P. v.
Filed 2/24/12 P. v. Medina CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
NATHAN MEDINA,
Defendant and Appellant.
A125850
(Contra
Costa County
Super. Ct. No. 05-080656-2)
Defendant
Nathan Medina invaded the home of Beverly Rhoads, who was involved in
and stepfather. He assaulted Rhoads with
pepper spray, shot her son to death, tried to shoot her, and tried to shoot a
family friend. The jury convicted him of
murder, two counts of attempted murder,
and residential burglary, all with the
personal use of a firearm. Defendant
contends a document he wrote describing a plan to subdue drug dealers with tear
gas should not have been admitted. He
also raises Doyle error and certain
other contentions. We disagree with
defendant’s contentions, find no prejudicial error, and affirm.
I. FACTS
Under applicable standards
of appellate review, we must view the facts in the light most favorable to the
support of the judgment the existence of every fact which the jury could
reasonably find from the evidence. (
303; People v. Neufer (1994) 30
Cal.App.4th 244, 247.)
name="_ftnref1" title="">[1]
A. Background
Beverly
Rhoads had been friends with Tony and Jaime Latterri for over 26 years. When Ms. Rhoads was married the two couples
frequently visited each other’s houses, spent holidays together, and went
camping together. Defendant, Jaime
Latteri’s son, was almost always at the Latteri home when Rhoads visited the
Latteris, and she had talked to defendant “many times.”
The
socialization diminished after Rhoads’ divorce in 1998, but she still saw the
Latteris a few times. She described her
relationship with the Latteris in the beginning of 2003 as “good” and still
considered them friends. In 2003, she hired
Tony Latteri to do a construction project at her house, involving an 834-square-foot
addition. By the fall of 2003, she had
paid Tony Latteri $60,000, but not much work had been done and she began to get
frustrated. The project was behind
schedule and for weeks at a time no one would show up for work. The lack of completion of the project
interfered with Rhoads’ ability to use her home office.
In
December 2003, Rhoads needed the phone lines moved so she could continue her
home business of insurance sales.
Despite Rhoads’ initial desire not to have defendant work on the construction
project, she hired defendant to move the lines.
He did not do it properly and Rhoads’ daughter had to rewire it. Rhoads paid defendant for the work by check. Defendant called her claiming the check had
bounced―which it had not―and he was angry and upset.
By
the summer of 2004, Rhoads had given Tony Latteri about 90 percent of the
contract price, approximately $116,000.
In December 2004, Rhoads arranged a site meeting with him, Jaime, and
the project architect. It was “a very
bad meeting.” Jaime became very angry
and she and Tony demanded more money.
Jaime also cursed and screamed at Rhoads. Rhoads came to believe Latteri would never
finish the project.
A
month or two before the site meeting, Rhoads discovered defendant doing
electrical work on the project, in the addition. Defendant “said something like you don’t
think Tony is going to finish your job.”
His tone was “eerie” and “scary,” like a “sick joke.”
Rhoads
consulted an attorney in January or February 2005. She filed a claim against Tony Latteri’s bond
company, which refused to pay. Rhoads
then consulted a second attorney, Judson Scott, Jr., who filed a lawsuit
against Tony Latteri in September 2007.
another contractor.
Shortly
after the lawsuit was filed, in October or November 2007, someone threw a rock
through the front plate glass window of Rhoads’ home and through the back
window of her car. Rhoads suspected the
vandalism had something to do with the lawsuit and defendant was a likely
suspect.
B. The Offenses
At
approximately 10:00 a.m. on March 20, 2008, Rhoads was at home in her office in
the addition, sitting at her computer.
Her 25-year-old son, Joshua, was in his bed watching television. The power went out in the back of the house,
causing Rhoads’ computer to go dead. She
walked down the hallway toward Joshua’s room and told him the power was out in
part of the house. He told her to go
into the laundry room and check the breaker box. She discovered that no circuit breaker had
been tripped. There was power in the
rest of the house because Joshua’s television was still on.
Joshua
joined Rhoads in the laundry room. While
both of them were looking at the breaker box, the front door opened and
closed. Rhoads walked toward the front
door, into her living room. There stood
defendant, whom Rhoads positively identified in court. She recognized him immediately. She had no problem recognizing him because
she knew him so well. There was no
chance the intruder was not defendant. Defendant was wearing a black beanie,
sunglasses, and a dark coat.
Defendant started
spraying Rhoads with pepper spray.
Rhoads felt fear and began to scream.
She ran toward Joshua, who was still in the laundry room. Defendant kept spraying Rhoads as she ran.
Rhoads
ran into the laundry room behind Joshua, who said to defendant, “are you
fucking kidding me” and “get the hell out of my house.” Joshua closed the laundry room door and told
Rhoads to use the wall phone to call 911.
Joshua held the door shut while defendant banged on it. He then turned to Rhoads and told his mother
he had been shot, that defendant had a gun.
“[B]ullets started pouring through the door” and Rhoads was hit in the
leg by splinters. Joshua was lying in a
pool of blood. The top half of the door
broke off and flew against a wall.
Rhoads
saw the barrel of a gun. Then defendant,
who apparently did not see Rhoads concealed in the laundry room, went up and
down the hallway looking for Rhoads.
Rhoads called 911 and then heard a shot in the backyard.
Defendant
had left the house just after killing Joshua, and had gone into the
backyard. Sean Mendell, Rhoads’ family
friend, was living in the guest house cottage in the backyard with his
girlfriend, Mariele Longfellow. The two
were lying in bed watching television when they heard the Rhoads’ family dog
barking and a sound of metal clanking on metal.
Mendell got out of bed and looked outside. He noticed the gate had been opened and went
outside to close it. He saw a man
wearing a black coat, black beanie, and sunglasses come out of the house.
The
man pulled a gun and walked directly towards Mendell. Mendell identified the gun as a 9-mm.
automatic. The man put the gun to
Mendell’s head and kept asking him where “Sam” was. (“Sam” was Rhoads’ nickname.) Mendell responded that he did not know where
Sam was. Mendell was squatting with his
hands held up to his face. The man fired
a shot at him, but missed. He then
appeared to run out of ammunition and started to fumble in his pockets, as if
looking for more bullets. The man asked
Mendell for money. Mendell went to the
cottage to retrieve his wallet. When he
came back out, the man had left.
Mendell
identified defendant in court as someone who “looks like” the man who assaulted
him.
Longfellow
saw the man in the yard. She identified
defendant in court as that man.
Eventually,
a SWAT team arrived at the Rhoads’ residence.
By then defendant had fled. The
police discovered that someone had removed the outside circuit breaker box
cover of the Rhoads home, and flipped off the breaker labeled “house sub
panel.”
When she returned
home after medical treatment, Rhoads found a black canvas bag on her office
chair. The bag contained charcoal
lighter starter, an igniter, and two spray cans.
The police
searched defendant’s home and seized, among other things, three boxes of 9-mm.
ammunition. A ballistics expert testified this
ammunition had similar class characteristics to that recovered from the crime
scene. In addition, eight of the rounds
found at defendant’s house bore chambering marks indicating they had been
cycled through the same firearm as those fired and unfired rounds found at the
crime scene. The police also seized a black leather
jacket from defendant’s bedroom. The
jacket bore signs of gunshot residue, as did the interior of defendant’s truck.
Defendant
testified.
of grand theft auto, forgery, and possession of stolen property. He lived with his girlfriend who owned a 9-mm.
Kel-Tec P-11 handgun. Defendant had
access to the weapon and knew how it worked.
He testified
Beverly Rhoads was a family friend. He
said he worked 100 hours on the construction project, including rewiring, and
was paid through Tony. He said he stopped
working when Tony told him Rhoads had stopped paying him. He admitted he was familiar with the layout
of the Rhoads’ house, particularly the laundry room.
Defendant claimed
he did not take Rhoads’ lawsuit against his parents personally, but he did regard
it as an injustice and a betrayal and it upset him. He did not think it would prevail. He had nothing against Rhoads or Joshua.
On March 20, 2008,
defendant said he left home at 8:30 a.m. to be at a job by 9:00 a.m. When he finished that job he drove home,
parked his truck in his garage and took a shower. About an hour later, he returned to his
truck. According to his testimony, the
side garage door was open and he discovered his girlfriend’s Kel-Tec handgun on
the floorboard. He picked it up. It smelled like fireworks. Defendant thought someone put the gun there
so it would be found.
Defendant got into
his truck and drove on Highway 4 to Highway 80, “just going towards the
water.” He heard on the radio a report
of shots fired at the Rhoads’ house. He
parked by either the Berkeley or Emeryville Marina and sat in his truck. He heard on the radio that a 25-year-old man
had been shot dead. He was scared
because someone put the gun in his truck.
He picked up the gun to shoot himself because he was depressed and had
lost faith in the court system. The gun
was unloaded. Defendant cut his left
wrist with a razor blade, but did not bleed very much. He threw the gun in the Bay, drove to
Pacheco, contacted his friend’s father, and turned himself in the next day in
the company of an attorney.
Defendant denied
going to the Rhoads’ house on the day of the incident and claimed he did not
hurt anyone. He also claimed he never
asked anyone to harm Rhoads.
C. The Verdicts and Sentence
The
jury convicted defendant of the first
degree murder of Joshua (Pen. Code, § 187), the attempted murders of
Rhoads and Mendell (Pen. Code, §§ 187/664), and first degree residential
burglary (Pen. Code, §§ 459, 460, subd. (a)). The jury found that in committing each
offense defendant personally used and personally discharged a firearm causing
great bodily injury. (Former Pen. Code, § 12022.53, subds.
(b), (c) & (d).) (Former Pen. Code,
§ 12022.53, added by Stats. 1997, ch. 503, § 3, pp. 3135−3138
and repealed by Stats. 2010, ch. 711, § 4, eff. Jan. 1, 2012.) The trial court sentenced defendant to 25
years to life on the murder conviction, with a consecutive enhancement of 25
years to life for personal use of a firearm; life in prison with a consecutive
20 years for the firearm enhancement on each attempted murder conviction; and a
concurrent term of four years for the burglary.
II. DISCUSSION
A. The “Tear Gas Letter”
The
police seized a document from defendant’s computer, and a hard copy of it from
his truck, which the parties refer to as the “Tear Gas Letter.”
unredacted versions, was admitted into evidence against defendant. The primary issue on appeal is whether that
admission was prejudicial error.
The Tear Gas
Letter, which was apparently entitled “Working in Conjunction with Law
Enforcement to Get Drugs Off the Streets,” reads as follows in its redacted
version, as defendant read it into the record during his direct examination:
“I have no law
enforcement background, so there will be no suspicion from dealers or any links
involved in law enforcement. If anything
happens to me, the law enforcement agencies will have plausible
deniability. It will look like one
dealer just tried to rob another. For
this cause I would probably give up my life if things went wrong. I lost my biological father to heroin after I
was born. And I have lost too many
family and friends to matter. I also
know about the drug trade from past experience.
These dealers ruin people’s lives.
So I can’t think of any better cause than this.
“The breaking
point for me is when I heard that meth dealers are now making meth taste like
candy and putting it in fruit flavored drinks and bring it to school
yards. I feel that is the greatest
sin. Children are innocent and are being
tricked into becoming addicts, where adults at least have their own ability to
make a decision to do drugs or not.
These children don’t understand the ramifications or consequences. This will lead to child crimes and worse as
dealers make these young addicts do things they never would have if they
weren’t influenced by meth.
“I will be
dedicated to this project for these reasons.
I have friends on the police force for references, and I know service
people who are in many different people’s homes and warehouses every day. I have many contacts that law enforcement
cannot get into as I am 42.
gas or use whatever other means possible, then ramp tie them hopefully without
a shot fired, and leave the drugs.[
name="_ftnref6" title="">[6]]
“I have friends in
SWAT who could have a better plan if necessary.
Then an anonymous call will be made to either supervisor or local law
enforcement stating there is some kind of disturbance. They then can find the drugs, get them off
the streets and arrest the suspects on possession with intent to sell. This will bypass entrapment if they were just
called on a disturbance and they cannot say there was any earlier police
contact that would later get them off on a technicality. And, most importantly, the drugs will be off
[of] streets one house or warehouse at a time.
This would expedite cleaning up the streets and getting the drugs off of
them without all of the red tape. I can
go in and do what would be considered a public nightmare if the police made
first contact.
“I have also done
home repair for 20 years, which could get me into homes and businesses to see
what the layout is, where entry points are and how many people are in the
location. I would need certain
equipment, some training and someone to supervise me. The card in my wallet should be a business
card that does not have anything to do with law enforcement. This way if anyone should go through my
wallet it would not raise suspicion.
However, if I have any problems with local law enforcement I can have
them call a number on the card.”
(Italics added.)
The saga of the
admission of the Tear Gas Letter begins at the outset of trial, when defendant
moved to exclude a host of various documents, including the Tear Gas Letter, as
being irrelevant and prejudicial. The
documents were described by the trial court as “constitutionalist,” meaning that
they “relat[ed] to [defendant’s] views as to being a sovereign person unto
himself and having diplomatic immunity and all that sort of
thing. . . [and] may feel that he is not subject to the laws of
the United States.” These documents included
identification cards, machinery used to make them, a request for voluntary
license cancellation to the Department of Motor Vehicles, a courtesy notice to
police officers containing a Miranda
warning, a “writ for a freeman’s right to travel,” a document from the
California Secretary of State titled “apostille” and bearing defendant’s
picture and an affidavit, and a document bearing defendant’s picture and
identifying him as “Robert Rothman, Public Minister of Peace.”
The People argued
the documents “demonstrate planning, planning crimes similar to this involving
the defendant going into a location where people are present, using some sort
of chemical weapon to overcome resistance, to overcome them without a shot
being fired . . . and the documents overall demonstrate that the
defendant feels he is immune from the rules of the State of California and the
federal rules . . . [and] that he has diplomatic immunity as a result
of his being a minister of justice and/or peace and, therefore, not subject to
detention or arrest for any crime . . . .” The People also argued the evidence was
relevant to premeditation and identity.
Defendant argued
the “constitutionalist” evidence was irrelevant, inadmissible as evidence of
prior bad acts under Evidence Code section 1101, and unduly prejudicial under
Evidence Code section 352.
The trial court
initially ruled the “constitutionalist” evidence referred to above, including
the Tear Gas Letter, was relevant: “it
is a rational theory where one who feels they are immune from the laws of this
country might feel less disinhibited from committing crimes.” But the court concluded the probative value
of the evidence was outweighed by is prejudicial effect. The court stated it would reconsider its ruling
if anything during trial, including defendant’s testimony, made the evidence
more relevant or “changes the equation.”
The
next day, the trial court noted that when it excluded all the
“constitutionalist” evidence it had not considered the Tear Gas Letter
separately, on its own merits as evidence.
The court concluded that the Tear Gas Letter might be admissible under
Evidence Code section 1101 if certain language were redacted: (1) a reference that defendant was known
as antipolice in some circles; and (2) a reference to his belief he had
“diplomatic identity,” presumably meaning “diplomatic immunity.”
The People then
filed a memorandum of points and authorities “in Support of Admission of
Defendant’s Statement of Planning.” The
People argued “defendant’s statements about how people could be incapacitated
is circumstantial evidence of the
defendant’s state of mind and of his premeditation, deliberation and
planning.” The People argued “the
defendant’s plan is a script for entering a building and incapacitating people
he wants to control. The fact that the
victim of the invasion contemplated in his writing is a drug dealer and the
victim of the defendant’s invasion on March 20, 2008 [was not] is of no
moment. The existence of a plan that can
be adapted is sufficient to show the defendant’s premeditation, deliberation,
motive and intent during the instant offense.”
The People also argued the Tear Gas Letter was admissible under Evidence
Code section 1101, subdivision (b) to show identity, motive, and intent, and was not unduly prejudicial under Evidence
Code section 352.
The
trial court held a hearing on the motion.
The court ruled that the Tear Gas Letter (which it noted mentioned the
phrase “My Plan”
was relevant. It foundthe Tear Gas Letter “an expression of a fairly unusual plan of attack of
someone that someone wants to incapacitate, arrest or otherwise harm.” The court believed the term “tear gas” was
used in a general sense to include pepper spray and other types of chemical
irritants commonly available to the public.
The court also concluded the reference to “hopefully without a shot
[being] fired” suggests an awareness that a shot would have to be fired and
defendant would be prepared to shoot if he couldn’t avoid it. The court found the Tear Gas Letter “a
substantially relevant document to s[h]ow his intent, his plan, his knowledge,
his preparation and so forth.” “The
question is whether the plan that he is describing here is relevant in the
sense that it reflects some unique or unusual intent or plan or method of operation
that separates [defendant] from the rest of humanity. And I think it does.” It also found the Tear Gas Letter would not
be unduly prejudicial under Evidence Code section 352 if the diplomatic
immunity references were excised.
The
court ruled the Tear Gas Letter admissible under Evidence Code section 1101,
subdivision (b) “to show knowledge, intent, plan, scheme and method of
operation.” The court also ruled it was
admissible without regard to the Evidence Code section as noncharacter evidence
of knowledge and intent to use the particular method of operation. (See People
v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin).) The court stated it would be willing to
redact the antipolice and the diplomatic immunity references, if requested by
the defense. It was the redacted version
defendant read into the record, as we have stated above.
Defendant
contends the Tear Gas Letter should not have been admitted. We disagree.
First, under the reasoning of Olguin,
supra, 31 Cal.App.4th at pages 1372−1373, the Tear Gas Letter was
circumstantial, noncharacter evidence of defendant’s knowledge and intent to
use a particular method of operation: to
enter someone’s home and subdue them with a chemical agent, “hopefully without
a shot [being] fired.” The fact that Rhoads,
Joshua and Mendell were not drug dealers, the main target of defendant’s “My
Plan,” is not dispositive. Defendant had
devised a plan for controlling others whom he disliked―and that included
Rhoads and her family.
Second,
the tear Gas Letter was properly admitted as character evidence.
Evidence
of a prior criminal act is admissible “when relevant to prove some fact (such
as motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident . . .) other than [the defendant’s]
disposition to commit such an act.”
(Evid. Code, § 1101, subd. (b); see People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).)
The
trial court has discretion to admit such evidence if its probative value
outweighs its prejudicial effect, and after considering “(1) the
materiality of the fact to be proved or disproved, (2) the probative value
of the other crime evidence to prove or disprove the fact, and (3) the
existence of any rule or policy requiring exclusion even if the evidence is
relevant.” (Daniels, supra, 52 Cal.3d at p. 856, citing People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson).) The court should
exclude the evidence “[i]f the connection between the uncharged offense and the
ultimate fact in dispute is not clear . . . .” (Thompson,
supra, at p. 316.) But a trial
court’s ruling admitting evidence of other crimes under Evidence Code section
1101, subdivision (b), may not be overturned absent an abuse of
discretion. (People v. Hayes (1990) 52 Cal.3d 577, 617.)
The
Tear Gas Letter was relevant to the material issue of plan. “To be relevant, an uncharged offense must
tend logically, naturally and by reasonable inference to prove the issue(s) on
which it is offered. [Citations.]” (People
v. Robbins (1988) 45 Cal.3d 867, 879.)
As
the trial court concluded, the Tear Gas Letter was admissible to show
defendant’s knowledge, plan and scheme.
The Tear Gas Letter clearly shows a contemplated scheme to enter homes
and subdue their occupants with a chemical agent. The distinctions between pepper spray and
tear gas is of no moment. Indeed,
defendant referred to using “tear gas or . . . whatever other means
possible” to subdue his targets. Defendant
also stressed that his 20 years of home repair experience could “get me into
homes and businesses to see what the layout is, where entry points are and how
many people are in the location.” Here
he entered a house where he knew the layout, used pepper spray on the victim as
part of a plan to get justice for his family to hurt someone whom he perceived
to be a bad person.
Our
conclusion that the Tear Gas Letter was admissible character evidence does not
end the inquiry. A trial court admitting
evidence of uncharged crimes must also conclude that the probative value of the
evidence substantially outweighs its prejudicial impact, within the meaning of
Evidence Code section 352. (
404.) The trial court carefully weighed
the balance of probity versus prejudice and ruled in favor of probity. The court did not abuse its discretion.
In
any event, any error would be harmless.
Rhoads positively identified defendant, whom she had known for
years. Ballistics evidence and gunshot
residue linked defendant to the crimes.
Defendant had an obvious motive, his being upset over Rhoads’ lawsuit
against his parents. Defendant had done
electrical work in the addition to Rhoads’ house, the area of the house where
power went out because a particular outside circuit breaker was tripped. Defendant testified with a version of events
of dubious credibility, disbelieved by the jury. In sum, the evidence against defendant is
more than substantial.
B. Alleged Doyle Error
The
People may not elicit evidence of a defendant’s postarrest silence in the wake
of Miranda warnings. (See Doyle
v. Ohio (1976) 426 U.S. 610, 619; People
v. Evans (1994) 25 Cal.App.4th 358, 368.)
Defendant contends the People did just that in the present case. We disagree for the following reasons.
Defendant
grounds his Doyle argument on the
following series of facts. Detective
McColgin testified he rode with Rhoades to the hospital and she told him she
was certain defendant was the shooter.
Despite that identification, McColgin wanted “to talk to the defendant’s
friends and family members to get the other side of the story.” He also testified there are “two sides to
every story, and it’s important to try to get all sides, to do a thorough
investigation. Part of that is to try to
get a statement from the alleged suspect to find out . . . what he has
to say about what happened.” But
McColgin did not then know where defendant was.
When defendant
turned himself in the next day, McColgin went to the police station and
arrested him. McColgin then testified
that in December 2008―nine months after the offenses―he had spoken
to a friend of defendant’s girlfriend, and the girlfriend told her friend
defendant claimed he acted in self-defense.
Defendant claims
these facts present an “unmistakable” chain of inferences: that McColgin wanted to talk to defendant;
that defendant turned himself in and was arrested; that McColgin did not obtain
an exculpatory statement about the crime until after the arrest and then only
through the girlfriend; and, therefore, defendant must not have made a
postarrest statement to police. Thus,
defendant concludes, there was a clear inference presented to the jury that he
was silent after his arrest.
We do not believe
the jury was presented with such an inference.
McColgin simply described his investigative technique in general terms,
told the jury about defendant’s arrest, and then mentioned that months after
the offenses someone else said defendant claimed self-defense. There is no reasonable basis to conclude the
jurors would have believed that defendant did not say anything to police upon
his arrest in March 2008.
C. Admission of Evidence Regarding Diplomatic
Immunity
After
defendant testified, the trial court admitted the redacted portion of the Tear
Gas Letter regarding defendant’s belief that he had diplomatic immunity. The court also admitted testimony of
Detective McColgin that defendant’s friend, Warren Miller, had told the
detective defendant stated that belief to Miller. Defendant contends the admission of this
evidence was error.
As
noted above, defendant read the redacted version of the Tear Gas Letter during
his testimony on direct examination.
While reading, he commented that there were two copies of the letter and
some of the text he had read “doesn’t really seem like what I typed.” He repeated the fact that there were two
versions of the letter. The prosecutor
then asked that the entire letter be admitted because defendant had essentially
suggested he did not write portions of it.
Defense counsel indicated that if asked, defendant would deny having the
letter in his truck.
The
trial court ruled it was “not fair to preclude the People from cross-examining
the defendant on the full context of the letter to the extent it addresses both
his volunteered testimony on direct, that this letter does not appear to be in
the form that he last edited it.
[¶] And secondly, and to the extent that he denies the version in
his car was placed there by him . . . I’m going to permit the People
to examine the defendant about the full letter
unredacted. . . . I don’t
think it’s appropriate to withhold a legitimate cross-exam[ination] from the
People on this ground.”
Defendant
had also testified about talking to Miller about Miller buying the Kel-Tec
handgun. He said he did not talk to
Miller about buying a concealable weapon because defendant could not own a gun
because of his felony record. The
prosecutor asked for permission to impeach defendant’s testimony with Miller’s
statement, told through McColgin, that defendant said he did not need a
concealed weapons permit because he had diplomatic immunity. The prosecutor argued defendant’s testimony
about not being legally able to own a gun should be impeached by his statement
that he was not governed by the law.
The
trial court ruled the People could cross-examine defendant about his diplomatic
immunity conversation with Miller. As
noted, the court also permitted cross-examination on the entire unredacted Tear
Gas Letter. But the court continued to
exclude the other “constitutionalist” evidence.
On
cross-examination, defendant said he couldn’t recall the Tear Gas Letter being
in his truck or recall his putting it in his truck. He agreed the unredacted letter differed
slightly from the redacted one, and that the former stated he believed he had
diplomatic immunity. But he claimed he
believed he only had diplomatic immunity for travel, and thus could persuade
drug dealers he could transport drugs without his “diplomatic baggage” being
inspected by law enforcement.
Defendant
denied telling Miller he did not need a concealed weapons permit because he had
diplomatic immunity. Miller was recalled
and testified he had talked with defendant about how to get a permit. They also talked about diplomatic immunity,
but Miller had forgotten the context.
Detective McColgin was recalled and testified he spoke with Miller on
April 9, 2008. Miller told him he and
defendant spoke on March 9, 2008―11 days before the offenses―and
defendant pulled out a diplomatic immunity card and told Miller he did not need
to register a gun because he had that card.
The card looked homemade.
It
was not error to admit this evidence.
Defendant opened the proverbial door by testifying that the version of
the letter he read into the record appeared to be slightly different, strongly
suggesting there were two versions and perhaps he did not write one of
them. He also testified he could not
legally possess a weapon, painting himself as law abiding when, in fact, he
manufactured false identification cards purporting to show he had diplomatic
immunity, i.e., was in essence above the law.
And the trial court did not abuse its discretion by finding this
evidence was more probative than prejudicial under Evidence Code section
352. And, for the reasons set forth
above, any error would be harmless.
name="_ftnref8" title="">[8]
Alleged Error Under Penal Code Section 654
Defendant
contends his concurrent four-year sentence for burglary should have been stayed
under Penal Code section 654, which prohibits multiple punishments for a single
act or indivisible course of conduct.
(See People v. Harrison (1989)
48 Cal.3d 321, 335.) If all of the
defendant’s offenses are the means of, or incidental to, the accomplishment of
one objective, he may be punished only once.
(Ibid.) But if the
defendant harbored multiple criminal objectives, independent of and not merely
incidental to each other, he may be punished for each crime committed in
pursuit of each objective―even though those crimes shared common acts or
were part of a course of conduct otherwise indivisible. (Ibid.;
see People v. Perry (2007) 154
Cal.App.4th 1521, 1525−1527.)
Defendant
correctly observes the burglary was presented to the jurors as entry with the
intent to commit arson. But he claims
the arson was not an independent criminal objective, but tied up with the
intent to murder. The trial court
disagreed, finding two separate intents:
the murder of Beverly Rhoads and the arson of the home, presumably to
disguise the commission of the murder, destroy evidence, or impede defendant’s
detection. Committing murder by firearm,
and thereafter independently and separately hiding one’s culpability by fire,
are two different intents. There is
substantial evidence to support the trial court’s finding of separate criminal
objectives and as such we must uphold it.
(See People v. Hutchins (2001)
90 Cal.App.4th 1308, 1312-1313.)
DISPOSITION
The
judgment is affirmed.
______________________
Marchiano, P.J.
We concur:
______________________
Dondero, J.
______________________
Banke, J.
present only those facts necessary for our resolution of the issues on appeal.
trial court took judicial notice that Rhoads filed her complaint on
September 26, 2007.
