevertheless, where “the proffered impeachment evidence is misconduct
other than a prior conviction” courts should consider with “ ’particular
care whether the admission of such evidence might involve undue time,
confusion, or prejudice which outweighs its probative value.’ [Citation.]”
(Id. at pp. 931-932.) And “[b]ecause the court’s
discretion to admit or exclude impeachment evidence ‘is as broad as necessary
to deal with the great variety of factual situations in which the issue arises’
[citation], a reviewing court ordinarily will uphold the trial court’s exercise
of discretion [citations].” (>Id. at p. 932.)

We cannot say that the trial court
“exceeded the bounds of reason” in allowing Dr. Pittel to be impeached
with evidence of his prior drug arrest, even though it was extremely remote in
time. (Clark, supra, 52 Cal.4th
at p. 933.) In determining the
credibility of a witness, the jury may consider, among other things, “[t]he
existence or nonexistence of a bias, interest, or other motive,” and the
witness’s “attitude toward the action in which he testifies or toward the giving
of testimony.” (Evid. Code.,
§ 780, subds. (c), (f), (j).) The
trial court could reasonably have determined the jury was entitled to know the
nature of Dr. Pittel’s prior drug arrest, which showed unprofessional behavior
and extreme disrespect for the judicial process, in order to accurately judge
his credibility as an expert witness testifying about the effects of drug
abuse.

The trial court also weighed the
prejudicial impact that admission of the drug arrest might have on the jury’s
consideration of Dr. Pittel’s testimony and determined that, given the
especially “egregious” nature of his conduct, its potential for prejudice did
not outweigh its probative value.
Undercutting the prejudicial impact of this evidence was the fact that
Dr. Pittel was given an opportunity to explain the extenuating circumstances
surrounding his 1990 drug arrest.
Therefore, the jury was allowed to consider this evidence in the fuller
context of information presented from Dr. Pittel’s point of view. Given the importance of placing before the name="SR;7816">jury all the facts that they needed in order to weigh Dr.
Pittel’s expert testimony, we see no reason to second-guess the judge’s
weighing of the prejudice/probative value of this evidence.

Rodriguez additionally claims that
the prosecutor, during cross-examination and closing argument, was allowed to
stray into collateral matters that went far afield of the court’s original
ruling admitting Dr. Pittel’s drug arrest into evidence for impeachment
purposes. Among other things, appellant
complains that the prosecutor was allowed to ask a series of questions
regarding the effect that the cocaine had on Dr. Pittel’s ability to perceive,
his memory, and his reliability.
However, an objection to this effect during cross-examination was overruled
by the trial court. We believe the trial
judge is in the best position to assess whether defense counsel’s questioning
violated the ground rules the court established for the admission of this
evidence, and we find no error in this regard.
Rodriguez additionally complains that the prosecutor “unfairly
tarnish[ed]” Dr. Pittel’s “reputation and testimony” during closing
argument. However, appellant has name="SR;2162">waived this argument by not timely
objecting to this portion of the
argument or requesting a curative admonition.
(People v. Hinton (2006) 37 Ca