People v. Savary CA2/8 ( 2015 )

Filed 2/3/15 P. v. Savary CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B247512
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. KA083613,
v. KA094210)
KEFFIER SAVARY,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of Los Angeles County, George
Genesta, Judge. Affirmed.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General,
for Plaintiff and Respondent.
_______________________
In 2008, defendant Keffier Savary killed Harrison Smith, who was having an affair
with defendant’s estranged wife. Defendant fled the state, but was apprehended on a
murder warrant in Texas in 2011. While he was in custody for the 2008 murder,
defendant attempted to dissuade his wife from testifying, and conspired with his
girlfriend to have his wife and another witness killed. On August 9, 2011, the District
Attorney filed two informations. The first charged defendant with the 2008 murder, and
the second charged defendant with the 2011 crimes. Defendant never sought to
consolidate the cases; rather, he agreed the two cases should be tried to separate juries,
with the murder case to be tried first. Defendant was convicted of all charged crimes and
enhancements in back-to-back trials before two separate juries.
In this consolidated appeal, defendant complains that the successive prosecutions
violate Penal Code section 654 as interpreted in Kellett v. Superior Court (1966) 63
Cal.2d 822 (Kellett). Defendant also contends that insufficient evidence supports his
conspiracy conviction. Defendant also contends the trial court erroneously failed to give
a heat of passion instruction in his murder trial. Lastly, defendant contends that the trial
court erred when it denied his request to replace his privately retained counsel for the
second trial, or to allow him to represent himself.
We find no merit in any of these contentions and therefore affirm the judgments
below.
FACTUAL AND PROCEDURAL BACKGROUND
I. The First Trial
We summarize below the testimony presented by each witness that is pertinent to
defendant’s claims on appeal.
In 2008, Linda Anderson lived with her son, Quinton Anderson, her daughter, and
her two grandchildren. The murder victim, Harrison Smith, was a family friend, and
visited the family’s home almost daily. Ms. Anderson had known Mr. Smith for three
years. Mr. Smith and her son, Mr. Anderson, were friends. Ms. Anderson testified
Mr. Smith was not a violent or angry person; “he was nice and polite.” She had never
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seen him with a gun, and never saw him fight with anyone. Ms. Anderson also never saw
him associating with gang members. Ms. Anderson knew Mr. Smith was dating
defendant’s estranged wife, Roselle Savary, who was in the process of divorcing her
husband.
On June 21, 2008, Ms. Anderson hosted a birthday party for her grandson,
attended by both children and adults. Mr. Smith was at the party. He was wearing fitted
(not baggy) jeans, and he was not wearing a shirt, as it was a hot day. Ms. Anderson did
not notice anything bulging from his pockets, and Mr. Smith was not wearing anything
that could conceal a gun. Alcohol was not served at the party, and Ms. Anderson did not
see Mr. Smith drink any alcohol. Mr. Smith was not acting drunk, or agitated, and
seemed happy to participate in the party.
As it was getting dark, and after the children left the party, Mr. Smith invited
Ms. Savary to come over to the Anderson home. Ms. Anderson was in her bedroom
when she heard a “real loud pop sound.” The “pop” sounded close, and when
Ms. Anderson ran to the front of the house, she saw Ms. Savary running toward the
house. Ms. Savary ran into the house and was hysterical, saying “I think my husband
killed Harrison.” Ms. Anderson immediately called 911, and put Ms. Savary on the
phone to speak with the 911 operator.
When the police arrived, Ms. Anderson went outside and saw Mr. Smith laying
flat on his back, with his eyes open, near the front door of the house. He was dressed the
same as he had been earlier in the day.
Mr. Anderson testified that he and Mr. Smith had been close friends.
Mr. Anderson testified that Mr. Smith had “Hitman” tattooed across his stomach and that
he produced music under that name. But Mr. Anderson never saw Mr. Smith with a gun
or associating with gang members. Mr. Anderson believed that Mr. Smith met
Ms. Savary about three months before he was killed. Mr. Anderson had seen Ms. Savary
with Mr. Smith four or five times. It appeared that Mr. Smith and Ms. Savary cared for
each other.
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Mr. Anderson did not initially know that Ms. Savary was married, but found out
later, when he went to buy a television. A friend told Mr. Anderson someone was selling
a television, and when Mr. Anderson went to the apartment to see it, Ms. Savary was
there, as was defendant. Mr. Anderson bought the television from defendant, and saved
defendant’s phone number in his phone.
Sometime later, Mr. Anderson was interested in buying a keyboard from
defendant. The two texted concerning the keyboard. Defendant asked Mr. Anderson if
he could give defendant a gun in exchange for the keyboard defendant was selling.
Defendant wanted either a nine- or .45-millimeter gun. Mr. Anderson did not respond to
defendant’s text message, and did not provide defendant with a gun.
Mr. Anderson testified that after the birthday party, he and Mr. Smith were
standing in the driveway of the home. Mr. Anderson saw Ms. Savary walk up to the side
of the house and gesture for Mr. Smith to walk over to her. As Mr. Smith walked toward
her, Mr. Anderson went into the house. About a minute after Mr. Anderson went inside,
he heard a single popping sound. Ms. Savary ran into the house. Mr. Smith then came to
the front door, said “ah, dog” to Mr. Anderson as he reached for the door, and then fell
back. Ms. Savary was hysterical. She was screaming, “I think my husband shot my
baby.”
Mr. Anderson went by the nickname “Sleep.” His family started calling him that
when he was only five or six years old.
The day after the shooting, defendant texted Mr. Anderson, asking whether
Mr. Anderson “mess[ed] with his wife too.” Defendant also texted, “I’m not in Cali no
more, but I got peoples. They gonna come for you.” Mr. Anderson felt threatened.
Defendant also claimed to be associated with the “Jamaican mafia.” Defendant told
Mr. Anderson to leave Ms. Savary alone, and not help her, because “I want her to suffer
for what she did.” Defendant wrote that Mr. Anderson did not have to “worry” as long as
he did not help Ms. Savary.
James Malone testified that in June 2008, he went to Marcel Robinson’s house,
and met defendant there. Mr. Malone, Mr. Robinson, and defendant discussed that
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someone was dating defendant’s wife. Mr. Robinson told defendant that Ms. Savary was
seeing Mr. Smith. Mr. Malone told defendant to “let it go” because everyone goes
through relationship problems. Defendant was angry and would not let it go. Defendant
said if he saw Mr. Smith, he would “take care of him.”
Mr. Robinson testified that in 2008, he had known Mr. Smith for several months.
Mr. Robinson had seen Mr. Smith and Ms. Savary together several times at
Mr. Anderson’s house. Mr. Robinson knew that defendant was married to Ms. Savary
but he thought they were separated when he saw her with Mr. Smith.
Mr. Robinson testified that defendant went by the nickname, “Big Sav.”
Mr. Robinson corroborated Mr. Malone’s testimony that in late June 2008,
defendant and Mr. Malone were at Mr. Robinson’s apartment, and defendant asked
Mr. Robinson if he knew “Alex,” a nickname that Mr. Smith went by. Mr. Robinson
initially denied that he knew Mr. Smith. Later during the conversation, Mr. Robinson
admitted that he knew Mr. Smith. Defendant seemed upset. Mr. Robinson later warned
Mr. Smith to “be careful” and to “watch [himself].”
Several days later, defendant called Mr. Robinson, and asked him if he knew what
had happened. Mr. Robinson asked defendant what he was talking about; he had not
heard about Mr. Smith being shot. Defendant said he had fired a warning shot, and that
he “had to handle [his] business.”
Medical Examiner Jeffrey Gutstadt performed the autopsy on Mr. Smith.
Mr. Smith died from a single gunshot wound to his chest. The bullet was fired at a
minimum of one and a half to two feet away from Mr. Smith. During cross-examination,
Dr. Gunstadt testified that Mr. Smith had tattoos, including “Hitman,” “H 74 L-A,”
“4 Criminals,” “South South 213” and “Central.” The toxicology report showed that
Mr. Smith had cocaine and methamphetamine in his system at the time of his death. On
redirect, Dr. Gundstadt testified that Mr. Smith also had alcohol in his system. No
gunshot residue was detected on Mr. Smith’s hands.
Melanie Gagan testified that she was a friend of defendant’s wife. Ms. Savary
married defendant in 2003. Ms. Gagan and her husband often socialized with defendant
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and Ms. Savary. On June 21, 2008, Ms. Gagan was working as the manager of the Chow
King fast food restaurant. Defendant came to the restaurant that afternoon. He seemed
angry and was speaking loudly. Defendant said that he and Ms. Savary were getting a
divorce, and that Ms. Savary had a boyfriend. Ms. Gagan was scared because defendant
did not seem to be in his right mind. She excused herself, telling defendant she had to
attend a meeting in the back of the restaurant. Thirty or 45 minutes later, one of her
coworkers handed her a note. Ms. Gagan believed the note was from defendant. It said,
“Guess what, me and Roselle is divorced. She actually cheated on me and gave me [a]
disease. She is so disgusting. I’m cured now, though. The doctor gave me medication.
Anyway, good seeing you. Have a nice day.”
Jose A. Espino is a homicide detective with the Los Angeles Sheriff’s Department,
and was the investigating officer in this case. The sheriff’s department had filed the case
against defendant in 2008, and had obtained a warrant for his arrest. On January 28,
2011, Detective Espino received a call from the fugitive detail of the sheriff’s
department’s Major Crimes Task Force, advising that defendant had been arrested in
El Paso, Texas. Detective Espino and his partner flew to El Paso on January 30, 2011.
Defendant had been arrested at a Greyhound bus station, and his bus ticket, boarding
pass, itineraries, and claim checks for checked luggage were confiscated. All of these
documents were in the name of “James Carter.” Defendant was also in possession of five
different pieces of identification in the name of “James Carter,” such as school
identification cards, insurance cards, and a truck operator certificate.
Defendant was extradited back to California on February 10, 2011, and was
housed in the men’s central jail. Inmate phone calls are recorded, and investigating
officers are assigned a password to access the recordings. Detective Espino listened to
every one of defendant’s phone calls between February 10, 2011, and May 2011.
Generally, in-person visits are not recorded, but an officer can request that they be
recorded. Detective Espino requested that defendant’s visits be monitored.
Norman Clark, the custodian of records of Sprint Nextel, testified that Sprint
turned over call records, including text message records, to law enforcement. At
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1:45 p.m. on the day of the murder, “Big Sav” exchanged several text messages with an
unknown number soliciting a “heater” that was “not [too] loud, if possible.” Detective
Espino testified that a “heater” is a gun. In defendant’s text messages to the unknown
number, he was asking for either a nine-millimeter or .45-caliber pistol.
Tiemeyer McCain testified he is a music producer who started collaborating with
defendant, who he knew as “Sav,” in 2008. In 2011, defendant started bringing a woman
named Marilyn Aguilar to Mr. McCain’s studio. Mr. McCain thought Ms. Aguilar might
be defendant’s girlfriend. Mr. McCain never met defendant’s wife, but defendant told
him he was married.
Earlier in 2011, Mr. McCain received a letter from defendant, sent from a Texas
jail. The letter instructed Mr. McCain to contact defendant’s wife and ask her to tell
Mr. McCain where he could find “Sleep” so that Mr. McCain could “take care of” him.
Mr. McCain believed defendant meant he wanted Mr. McCain to kill “Sleep.” The letter
also instructed Mr. McCain to kill Ms. Savary, and to “get her phone.” In the lengthy
letter, defendant said Ms. Savary “will meet up with you and . . . let her bring you to
where Sleep stay and show you who he is. [¶] . . . [¶] Anyway, get rid of him, and then
get rid her and remember to dispose of her phone. With them two gone, there’s no case,
and I could just go back to being me. And we can really get this music cracking. I need
this done ASAP. ASAP, man. . . . [S]o don’t slack on me. Like this week, gotta get to
them. . . . [¶] . . . [¶] . . . before they put them in protective custody and shit. I don’t
know if they doing that. Here is my ex-wife address.” Defendant provided two
addresses because he was not sure which one was correct.
Mr. McCain was angry after receiving the letter. He testified that he does not hurt
people. However, Mr. McCain did not take any action on the letter. Instead, he gave the
letter to Ms. Aguilar. On cross-examination, Mr. McCain testified that he had been
arrested in this case, but the charges were dropped in exchange for his testimony. He
never agreed to kill anyone, and never took any steps to do so. On redirect, Mr. McCain
clarified that he was never charged with murder, but he was arrested for conspiracy to
commit murder. He was released a few hours after his arrest. He was never charged with
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conspiracy to commit murder, and he was never promised anything in exchange for his
testimony in this case.
Iris Cruz, a forensic document examiner, testified that the handwriting in the letter
written to Mr. McCain matched defendant’s handwriting.
Detective Espino testified that the exemplars given to the document examiner
were obtained through a search of Ms. Aguilar’s house. Detective Espino became aware
of Ms. Aguilar when he started monitoring defendant’s phone calls from jail. It was
obvious from the calls that defendant and Ms. Aguilar were in a romantic relationship.
At some point, Ms. Aguilar showed up at Detective Espino’s office to recover some of
defendant’s property, and the detective recognized her voice from the calls. He also
confirmed her identity from jail visitation records.
Detective Espino arrested Mr. McCain for conspiracy to commit murder on July 5,
2011. He was a suspect in the conspiracy to kill Ms. Savary and Mr. Anderson, also
known as Sleep. After Mr. McCain was investigated further, it was determined that he
took no action on defendant’s letter to him, so no charges were ever filed. The sheriff’s
department did not bargain with Mr. McCain to obtain his testimony.
Ms. Aguilar was also arrested for conspiracy to commit murder, and was in
custody at the time of defendant’s first trial. She had not entered a plea and was not
promised anything to cooperate with the investigation. Detective Espino executed a
search warrant at Ms. Aguilar’s home, and found a handwritten note among her
possessions. The note provided Ms. Savary’s home address and phone number, and
stated that Ms. Savary gets home from work at about 7:00 p.m. The note stated that
“Sleep” deals crack and “weed” and that there’s “lots of traffic, so take backup.” The
note also stated, “Handle and will pay when out. Owe big.” The note said to keep
Ms. Savary alive.
Ms. Aguilar told Detective Espino that she wrote the note when she visited
defendant. Defendant had instructed her to write the note, but had not done so orally
because he knew the visits were recorded. Instead, he pressed notes up to the glass, and
Ms. Aguilar copied the notes. The note was to be given to Mr. McCain, and was an
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update to the previous instructions defendant had relayed to Mr. McCain. Ms. Aguilar
visited Mr. McCain, and gave him the updated instructions to not harm Ms. Savary, and
to kill Mr. Anderson. Ms. Aguilar told Detective Espino that she believed she was saving
Ms. Savary’s life by transmitting the note. However, she also understood that defendant
was instructing her to write and pass a note to Mr. McCain directing him to kill
Mr. Anderson.
Approximately seven hours of recorded jailhouse conversations were played for
the jury. There were numerous calls and visits between defendant and his wife, and
between defendant and his girlfriend. In his conversations with Ms. Savary, defendant
tried to convince her to retract her statements to police. In a call with Ms. Aguilar,
defendant described how he could send sealed letters from jail in Texas, but could not do
so in California. He had tried to write Mr. McCain a letter with some “instructions” in
Texas, but did not have his address. Defendant was reluctant to discuss the nature of the
instructions with Ms. Aguilar, as their call was being recorded.
In another call, defendant asked Ms. Aguilar what she was allowed to bring when
she visited him in jail. He asked if she could bring a pen and paper. She responded that
she could bring “nothing,” but that she could conceal a pen and some paper in her jacket,
and she could perhaps write notes on her hand. Defendant also described how his first
instructions “said two” and the second instructions, given to Ms. Aguilar to pass along to
Mr. McCain, “said only one” referring to the witnesses that defendant wanted “gone.” In
their conversations, defendant and Ms. Aguilar went to great lengths to speak discretely,
in code, aware that their calls were being recorded. Defendant never discussed self-
defense, or that Mr. Smith had been armed. He did discuss with Ms. Aguilar the
possibility of other defenses, such as posttraumatic stress or insanity.
Defense expert, toxicologist Marvin Pietruzka, had reviewed the coroner’s report.
The coroner’s toxicology report indicated that Mr. Smith had alcohol, cocaine, and
methamphetamine in his system at the time he died. Someone under the influence of
cocaine or methamphetamine may behave erratically, and their judgment would be
diminished. They also could believe “they can conquer the world” and act aggressively.
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The combination of drugs and alcohol in Mr. Smith’s system would have impaired his
judgment, and made him “more confident than he should be.” The drugs could also
cause tremors, jerking, and rapid hand movement.
Defendant testified. He was born in Jamaica, and came to the United States when
he was five years old with his parents, who are ordained ministers and pastors of a
church. Growing up, he learned how to play several instruments in the church band. He
also received scholastic art awards while in high school, and graduated from high school
with a 4.0 grade point average. He received a scholarship to attend art school in
Pasadena, California. He met Ms. Savary in college. Defendant lost focus in school
because he had fallen in love with Ms. Savary, and stopped attending. He decided to join
the air force.
Defendant attended basic training in San Antonio, Texas. He learned hand-to-
hand combat and received weapons training for various types of firearms. He also
attended trade school while in the military. Eventually, defendant received his orders to
be stationed in Fairbanks, Alaska. He married Ms. Savary and they lived together in a
house on the base there. Ms. Savary eventually left Alaska to attend her sister’s wedding
in California. She stayed in California, and did not return to Alaska. Defendant was
honorably discharged from his service, and moved back to California to live with
Ms. Savary at her parents’ house.
When defendant reunited with Ms. Savary, things were not the same. Ms. Savary
stopped attending Church, and started sneaking out late at night, wearing provocative
clothing. She acted like she did not care about defendant. When Ms. Savary would come
home late, she would shower, and would not be intimate with defendant. She also would
smell like marijuana. Defendant found marijuana, ecstasy pills, and white powdery
substances in her possession. She never possessed drugs in Alaska. Ms. Savary was also
secretive about her phone.
Defendant started to “snoop around” and investigate his wife. He would look in
her purse and her wallet, and would follow her to find out where she was going.
Defendant determined that she was seeing someone behind his back. He saw her with the
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same man at various restaurants, at a motel, and at “Sleep’s” house. He saw them
kissing. Defendant discovered the man went by “Alex,” “Harrison,” and “Hitman.”
Defendant also found out that the man had AIDS, and that he had given it to a former
girlfriend. Moreover, he was bisexual and had sex with men, and was a member of a
gang. Defendant was scared when he discovered that Mr. Smith was a gang member.
Defendant confronted Ms. Savary about the affair, but she denied it. Defendant
then started to sleep in his car, and was “pretty much done” with the relationship. While
sleeping in his car, he noticed various vehicles approach his car, and saw people looking
inside his car. He was scared, and concerned he might be robbed, so he started asking
around for a gun to protect himself.
Eventually, Ms. Savary tried to reconcile with defendant, and admitted to having
an affair and having unprotected sex. Defendant warned Ms. Savary that Mr. Smith had
AIDS, but she did not believe him.
Ms. Savary and defendant got back together after Ms. Savary promised to end her
relationship with Mr. Smith. She gave defendant the code for her phone so he could
access her phone records. Her drug use also appeared to slow down. However, when
defendant checked her phone, he discovered that she and Mr. Smith were still texting
each other.
When defendant drove by the house of his friend Marcel Robinson, he saw
Ms. Savary and Mr. Smith there. The next day defendant confronted Mr. Robinson,
asking him if he knew Mr. Smith. Mr. Robinson initially denied knowing Mr. Smith, or
that Ms. Savary was cheating with him, but eventually admitted that he knew Mr. Smith.
Defendant confronted Ms. Savary, and she said the relationship with Mr. Smith
was over, but defendant did not believe her.
Defendant spent the morning of June 21, 2008, with Ms. Savary. While they were
sitting in his car, Mr. Smith called Ms. Savary. Defendant told her to answer the call and
put it on speakerphone. During the call, Mr. Smith told Ms. Savary that he missed her
and wanted to see her. She told Mr. Smith that she wanted to reconcile with defendant
and end her relationship with Mr. Smith. Mr. Smith got mad and threatened to kill
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defendant. He then told Ms. Savary there was a party at “Sleep’s” house and he would
talk to her there.
Ms. Savary assured defendant the relationship with Mr. Smith was over, but he did
not believe her. Defendant became angry and broke Ms. Savary’s phone. Ms. Savary
promised to break up with Mr. Smith in front of defendant at the party. Defendant agreed
to the plan, and dropped off Ms. Savary at home.
Defendant reflected on Mr. Smith’s statement that he was going to kill defendant,
and became frightened. Defendant “felt like . . . a walking dead man. . . . I mean, . . .
this notorious gangbanger. He got AIDS . . . he’s already dying, probably doesn’t care
about nothing, and he said he’s going to kill me.” Defendant believed the threat and
started asking around for a gun, and was able to get one. The text messages sent referring
to a “heater” were his, looking for a gun. Defendant would not say where he got the gun,
but he got it that day.
Later that day, defendant picked up Ms. Savary from her house, and drove her to
the party. He dropped her off in front of Mr. Anderson’s house and looked for a place to
park. After parking, he placed the gun in his front right pant’s pocket. It was a
0.38 special revolver, and it was fully loaded. Ms. Savary motioned to defendant to come
over, and as he approached, Ms. Savary ran and hid behind Mr. Smith. Mr. Smith was
wearing baggy pants and no shirt. Defendant saw a tattoo on Mr. Smith that said
“Hitman.” Mr. Smith started to walk toward defendant with his hand in his back pocket.
Defendant was scared because he thought Mr. Smith might have a gun or a knife in his
pocket.
Mr. Smith seemed to be high; his eyes were red, and his hands were fidgeting.
Defendant tried to convey that he was “there in peace” and extended his hand for a
handshake. Mr. Smith did not shake defendant’s hand and said, “F--- you, cuz.”
Defendant became more scared and put his hand in his pocket, with his finger on the
trigger of the gun. He told Mr. Smith he did not want any problems, and that he just
wanted Mr. Smith to leave his wife alone. Defendant implored Mr. Smith to “At least . . .
tell her about the AIDS you have.” Mr. Smith seemed to get angry, and he put his hand
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in his back pocket again. Mr. Smith and defendant exchanged insults, and then
Mr. Smith reached into his back pocket and pulled out a gun. Defendant was able to pull
out his gun first, and to get off a single shot. He “shot one time in self-defense.”
Mr. Smith fell to the ground. The gun fell out of his hand, and Mr. Smith reached
for the gun. “[A]t that time, [defendant’s] military instincts kicked in” and he grabbed
Mr. Smith’s gun and fled the scene so that Mr. Smith could not shoot him. Defendant did
not mean to kill Mr. Smith. He never planned on killing Mr. Smith. He brought the gun
to the party to protect himself in case Mr. Smith tried to kill him.
Defendant got in his car, drove on the 210 East, and exited the freeway in Ontario.
He went to a McDonald’s to dispose of the guns. He ordered a meal so he could get a
McDonald’s bag, took all the bullets out of the guns, and wiped his fingerprints off the
bullets and the guns. He placed the guns in the McDonald’s bag and threw it in the
garbage at the restaurant. Mr. Smith’s gun was a 0.22 Beretta.
Defendant then drove to Mr. McCain’s mother’s house in Duarte. Defendant told
Mr. McCain that his wife’s boyfriend had tried to kill him, and that defendant shot him in
the arm in self-defense. Mr. McCain told defendant that if the gun he used was not
registered to him, he could not claim self-defense. Defendant believed Mr. McCain
because defendant was not from California, and Mr. McCain had been in and out of jail.
Defendant stayed at Mr. McCain’s mother’s house that night. At that point, he did not
know whether Mr. Smith was dead or alive.
After learning about Mr. Smith’s death, defendant was scared about gang
retaliation. Defendant also learned he was a person of interest in Mr. Smith’s murder
when Mr. McCain showed defendant a newspaper article about the shooting.
Defendant decided to leave town, concerned that gang members would come after
him. Defendant gave his car to a friend to sell, and got on a Greyhound bus to Miami.
Defendant used the alias James Carter. He stayed in Miami for about a week, and then
got on a bus heading toward California. He stayed in Tucson, Arizona, for about a
month. After that, defendant returned to California. Defendant evaded arrest for three
years, and spent most of that time in California.
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Defendant had met Ms. Aguilar before the shooting. He contacted her after he
returned to California because he needed financial help. Defendant did not tell
Ms. Aguilar about the shooting. Eventually, their relationship became intimate.
For Christmas of 2010, Ms. Aguilar bought defendant a bus ticket so he could visit
his family in Miami. On his way back to California, during a stop in Texas, defendant
got off the bus to purchase a beer at a liquor store. He was drinking it outside when he
was approached by police. Defendant gave them his real license, instead of his “James
Carter” identification, and the police found an active California warrant and arrested him.
Defendant was taken to jail in El Paso. One of the inmates in jail told defendant that he
would face the death penalty, and that he should contact any witnesses and ask them not
to testify.
Defendant admitted writing the letter to Mr. McCain but denied that he intended
for anyone to be killed. After his extradition back to California, defendant made a series
of phone calls and had a number of visits. Never did he instruct anyone to kill anyone.
Defendant never told anyone he acted in self-defense because he did not believe he had a
self-defense claim based on what Mr. McCain had told him. Defendant admitted saying
he wanted his wife to suffer, because he believed she had set him up to be killed.
During cross-examination, defendant testified he did not want a loud gun because
the loud guns he used in the military hurt his ears. When he asked Mr. Anderson for a
gun, it had nothing to do with Mr. Smith; it was because he was scared he was going to
be robbed while he was sleeping in his car. He did not go to police after the shooting
because he was scared of police.
Mr. McCain was called as a rebuttal witness, and denied ever discussing the
shooting in June 2008 with defendant. He also denied telling defendant that self-defense
was not available to him under California law (a fact to which he had also testified when
called in the prosecution’s case-in-chief). Mr. McCain did not know about defendant’s
involvement in the shooting until he received defendant’s letter in 2011.
The first trial concluded on July, 5, 2012, with the jury finding defendant guilty.
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II. The Second Trial
The second trial began on July 10, 2012, and was considerably shorter than the
first trial, but included some of the same evidence that was presented in the first trial.
Mr. Anderson and Mr. McCain provided largely identical testimony to the testimony they
provided in the first trial. Iris Cruz testified again as a handwriting expert. Detective
Espino testified about defendant’s apprehension, and defendant’s conduct after his arrest,
including the various recorded phone calls and visits that were made in jail.
Some of those recordings (considerably fewer than in the first trial) were played
for the jury. The recording where defendant and Ms. Aguilar discussed the possibility of
her smuggling a pen and paper into jail was included in the selection played for the jury.
Detective Espino testified there were many silent pauses in the recorded
conversations between defendant and Ms. Aguilar. In his experience working in a
custodial environment, inmates and their visitors will often communicate nonverbally
because they know they are being recorded, by writing notes and holding them up to the
glass.
Detective Espino testified that Ms. Aguilar had pled guilty to dissuading a witness
in exchange for her testimony against defendant in the second trial. Ms. Savary and
Ms. Aguilar testified for the first time in the second trial.
Ms. Savary testified that she and defendant had married in 2002 and separated in
2008. After they separated, she started dating Mr. Smith. She was the only eyewitness to
the shooting on June 21, 2008.
Defendant sent Ms. Savary a number of text messages in 2010, saying she “knew
what would happen” if she cheated on him, and asking “So are you happy now? He died
because of you, and his friends will die too in the future. Was all that worth it?”
Ms. Savary asked defendant if he intended to kill her, and he responded that he was going
to kill Sleep and “the rest of them.”
In January 2011, Ms. Savary received a text message from defendant that he was
in jail in El Paso. She also received a text message that said, “Don’t testify.”
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When defendant was extradited to California, he called Ms. Savary from jail.
Defendant told her about the poor conditions in jail, and she felt bad for speaking to
police. Defendant asked her to change her statement to police, and to not go to court and
testify.
Ms. Aguilar testified that in 2007, she was a counselor at a regional occupational
program. She met defendant when he came to her place of employment seeking
information about job courses. Defendant told her that he was not married, and in early
2010, the two started dating. In late 2010, defendant left California. At the time he left,
they had been dating for about eight months.
In January 2011, Ms. Aguilar received a text message from defendant that he
“[g]ot caught in a bar. I might go to jail.” She later received a second text from
defendant that he was in jail, and wanted her to find him a lawyer. He did not tell her
why he was in jail. She learned what the charges were when she attended his first court
appearance in California.
In phone conversations she had with defendant while he was in jail, she learned
for the first time that he was married. She also learned that defendant’s wife was a
witness to the murder defendant was charged with. Ms. Aguilar also discovered that
Mr. Anderson had information related to the murder, such as threatening text messages
from defendant. Defendant conveyed that Mr. Anderson was a threat to him, and that his
wife was the primary witness against him.
Ms. Aguilar was aware that their phone conversations and visits were recorded.
Defendant instructed her to bring paper and a pencil so they could communicate
nonverbally, and he could write notes for her to copy. When she visited, defendant
would have prewritten notes he would hold up to the glass. She would copy the notes
exactly as they were written. She also sometimes took notes of defendant’s verbal
instructions. Defendant instructed her to relay messages for him. She also helped
defendant obtain counsel, stay in contact with friends and family, and was raising funds
for his defense.
16
Defendant and Ms. Aguilar discussed plans to prevent Ms. Savary from testifying,
or to have her change her testimony. Ms. Aguilar agreed to relay a message from
defendant to Mr. McCain. When she visited Mr. McCain at his office, he showed her the
letter defendant had written from jail in Texas. The letter instructed Mr. McCain to
“eliminate” or “kill” Mr. Anderson and Ms. Savary to “make sure they weren’t around
for the trial.”
Ms. Aguilar confirmed she wrote the note to Mr. McCain about keeping
Ms. Savary alive and killing Mr. Anderson. She copied the note exactly as she was
instructed. She understood the note to mean that there was a plan to kill both
Mr. Anderson and Ms. Savary, but that defendant had a change of heart and wanted to
keep Ms. Savary alive. However, she also understood that defendant still intended for
Mr. Anderson to be killed. She gave the note to Mr. McCain “[t]o keep [Ms. Savary]
alive” even though it meant that Mr. Anderson would be killed. She knew that if she
delivered the instructions, Mr. Anderson might be killed.
Ms. Aguilar was arrested on May 5, 2011, and charged with dissuading a witness
and conspiracy. In November 2011, she provided a recorded statement to police. No
deal had been offered to her at the time, and she was truthful in her statement. The week
before her testimony in this case, she pled no contest to dissuading a witness. She had
not been sentenced yet, and had received no offer from the People. However, as a
condition of her plea, she was required to testify truthfully in this case.
DISCUSSION
I. Penal Code Section 654
Defendant contends his successive prosecutions violate the Penal Code
section 654 proscription against multiple prosecution, as explained in Kellett, supra,
63 Cal.2d 822. He acknowledges that his attorney agreed to try the murder charge
separately from the other charges and did not object on the basis of Kellett, but argues the
claim is not forfeited on appeal because error under section 654 is not subject to
forfeiture, and the failure to object constituted ineffective assistance of counsel. We find
no merit in either contention.
17
Penal Code section 654, subdivision (a) provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision. An acquittal or
conviction and sentence under any one bars a prosecution for the same act or omission
under any other.” Section 654 addresses both multiple punishment and multiple
prosecution. (People v. Correa (2012) 54 Cal.4th 331, 336 (Correa).)
“The separate concerns have different purposes and different rules of prohibition.”
(People v. Valli (2010) 187 Cal.App.4th 786, 794 (Valli).) The “purpose of the
protection against multiple punishment is to insure that the defendant’s punishment will
be commensurate with his criminal liability.” (Neal v. State of California (1960)
55 Cal.2d 11, 20, disapproved on other grounds as stated in Correa, supra, 54 Cal.4th at
p. 344.) The bar against multiple prosecution is a ‘ “ ‘procedural safeguard against
harassment and is not necessarily related to the punishment to be imposed. . . .”
[Citation.]’ ” (Correa, supra, at p. 336.)
An appellate court may address a sentencing error under the protection against
multiple punishment at any time, even if no objection was made below. (People v. Le
(2006) 136 Cal.App.4th 925, 931.) However, the same is not true for multiple
prosecution error. Our Supreme Court has found the claim of multiple prosecution is
forfeited when no objection was made in the trial court. (People v. Jones (1998) 17
Cal.4th 279, 313.) Sentencing errors are in excess of a court’s jurisdiction, and may be
corrected at any time. (Le, at p. 931.) Unlike sentencing error, the trial court should
decide in the first instance a claim of multiple prosecution so as to avoid the waste of
time inherent in allowing multiple trials to proceed when only one is required. (See, e.g.,
People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Here, defendant not only failed to object to having two trials, but he agreed to two
trials, with the murder trial to proceed first. Predictably, defendant claims ineffective
assistance of counsel. (People v. Mitchell (2008) 164 Cal.App.4th 442, 467 [In order to
demonstrate ineffective assistance of counsel, defendant must show that counsel’s
18
performance fell below an objective standard of reasonableness, and that he was
prejudiced by counsel’s performance].) Initially, we note that the record reveals a clear
tactical basis for having two trials. (People v. Bunyard (1988) 45 Cal.3d 1189, 1215
[“Where the record shows that the omission or error resulted from an informed tactical
choice within the range of reasonable competence, we have held that the conviction
should be affirmed.”].) By agreeing to two trials, counsel effectively limited the
introduction of potentially prejudicial evidence in either trial.
We also turn briefly to the merits of the Kellett claim, to show that any objection
would have been baseless. In Kellett, supra, 63 Cal.2d 822, our Supreme Court
“construed section 654’s multiple prosecutions bar to apply whenever ‘the same act or
course of conduct plays a significant part’ in two or more offenses, assuming the
prosecution in the first case was or should have been aware of all the offenses.” (People
v. Homick (2012) 55 Cal.4th 816, 841.) The court explained that “[f]ailure to unite all
such offenses will result in a bar to subsequent prosecution of any offense omitted if the
initial proceedings culminate in either acquittal or conviction and sentence.” (Kellett,
supra, at p. 827.) “ ‘The Kellett rule, while seeking to prevent harassment of defendants,
[is] bottomed in large part on a concern for avoiding needless repetition of evidence, and
for conserving the resources and time of both the state and the defendant.’ [Citations.]
Thus the offenses must be transactionally related, and not just joinable . . . . [Citation.]”
(People v. Turner (1985) 171 Cal.App.3d 116, 129.)
Defendant contends the prosecution’s failure to join the conspiracy and witness
dissuasion charges with the murder charge violated the Kellett rule because the
prosecution was aware of both sets of crimes and the offenses arose from the same course
of conduct. It is undisputed that the prosecution was aware of all of the crimes before
either trial commenced. We must therefore determine whether “the same act or course of
conduct play[ed] a significant part” in both offenses. (Kellett, supra, 63 Cal.2d at
p. 827.)
“Appellate courts have adopted two different tests to determine a course of
conduct for purposes of multiple prosecution.” (Valli, supra, 187 Cal.App.4th at p. 797.)
19
“One line of cases finds Kellett not applicable where the offenses are committed at
separate times and locations.” (Ibid., citing People v. Douglas (1966) 246 Cal.App.2d
594; People v. Ward (1973) 30 Cal.App.3d 130; and People v. Cuevas (1996) 51
Cal.App.4th 620.)
Another line of cases has applied an evidentiary test that considers “the totality of
the facts and whether separate proofs were required for the different offenses.” (Valli,
supra, 187 Cal.App.4th at p. 798, citing People v. Flint (1975) 51 Cal.App.3d 333;
People v. Hurtado (1977) 67 Cal.App.3d 633 (Hurtado).) When applying the evidentiary
test, courts evaluate whether proving the two offenses requires substantially distinct
“evidentiary pictures” and “different witnesses,” and whether the “ ‘evidence needed to
prove one offense necessarily supplies proof of the other.’ ” (Valli, supra, at pp. 798-
799; Hurtado, supra, at p. 636 [under the “evidentiary” test, two offenses “must be
prosecuted together” “if the evidence needed to prove one offense necessarily supplies
proof of the other”].) “[M]ore than a trivial overlap of the evidence” is required. (Valli,
supra, at p. 799.) “Simply using facts from the first prosecution in the subsequent
prosecution does not trigger application of Kellett.” (Ibid.)
Defendant’s claim fails under either test. First, the offenses occurred years apart,
in different locations. The murder occurred in Rowland Heights in 2008, and defendant
committed the later crimes from jails in El Paso and Los Angeles in 2011. Also, the
offenses required different proof. Proof of the murder did not prove the conspiracy or
dissuasion offenses. (See Hurtado, supra, 67 Cal.App.3d at p. 636.) Although there was
some overlap of evidence presented in the two trials, in that Mr. Anderson and
Mr. McCain testified similarly in both trials, the prosecution’s decision to use evidence of
the witness dissuasion and conspiracy in the murder (to establish a consciousness of
guilt) and murder in the dissuasion and conspiracy trial (to establish motive) does not run
afoul of the evidentiary test. (Ibid.) Therefore, the “needless repetition” with which
Kellett was concerned did not occur here. (See People v. Turner, supra, 171 Cal.App.3d
at p. 129.)
20
II. Sufficiency of the Evidence
Defendant contends that insufficient evidence supports his conviction for
conspiracy to commit murder. When reviewing the sufficiency of the evidence, “our role
on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is
not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) Here, substantial evidence supported the conviction.
A conspiracy is an agreement by two or more people to commit an offense with
the specific intent to commit the elements of the offense, coupled with an overt act by
one or more of the conspirators in furtherance of the conspiracy. (Pen. Code, §§ 182,
subd. (a)(1), 184; People v. Jurado (2006) 38 Cal.4th 72, 120.) A conspiracy “ ‘may be
shown by direct or circumstantial evidence that the parties positively or tacitly came to a
mutual understanding to accomplish the act and unlawful design.’ [Citation.]” (People v.
Vu (2006) 143 Cal.App.4th 1009, 1025.) Therefore, “ ‘a conspiracy may be inferred
from the conduct, relationship, interests, and activities of the alleged conspirators before
and during the alleged conspiracy. [Citations.]’ [Citation.]” (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1135.)
The evidence established that Ms. Aguilar and defendant went to great lengths to
conceal the content of their communications in the course of planning the murder of
Mr. Anderson while defendant was in jail. Ms. Aguilar was aware that defendant had
asked Mr. McCain to kill both Ms. Savary and Mr. Anderson, and brought a pencil and
paper to jail to take down further instructions from defendant. Ms. Aguilar passed a note
to Mr. McCain that ordered Mr. Anderson’s death, knowing its content. This is powerful
evidence from which the jury reasonably inferred that she and defendant had an
agreement to commit murder.
III. Heat of Passion Instruction
Defendant argues the trial court had a sua sponte obligation to instruct on the
lesser included offense of voluntary manslaughter based on heat of passion, and
wrongfully refused his request for such an instruction. We disagree.
21
Voluntary manslaughter, based on the theory of heat of passion, is a lesser
included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154.) A
trial court is required to instruct on a lesser included offense when the lesser offense is
supported by evidence substantial enough to merit consideration by the jury. The trial
court need not instruct, however, if there is no evidence that the offense committed was
less than that charged. (Id. at pp. 154-155; see also People v. Barton (1995) 12 Cal.4th
186, 196, fn. 5.)
We find no error in the trial court’s refusal to instruct on a heat of passion theory
of attempted voluntary manslaughter. Heat of passion has both objective and subjective
components. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must
subjectively act in the heat of passion. (Ibid.) And the claimed provocation must be
sufficient to cause a reasonable person under the same circumstances to act rashly,
without deliberation and reflection, from passion rather than from judgment. (People v.
Carasi (2008) 44 Cal.4th 1263, 1306.) The provocation must be such that a “reasonable
person in defendant’s position would have reacted with homicidal rage.” (People v.
Koontz (2002) 27 Cal.4th 1041, 1086.)
Here, there was absolutely no evidence that defendant killed Mr. Smith in a fit of
rage. When his counsel asked whether he “snapped” when Mr. Smith insulted him,
defendant simply responded that he was “upset.” There was simply no evidence
defendant was overcome by passion. To the contrary, defendant testified extensively to
his preparations to defend himself from an anticipated attack by Mr. Smith. Accordingly,
an instruction on this theory was not required.
IV. Issues Concerning Defendant’s Representation
The jury in the murder case reached its guilty verdict on July 5, 2012. The
conspiracy case had been set to trail the murder case. As the attorneys were discussing
the setting of the second case for trial, defendant informed the court that he would like to
“fire” his retained counsel, but that he had not found a new attorney to replace him.
Defendant also informed the court that he intended to file a motion for a new trial.
Defendant’s retained counsel asked the court to appoint a public defender so that
22
defendant could file a new trial motion. The court indicated that it would address the
matter on July 9, 2012.
On July 9, 2012, defendant clarified that he wanted to discharge his attorney in
both the murder case, and in the conspiracy case. The court expressed its view that
defendant’s request was timely as to the murder case, which had been continued to
August for sentencing, but was untimely as to the conspiracy case, as witnesses had been
ordered back for trial, and the request to relieve counsel came the day before the case was
set to proceed to trial. The court informed defendant that he could discharge retained
counsel, as long as he was ready to immediately defend himself, or could find substitute
counsel that was ready to start trial as scheduled. The People announced they were ready
to proceed, and that witnesses had been ordered to appear for trial.
Defendant explained that he had not been “getting along” with his retained
counsel. The court inquired if defendant was prepared to represent himself in a trial
starting the following day. Defendant responded that he would “need some time.” The
court asked how much time defendant would need, and defendant said he would need a
month. The court said that it would not continue the case for a month, as witnesses had
been ordered back. The court found defendant’s requests to discharge retained counsel,
and to represent himself, to be untimely.
Defendant was appointed counsel to represent him during sentencing in the
murder case. His original attorney continued to represent him in the conspiracy case.
After the jury returned its verdict in the conspiracy case, defendant again moved to
discharge retained counsel, and the court permitted him to substitute in his new attorney
for sentencing.
“ ‘The right of a nonindigent criminal defendant to discharge his retained attorney,
with or without cause, has long been recognized in this state [citations] . . . .’ [Citation.]
While a defendant may discharge appointed counsel only if that lawyer is rendering
inadequate representation or there exists an irreconcilable conflict between counsel and
client [citation], he or she may discharge retained counsel for any reason. [Citation.] The
right to discharge retained counsel is not, however, absolute. The trial court may deny a
23
request to discharge retained counsel ‘if discharge will result in “significant prejudice” to
the defendant [citation], or if it is not timely, i.e., if it will result in “disruption of the
orderly processes of justice” [citations].’ [Citation.] ‘[T]he “fair opportunity” to secure
counsel of choice provided by the Sixth Amendment “is necessarily [limited by] the
countervailing state interest against which the sixth amendment right provides explicit
protection: the interest in proceeding with prosecutions on an orderly and expeditious
basis, taking into account the practical difficulties of ‘assembling the witnesses, lawyers,
and jurors at the same place at the same time.’ ” ’ [Citation.]” (People v. Keshishian
(2008) 162 Cal.App.4th 425, 428.)
Here, the trial court did not abuse its discretion in denying defendant's request.
The trial court reasonably found the request untimely, having been made the day before
the case was set for trial. (People v. Keshishian, supra, 162 Cal.App.4th at p. 429
[request to discharge retained counsel made on day set for trial properly ruled untimely];
see also People v. Hernandez (2006) 139 Cal.App.4th 101, 109 [request untimely when
made right before commencement of jury selection]; People v. Turner (1992)
7 Cal.App.4th 913, 919 [same]; People v. Lau (1986) 177 Cal.App.3d 473, 479.)
Defendant contends his request was timely because he could not dismiss retained
counsel during the first murder trial, and he requested to do so at his first opportunity.
However, defendant was on notice (and agreed) that the conspiracy case would trail the
murder case. Had he become dissatisfied with counsel’s representation at any point
before or during trial, he could have sought replacement counsel. However, it appears he
only became dissatisfied with his representation after the jury returned its verdict. At that
time, witnesses for the second trial had already been ordered to appear. Both the
prosecution and retained counsel were ready to proceed with the second trial. The trial
court reasonably concluded that weeks of additional delay amounted to an unacceptable
disruption of the proceedings.
Defendant’s request to represent himself was also untimely. A defendant has the
constitutional right under the Sixth and Fourteenth Amendments to represent himself, and
may waive the right to counsel. (Faretta v. California (1975) 422 U.S. 806, 819.) If the
24
defendant makes an unequivocal request of self-representation within a reasonable time
of trial, and waives his right to counsel after having been advised by the court of its
dangers, the request must be granted. (Id. at p. 835; see also People v. Valdez (2004) 32
Cal.4th 73, 97-98.) “In order to invoke the constitutionally mandated unconditional right
of self-representation, a defendant must assert that right within a reasonable time prior to
trial.” (People v. Horton (1995) 11 Cal.4th 1068, 1110.) A motion not made within a
reasonable time before trial is addressed to the sound discretion of the trial court.
(Valdez, supra, at p. 102.) A motion made immediately before or on the day of trial is
generally considered untimely. (See People v. Howze (2001) 85 Cal.App.4th 1380, 1397;
People v. Fitzpatrick (1998) 66 Cal.App.4th 86, 91, 92.)
Again, defendant’s request to represent himself was made the day before the case
was scheduled to go to trial, and it was manifestly clear that defendant was not prepared
to represent himself. As discussed above, the court’s ruling was clearly within the scope
of its discretion.
DISPOSITION
The judgments are affirmed.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
25