P. v. Riley
Filed 7/26/12 P. v. Riley CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BRITIN AMIEL RILEY,
Defendant and Appellant.
D058999
(Super. Ct.
No. FVI800042)
APPEAL from
a judgment of the Superior Court
of
Bernardino County, Eric M. Nakata, Judge. Affirmed.
A jury
convicted Britin Amiel Riley of first
degree murder (count 1), five counts of attempted murder (counts 2-6), two
counts of shooting at an occupied motor vehicle (counts 7-8), and one count of
enhancement on counts 1 through 8, and that Riley had a prior serious felony
conviction, a prior strike conviction, and a prison prior. Riley appeals, contending: (1) the trial court failed to sua sponte
instruct the jury on principles of accomplice testimony; and (2) his conviction
must be reversed because the trial court erred in admitting evidence obtained
from a wiretap of his cell phone. He
also requests that we review in camera the affidavit in support of the wiretap
of his phone and the transcript of in camera proceedings held in the trial
court to determine whether probable cause supported the issuance of the wiretap
order and whether the trial court properly ordered the affidavit sealed. We affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Riley was a
member of the Rolling 40s Crips gang. On
a night in December 2007, he went to a party with Jerard Mitchem, Tamika Lott,
and Cherray Rice. When the party ended,
the group, along with others from the party, went to a nearby
two people associated with the Fruit Town Brims, a Blood gang. Mitchem tried to break up the fight. Eventually, Mitchem, Lott and Rice got back
into the car. The group, with Riley
driving, Rice in the front passenger seat and Mitchem and Lott in the backseat,
left the gas station.
As they
were driving, Mitchem, Rice and Lott told Riley about the altercation at the
Riley became angry and said, "Let's get them." He stopped at another gas station and then
eventually headed back to the ampm where
the altercation took place. By that
point, the crowd at the ampm had
dispersed, but Riley spotted two cars across the street at a Walgreens and
said, "There they go right there."
Riley
pulled out a gun, put it on his lap and followed the two cars out of the
Walgreens parking lot. He sped up until
he was alongside one of the cars he was following and told Rice to put her seat
all the way back and roll down the window.
Rice and Lott were screaming and told Riley not to do it, but Riley
fired multiple shots into the neighboring car.
He then caught up to the second car and fired shots into that car. One of the bullets hit 15-year-old Mylela
Ransom in the head, killing her almost instantly.
Riley
testified on his own behalf. He stated
that he saw Rice with a gun earlier in the evening of the shootings, but Rice
told him she did not have the gun when she got into his car. Riley testified that he was intending to
drive home when he saw two cars approaching.
He claimed that he was trying to let the two cars pass when Rice
unexpectedly fired shots at the cars.
DISCUSSION
I. Failure
to Instruct on Principles of Accomplice Testimony
Riley
contends the trial court erred in failing to
principles of accomplice testimony because Rice, Mitchem, and Lott were
accomplices as a matter of law or the jury should have been permitted to
determine whether they were accomplices before considering their testimony. We conclude the evidence in this case did not
permit a finding that Rice, Mitchem, and Lott were Riley's accomplices and,
even assuming the evidence permitted such a finding, the assumed error was
harmless.
An
accomplice is a person "who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of
the accomplice is given." (Pen.
Code, § 1111; undesignated statutory references are to this code.) To be chargeable with an identical offense, a
witness must be considered a principal under section 31. (People
v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) "Principles" include "[a]ll
persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its
commission . . . ."
(§ 31.) A mere accessory is not
an accomplice. (People v. Horton, supra,
at p. 1114.) An accomplice must have
" 'guilty knowledge
and intent with regard to the commission of the crime.' " (
If there is
sufficient evidence to find a witness was an accomplice to the crime, the trial
court has a sua sponte obligation to instruct the jury appropriately. (People
v. Tobias (2001) 25 Cal.4th 327, 331.)
The failure to instruct based on section 1111 is an error of state law,
subject to harmless error analysis under People
v. Watson (1956) 46 Cal.2d 818, 836-837.
(People v. Whisenhunt (2008)
44 Cal.4th 174, 214.) The failure to
give an instruction on accomplice testimony is harmless where the witness's
testimony was sufficiently corroborated.
(People v. Zapien (1993) 4
Cal.4th 929, 982.) "Corroborating
evidence may be slight, may be entirely circumstantial, and need not be
sufficient to establish every element of the charged offense." (People
v. Hayes (1999) 21 Cal.4th 1211, 1271.)
Corroborating evidence "is sufficient if it tends to connect the
defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth." (
834.)
Here, Riley
claims that Rice, Lott, and Mitchem were accomplices because Rice and Lott were
involved in the verbal altercation at the ampm,
all three continued discussing the altercation in the car as they drove away,
and all three were in the car before, during and after the shooting. However, "[m]ere presence at the scene
of a crime which does not itself assist its commission or mere knowledge that a
crime is being committed and the failure to prevent it does not amount to
aiding and abetting." (
907, 910-911.) There is no evidence that
Rice, Lott or Mitchem aided, promoted or encouraged the crime. In fact, Rice and Lott were screaming and
told Riley not to shoot. Further, Lott
told Riley that the people in the other cars were not involved in the
altercation at the ampm. There was also no evidence suggesting that
Rice, Lott and Mitchem had knowledge or intent with regard to the commission of
the crime. Thus, the evidence in this
case did not permit a finding that Mitchem, Rice and Lott were accomplices to
Riley's crimes.
Even
assuming, however, that the evidence could have supported a finding that
Mitchem, Rice and Lott were accomplices, the asserted instructional error was
harmless because their testimony was sufficiently corroborated. "A defendant's own testimony may be
sufficient corroborative testimony, and false or misleading statements made to
authorities may constitute corroborating
evidence." (
1009, 1022.) Here, Riley's testimony was
largely consistent with Mitchem's, Rice's and Lott's testimony, except that
Riley claimed that Rice was the shooter.
Thus, Riley's own testimony connected him to the crime and corroborated
the testimony of the other witnesses.
Further, after the crime, Riley made false statements to the police
about his whereabouts on the night of the shootings. In contrast to his trial testimony, Riley
told officers that at the time of the shootings, he was at home with his
wife. False and contradictory statements
of a defendant, including attempts to give a false alibi, are corroborative
evidence. (People v. Santo (1954) 43 Cal.2d 319, 327.) Accordingly, we conclude that even if the
trial court should have given an instruction on accomplice testimony, the
alleged error was harmless because the witnesses' testimony was sufficiently
corroborated.
II. Wiretap
Challenges
A. Background
Approximately
five days after the night of the crimes, the District Attorney applied for a
wiretap on Riley's cell phone. The
application was supported by an affidavit from Deputy Joseph J. Catalano II.
Deputy
Catalano averred that at the time of the filing of his affidavit, he had been a
deputy for the San Bernardino County Sheriff's Department for eight and a half
years and had responded to hundreds of calls relating to various crimes,
including murders, attempted murders, and assaults with deadly weapons. Many of the crimes were gang related.
Based on the investigation of the
crimes involved in this case, Deputy Catalano believed that a wiretap of
Riley's cell phone would provide evidence of Riley's participation in Ransom's
murder and his gang activity. In that
regard, Deputy Catalano stated that "[t]here [was] probable cause to
believe that particular communications concerning the [alleged] offense(s)
w[ould] be obtained through the interception of the wire, electronic page,
and/or electronic cellular telephone communications." He further explained that the wiretap was
necessary to identify "members and associates of the Rollin[g] 40's Crips
Criminal Street Gang who [were] involved in the [m]urder of [] Ransom" and
"[t]he location(s) of evidence, including the firearm, used in the
[m]urder."
Deputy Catalano summarized the
investigative techniques that officers used during the investigation, including
interviews with witnesses, review of video surveillance from the
analysis of pen registers and telephone tolls.
He further explained why he believed those techniques were no longer
likely to be effective or safe.
Judge
Kenneth Barr authorized the wiretap on Riley's cell phone, finding there was
probable cause to believe that communications concerning the alleged crimes
would be obtained through the wiretap and that normal investigative procedures
had been tried and had failed, were unlikely to succeed, or were too dangerous.
Prior to
trial, Riley moved to suppress evidence obtained from the wiretap. The trial court denied the suppression motion,
finding that there was nothing unreasonable about the wiretap procedures in
this case.
B. Analysis
" 'In general, California law
prohibits wiretapping.' " (People
v. Leon (2007) 40 Cal.4th 376, 383 (Leon),
quoting People v. Zepeda (2001) 87
Cal.App.4th 1183, 1195.)
"California's wiretap law subjects the authorization of electronic
surveillance to a much higher degree of scrutiny than a conventional search
warrant." (People v. Jackson (2005) 129 Cal.App.4th 129, 144 (
the privacy of wire and oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which the interception of wire and
oral communications may be authorized."
[Citation.]' " (Id.
at p. 147, quoting Halpin v. Superior
Court (1972) 6 Cal.3d 885, 898.)
A judge may authorize a wiretap
when the judge finds: (a) there is
probable cause to believe that an individual is, was, or will be committing one
of the crimes specified in the statute (§ 629.52, subd. (a)); (b) there is
probable cause to believe particular communications concerning the illegal
activities will be obtained through the interception (§ 629.52, subd. (b)); (c)
there is probable cause to believe the device is or will be used or leased by
the person targeted by the wiretap (§ 629.52, subd. (c)); and (d) normal
investigative procedures have been tried and failed, or appear reasonably
unlikely to succeed, or would be too dangerous if tried (§ 629.52, subd. (d)). The last criterion is known as the
"necessity" requirement. (
1149, 1172 (Roberts).)
Here, Riley argues the trial court
erred by denying his motion to suppress the wiretap evidence because the
affidavit supporting the wiretap: (1)
contained only generalized assertions regarding whether there was probable
cause to believe that evidence of a crime would be obtained by intercepting his
phone calls, and (2) was insufficient to support a finding that the wiretap was
necessary for the investigation.
We disagree.
1. Evidence
of the Illegal Activities
While we agree with Riley that
authorization for electronic surveillance is subjected to a higher degree of
scrutiny than traditional search warrants (Jackson,
supra, 129 Cal.App.4th at p. 144), we
disagree with his assertion that Deputy Catalano's affidavit contained nothing
more than generic claims of probable cause that could apply in any case. Our review of the affidavit reveals that in addition
to generally stating that there was probable cause to believe that
communications concerning the crimes would be obtained through the wiretap,
Deputy Catalano also specified the information that he believed would be
acquired. Specifically, he stated that
the wiretap was necessary to identify "members and associates of the
Rollin[g] 40's Crips Criminal Street Gang who [were] involved in the [m]urder
of Mylela Ransom" and "[t]he location(s) of evidence, including the
firearm, used in the [m]urder." He
also stated that, based on his investigation, he believed the wiretap would
reveal the identities and roles of participants in the murder. Accordingly, we reject Riley's contention
that Deputy Catalano's affidavit contained nothing more than generalities in
regard to the particular communications that would be obtained by the wiretap.
2. Necessity
The necessity
requirement ensures that wiretapping is not routinely used as an initial step
in a criminal investigation or when traditional investigative techniques would
expose the crime. (Leon, supra, 40 Cal.4th at p. 385; United States v. Giordano (1974) 416 U.S. 505, 515.) It is satisfied if the affidavit
"analyze[s] with particularity the limitations of each alternative
investigative technique in achieving the goals of [the] investigation" and
shows that ordinary investigative procedures, employed in good faith, are
unlikely to be effective in the case. (
investigative techniques" include surveillance, infiltration or undercover
work, questioning of participants, execution of search warrants, and the use of
pen registers and trap-and-trace devices.
[Citations.]' " (Roberts,
supra, 184 Cal.App.4th at p. 1172.)
"The
overall burden on the government in meeting the necessity requirement for
issuance of a wiretap warrant is not great.
[Citation] [¶] A finding of necessity by the judge approving the wiretap
application is entitled to substantial deference." (Roberts,
supra, 184 Cal.App.4th at p. 1172.)
Riley contends
that "a mere five days of investigation which consisted essentially of
interviewing the victims and the passive receipt of confidential tips" did
not satisfy the necessity requirement because officers did not exhaust
traditional investigative methods. However, " '
"[t]he
government need not exhaust or explain its failure to exhaust every conceivable
investigative procedure before resorting to wiretapping." '
" (Leon, supra, 40 Cal.4th at p. 395, quoting United States v.
Carrillo (D.Colo. 2000) 123 F.Supp.2d 1223, 1245.) Deputy Catalano's affidavit detailed the
investigative techniques used to date and the reasons why those techniques were
no longer likely to be effective or safe.
Investigators interviewed witnesses, reviewed surveillance
videos, worked with confidential informants, and analyzed pen registers and
telephone tolls. According to Deputy
Catalano, interviews, physical surveillance and grand jury proceedings would
compromise the investigation by alerting participants in the crimes. Additionally, investigators were not aware of
any other informants who would provide information regarding the murder and
determined that the information derived from the pen registers and telephone
tolls was of limited value.
The description
of the investigative techniques that had been used was thorough, explicit and
relevant to the investigation. Thus, the
issuing judge reasonably determined that ordinary investigative procedures,
employed in good faith, were unlikely to be effective in the case and
authorized the wiretap on Riley's cell phone.
(Leon, supra, 40 Cal.4th at pp. 385, 389-390.) We find no error in the trial court's denial
of Riley's motion to suppress the wiretap evidence.
III. In
Camera Review
Prior to
trial, Riley moved to unseal redacted portions of Deputy Catalano's affidavit
supporting the electronic interception of his cell phone. The trial court denied the motion, concluding
that the materials should remain sealed.
Riley
requests that we review the affidavit and the transcript of in camera
proceedings held in the trial court to determine whether probable cause
supported the issuance of the wiretap order and whether the trial court
properly ordered the affidavit sealed.
The People do not oppose the request.
A wiretap
order must be supported by probable cause (§ 629.52) and is subject to a much
higher degree of scrutiny than a conventional search warrant (
" ' "[W]hile we defer to the
[trial] court's express and implied factual findings if they are supported by substantial
evidence, we exercise our independent judgment in determining the legality of a
search [based] on the facts so found." ' " (Roberts,
supra, 184 Cal.App.4th at p. 1171.)
We issued
an order directing the trial court to augment the record with all materials it
reviewed in camera and the transcript of the in camera proceedings. Although the trial court supplied us with the
unredacted wiretap affidavit, there is some conflict in the record regarding
the trial court's procedures in reviewing that affidavit. In considering Riley's motion, the trial
court stated that it conducted an in camera review. Further, on appeal, Riley requests that we
"examine the sealed transcript of the confidential hearing." He, therefore, suggests that the trial court
held an in camera hearing. However, in
response to our request to augment the record, the superior court stated that
"an 'in camera' hearing was not conducted."
In any event, we have conducted our
own in camera review of the affidavit supporting the electronic interception of
Riley's cell phone. We cannot, however,
review the transcript of the in camera hearing, as Riley requested, because
either the hearing was not conducted or the proceedings were not reported. Based on our review of the affidavit, we conclude
the trial court did not err in either sealing the affidavit or its decision to
keep the document sealed. The totality
of the circumstances presented in the affidavit established probable cause for
the intercept order.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
