P. v. Wilson













Filed 1/22/13 P. v. Wilson CA1/2

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO


>

THE PEOPLE, Plaintiff and Respondent, v. ALPHONSO RAY WILSON, JR. Defendant and Appellant.

A129064 (Solano County Super. Ct. No. VCR187924)

>I. INTRODUCTION

Defendant Alphonso Wilson was found
guilty of two counts of first degree
murder (Pen. Code, § 187, subd. (a)),href="#_ftn1" name="_ftnref1" title="">[1]
with the special circumstance that the murders were committed during a href="http://www.mcmillanlaw.com/">robbery and that there was more than one
murder. Wilson was sentenced to href="http://www.fearnotlaw.com/">state prison for consecutive terms of
life without possibility of parole.href="#_ftn2"
name="_ftnref2" title="">[2]

On appeal, Wilson argues that the
trial court erred when it restricted his access to unpublished materials
related to an interview he gave regarding the crime to a newspaper reporter,
and also by excluding him and his counsel from the court’s in camera review of
the reporter’s unpublished materials. He
also argues the trial court erred in denying a defense motion to strike the
reporter’s direct examination testimony because of restrictions placed on the
cross-examination of the reporter regarding these unpublished materials. He further contends the trial court erred
when it precluded his counsel from arguing that the murders were not committed
during the course of the robbery but were, in fact, committed out of fear of
the victims in general.

Finally, he argues, and the People
concede, that the trial court erred by failing to instruct the jury sua sponte
that when a defendant is prosecuted for murder on an aiding and abetting
theory, a murder special circumstance can be found only when the defendant acts
with the intent to kill.

With the exception of the trial
court’s failure to instruct the jury sua
sponte as to the aiding and abetting theory, we affirm the judgment.

>II. FACTUAL AND PROCEDURAL BACKGROUND

A. >The Robbery and Murders

On
January 17, 2007, the police found the bodies of two men, James Werder and
Manuel Caldera. Several months later,
and after being given Miranda warnings,
defendant was interviewed by San Joaquin Deputy Sheriff Kevin Ming and Vallejo
Detective Steven Cheatham. Defendant
first denied any involvement in the killings, but ultimately confessed that he
and another man, Charles Camper, had robbed Caldera and Werder. He told the police that, during the robbery,
Camper killed Caldera and Werder.

Wilson told the police officers that
Werder and Caldera operated an ice cream truck business. They also grew and sold marijuana. Wilson and Camper,href="#_ftn3" name="_ftnref3" title="">[3]
lived with Werder and Caldera. Wilson
was 18, and had been in special education for “a little bit of ADD” since the
third grade. Wilson had been friends
with Camper for several years, but dropped the friendship because Camper was
involved with gangs. However, when he
needed a place to stay, Wilson stayed with Camper for about three months, and
they became friends again.

After Wilson met Werder and Caldera,
the two men told him that they “got a little job for you [Wilson] I want you to
do.” Werder and Caldera asked him to
work in their ice cream truck business and Wilson agreed. Wilson didn’t know until he got to their
house that they “had a weed lab there.”
He described his reaction to this discovery as follows: “And so I’m in the house like man, I have to
stay here with you guys? And they was
like, ‘Yeah.’ Then I was like, ‘With all
this stuff downstairs’? I’m like that’s
gonna be hard but I was making a little side . . . a little side
money. . . . [¶] [b]y working the ice cream truck, I was
into stuff like that.” He didn’t smoke
marijuana and he didn’t want to be around it.
Camper didn’t immediately move into the house because he was 17, and
Werder and Caldera needed someone who was 18.


Wilson moved in with the victims in
October and Camper joined him in November, after he turned 18; Wilson was with
Manuel Caldera “all the time.” Camper,
on the other hand, had a warrant out for his arrest, so he stayed in the house
and “watch[ed] the weed lab . . . .” Wilson had his own bedroom and Camper slept
on the couch next to Caldera. James
Werder did not live at the house. Wilson
liked going to parties, and went occasionally.
If he had to go somewhere, he would call Manuel Caldera (“T”), who would
come and pick him up and take him where he needed to go.

Wilson never had any problems with
Caldera or Werder. He did describe to
the detectives how, on one occasion Werder “body slammed” him when he wasn’t
listening to him. Although Wilson
respected Werder for doing this, he didn’t want to be around him. Wilson was never threatened at the house,
never stole anything, and was never accused of anything. The two men “had so much trust in me.”

Wilson got paid for driving the ice
cream truck, but Camper did not. “He [Camper]
really wasn’t catching on how to grow the weed when they got mad at him. Talking about they wanted to kick him
out. He [Camper] didn’t want to go.” The money Wilson earned selling ice cream was
often left on the table in the house for him to spend for his expenses. It was his practice to call Caldera first and
asked him for permission to do so.

Camper had “go[t] in and out of
arguments” with Caldera and Werder.
Wilson told the detectives that neither Caldera nor Werder had
threatened to kill Camper. Nor had they
threatened to kill Wilson. Wilson also
told the police detectives that “If they [Werder and Caldera] would have
threatened [Camper] then I would have gone, I’m cool. . . .
[¶] . . . I would have said I can’t work this ice cream
business[ and] . . . [¶] . . . I would’ve
left.” The victims did threaten Camper
when he first “came in.” They thought
Camper was sneaky and told him that “if he ever pull something we’re gonna
shoot you.”

Wilson had seen Caldera shoot people
on two occasions. Camper told defendant
that he wished he'd been there.
According to Wilson, Camper told him “my finger trigger happy. I’m ready to kill
anybody. . . . [¶] . . . he like so I’m gonna die
anyway. . . . [¶] . . . He don’t care if he got
it. He never trying to change his
lifestyle.”

Asked again about his relationship
with the victims, Wilson again said he was not afraid of them and denied that
they had threatened to kill him. He did
not think they would kill Camper if he had stolen money from them because he
“would be upset,” and they would not be able to hide the crime.

It was Wilson’s plan to rob Caldera
and Werder, and he told Camper “ ‘we might have to take ‘em
out.’ ” Camper “was like, ‘All
right.’ So then I was thinking like I don’t
know though, should you do it or not?
Cause you know? I don’t
know. I—I was kind of telling him, it
ain’t right. And I was thinking man,
that’s it for you if you pull the trigger.
And I think he was gonna do it. I
thought he was just bullshitting me, man.”


Wilson told the police officer that
he felt like “getting out of this gang ‘cuz what if the police come and kick
the door down? We got a—they got all
this stuff and it don’t feel right. I
was like, ‘I’m ready to take the money.’
But I was kind of thinking like, I’m gonna wait until they gone and I
take they money. And then I’ll just
never come back to the Vallejo um, the older guy won’t kill me.” He was afraid of the victims.

Wilson and Camper’s plan was that
Camper would hold Caldera and Werder at gunpoint, and Wilson would take the
money. Camper took a gun out of
Caldera’s truck before they entered the house.
He told Wilson: “ ‘Are you
sure you want to take the money?’ . . . Then he [Camper] was
like, ‘I’m gonna have to kill ‘em.’ Then
I’m thinking like—thinking like no let’s just take the money, he’s like ‘I’m
gonna have to do it.’ And that’s when he
hit me with that my finger trigger is itchy.”

At some point before this, Caldera
and Werder took Camper with them to deliver some marijuana to a customer. They told Camper, “we know you got a warrant,
but come on . . . you can go out this time.” Camper was happy to go. When they came back, Wilson began “thinking
like man, I feel like a hostage up in here.
I’m like man, I can take the money and just be cool. I don’t even have to kill
nobody . . . .”

On January 15, 2007, Wilson and
Camper entered the house. Wilson went to
the table where the money was located.
“I’m like—am gonna take the money.
And then I was like damn, I kept thinking in my head. I don’t think we should kill ‘em.” Wilson told the police that “basically I
didn’t want to plan out a murder. I
wanted to just take the money and—and get out.”
He wanted Camper to point the gun at the victims, frighten them, so he
could “grab the money and we leave.”
However, after they entered the house, Camper shot and killed Werder and
Caldera. Wilson watched Camper shoot
both men “[a]nd I was like fuck. I was
like you weren’t supposed to kill him.”

Both men fled to Washington State. When he eventually returned to California,
Wilson was arrested.

At trial, A.P. testified that in
January 2007, when she was 15 years old, defendant was her boyfriend. Sometime in mid-January, defendant came to
A.P.’s school to pick her up. He was
driving a silver BMW. They drove around
for a while, then switched to a Chevy Tahoe and then back to the silver BMW.href="#_ftn4" name="_ftnref4" title="">[4] She was aware that defendant was living in a
house with two men and he was helping them harvest marijuana. She believed that defendant and Camper “were
in some kind of gang . . . .” Defendant told her that the situation in the
house had become extremely dangerous for him and for Camper. He told her that the victims “had threatened
both Charles [Camper] and [Wilson] to kill them if they tried to
leave . . . .”

Defendant told her that he and
Camper had been involved in the murder.
He told her that he had taken a lot of money from the victims. She wasn’t sure if the murders were gang-related
or simply financially-related. She
remembered telling a police detective after the murders of Caldera and Werder
that defendant told her that Camper “had to kill” the victims because they were
in a gang. Defendant told her that
Camper had killed the victims because he (Camper) “was in a situation where he
felt it was kill or be killed . . . .”

B. >Wilson’s Interview with Vallejo Times
Reporter, J.M. Brown

While
he was incarcerated, Wilson agreed to participate in an interview with Vallejo
Times Herald reporter J. M. Brown. Brown
wrote an article for the Times Herald regarding this interview. The article, I Am Not a Killer, was published in the newspaper on March 11,
2007.

In the article, which was not
admitted into evidence but came in through Brown’s testimony regarding its
accuracy, Wilson admitted that he had bragged to his friends about being the
killer, but when Brown asked him about it, he said that he had not killed
Caldera or Werder. He remembered telling
friends that he had killed Caldera and Werder “for all this money” He told Brown that the original plan with
Camper was simply to steal the cash and the truck, not to kill the men. The men were his friends, in fact. Camper,
however, was afraid that Caldera and Werder would seek revenge for the robbery,
which is why he shot them. Wilson did
not feel the killings of Caldera and Werder were his fault.

>D. The Verdict

The
jury found Wilson guilty of two counts of first degree murder, found true the
special circumstance allegations that each murder was committed during a
robbery and that there was more than one murder, found not true the allegation
that Wilson personally used a firearm to murder Caldera, and made no finding as
to the allegation that Wilson personally used a firearm to murder Werder.>

This timely appeal followed.

III. DISCUSSION

A. >Orders
Regarding Reporter Shield Law

Defendant argues that judges who
presided over his preliminary examination and trial erred in ruling on issues
the first trial judge who presided over this matter, Judge Getty, had already
decided.

1. Judge
Getty’s Order Denying Vallejo Times Herald’s Motion to Quash

Prior
to the preliminary examination, the People subpoenaed Vallejo Times Herald
reporter J.M. Brown to testify at the preliminary examination about an article
he wrote after he interviewed Wilson.
Both the Times Herald and Brown moved to quash the subpoena, arguing
that under the California shield law (Cal. Const., art. I, § 2(b); Evid. Code, § 1070) (shield law), Brown
could refuse to testify about any unpublished information related to his
interview with Wilson and nevertheless be entitled to immunity from contempt.

All parties ultimately agreed that
Brown would testify, without any objection under the shield law, as to the
accuracy of “the information that falls within the quotation marks” in the
article.

The Times Herald also argued that
the shield law gave Brown immunity from prosecution as to information in the
article that paraphrased Wilson’s statements rather than directly quoted
them. The Times Herald further contended
that, as the trial court put it, “unpublished information that doesn’t appear
whatsoever in the four corners of the article, but [is] known to the reporter
through his investigatory efforts” would fall under the shield law as
unpublished information.href="#_ftn5"
name="_ftnref5" title="">[5] At this point, the attorney for the Times
Herald informed the court that she was uncertain as to whether there were any
notes related to the interview.

The hearing was continued to allow
further argument. On September 21, 2007,
Judge Getty held that any of defendant’s statements that appeared in quotes in
the article, as well as those paraphrased in the article were published
materials and, therefore, Brown had no immunity from prosecution should he
refuse to testify about them.

As to the defense’s ability to cross-examine
Brown on unpublished matters related to the interview, the court found that
“there has been sufficient offer of proof by [the defense attorney] that the
release of the unpublished materials to the defense would reasonably possibly
assist in the defense especially given the inculpatory statements that have
been reported.” Therefore, the court
denied the motion to quash. >

The court elaborated briefly on its decision noting that “sitting
here today, all I would order disclosed, which is why I’m not certain we need
an in camera review, is his notes, any audiotape between him and Mr. Wilson and
there really is nothing else for me to disclose. It will only come up when he is questioned on
the stand.”href="#_ftn6" name="_ftnref6"
title="">[6]
The court went on to state that it was uncertain whether “Mr. Brown is
requesting an in camera review for the purpose of the disclosure of the
unpublished information.” However, no
such review was requested and the court’s denial of the motion to quash was
memorialized in Judge Getty’s order of September 21, 2007.

> 2. >Judge Harrison’s Order Granting Vallejo
Times Herald’s Motion

> to
Quash

At
this point, the case’s path took a significant turn. On October 3, 2007, the public defender was
relieved as defense counsel because of a conflict. A new attorney, John Coffer, was appointed to
represent Wilson. At that time, the
court specified that Brown “is still under subpoena.”

Shortly afterwards, Judge Getty was reassigned and, therefore, did
not preside over the preliminary examination.

A second judge, Judge Smith,
continued the preliminary examination
to December 14, 2007. A third judge,
Judge Harrison, was then assigned to the case and the preliminary examination
was continued once again, this time to January 2008. A fourth judge, Judge Kinnicutt, presided
over the trial.

On January 18, 2008, prior to the
preliminary examination, the Times Herald and Brown filed “evidentiary
objections” to anticipated questions.
These “objections” restated the arguments Judge Getty had previously
rejected when she denied the motion to quash.
Among the areas characterized as objectionable were “[q]uestions about
the content of defendant’s statements to Mr. Brown,” questions about the “flow
of” conversation between Mr. Brown and defendant and/or how long the defendant
spoke about each matter raised, questions about defendant’s comprehension of
the charges against him and/or the questions posed by Mr. Brown, “[q]uestions
about defendant’s general demeanor, mental state and related matters,” and any
“[r]equest to Mr. Brown to produce
unpublished notes.”

At the preliminary examination, Brown refused to answer the People’s
questions regarding anything other than the fact that he had written the
statements found in the article. Asked
about paraphrases of certain statements made by defendant, Brown refused to
testify. Accordingly, the court (now
Judge Harrison) held him in
contempt. Brown then agreed to, and did,
answer the People’s questions regarding his paraphrases of statements in the
article.

On cross-examination, defense
counsel began to question Brown on issues related to the newspaper
article. The Times Herald and Brown
contended Brown would refuse answer questions about unpublished information
related to the interview and was, under the shield law, entitled to immunity
from contempt.

At this point, defense counsel
became aware that Brown had notes regarding the interview. Defense
counsel then requested that the court hold an in camera hearing to
determine whether these notes contained any information that would assist in
Wilson’s defense. Defense counsel was
asked to make a showing that the notes could possibly assist in Wilson’s
defense. Defense counsel argued that
because Brown did not remember the content of the notes, the notes were the
best evidence of the interview, the newspaper article was hearsay, and he had
no way to cross-examine Brown on the accuracy of the article as confirmed by
his notes. The court agreed that the
fact there were notes of the interview indicated there was a possibility that
the notes might shed light on the accuracy of the article. The court concluded that, “in and of itself,
[the notes] could, as a possibility, assist the defense.”

Judge Harrison then held an in camera review of the notes, from which he excluded
defense counsel. Defense counsel
objected to this exclusion. After
reviewing Brown’s notes, the court held that there was nothing in the notes
that justified disclosure to the defense and “that the reporter’s privilege and
shield law still applies.”

At the preliminary hearing, defense
counsel sought to examine Brown on issues regarding statements made by Wilson
during the interview that were not recorded in the article, and questions,
including follow-up questions, Brown might have asked Wilson during the
interview. Counsel also sought
information about Wilson’s demeanor during the interview. The court sustained objections to these
questions under the shield law.

At the end of the preliminary
hearing, the defense moved to have Brown’s testimony stricken on the ground
that the application of the shield law had denied him the right to
cross-examine Brown and thus was a denial of Wilson’s due process rights. This motion was denied.

>3. >Judge
Kinnicutt’s Order Granting Vallejo Times Herald’s

> Motion
to Quash

On
February 5, 2009, before the fourth judge to preside over this matter, Judge
Kinnicutt, the Times Herald filed the same motion
to quash the prosecution subpoena of Brown it had earlier filed. Judge Kinnicutt granted the motion to quash
and the objections to anticipated questions regarding unpublished information
concerning Brown’s interview.

B. W>aiver

Although
Wilson now challenges the fact that multiple decisions on the same issue were
improperly made by the trial court judges presiding over this matter, at no
point during the preliminary examination or during the trial itself, did he
object to Judges Harrison and Kinnicutt ruling on the same issues Judge Getty
had previously heard. Accordingly,
Wilson has waived his objection on appeal to this procedural issue. (People
v. Scott (1994) 9 Cal.4th 331, 353.)


However, we consider the merits of
his contention in anticipation of any ineffective assistance of counsel
argument and conclude that, even if he had not waived this issue, there would
still be no error because Judge Harrison’s ruling on the motion to quash was
not an abuse of discretion. >

C. Power of Trial Court to Rule on Issue Already Decided

> by Another Trial Court in Same Matter

In
general, “the power of one judge to vacate an order made by another judge is
limited. [Citation.] This principle is founded on the inherent
difference between a judge and a court and is designed to ensure the orderly
administration of justice. ‘If the rule
were otherwise, it would be only a matter of days until we would have a rule of
man rather than a rule of law. To affirm
the action taken in this case would lead directly to forum shopping, since if
one judge should deny relief, defendants would try another and another judge
until finally they found one who would grant what they were
seeking.’ ” (In re Alberto (2002) 102 Cal.App.4th 421, 427, citing >Greene v. State Farm Fire & Casualty Co.
(1990) 224 Cal.App.3d 1583, 1588.)

Here, Judge Getty denied the Times
Herald’s motion to quash the People’s subpoena of Brown in its entirety, including that portion
of the subpoena that requested Brown’s notes.
If the Times Herald believed this ruling was incorrect, the newspaper’s
remedy was to seek appellate review of Judge Getty’s order. Instead, it raised this matter a second time
before a different judge presiding over the case and presented additional
information to support its motion to quash, information that was available to
it when it filed its original motion to quash.
The Times Herald’s failure to present this information at the hearing
before Judge Getty did not entitle it to seek another ruling on the same issue
from a different judge. It was error,
therefore, for Judge Harrison to rule on this matter after it had already been
decided. Similarly, it was error for
Judge Kinnicutt to do the same.

The People contend that Judge
Harrison’s ruling was, in fact, consistent with that of Judge Getty because the
latter’s order contemplated that there would be a later proceeding involving an
in camera review of Brown’s notes.
However, as we have earlier
noted, Judge Getty asked whether Brown wished such an in camera review and,
hearing no such request, she ruled without holding one.

Ordinarily, the remedy for this
error would be to reverse Judge Harrison’s ruling. However, we “ ‘cannot >reverse a trial court’s ruling which
correctly follows the law merely because it disagrees with an earlier,
incorrect ruling.’ ” (>In re Alberto, supra, 102 Cal.App.4th at
p. 431.) Accordingly, we proceed to the
issue of whether Judge Harrison was correct in, essentially, granting the
Times-Herald’s motion to quash. To do
so, we now consider whether, under the shield law, Brown was entitled to
immunity from contempt for refusing to provide his interview notes to the
defense.

D. >Shield Law:
General Principles

Under
the shield law, neither a media organization such as the Times-Herald nor an
employee, such as Brown, may be held in contempt for refusing to comply with a
subpoena that requires it to “ ‘disclose any unpublished information obtained or prepared in gathering,
receiving or processing of information for communication to the public.’ ” (Delaney
v. Superior Court (1990) 50 Cal.3d 785, 796 (Delaney).) “Unpublished
information’ includes information not disseminated to the public by the person
from whom disclosure is sought, whether or not related information has been
disseminated . . . .”
Notes and tapes are among the information the shield law characterizes
as “unpublished information.” (>Id. at p. 799.) Further, the shield law “provides an immunity
from being adjudged in contempt; it does
not create a privilege.” href="#_ftn7" name="_ftnref7" title="">[7] (Id.
at p. 797, fn. 6.)

As the proponents of the motion to
quash, the Times-Herald and Brown bore the initial burden of proof (Delaney,
supra, 50 Cal.3d at p. 807, fn.
20), which was that they were required to show that “all the requirements of
the shield law have been met.” (>Ibid.) The shield law provides a
reporter with immunity from contempt when the reporter refuses to disclose “any
unpublished information obtained or prepared in gathering, receiving or
processing of information for communication to the public.” The law defines “unpublished information” as
that which “includes information not disseminated to the public by the person
from whom disclosure is sought, whether or not related information has been
disseminated . . . .”
(Cal. Const., art. I, § 2(b).) In
short, the reporter’s prima facie case in this matter comes down to two
questions: Was the information obtained
during the news gathering process and is the information “unpublished”? href="#_ftn8"
name="_ftnref8" title="">[8]

Delaney
is instructive in demonstrating how this prima facie case is made. In that case, the defendant sought testimony
from two reporters about their observations of his arrest and search. The reporters conceded that the information,
of which the defendant himself was the source, was not confidential. The question facing the Delaney court, therefore, was whether the shield law’s definition
of “unpublished information” includes a reporter’s “unpublished,
nonconfidential eyewitness observations of an occurrence in a public
place.” (Delaney, supra, 50 Cal.3d at p. 797.)

The court’s response to this issue
was simple and instructive: the shield law, on its face, applies to “>any unpublished information.” (Delaney,
supra, 50 Cal.3d at p. 798.) The word any “means without limit and no matter what kind.” (Ibid.)
The
court, therefore, rejected the argument that the “clear and unambiguous”
language of the shield law could be construed to limit “unpublished
information” to only that which was obtained in confidence. To do so, it said, “would be to read the word
‘any’ out of the section.” (>Ibid.)
The court held, therefore, that the shield law applies to “any”
unpublished information including the non-confidential information sought by
the defendant. (Ibid.)

Although when a defendant is the
source of the information sought, the
information cannot be considered confidential, Delaney makes clear that this non-confidential information, like
confidential information, falls within the scope of the shield law, which
broadly applies to “any” unpublished information. Here, of course, the information obtained by
the reporter was not confidential, in that defendant himself was the source of
the information. As in >Delaney, this does not mean the
information falls outside the scope of the shield law. As Delaney
makes clear, the law applies broadly to “any” unpublished information,
which would include the reporter’s notes of his interview with defendant in
this case. (See also >People v. Vasco (2005) 131 Cal.App.4th
137, 152-156 [shield law applicable to conversations between defendant and
reporter].)

However, even if a reporter makes a
prima facie case that the shield law applies to the material sought, “the
shield law’s protection is overcome in a criminal proceeding on a showing that
nondisclosure would deprive the defendant of his federal constitutional right
to a fair trial.” (Delaney, supra, 50 Cal.3d at p. 805.) The Delaney
court held that “to overcome a prima facie showing by a newsperson that he
is entitled to withhold information under the shield law, a criminal defendant
must show a reasonable possibility the information will >materially assist his defense. A criminal defendant is not required to show
that the information goes to the heart of his case.” (Id. at
p. 808, emphasis added.) href="#_ftn9"
name="_ftnref9" title="">[9]

As we have earlier noted, Judge
Getty and Judge Harrison had before them different descriptions of the
materials at issue and, therefore, reached different conclusions regarding the
motion to quash. Wilson had not, and
never did, subpoena the reporter.
Nevertheless, Judge Getty assumed that the materials sought were notes
and any observations the reporter made about the circumstances of the
interview, although she had no specific understanding of the contents of this
information. Judge Getty reasoned that
because the newspaper article involved “inculpatory” matters, information about
the circumstances of the interview would reasonably probably materially assist
the defense. Having found that the
threshold question had been answered in Wilson’s favor, Judge Getty then went
on to the third stage of the shield law analysis, which we describe briefly at
a later point in this opinion. As we
have said, Judge Harrison’s consideration of the threshold question differed
from Judge Getty’s in an important respect:
he had before him, in camera, the notes the reporter took during his
interview with defendant.

Once Brown and the newspaper met
their initial burden, the burden then shifted to Wilson “to make the showing
required to overcome the shield law.” To
“overcome a prima facie showing by a newsperson that he is entitled to withhold
information under the shield law, a criminal defendant must show a >reasonable possibility the information
will materially assist his defense. A
criminal defendant is not required to show that the information goes to the
heart of his case.” (>Delaney, supra, 50 Cal.3d at p.
808.) Rather, the evidence must be
“likely helpful evidence.” This is so
because “ ’[t]he need to develop all
relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal
justice would be defeated if judgments were to be founded on a partial or
speculative presentation of the facts.
The very integrity of the judicial system and public confidence in the
system depend on full disclosure of all
the facts, within the framework of the rules of evidence.’ ”href="#_ftn10" name="_ftnref10" title="">[10] (Ibid.)

Wilson, therefore, was required to
show a reasonable possibility the information he sought would materially assist
his defense. He was not required to make
a “detailed or specific” showing, but his showing “must rest on more than mere
speculation.” (Delaney, supra, 50 Cal.3d at p. 809.) Nor was he required to show “a reasonable
possibility the information will lead to his
exoneration.” (Ibid.)

In reviewing Judge Harrison’s order
quashing the subpoena on the grounds that defendant had failed to meet this
threshold burden, we note that the parties agree that the abuse of discretion
standard of review applies to the question of whether Judges Harrison and
Kinnicutt erred in granting the motion
to quash. They are correct. In another case involving the shield law, >People v. Ramos (2004) 34 Cal.4th 494,
527 (Ramos), the court was called
upon to consider whether the trial court had properly ruled that a newspaper
reporter’s notes of an interview with a defendant were protected under the
shield law because the court found that the evidence contained in the notes
would not have materially assisted the defendant. The court found that “defendant has failed to
meet Delaney’s threshold test, and we
find no abuse of discretion in the trial court’s use of the shield law in
protecting [the reporter]’s notes.”

“ ‘The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the
trial court. [Citations.]’ ” (>Uriarte v. United States Pipe & Foundry
Co. (1986) 51 Cal.App.4th 780, 790,
italics omitted.) Accordingly, we will
disturb the trial court’s ruling only insofar as it is “arbitrary, whimsical,
or capricious.” (People v. Jacobs (2007) 156 Cal.App.4th 728, 736.)

In the absence of specific
information about the contents of the notes, Judge Getty had before her a strong
argument that, in general, the reporter’s notes were the most useful way to
examine the accuracy of the newspaper article and therefore would materially
assist in his defense. Judge Harrison,
however, reached a very different conclusion based on an in camera review of
the notes to which defendant sought access.
These notes, of course, were never reviewed by Judge Getty. Judge Harrison’s review revealed that the
notes would not add anything helpful to Wilson’s defense and, therefore, he
found that Wilson had failed to meet his threshold burden of showing that the
notes would materially assist in his defense.

As we have said, Judge Harrison’s
consideration of the threshold question differed from Judge Getty’s in an
important respect: he had before him, in
camera, the notes the reporter took during his interview with defendant. Similarly, in Ramos, supra, 34 Cal.4th at p. 527, the trial court conducted an in
camera review of a reporter’s notes and concluded that they would not
materially assist the defense and, therefore did not meet the shield law's
threshold burden. The >Ramos court held that the trial court’s
ruling was not an abuse of discretion because “the record does not suggest the
notes contain anything of substance that the jury had not already heard.” (Ibid.) We have reviewed the record in this matter,
including the in camera proceedings and Brown’s testimony therein regarding his
notes. Here, as in Ramos, the record reveals that the notes contained nothing useful
to the defense. Accordingly, we conclude
that Judge Harrison correctly found that defendant had failed to meet the
threshold burden of showing that the notes would materially assist his
defense. Therefore, his order granting
the motion to quash was not an abuse of discretion.

At this point, having found that
defendant had failed to meet the threshold showing, Judge Harrison’s inquiry
was at an end and he properly granted the motion to quash the defense request
for the notes.href="#_ftn11" name="_ftnref11"
title="">[11] Therefore, for the purposes of considering
any potential argument that defendant’s counsel was ineffective because he did
not object to the court’s consideration of the motion to quash a second and
third time, we find that even if defendant had made such an objection it would
have been unavailing because Judge Harrison’s ruling on this issue was well
within the exercise of his discretion.

E. >The In Camera Proceeding

Wilson argues that his and his counsel’s exclusion from the in
camera proceeding denied him his constitutional
right to be present and to assistance of counsel. He also contends that this error is
structural because it resulted in the complete deprivation of counsel at the
preliminary hearing. We do not
agree.

First, Wilson is incorrect when he characterizes
the procedure in this case as one in which the court acted as an advocate. Our review of the record indicates that Judge
Harrison solicited, listened to, and understood the defense theory and properly
acted in an impartial manner.

Second, although the issue of
whether an in camera review of materials from which a party is excluded
violates the shield law has not been clearly addressed by any court, in our
view had Wilson and his counsel been present at the in camera hearing, he would
have raised the same issues to which he had already alerted the trial court
before the in camera hearing.

Third, because the notes contained
nothing the court was obliged to order disclosed, Wilson's exclusion from the
in camera hearing resulted in no prejudice under either People v. Watson (1956)
46 Cal.2d 818 or Chapman >v. California (1967) 386 U.S. 18 because
nothing would have been served by permitting Wilson to participate in the
court's review of the notes. Similarly,
in Ramos, supra, 34 Cal.4th at p. 527,
the defendant argued that “trial court’s decision to hold an in camera hearing
excluding both defendant and his counsel denied him his constitutional right to
be present and to assistance of counsel.”
The defendant also claimed that application of the shield law denied him
his right to the “ ‘entirety of the interview,’ thwarting his ability to
present a defense and obtain a fair trial.”
The Ramos court found that
“[d]efendant again fails to show how the in camera proceeding or the protection
of the unpublished notes in any way negatively influenced his ability to
present a defense or receive assistance from counsel, or in any way changed his
defense or the context of [defendant’s] testimony. [Citation.]”
(Ibid.) Similarly, here, defendant has made no such
showing (nor do we find any from our review of the notes in camera) that if
counsel had the opportunity to question Brown about the notes, there was
anything in them that would have been useful to Wilson. Finally, to the extent the defense sought to
cross-examine Brown on matters outside the notes themselves in an effort to
cast doubt on the accuracy of his article, arguably implicating a right to
cross-examination that overcome the shield law’s protection (see >Fost v. Superior Court (2000) 80 Cal.App.4th
724, 737-738), such examination could not have been availing in light of
Brown’s lack of recollection of the details of the interview.

F. >Motion to Strike

Wilson
moved to strike Brown’s testimony on direct examination because he was not
permitted to cross-examine Brown using the notes. The court denied this motion and Wilson now
argues that the court’s ruling violated his federal constitutional right to
confrontation. We disagree.

First, as we have previously
concluded, the court acted within its discretion when it granted the motion to
quash. The motion to strike was based on
the same argument made in the motion to quash, namely that Brown should have
been held in contempt for refusing to provide the defense with the notes. Therefore, just as the court was within its
discretion to grant the motion to quash, it was also within its discretion to
deny the motion to strike. Because,
under the shield law, the reporter’s notes were not available to Wilson during
his cross-examination of Brown , the court’s ruling did not violate his right
to confrontation. Second, any error by
the court would have been harmless beyond a reasonable doubt because, as noted
above, Brown’s notes did not contain
any information material to Wilson’s defense.
Had defense counsel been permitted to cross-examine Brown using them,
this cross-examination would not have changed the outcome of the trial.

G. >Restrictions on Defense Closing Argument

Wilson
argues that the trial court erred when it sustained prosecution objections to
statements made in his closing argument that related to his theory that Camper
killed Caldera and Werder not in the commission of the robbery, but because he
was fearful of the two men. He argues
that these rulings violated his rights to effective assistance of counsel and
to present a defense. We disagree.

Although Wilson has a federal
constitutional right to have his counsel present at closing argument, the trial
court has “broad discretion” to limit counsel’s closing arguments in scope and
duration. (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1184-1185.) The court’s first and third rulings
sustaining objections to defense counsel’s argument regarding Camper and
Wilson's fear of Caldera did not prevent him from arguing this theory. As defense counsel told the jury, “the reason
this happened was because they had been threatened to be killed, they were
fearful, so Mr. Camper shot them, and then they took the money and ran.” On the second occasion the trial court
sustained the People’s objection to defense counsel’s argument, defense counsel
nevertheless informed the jury that there was a possibility that Caldera was a
man who was himself violent and made Wilson fearful.href="#_ftn12" name="_ftnref12" title="">[12]

The third objection during argument
was to defense counsel’s argument that Wilson was lying to the police during
his interview. However, as with the
other two objections, counsel nevertheless made his point. Thus, he told the jury that “he [Wilson]
wanted to avoid 25 to life. What can he
say that will stop him from getting 25 to life.
Is he lying? Of course he’s
lying. He’s trying to say whatever he
can to get out of 25 to life.” The
statement to which the court sustained an objection on the ground that it was
not supported by the evidence was very similar to the one the jury heard.href="#_ftn13" name="_ftnref13" title="">[13]


The
trial court’s rulings were well within its power to control the
proceedings. Although the court struck
certain statements by defense counsel, it did not prevent him from presenting a
defense to the jury. We find no
error.

H. >Aiding and Abetting Instruction

Wilson
argues that the trial court erred because it did not give a sua sponte
instruction that in order to find the special circumstance of more than one
murder, the jury must also find that the accomplice defendant had the intent to
kill. (See People v. Jones (2003) 30 Cal.4th 1084, 1117-1118.) We agree.
The People concede this point and, therefore, the finding of the special
circumstance of more than one murder must be reversed.

IV. DISPOSITION

With the exception of the finding of
special circumstance of more than one murder, which is reversed, the judgment
is affirmed.













_________________________

Haerle,
J.





We concur:





_________________________

Kline, P.J.





_________________________

Richman, J.