The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES MICHAEL FAYED,
Defendant and Appellant.
S198132
Los Angeles County Superior Court
BA346352
April 2, 2020
Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and Groban concurred.
PEOPLE v. FAYED
S198132
Opinion of the Court by Chin, J.
A Los Angeles County jury found defendant James
Michael Fayed guilty of the first degree murder of his estranged
wife, Pamela Fayed, (Pen. Code,1 § 187, subd. (a)) and of
conspiracy to commit murder (§ 182, subd. (a)(1)). (As discussed
further below, defendant was not the actual killer but arranged
for someone to kill Pamela.) The jury further found true the
special circumstance allegations of financial gain (§ 190.2, subd.
(a)(1)) and lying in wait (§ 190.2, subd. (a)(15)). Following the
penalty phase, the jury returned a verdict of death. The trial
court denied defendant’s automatic application for modification
of the verdict (§ 190.4, subd. (e)) and sentenced defendant to
death.
This appeal is automatic. (§ 1239.) For reasons that
follow, we affirm the judgment in its entirety.
1
Unless otherwise noted, all further statutory references
are to the Penal Code.
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Opinion of the Court by Chin, J.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guilt Phase
1. Overview
Shortly after initiating divorce proceedings in October
2007, defendant arranged for Pamela Fayed’s2 murder by
paying the couple’s employee, Jose “Joey” Moya, $25,000 to kill
her. Moya, in turn, enlisted Gabriel Jay Marquez, the boyfriend
of his niece, and Steven Simmons, Marquez’s nephew. On July
28, 2008, Pamela was stabbed to death in a Century City
parking garage, moments after she had left a meeting with
defendant and their respective attorneys. At the time of her
murder, defendant and Pamela were under federal investigation
for allegedly laundering money for Ponzi schemes through their
e-currency business.
Defendant and Pamela were married in 1999, and had one
young daughter, J.F. Pamela’s older daughter from a previous
marriage, Desiree G., also lived with the family. In or around
2002, the Fayeds started a business, Goldfinger Coin & Bullion
(Goldfinger), in Camarillo. Goldfinger was an Internet company
that provided money and precious metal transfer services for a
fee. They also had an associated company, E-Bullion Company
(E-Bullion), which was incorporated in the country of Panama
with its business offices in California.
After the financial success of Goldfinger, the family bought
a home in Camarillo and a second home on an over 200-acre
ranch in Moorpark, which they called “Happy Camp Ranch.”
2
To minimize confusion and for the sake of simplicity, we
have used first names when necessary. (People v. Trujeque
(2015) 61 Cal.4th 227, 236, fn. 2.)
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Opinion of the Court by Chin, J.
Joey Moya, who was hired to assist defendant and to help on the
ranch, moved into a second house on the ranch.
In or around April 2007, Pamela spoke with her good
friend, Carol Neve, who had a similar e-currency business. After
Neve advised Pamela that Goldfinger needed a money
transmitting license to comply with federal regulations, Pamela
wrote a check for $400,000 on October 6, 2007 to secure a license.
Defendant had told Pamela that a license was not required.
Defendant filed for divorce in October 2007. He banned Pamela
from Goldfinger offices and fired Desiree, who had worked there
for two years. In divorce filings, defendant alleged that Pamela
had embezzled $800,000 from Goldfinger.
2. Unrelated Federal Investigation of Goldfinger
In or around early 2008, before Pamela’s murder, the
United States Attorney’s Office led by Assistant United States
Attorney (AUSA) Mark Aveis began a formal investigation into
Goldfinger for its involvement in a money laundering scheme.
In their joint investigation of two Ponzi schemes, the FBI and
the IRS discovered that money from these two schemes “was
flowing through Goldfinger” and that Goldfinger had made over
$9 million in 2002 and upwards of $160 million in 2007. Though
defendant and Goldfinger were not directly involved in the Ponzi
schemes, the federal government sought an indictment against
them “to obtain leverage” with defendant, i.e., to allow the FBI
to “monitor the flow of money to his business to ferret out and
uncover illegal money transmitting activity.”
On February 26, 2008, five months before Pamela’s
murder, defendant and Goldfinger were indicted on federal
charges of operating an unlicensed money transmitting business
(18 U.S.C. § 1860). Pamela was not named in the indictment,
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Opinion of the Court by Chin, J.
which was sealed and not made public. However, in June 2008,
after the United States Attorney’s Office subpoenaed the
accountants involved in auditing the divorce, Pamela learned
that Goldfinger and defendant were being investigated by the
FBI and IRS.
About a month later, Pamela’s first criminal defense
attorney, David Willingham, contacted AUSA Aveis and told
him that “Pamela wants to come in.” Aveis took that comment
to mean that Pamela wanted to cooperate in the criminal
investigation against defendant and Goldfinger, though there
was no understanding, arrangement, or agreement that Pamela
would do so. Before Aveis could meet with Pamela, she was
killed. At that time, there was no indication defendant knew
about the sealed indictment against him; Aveis admitted that
the government never got around to putting pressure on
defendant to cooperate.
3. Murder of Pamela Fayed
On July 28, 2008, the day of the murder, defendant and
Pamela met with their respective attorneys to discuss the
ongoing federal investigation into their Goldfinger business.
The prearranged meeting, which took place at the Century City
offices of defendant’s former attorney, lasted from 3:30 p.m.
until approximately 6:30 p.m. that evening. After the meeting,
Pamela returned alone to her car, which was parked on the third
floor in the adjacent parking structure. She was stabbed
multiple times in the head, neck, and chest and had defensive
wounds on her arms. The fatal stab wound was a deep cut to
the front of her neck.
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Opinion of the Court by Chin, J.
Witness Edwin Rivera described the assailant as a tall and
skinny male, wearing a black hooded sweatshirt and jeans.
Rivera, however, could not see the assailant’s face.
4. Crime Scene and Murder Investigation
Los Angeles Police Department (LAPD) Detective Eric
Spear arrived shortly after Pamela’s body was removed from the
crime scene. Detective Spear identified a red SUV as a suspect
vehicle and obtained an image of the SUV’s license plate from
one of the parking lot cameras. The SUV was rented from Avis
Rent A Car company in Camarillo on behalf of Goldfinger and
defendant. Pamela’s blood was found in the interior of the SUV,
which had been steam cleaned before being returned to the
rental company. A fingerprint found on the parking garage
ticket matched that of Simmons.
Telephone records showed that cell phones registered to
Marquez and Simmons made contact with a cell tower located
close to the murder scene at almost the same time as the
murder. Records also showed that defendant and Moya
exchanged multiple text messages shortly before and after the
murder, though the messages were deleted from defendant’s
phone.
On August 1, several days after Pamela’s murder, the
federal indictment was unsealed, and defendant was arrested
by federal agents. At the time, the other suspects under
investigation for the murder (Moya, Marquez, and Simmons)
had not yet been arrested.
5. Recorded Jailhouse Conversation with Shawn
Smith
LAPD Detective Salaam Abdul was assigned to
investigate Pamela’s murder. On September 9, 2008, Detective
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Opinion of the Court by Chin, J.
Abdul received word from federal authorities that Shawn Smith,
who was sharing a cell with defendant at the men’s federal
detention center, wanted to speak to police. After meeting with
Smith, Detective Abdul arranged for Smith to wear a wire when
he returned to the cell he shared with defendant.
In their secretly recorded conversation, defendant told
Smith that he had paid Moya to murder Pamela and asked
Smith to solicit Smith’s fictional hitman “Tony” to kill Moya to
eliminate him as a witness. The jury heard the recorded
conversation between defendant and Smith in its entirety and
also received a written transcript of the conversation. The
substance of the conversation is discussed in greater detail
below as relevant to the issue defendant raises. (See post, at pp.
18-20.)
6. Procedural Background
On or about September 15, 2008, a complaint charged
defendant and codefendant Moya with the first degree murder
of Pamela. (§ 187, subd. (a).) It alleged the special circumstance
allegations of murder for financial gain (§ 190.2, subd. (a)(1))
and murder by means of lying in wait (id., subd. (a)(15)). Count
2 also charged defendant with one count of conspiracy. (§ 182,
subd. (a)(1).) That same day, the United States Attorney for the
Central District of California moved to dismiss the federal
indictment against defendant.
On August 13, 2010, nearly two years after defendant and
Moya were charged with Pamela’s murder, the prosecution filed
an indictment against coconspirators Marquez and Simmons
and filed a notice of joinder of all four defendants a month after.
On February 11, 2011, the prosecution filed a notice seeking the
death penalty against defendant only. Although the cases were
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Opinion of the Court by Chin, J.
initially consolidated, the trial court granted defendant’s
severance motion after the prosecution sought the death penalty
against defendant only.3
Guilt phase jury deliberations began on May 17, 2011.
After deliberating for two days, the jury found defendant guilty
of first degree murder and one count of conspiracy to commit
murder. It also found true the special circumstance allegations
of murder for financial gain and murder by means of lying in
wait. After penalty phase deliberations, the jury fixed the
penalty at death. Defendant moved to modify the verdict under
section 190.4, subdivision (e), which motion the trial court
denied. The trial court fixed the penalty at death.
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented victim impact evidence
through the testimony of Pamela’s two sisters, her brother and
his wife, and Pamela’s adult daughter, Desiree. Pamela’s
friends also testified.
3
In a separate trial before the same trial judge, a jury
convicted Moya, Marquez, and Simmons of the first degree
murder of Pamela, and of conspiracy to commit murder. The
jury also found true the special circumstance allegation of
murder by means of lying in wait as to all three defendants (§
190.2, subd. (a)(15)) and the special circumstance allegation of
murder for financial gain with respect to Moya only (id., subd.
(a)(1)). The trial court sentenced all three defendants to life
imprisonment without the possibility of parole for the first
degree murder conviction and imposed and stayed a sentence of
25 years to life on the conviction for conspiracy to commit
murder. Each defendant appealed. The Court of Appeal
affirmed all three judgments in an unpublished opinion.
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Opinion of the Court by Chin, J.
Pamela’s sister testified that while hearing news of
Pamela’s death was very difficult, hearing details about how she
died from witness Edwin Rivera “was by far the hardest thing.”
Pamela’s brother, who became J.F.’s legal guardian, testified
that while J.F. knows that her mother was murdered, he did not
tell her that her father did it because she still loved her father;
Pamela’s brother believed J.F. “is the biggest victim of all this.”
Over defense objection, the prosecution presented
photographs of Pamela and her family, including one of Desiree
kneeling over her casket and kissing it. Desiree also read a
personal letter that Pamela had left to her and J.F. in the event
of her death.
2. Defense Evidence
The defense called defendant’s friend and a former
coworker to each testify. His friend described defendant as a
hardworking man, a great friend, and a “good person.” His
former coworker, who had worked with defendant at the Marine
Corps Air Station in El Toro, described defendant as “quiet
spoken” and “mellow.” The defense also called defendant’s high
school friend, Melanie Jackman, who considered defendant one
of her best friends. She testified that sometime before defendant
started divorce proceedings, defendant had called Jackman for
advice on how to make Pamela happy. Defense counsel
attempted to elicit this testimony to show how defendant at one
point in time cared for Pamela.
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Opinion of the Court by Chin, J.
DISCUSSION
A. Guilt Phase
1. Admission of Defendant’s Recorded Jailhouse
Statement with Shawn Smith
On appeal, defendant raises numerous claims based on
the admission of defendant’s surreptitiously recorded jailhouse
statement, asserting that its admission constituted error of
constitutional dimensions. Specifically, he raises claims based
on his Sixth Amendment right to counsel (see Massiah v. United
States (1964) 377 U.S. 201 (Massiah)), his Fifth Amendment
right to counsel and privilege against self-incrimination, his
Fourth Amendment right to be free from unreasonable
detention, his rights under the Sixth Amendment’s
confrontation clause (see Crawford v. Washington (2004) 541
U.S. 36 (Crawford)), as well as attendant protections under
Evidence Code sections 352 and 1101.
We discuss each challenge in turn.
a. Factual and Procedural Background
On July 29, 2008, the day after Pamela was killed,
defendant was arrested for her murder. After invoking his right
to remain silent, defendant refused to speak to investigators and
was released two hours later. On August 1, 2008, the federal
indictment was unsealed, and defendant was arrested on the
federal money licensing violation. Defendant was remanded
into federal custody. On September 10, 2008, while in custody,
defendant made incriminating statements about Pamela’s
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Opinion of the Court by Chin, J.
murder to his cellmate, Shawn Smith.4 Smith was wearing a
wire and recorded his conversation with defendant.
Shortly before their conversation was recorded, Smith had
told authorities that he was sharing a cell with defendant and
that defendant had told Smith that he was involved in
murdering his wife. Detective Abdul met with Smith and
determined that additional investigation was necessary. Smith
was outfitted with a “wire,” a recording device placed in the
inside zipper on the crotch area of Smith’s pants. Detective
Abdul instructed Smith to avoid the appearance of trying to
elicit information from defendant and instead to have a regular
conversation with him to see if defendant would “go ahead and
reveal information that [defendant] had revealed before.”
Though Detective Abdul could not recall “exactly what [he] said
to Mr. Smith,” he testified he did not “counsel him on what to
say.” He did, however, refer to a “previous conversation” with
Smith, based on which Detective Abdul determined there was
“no reason” to discuss with Smith what he should say to
defendant.
On September 15, 2008, the same day defendant was
charged with Pamela’s murder, the federal government
dismissed its indictment against defendant to avoid interfering
4
At the time, Smith was in custody awaiting sentencing for
a conviction of possession with intent to sell cocaine. Smith had
previously been convicted of: (1) conspiracy to distribute cocaine
in 1987 and served 18 months in prison; (2) transporting and
possession for sale a controlled substance in 1990; (3) possession
of a controlled substance with the intent to sell in 2003; (4)
driving under the influence and hit and run in 2003; and (5) hit
and run in 2006. These convictions were introduced into
evidence to impeach Smith’s credibility.
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Opinion of the Court by Chin, J.
with the state’s murder investigation of defendant. Around the
same time, although Smith was “facing a fairly substantial
prison term,” he was released on unsecured bond and was later
released early from custody. Detective Abdul, however, later
testified that Smith’s release “had nothing to do with the state
crime that [defendant] was charged with.”
Before and during his trial, defendant made several
unsuccessful challenges to the admission of his recorded
jailhouse statement. The prosecution played the entire tape-
recorded statement to the jury. On September 12, 2011, after
the jury returned a guilty verdict, defendant filed a motion for a
new trial, in which he argued that the prosecution’s decision to
rely on the recorded statement and not to call Smith to testify
violated defendant’s rights under Crawford. The trial court
denied the motion.
b. Defendant’s Sixth Amendment Right to
Counsel; Massiah Error
On appeal, defendant argues that even though he had not
yet been charged for Pamela’s murder, his Sixth Amendment
right to counsel had attached when he was in federal custody for
the money licensing violation. On that point, he asserts the
federal and state prosecutions were “inextricably intertwined”
and that the federal prosecution was a “sham” to hold defendant
in custody while state authorities investigated the murder case
against defendant. Defendant maintains that because Smith
was acting as an agent for the government, any statements
Smith elicited from defendant were inadmissible under
Massiah. For reasons that follow, we deny this claim.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
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Opinion of the Court by Chin, J.
assistance of counsel for his defense.” (U.S. Const., 6th Amend.;
see Massiah, supra, 377 U.S. at p. 206.) This constitutional
protection “guarantees the accused, at least after the initiation
of formal charges, the right to rely on counsel as a ‘medium’
between him and the State.” (Maine v. Moulton (1985) 474 U.S.
159, 176; see Massiah, supra, 377 U.S. at p. 206.) The “clear
rule of Massiah is that once adversary proceedings have
commenced against an individual, he has a right to legal
representation when the government interrogates him.”
(Brewer v. Williams (1977) 430 U.S. 387, 401.)
The high court has “pegged commencement to ‘ “the
initiation of adversary judicial criminal proceedings—whether
by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” ’ ” (Rothgery v. Gillespie County
(2008) 554 U.S. 191, 198 (Rothgery); see Kirby v. Illinois (1972)
406 U.S. 682, 689-690.) Likewise, we have held that the Sixth
Amendment right to counsel “does not exist until the state
initiates adversary judicial criminal proceedings, such as by
formal charge or indictment.” (People v. DePriest (2007) 42
Cal.4th l, 33 (DePriest); see People v. Viray (2005) 134
Cal.App.4th 1186, 1194.)
By its terms, the Sixth Amendment right to counsel is
“offense specific. It cannot be invoked once for all future
prosecutions, for it does not attach until a prosecution is
commenced . . . . ” (McNeil v. Wisconsin (1991) 501 U.S. 171, 175
(McNeil); see Rothgery, supra, 554 U.S. at p. 198; People v.
Cunningham (2015) 61 Cal.4th 609, 648; Maine v. Moulton
(1985) 474 U.S. 159, 180.) The high court has made clear that
there is no exception to this offense-specific requirement for
uncharged offenses that are “ ‘ “closely related” ’ ” to or “ ‘
“inextricably intertwined” ’ ” with the charged offense. (Texas v.
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Opinion of the Court by Chin, J.
Cobb (2001) 532 U.S. 162, 173; see People v. Slayton (2001) 26
Cal.4th 1076, 1082-1083.) That said, “when the Sixth
Amendment right to counsel attaches, it does encompass
offenses that, even if not formally charged, would be considered
the same offense under the Blockburger test.”5 (Texas v. Cobb,
supra, 532 U.S. at p. 173, italics added.)
Here, the state prosecution for Pamela’s murder had not
yet commenced when defendant, who was in federal custody for
the unrelated money licensing charge, made the incriminating
remarks to Smith. Contrary to defendant’s suggestion, we have
expressly endorsed, in recognition of the offense specific
requirement, a “bright-line precharging rule against
attachment of a Sixth Amendment right.” (DePriest, supra, 42
Cal.4th at p. 34.) Thus, “[a] defendant’s incriminating
statements about offenses for which he has not been charged
may be admitted consistently with his Sixth Amendment
counsel guarantee notwithstanding its attachment on other
charged offenses at the time.” (Id. at p. 33.) Defendant fails to
persuade why the “bright-line precharging rule against
attachment of a Sixth Amendment right” (DePriest, supra, 42
Cal.4th at p. 34), should not apply here.
5
Under Blockburger v. United States (1932) 284 U.S. 299,
“ ‘the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of
a fact which the other does not.’ ” (Texas v. Cobb, supra, 532
U.S. at p. 173, quoting Blockburger, supra, 284 U.S. at p. 304.)
As such, the high court also described the “Sixth Amendment as
‘prosecution specific,’ insofar as it prevents discussion of charged
offenses as well as offenses that, under Blockburger could not be
the subject of a later prosecution.” (Texas v. Cobb, supra, 532
U.S. at p. 173, fn. 3, italics added.)
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For instance, notwithstanding the Sixth Amendment’s
“offense specific” requirement (McNeil, supra, 501 U.S. at p.
175), defendant insists that state and federal authorities had
“worked collectively” to ensure that defendant was detained
without bail in the federal case, thus making the federal
licensing charge “inextricably intertwined” with the state
murder charge. In support, defendant relies on principles
underlying the dual sovereignty doctrine in the Fifth
Amendment double jeopardy context. (See Gamble v. United
States (2019) __ U.S. __, ___[139 S.Ct. 1960, 1964] (Gamble)
[“Under this ‘dual-sovereignty’ doctrine, a State may prosecute
a defendant under state law even if the Federal Government has
prosecuted him for the same conduct under a federal statute”].)
Specifically, defendant emphasizes that the high court left open
the possibility that double jeopardy principles may ban a
successive state prosecution that serves as a “sham and a cover”
for the federal prosecution. (Bartkus v. Illinois (1959) 359 U.S.
121, 124 (Bartkus).)
By analogy, defendant argues that the federal prosecution
for the licensing violation was in fact a “sham” used to detain
defendant while the state investigated Pamela’s murder. He
maintains, therefore, that his arrest and federal detention
prohibited any questioning on the state murder case. Even
assuming that the dual sovereignty doctrine applies in the Sixth
Amendment context (see U.S. v. Coker (1st Cir. 2005) 433 F.3d
39, 45), and further, that the sham prosecution serves as a
“potential exception” to this doctrine (Gamble, supra, 139 S.Ct.
at p. 1994, fn. 3 (dis. opn. of Ginsburg, J.)), we conclude
defendant’s claim lacks merit.
As noted, the sham prosecution theory only applies to
provide defendant relief if there were successive prosecutions by
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two sovereigns for the same offense. (See Gamble, supra, 139
S.Ct. at p. 1964 [affirming dual sovereignty doctrine].) Here, the
offenses—Pamela’s murder and the federal licensing charge—
were clearly not the same. In fact, at his federal detention
proceedings, defendant argued that the federal licensing charge
and the as-yet charged murder were “unrelated” and
“disconnected.”
Nevertheless, we agree with defendant that both federal
detention hearings focused heavily on facts surrounding
Pamela’s murder and defendant’s possible involvement. To the
extent defendant argues that federal and state authorities
“worked collectively” to have him detained in federal custody,
i.e., through sharing information about the murder and
providing a “detention script” prepared by the LAPD, this level
of cooperation and collaboration simply represents the
“conventional practice between the two sets of prosecutors
throughout the country” (Bartkus, supra, 359 U.S. at p. 123).
“As Bartkus makes plain, there may be very close
coordination in the prosecutions, in the employment of agents of
one sovereign to help the other sovereign in its prosecution, and
in the timing of the court proceedings so that the maximum
assistance is mutually rendered by the sovereigns. None of this
close collaboration amounts to one government being the other’s
‘tool’ or providing a ‘sham’ or ‘cover.’ ” (U.S. v. Figueroa-Soto
(9th Cir. 1991) 938 F.2d 1015, 1020.) Further, even if state
authorities deliberately delayed arresting defendant for
Pamela’s murder, which purportedly gave them more time in
which to elicit defendant’s incriminatory statements in federal
custody, this “conscious delay” does not violate his Sixth
Amendment right to counsel. (People v. Webb (1993) 6 Cal.4th
494, 527 [no Massiah violation where investigators told wife to
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Opinion of the Court by Chin, J.
“intensify her questioning” of defendant about capital crimes
while defendant was incarcerated on unrelated charges].)6
Finally, defendant relies on Elkins v. United States (1960)
364 U.S. 206, to argue specifically that concepts of due process
and fundamental fairness dictate that his Sixth Amendment
right to counsel had attached. Not so. Elkins’s abrogation of the
“silver platter” doctrine—which previously allowed evidence
obtained by a state agent’s unreasonable searches or seizures to
be used in a federal trial—does not have any application here.
(Elkins, supra, 364 U.S. at p. 222.) As discussed above, we reject
defendant’s assertion that federal authorities acted improperly
in detaining defendant; thus, the high court’s concerns of
“subterfuge and evasion with respect to federal-state
cooperation in criminal investigation” are not realized in this
case. (Ibid.)
Based on these reasons, we reject defendant’s claim that
his Sixth Amendment right to counsel had attached to the
uncharged murder when he made the incriminating statements
in federal custody. (See Texas v. Cobb, supra, 532 U.S. at p.
173.)
6
Because it is clear that defendant’s Sixth Amendment
right had not attached when he made the incriminating
statements to Smith, it is unnecessary to address, for purposes
of defendant’s Massiah claim, whether Smith “(1) was acting as
a government agent, i.e., under the direction of the government
pursuant to a preexisting arrangement, with the expectation of
some resulting benefit or advantage, and (2) deliberately elicited
incriminating statements.” (In re Neely (1993) 6 Cal.4th 901,
915.) Whether Smith’s allegedly coercive actions rendered
defendant’s statements involuntary, however, is an issue we
discuss below. (See post, at pp. 18-20.)
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c. Defendant’s Fifth Amendment Right Against
Self-incrimination
Defendant also claims that when authorities placed Smith
in defendant’s cell to ask him pointed questions about Pamela’s
murder, this violated his Fifth Amendment right to remain
silent. (U.S. Const., 5th Amend. [“nor shall [any person] be
compelled in any criminal case to be a witness against himself”];
Cal. Const., art. I, § 15; see Miranda v. Arizona (1966) 384 U.S.
436; Edwards v. Arizona (1981) 451 U.S. 477, 484-485.)
Specifically, defendant maintains that he invoked his Fifth
Amendment right to counsel when taken into federal custody for
the money licensing violation and that he thereby invoked his
Fifth Amendment right as to this murder case.
We agree with defendant that unlike the Sixth
Amendment right to counsel, his Fifth Amendment right is not
offense specific. (Arizona v. Roberson (1988) 486 U.S. 675, 685.)
That said, even if defendant properly invoked his Fifth
Amendment right to counsel on July 29 when first arrested for
Pamela’s murder the intervening passage of time along with
defendant’s release and break in custody meant that his
invocation did not remain in force on September 10 when he
made the incriminating statements to Smith. Further, the high
court has held that at least where no prior invocation is in effect,
’“[c]onversations between suspects and undercover agents do not
implicate the concerns underlying Miranda. The essential
ingredients of a ‘police-dominated atmosphere’ and compulsion
are not present when an incarcerated person speaks freely to
someone whom he believes is a fellow inmate. Coercion is
determined from the perspective of the suspect.” (Illinois v.
Perkins (1990) 496 U.S. 292, 296.) In other words, “Miranda
forbids coercion, not mere strategic deception by taking
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advantage of a suspect’s misplaced trust in one he supposes to
be a fellow prisoner. . . . [¶] Miranda was not meant to protect
suspects from boasting about their criminal activities in front of
people whom they believe to be their cellmates.” (Id. at pp. 297-
298 [defendant showed “no hint of being intimidated by the
atmosphere of the jail” and “was motivated solely by the desire
to impress his fellow inmates”]; see People v. Tate (2010) 49
Cal.4th 635, 685-686.)
Defendant briefly asserts that Smith was a government
agent who used coercive, deceptive, and overreaching tactics to
elicit defendant’s incriminating statements in violation of due
process. (See Miller v. Fenton (1985) 474 U.S. 104, 110
[notwithstanding Miranda’s prophylactic protections, “the
Court has continued to measure confessions against the
requirements of due process”]; see also Arizona v. Fulminante
(1991) 499 U.S. 279, 288 [“fear of physical violence, absent
protection from his friend (and Government agent) . . . motivated
Fulminante to confess”].) “The use of deceptive statements
during an investigation does not invalidate a confession as
involuntary unless the deception is the type likely to procure an
untrue statement.” (People v. McCurdy (2014) 59 Cal.4th 1063,
1088; see People v. Mickey (1991) 54 Cal.3d 612, 649-650.) “ ‘A
statement is involuntary if it is not the product of “ ‘a rational
intellect and free will.’ ” [Citation.] The test for determining
whether a confession is voluntary is whether the defendant’s “
will was overborne at the time he confessed.” ’ ” (People v.
McWhorter (2009) 47 Cal.4th 318, 346-347.)
Though the details of their conversation prior to Smith
wearing a wire are unknown, it is clear that defendant and
Smith had already talked about enlisting Smith’s made up
hitman, “Tony,” to kill Moya. While Smith may have prodded
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Opinion of the Court by Chin, J.
defendant to speak at times, the record does not support that
defendant’s will was overborne when he expressed he wanted
Moya killed.
For instance, defendant told Smith he did not “want to be
worrying about this every fuckin’ minute of the day when I’m
out there” and that he did not want to “sit around here for the
rest of my life and worry about whether one of them is gonna
fuckin’ finally decide to fess up.” Defendant purportedly drew
Smith a detailed layout of his ranch to ensure the hitman went
to the right house to kill Moya. Further, when an officer passed
their cell as defendant and Smith were discussing these plans,
defendant remarked: “We’re planning a fucking multiple
homicide bitch. Leave us alone.”
Our review of the recorded conversation reveals several
instances where Smith asked defendant specific, and arguably
leading, questions about Pamela’s killing, including probing
whether it was defendant’s idea to take the company’s rented
car which was used in the killing. Smith also appeared to
ingratiate himself by expressing sympathy for defendant and
commiserating with defendant on how Moya and his cohorts
bungled Pamela’s murder. As the conversation went on,
however, defendant confessed he wanted to kill Pamela himself,
but “knew I’d never fuckin’ be able to get away with it. Never.”
Certainly, Smith was much more than a passive listener.
That said, we cannot conclude that Smith’s questions or tactics
were likely to procure an untrue statement or were otherwise
improper. (See Arizona v. Fulminante, supra, 499 U.S. at p. 287
[coercion due to “credible threat of physical violence” if
defendant did not confess].) Though at times Smith coaxed and
prodded defendant when he hesitated to speak, it is clear from
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Opinion of the Court by Chin, J.
the record as a whole that defendant was neither compelled into
revealing his role in Pamela’s murder, nor was he coerced into
hiring a hitman to kill Moya. If the “ ‘decision is a product of the
suspect’s own balancing of competing considerations, the
confession is voluntary.’ ” (U.S. v. Miller (9th Cir. 1993) 984
F.2d 1028, 1031.)
d. Defendant’s Fourth Amendment Right Against
Unlawful Search and Seizure
Defendant argues that pursuant to the Bail Reform Act of
1984 (18 U.S.C. § 3142(f)), he should have been released on bail
after his arrest on the federal licensing charge. Instead, because
he was denied bail and remained in custody, that detention was
unlawful, and any statements he made to Smith during that
detention should be suppressed under the Fourth Amendment.
Even assuming defendant was erroneously denied bail, he fails
to demonstrate that the remedy for any violation of the Bail
Reform Act of 1984 is to suppress the subsequent confession of
the defendant. (See United States v. Leon (1984) 468 U.S. 897,
916 [“exclusionary rule is designed to deter police misconduct
rather than to punish the errors of judges and magistrates”]; see
also Hudson v. Michigan (2006) 547 U.S. 586, 591 [“Suppression
of evidence, however, has always been our last resort, not our
first impulse”].) As such, we deny this claim.
e. Defendant’s Right to Confrontation
On May 11, 2011, with one remaining witness left to
testify at the guilt phase, the prosecution informed the trial
court that they would not be calling Smith to the stand. The
trial court permitted the prosecution to lay the foundation for
the recorded conversation between Smith and defendant
through Detective Abdul’s testimony. Detective Abdul testified
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Opinion of the Court by Chin, J.
that he placed a recording device on Smith’s person. After
defense counsel recounted Smith’s criminal history, Detective
Abdul replied he did not know “how extensive his criminal
history was.” Detective Abdul denied offering Smith any
advantage or reward for cooperating with authorities and also
denied counseling Smith on what to say to defendant. However,
the detective admitted he knew that at the time of the recorded
conversation, Smith was awaiting sentencing and “facing a
fairly substantial federal prison term” after pleading guilty to
selling cocaine to an undercover agent.
After Detective Abdul testified, the jury heard (and later
received a transcript of) the entirety of the recorded
conversation. In admitting the transcript and tape of the
recorded conversation into evidence, the trial court concluded
Smith’s statements were not being offered for the truth of the
matter asserted and were, therefore, admissible as nonhearsay.
As to defendant’s recorded statements, the trial court found that
while the statements constituted hearsay, they were admissible
under the exception for an admission against penal interest.
Outside the presence of the jury, defense counsel raised a
“standing objection”—i.e., referring to previously raised
objections based on the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the Constitution—to the admission of the
recorded conversation between Smith and defendant. Defense
counsel also specifically raised a hearsay objection based on
Crawford, supra, 541 U.S. 36 and requested that the court give
a clarifying instruction on the jury’s permitted use of Smith’s
statements. The trial court told defense counsel to draft an
appropriate instruction, which the court said it would take up
later.
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On appeal, defendant focuses on Smith’s statements, the
admission of which he claims violated his Sixth Amendment
right of confrontation and the restrictions against testimonial
statements. (Crawford, supra, 541 U.S. at p. 59; U.S. Const.,
6th Amend. [“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him”]; see Cal. Const., art. I, §§ 7, 14 & 15.) Claiming prejudice,
defendant asserts Smith’s statements were the “force majeure”
of the prosecution’s case, without which there would be little
evidence against defendant.
Generally speaking, a declarant’s hearsay statement is
testimonial if made “with a primary purpose of creating an out-
of-court substitute for trial testimony.” (Michigan v. Bryant
(2011) 562 U.S. 344, 358.) Notwithstanding the lack of a
comprehensive definition of “testimonial” (Ohio v. Clark (2015)
__ U.S. __, __ [135 S.Ct. 2173, 2179]), the high court has
nonetheless emphasized that only hearsay statements that are
“testimonial” are subject to the confrontation clause. (Davis v.
Washington (2006) 547 U.S. 813, 821; Crawford, supra, 541 U.S.
at p. 53 [“even if the Sixth Amendment is not solely concerned
with testimonial hearsay, that is its primary object”].) “It is the
testimonial character of the statement that separates it from
other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.”
(Davis v. Washington, supra, 547 U.S. at p. 821; see People v.
Cage (2007) 40 Cal.4th 965, 984.) The admission of nonhearsay
statements, it follows, “raises no Confrontation Clause
concerns.” (Tennessee v. Street (1985) 471 U.S. 409, 414; see
Crawford, supra, 541 U.S. at p. 59, fn. 9; People v. Cage, supra,
40 Cal.4th at p. 975, fn. 6; Evid. Code, § 1200.)
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Opinion of the Court by Chin, J.
With this legal backdrop, we have set out a two-step
inquiry to determine the admissibility of out-of-court statements
in criminal cases: “The first step is a traditional hearsay
inquiry: Is the statement one made out of court; is it offered to
prove the truth of the facts it asserts; and does it fall under a
hearsay exception? If a hearsay statement is being offered by
the prosecution in a criminal case, and the Crawford limitations
of unavailability, as well as cross-examination or forfeiture, are
not satisfied, a second analytical step is required. Admission of
such a statement violates the right to confrontation if the
statement is testimonial hearsay, as the high court defines that
term.” (People v. Sanchez (2016) 63 Cal.4th 665, 680; see People
v. Blacksher (2011) 52 Cal.4th 769, 811 (Blacksher).)
In the context of an interrogation, as used in the colloquial
and not legal sense, “ ‘it is in the final analysis the declarant’s
statements, not the interrogator’s questions, that the
Confrontation Clause requires us to evaluate.’ . . . An
interrogator’s questions, unlike a declarant’s answers, do not
assert the truth of any matter.” (Michigan v. Bryant, supra, 562
U.S. at p. 367, fn. 11, quoting Davis v. Washington, supra, 547
U.S. at p. 822, fn. 1.) In that regard, the high court has also
noted that statements made unknowingly to an informant or
statements between fellow prisoners are “clearly
nontestimonial.” (Davis v. Washington, at p. 825, citing
Bourjaily v. United States (1987) 483 U.S. 171, 181-184, Dutton
v. Evans (1970) 400 U.S. 74, 87-89 (plur. opn. of Stewart, J).)
In this case, the prosecution maintained that statements
by Smith, an undercover informant who befriended defendant
in federal detention and prompted him to confess to Pamela’s
murder, were not hearsay in the first place because Smith’s
statements were not offered for the truth of the matter asserted.
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Opinion of the Court by Chin, J.
For example, in response to defense counsel’s argument that it
was Smith who “leads and cons, and . . . directs” defendant to
confess, the prosecution relied on Smith’s statements to show
that Smith did not threaten or intimidate defendant into
making incriminating statements. Smith’s statements were
nonhearsay and admissible to put defendant’s “admissions on
the tapes into context, making the admissions intelligible for the
jury. Statements providing context for other admissible
statements are not hearsay because they are not offered for their
truth.” (U.S. v. Tolliver (7th Cir. 2006) 454 F.3d 660, 666, fn.
omitted.)
Though conceding that the statements were originally
admitted for this nonhearsay purpose, defendant claims that the
prosecution “repeatedly used Smith’s statements for the truth of
the matter by arguing that the jury should find Smith’s taped
statements to be credible.” We reject this claim. Contrary to
defendant’s contention, by telling the jury, “[I]s there anything
that makes you suspect that Shawn Smith is not being truthful?
No because you can hear every syllable that comes out of his
mouth,” the prosecution was not vouching for Smith’s
credibility. Impermissible vouching “ ‘ “involves an attempt to
bolster a witness by reference to facts outside the record.” ’ ”
(People v. Huggins (2006) 38 Cal.4th 175, 206, italics added.)
Here, the prosecution urged the jury to focus on the
admissible evidence: “I am not asking you to take Shawn
Smith’s word for anything. I am not saying, yeah, Shawn Smith
says that James Fayed said this. You can hear for yourself on
the DVD, on the tape.” Moreover, the issue was not the truth or
falsity of Smith’s statements—for instance, whether Smith
actually knew a hitman named “Tony” who would kill Moya if
defendant wanted—but whether Smith had made the
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Opinion of the Court by Chin, J.
statements. Out-of-court statements are inadmissible hearsay
“only when they are offered for the same purpose as testimony
of a witness on the stand and therefore depend for probative
value on the credibility of the declarant.” (1 Witkin, Cal.
Evidence (5th ed. 2012) Hearsay, § 5, p. 788, italics added.) In
the strictest sense, Smith’s credibility was not at issue because
his out-of-court statements were not offered for their truth.
It bears emphasis that both sides thoroughly discussed
Smith’s credibility (or lack thereof) at trial. When cross-
examining Detective Abdul, defense counsel underscored
Smith’s “extensive criminal history,” and recounted each of
Smith’s convictions. In closing argument, defense counsel called
Smith: “Drug addict. Convicted. Felon in possession of
firearms. Drunk driver. Hit and run driver.” In conclusion,
defense counsel submitted: “[T]his man is no good. This man is
evil. And no good comes from evil.”
For its part, the prosecution was not “hiding” the fact that
Smith was a convicted drug dealer. Far from vouching for
Smith’s credibility, the prosecution conceded that Smith was not
a trustworthy individual but was instead, in the prosecution’s
words, “a crook and a criminal.” Nevertheless, as the
prosecution emphasized, the recorded conversation spoke for
itself: “It wouldn’t matter who was in the cell next to
[defendant]. Mr. Fayed, it is his words that are being used
against him.” Moreover, regarding any motive for Smith to lie,
the jury heard that while Detective Abdul denied that he offered
Smith any benefit in exchange for recording his conversation
with defendant, Detective Abdul admitted he was aware that
Smith was released early after cooperating with authorities.
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Opinion of the Court by Chin, J.
f. Failure To Redact Recorded Conversation
In his pretrial motion in limine to exclude the entire
recorded conversation with Smith, defendant alternatively
requested that the trial court redact the statement if admitted.
He challenged the conversation’s references to hiring a hitman
to kill Moya, certain “inflammatory” remarks Smith made, and
statements defendant made on other “extraneous matters,” such
as defendant’s sex life, his meetings with the National Security
Agency, and his admitted forgeries of Pamela’s will and
counterfeit $100 bills. The trial court rejected defendant’s
request, noting that the entire recorded conversation had
probative value: “Now you can make your argument that it is
an Oscar award-winning performance and it was not worth
anything, but I think the People are entitled to bring that, in all
of its glory, in front of the jury.”
On appeal, defendant argues that the trial court’s ruling
was erroneous and that the admitted evidence was extraneous,
inflammatory, and ultimately prejudicial to him. “A trial court’s
decision to admit or exclude evidence is reviewable for abuse of
discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.)
As their recorded conversation revealed, defendant and
Smith spent much time talking about defendant hiring a
purported hitman Smith knew named “Tony” to kill Moya. (See
ante, at pp. 19-20.) Defendant argues that the evidence of the
uncharged conduct about hiring a hitman to kill Moya was
inadmissible because he was never charged with a postoffense
crime against Moya. (See People v. Ewoldt (1994) 7 Cal.4th 380,
404-405.) Even if admitted for a proper purpose to show
defendant’s consciousness of guilt, he maintains that the
evidence was unduly prejudicial under Evidence Code section
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Opinion of the Court by Chin, J.
352. The evidence, defendant adds, was also “insubstantial and
undependable” because it was Smith who “encouraged and
prodded” defendant to hire a hitman Smith knew to kill Moya.
Finally, this evidence purportedly showing defendant’s
consciousness of guilt as to Pamela’s murder was cumulative
because the conversation already included defendant’s
statements about killing Pamela. We reject this claim on all
points.
Here, the prosecution’s theory was that defendant
perpetrated Pamela’s murder by soliciting Moya (who in turn
enlisted Marquez and Simmons) to kill Pamela. Thereafter,
because of fears that Moya could turn on defendant and become
a witness against him, defendant sought to hire another hitman,
Smith’s fictional friend, “Tony,” to kill Moya; in that regard,
Smith took care to portray Tony as dying of cancer and therefore
not a risk to defendant after killing Moya. This evidence of
defendant soliciting the murder of a potential witness is highly
probative of defendant’s guilt of Pamela’s murder. Contrary to
defendant’s contention, this evidence was not cumulative.
Rather, it showed a common plan in that defendant sought to
kill whoever threatened him or his livelihood. (See People v.
Ewoldt, supra, 7 Cal.4th at p. 402.)
Though the record does not disclose how the two first
discussed the idea of defendant hiring a hitman (see ante, at p.
18) and defendant appeared reluctant at times when discussing
the plans, defendant’s assertion that the evidence, therefore,
was insubstantial or undependable lacks merit. Although
Smith may have prodded or coaxed defendant to talk at certain
points, defendant’s initial hesitation gave way to extended
diatribes of how Moya and others bungled previous attempts to
kill Pamela and how defendant did not want to be worried that
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Opinion of the Court by Chin, J.
Moya would turn on him. Moreover, any hesitation could be
attributed to defendant seeking Smith’s assurances that Tony
would be more competent and effective than Moya. Defendant
also admitted he would have killed Pamela himself but that he
would never “get away with it. Never.”
We also reject defendant’s challenge to the other admitted
evidence. Smith’s pejorative references to Mexicans and women
were brief and were not inflammatory; in any event, defendant
fails to show how Smith’s offensive statements—to which
defendant showed little reaction—would prejudice defendant.
Likewise, defendant fails to show how Smith’s bravado and
graphic details about hiring hitmen to commit various murders
would prejudice defendant. Finally, any extraneous details,
such as the forging of the will, lent credibility to defendant’s
admissions because he trusted Smith enough to reveal this
information.
In sum, we conclude the trial court did not abuse its
discretion in denying defendant’s motion to redact the
statement and admitting it in its entirety.
2. Jury Misconduct
Before the close of the guilt phase and in the span of one
week, the trial court received several anonymous e-mails and
voicemail messages alleging various instances of jury
misconduct. The trial judge later remarked she had “never
experienced anything like this” in her over 22 years’ experience
on the bench.
The events were as follows: On May 9, 2011, after getting
a voicemail on the court’s telephone from an unnamed juror
about possible juror misconduct, the trial court questioned all
jurors and alternate jurors, but no one acknowledged leaving the
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Opinion of the Court by Chin, J.
voicemail. Two days later, the court received a note from Juror
No. 5 admitting that he left the voicemail. The note explained
that he had observed Juror No. 11 and Alternate Jurors No. 1
and 4 discussing “at length” the testimony of witness Edwin
Rivera, who gave aid to Pamela after she was stabbed. When
questioned alone by the court, Juror No. 5 explained he heard
the three talk about the graphic photos the prosecution showed
to witness Rivera and described how brave Rivera was, but
remarked how cruel defendant was and how his actions led to
his wife’s death. Juror No. 5 said that what he heard would not
affect his ability to be fair and impartial.
When the trial court questioned Juror No. 11 and
Alternate Jurors No. 1 and 4 separately about this, all three
steadfastly denied discussing the case with other jurors. The
court subsequently questioned all jurors and alternate jurors
about whether they (or anyone else) had formed any opinion
about defendant’s guilt or innocence. Alternate Juror No. 3
stated she heard Juror No. 11 tell another juror, “Once I make
up my mind, I don’t change it”; according to Alternate Juror No.
3, she thought that Juror No. 11 had “made up her mind that
the defendant is guilty.” The trial court excused Juror No. 11
and Alternate Juror No. 1; the court refused to excuse Alternate
Juror No. 4. The court opined that Juror No. 5 was likely
referring to Alternate Juror No. 3 and not Alternate Juror No. 4
as having the conversation with Juror No. 11. After a random
drawing of the remaining alternate jurors, Alternate Juror No.
4 was chosen to replace excused Juror No. 11.
Next, on May 12, 2011, defense counsel informed the court
he received an anonymous e-mail sent to his law firm e-mail
address the night before. The e-mail expressed concern that
defendant get a fair trial and urged the court to remind jurors
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Opinion of the Court by Chin, J.
not to express opinions or search the Internet about the case.
The trial court told the jurors that whoever had sent the e-mail
should contact the bailiff; however, no juror approached the
bailiff. That same day, the court learned of a voicemail left by
an anonymous female caller who explained that jurors,
specifically mentioning Juror No. 6 and Juror No. 9, were
continuing to look things up on the Internet. Also, Juror No. 3
later wrote a note to the court explaining there was an “air of
suspicion and doubt among the jurors as we near deliberations”
because of the anonymous e-mail. Because the voicemail
appeared to be from a female, the trial court first questioned
separately the remaining female jurors on the panel whether
anyone had left the voicemail or had sent the e-mail to counsel.
The court next questioned the male jurors only if they had sent
the e-mail to defense counsel.
The trial court summarized the state of the record:
“[E]very single juror and alternate juror has denied sending the
e-mail to Mr. Werksman’s office, has denied leaving the
voicemail on the court’s telephone.” It further noted that every
juror and alternate juror indicated they had not heard any juror
forming or expressing opinions regarding the case. The court
concluded there was not sufficient evidence to conclude that any
of the jurors or alternate jurors has engaged in misconduct. The
court added it was “satisfied that these jurors are prepared to
live up to the oath that they all took initially and that they’ve
reacknowledged today and that we’re going to move forward.”
Finally, on May 17, 2011, defense counsel brought in a
letter he received, which enclosed a campaign brochure and
cover letter from Prosecutor Alan Jackson, running for Los
Angeles County District Attorney. The letter raised the concern
that several jurors had received these materials. After first
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Opinion of the Court by Chin, J.
requesting the court ask the sheriff’s department to launch a
formal investigation into these attempts to undermine the
judicial process, Jackson agreed with defense counsel that the
trial court should ask the jury about the mailer. After no juror
replied that they had seen the mailer, the trial court explained
that “there is someone out there that’s trying to cause trouble”
and admonished the jury to be “extremely vigilant” and to let
the court know if they receive any information or
correspondence.
In summary, after its investigation, the trial court
concluded there was one instance of jury misconduct, i.e., the
reported conversation between Juror No. 11 and Alternate Juror
No. 1 (and presumably Alternate Juror No. 3), in which Juror
No. 11 expressed her opinion of defendant’s guilt. The trial court
excused Juror No. 11 and Alternate Juror No. 1, and defendant
does not challenge the trial court’s discharge of either juror. Nor
does he repeat his claim that the court should have also excused
Alternate Juror No. 4. Rather, defendant asserts that the
misconduct raised the presumption of prejudice and that the
trial court’s investigation into the misconduct was “incomplete.”
He suggests the inadequate investigation “is, itself, enough to
warrant reversal.” His claim in essence is that the presumption
of prejudice was not rebutted. We reject defendant’s claims as
contrary to the facts and relevant law.
A criminal defendant is constitutionally entitled to an
unbiased, impartial jury. (People v. Weatherton (2014) 59
Cal.4th 589, 598.) “Jurors must be admonished not to ‘form or
express any opinion about the case until the cause is finally
submitted to them.’ (§ 1122, subd. (b).) Prejudgment
‘constitute[s] serious misconduct’ [citation], raising a
presumption of prejudice. The presumption is rebutted ‘if the
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Opinion of the Court by Chin, J.
entire record . . . indicates there is no reasonable probability of
prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant.’ ” ( Ibid.)
“Whether and how to investigate an allegation of juror
misconduct falls within the court’s discretion. [Citation.]
Although a court should exercise caution to avoid threatening
the sanctity of jury deliberations, it must hold a hearing when
it learns of allegations which, if true, would constitute good
cause for a juror’s discharge. [Citation.] Failure to do so may
be an abuse of discretion.” (People v. Allen and Johnson (2011)
53 Cal.4th 60, 69-70; see People v. Espinoza (1992) 3 Cal.4th 806,
822 [inquiry should be sufficient “ ‘ “to determine if the juror
should be discharged and whether the impartiality of other
jurors had been affected” ’ ”].) Grounds for investigating or
discharging a juror may be based on the juror’s statements or
conduct, including events which occur during jury deliberations
and are reported by fellow jurors. (People v. Lomax (2010) 49
Cal.4th 530, 588.)
In this case, the alleged conversation took place before the
jury deliberations began in the guilt phase. Rather than
immediately question all the jurors about the voicemail, the trial
court preferred to take what it described as a “conservative”
approach to see if someone would acknowledge the call.
Notwithstanding the court’s initial reticence, once Juror No. 5
revealed he had left the voicemail message, the trial court
promptly investigated the allegations of juror misconduct. Far
from perfunctory, the trial court’s questioning was thorough and
careful, focusing on the nature and scope of the reported
misconduct.
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Opinion of the Court by Chin, J.
We conclude that any presumption of prejudice was
rebutted; in other words, there was no substantial likelihood
that any sitting or alternate jurors were actually biased against
defendant. (People v. Weatherton, supra, 59 Cal.4th at p. 598.)
In addition to excusing the two jurors, the trial court questioned
the remaining jurors and alternate jurors, who all replied they
were able to fulfill their duties as jurors and agreed not to form
or express any opinion about the case until the matter was
submitted.
Nevertheless, defendant asserts that Juror No. 5 “lied”
about leaving the voicemail or observing misconduct when
questioned with the jury as a whole. Juror No. 5 later explained
he felt embarrassed about raising his hand in front of everyone;
he instead wrote a note and handed it to the bailiff on his way
out of the courtroom. Except for his initial hesitation, Juror No.
5 was forthcoming and detailed in his account. Alternate Juror
No. 3 presumably felt the same feelings of embarrassment when
questioned in a group, but also gave a detailed account of the
conversation when questioned individually. Indeed, after the
questioning ended, defense counsel concluded that Juror No. 5
was “credible and honest” and likewise characterized Alternate
Juror No. 3 as “honest.”
With respect to the remaining alleged incidents of juror
misconduct—as reported in the anonymous voicemail from a
female juror left on the court’s telephone, the anonymous e-mail
sent to defense counsel, and the letter with the campaign mailer
of prosecutor Jackson sent to defense counsel’s law firm—we
conclude the trial court’s inquiry was sufficient and agree with
its conclusion that these allegations of juror misconduct were
not credible. For the same reasons, we reject defendant’s claim
that the trial court abused its discretion in denying defendant’s
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Opinion of the Court by Chin, J.
motion for a new trial based on jury misconduct (§ 1181, subd.
3). (See People v. Williams (1988) 45 Cal.3d 1268, 1318 [“ ‘The
determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears’ ”]; see also People v. Dykes (2009) 46 Cal.4th 731, 809
[regarding motion for new trial based on jury misconduct
“reviewing court should accept the trial court’s factual findings
and credibility determinations if they are supported by
substantial evidence”].)
On appeal, defendant raises no new arguments regarding
any alleged misconduct, except to note that the court’s
assumption that defendant was responsible for the misconduct
was “sheer speculation.” Because the trial court found no such
misconduct, it is, of course, unnecessary for us to dispel whether
defendant was the source.
3. Instructional Errors
a. Third Party Culpability
Before trial, defendant indicated he intended to call his
sister, Mary Mercedes, as a witness to question her if she had
attempted to solicit their sister Patty Taboga’s husband, Kurt,
to kill Pamela. Defendant’s theory was that it was Mercedes
and not defendant who solicited Pamela’s murder. Outside the
presence of the jury, Mercedes invoked her Fifth Amendment
right not to incriminate herself, after which the court declared
her unavailable as a witness. Based on Mercedes’s
unavailability, the trial court permitted defendant to question
Taboga about her conversation with Mercedes.
Appearing under a defense subpoena, Taboga testified
that Mercedes had called her sometime around May 2008,
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Opinion of the Court by Chin, J.
several months before Pamela was killed. Mercedes asked
Taboga if Taboga’s husband, a police officer in Wyoming, would
kill Pamela because “ ‘money was running out’ ” due to
defendant and Pamela’s divorce. Taboga was shocked and told
Mercedes that she had “lost her mind” and asked how Mercedes
could call her with such a “horrible request.” Taboga testified
that after speaking for some time, Mercedes said she had a
“temporary loss of sanity” and asked that Taboga not tell
anyone. Taboga did not immediately tell defendant, Kurt
Taboga, or anyone else, about the telephone conversation.
Several years later, on or about March 9, 2011, while
defendant was in custody awaiting trial for Pamela’s murder,
Taboga wrote him a letter describing her conversation with
Mercedes. Only then did defense counsel purportedly first
become aware of this information. In explaining why she came
forward just 32 days before testifying, Taboga said it was “the
first time anyone’s asked me anything.” Taboga did not believe
she had important information that “could free” defendant but
felt “all the facts need to get out.” On cross-examination, Taboga
explained that after her conversation with Mercedes, she did not
tell Pamela she was in grave danger because she believed
Mercedes “wasn’t going to do anything and she just lost her
mind temporarily.” She also revealed she had not spoken to
Mercedes since 2010 after they had a heated argument.
After Taboga testified, defendant requested the court give
a special instruction on third party culpability to highlight
evidence suggesting that “other persons, among them Mary
Mercedes, committed the crimes charged” and that defendant
“is entitled to an acquittal if the evidence raises a reasonable
doubt in your mind as to the defendant’s guilt.” Although the
prosecution agreed that Taboga’s testimony was admissible, it
35
PEOPLE v. FAYED
Opinion of the Court by Chin, J.
argued the proposed instruction was improper because it not
only highlighted the significance of the evidence for the jury, but
the instruction also suggested that if the jury believed Taboga,
there is reasonable doubt as to defendant’s guilt; in short, the
instruction “almost directs the verdict to not guilty or an
acquittal.” After defense counsel orally suggested possible
revisions to their special instruction, the prosecution countered
that no such instruction was required because CALJIC No. 2.90
already explains that the prosecution has the burden of proof
and that it was up to the jury to determine what significance
and weight to give to any evidence.
The trial court agreed with the prosecution and refused to
give the jury an instruction on third party culpability in any
form. In doing so, the court noted that there was no such
standard instruction in either CALCRIM or CALJIC. Though
the court made clear that defendant could make the argument
that Mercedes and not defendant solicited Pamela’s murder, it
pointed out that the jury “didn’t hear any evidence that Mary
Mercedes induced Jose Moya at all to commit this crime. There
was no evidence of that.” Defendant, however, countered that
records showed that Mercedes had called Moya shortly before
Pamela was killed and that the rental car used by Moya,
Simmons, and Marques to allegedly commit the murder was
rented for and used by Mercedes’s son.
On appeal, defendant argues there was sufficient evidence
to support a third party culpability instruction. He maintains
that the trial court erroneously refused to give the instruction
because it was not enumerated in CALJIC or CALCRIM.
Defendant points out that the parties had stipulated that third
party culpability evidence was admissible.
36
PEOPLE v. FAYED
Opinion of the Court by Chin, J.
As noted, the trial court did admit defendant’s evidence of
third party culpability. Based on this evidence, defense counsel
in closing argument emphasized Patty Taboga’s “credible”
testimony that Mercedes had asked if Taboga’s husband would
kill Pamela. Counsel told the jury: “Now you heard Mary had
motive. Mary had opportunity. Mary had intent.” She was
“totally embedded and totally vested in the success or failure of
Goldfinger.”
Even though the trial court ruled the evidence was
admissible, it was not required to give defendant’s proposed
special instruction on third party culpability. (See People v.
Hartsch (2010) 49 Cal.4th 472, 500 [pinpoint instruction not
required if argumentative, duplicative, or not supported by
substantial evidence].) As the trial court concluded, defendant’s
special instruction as originally drafted was argumentative and
improper. (People v. Wright (1988) 45 Cal.3d 1126, 1135
[argumentative instruction invited jury to draw inferences
favorable to defendant from specified evidence on disputed
question of fact].) The court’s reasoning for refusing the
instruction, contrary to defendant’s suggestion, was not based
primarily on the lack of a standard instruction in CALJIC or
CALCRIM. Finally, “because the reasonable doubt instructions
give defendants ample opportunity to impress upon the jury that
evidence of another party’s liability must be considered in
weighing whether the prosecution has met its burden of proof,”
the failure to instruct on third party culpability was not
prejudicial. (People v. Hartsch, supra, 49 Cal.4th at p. 504)
b. Termination of Liability of Aider and Abettor
At defendant’s request and over the prosecution’s
objection, the trial court instructed the jury on CALJIC No. 3.03
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Opinion of the Court by Chin, J.
(“Termination of Liability of Aider and Abettor”). The
instruction provided, in part, that to withdraw from
participation of a crime and avoid liability as an aider and
abettor, a defendant “must do everything in his power to
prevent” the crime’s commission.
In closing argument, defense counsel pointed out that
before Pamela was murdered, defendant had repeatedly
demanded Moya give back the $25,000 defendant had already
paid him after Moya missed four previous opportunities to kill
Pamela, i.e., “four clean hits” defendant admitted that he had
“set up.” The prosecution countered that under CALJIC No.
3.03, defendant “has to do everything in his power, everything in
his power, everything in his power to prevent the commission of
the murder. So let’s look at what Mr. Fayed did to prevent the
murder. Nothing. He didn’t do anything. Not a darn thing.”
On appeal, defendant argues that CALJIC No. 3.03
erroneously stated that a defendant must do “everything in his
power” to withdraw as an aider and abettor in the crime, rather
than requiring a defendant to do what was “practicable” or
“reasonable,” as suggested in the corresponding CALCRIM
instruction. (See CALCRIM No. 401 [defendant must do
“everything reasonably within his or her power to prevent the
crime from being committed” (italics added)].) Defendant points
out that in 2005, the Judicial Council endorsed CALCRIM and
urged courts to use CALCRIM instead of CALJIC. The Attorney
General counters that defendant forfeited the argument by
failing to object that CALJIC No. 3.03 misstated the law.
Even assuming that defendant did not forfeit the claim
that CALJIC No. 3.03 misstates the law, his claim lacks merit.
In 2008, three years after the Judicial Council’s adoption and
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Opinion of the Court by Chin, J.
endorsement of CALCRIM, this court explained that CALJIC
No. 3.03 “is a correct statement of the law.” (People v.
Richardson (2008) 43 Cal.4th 959, 1022; see People v. Lucas
(2014) 60 Cal.4th 153, 294.) Further, even under CALCRIM No.
401 (defendant must do “everything reasonably within his . . .
power”), defendant does not assert, nor is there anything in the
record to suggest, that defendant did anything—apart from
demanding his money back from Moya—to stop the commission
of Pamela’s murder. Thus, his withdrawal claim would fail
under either standard. Even assuming instructional error,
defendant fails to show prejudice. (People v. Mora and Rangel
(2018) 5 Cal.5th 442, 495 [instructional error is harmless when,
beyond a reasonable doubt, it did not contribute to the verdict].)
On a related point, defendant underscores that while the
trial court used this CALJIC instruction for aiding and abetting,
it used CALCRIM No. 521 for first degree murder. He argues
that the intermingling of CALJIC and CALCRIM instructions
on this issue was improper. We conclude defendant forfeited
this claim by failing to object on this ground and that the claim
in any event lacks merit. (People v. Beltran (2013) 56 Cal.4th
935, 944, fn. 6 [“trial court may modify any proposed instruction
to meet the needs of a specific trial, so long as the instruction
given properly states the law and does not create confusion”].)
c. Withdrawal from Conspiracy
On the charge of conspiracy to commit murder, the trial
court instructed the jury on seven overt acts allegedly
committed for the purpose of furthering the object of Pamela’s
murder, including defendant’s act of paying Moya $25,000 to
arrange the murder of Pamela. At defendant’s request, the
court instructed the jury on CALJIC No. 6.20 (Withdrawal from
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Opinion of the Court by Chin, J.
Conspiracy), which provides in pertinent part: “In order to
effectively withdraw from a conspiracy, there must be an
affirmative and good-faith rejection or repudiation of the
conspiracy which must be communicated to the other
conspirators of whom he has knowledge. [¶] If a member of a
conspiracy has effectively withdrawn from the conspiracy, he is
not thereafter liable for any act of the co-conspirators committed
after his withdrawal from the conspiracy, but he is not relieved
of responsibility for the acts of his co-conspirators committed
while he was a member.”
On appeal, relying on People v. Russo (2001) 25 Cal.4th
1124 (Russo), defendant argues that the trial court erroneously
failed to instruct the jury that it had to unanimously decide
which specific overt act was committed before defendant could
no longer withdraw from the conspiracy.
As relevant here, a “jury need not agree on a specific overt
act as long as it unanimously finds beyond a reasonable doubt
that some conspirator committed an overt act in furtherance of
the conspiracy.” (Russo, supra, 25 Cal.4th at p. 1128.) In Russo,
we raised the possibility that “some form of a unanimity
instruction” may be necessary if there was evidence that a
defendant had withdrawn from the conspiracy. (Id. at p. 1136,
fn. 2.) In that instance, “the court might have to require the jury
to agree an overt act was committed before the withdrawal.”
(Ibid.) We declined to address the question because no such
circumstance existed in the case. (Ibid.)
Defendant’s reliance on Russo is misplaced. There is no
dispute that defendant’s alleged withdrawal from the conspiracy
occurred after the first overt act took place. By demanding that
Moya return the $25,000 defendant had already paid him to kill
40
PEOPLE v. FAYED
Opinion of the Court by Chin, J.
Pamela—which defendant asserts supports his claim that he
withdrew from the conspiracy—defendant effectively concedes
that he committed the first overt act, i.e., payment to Moya in
furtherance of the conspiracy to commit murder. “[O]nce an
overt act has been committed in furtherance of the conspiracy
the crime of conspiracy has been completed and no subsequent
action by the conspirator can change that.” (People v. Sconce
(1991) 228 Cal.App.3d 693, 702.);
d. CALJIC No. 2.23
After the jury heard the recorded conversation between
defendant and Smith, defendant asked the trial court to instruct
the jury on CALJIC No. 2.23 with respect to Smith. This
instruction, which concerns the believability of a witness
convicted of a felony, provides in part that the jury may consider
“[t]he fact that a witness has been convicted of a felony” as “one
of the circumstances . . . in weighing the testimony of that
witness.” The trial court told defense counsel he could still make
his argument but refused to give CALJIC No. 2.23 because
Smith “did not testify as a witness.” Defendant requested the
same instruction at the penalty phase, and the court again
refused. On appeal, defendant argues that the trial court
applied an unduly narrow definition of “witness” and that the
prosecution effectively treated Smith as a witness because it
purportedly sought to bolster and vouch for Smith’s credibility.
As previously discussed (see ante, at p. 24), the
prosecution did not improperly vouch for Smith’s credibility, and
we reject defendant’s claim in this regard. Resolution of this
issue, however, does not depend on the meaning of a “witness”
and whether that term refers only to individuals who testify at
trial. As a general matter, declarants whose hearsay
41
PEOPLE v. FAYED
Opinion of the Court by Chin, J.
statements are admitted but do not testify at trial may be
subject to impeachment. (See Evid. Code, § 1202 [“Any other
evidence offered to attack or support the credibility of the
declarant is admissible if it would have been admissible had the
declarant been a witness at the hearing”].) Though this court
has not addressed whether Evidence Code section 1202 permits
admission of prior felony convictions to impeach the hearsay
statements of a nontestifying declarant, we noted that lower
courts have held that such evidence “falls within the purview of
that provision.” (People v. Brooks (2017) 3 Cal.5th 1, 52 [citing
cases].)
This line of cases does not help defendant, in any event. A
declarant’s credibility is “ ‘important only if the prosecution was
using his statement to prove the truth of its contents—in other
words, his credibility mattered only if his statement was in fact
inadmissible hearsay.’ ” (People v. Hopson (2017) 3 Cal.5th 424,
434; see People v. Curl (2009) 46 Cal.4th 339, 361-362.) As we
have explained, Smith’s statements were clearly nonhearsay;
they were not offered for the truth of the matter stated.
Moreover, we cannot see how defendant could have been
prejudiced without this jury instruction—both defense counsel
and the prosecution told the jury that Smith was a convicted
felon. (See People v. Smith (2018) 4 Cal.5th 1134, 1171.)
e. CALJIC No. 2.06
Over defense counsel’s objection, the trial court instructed
the jury with CALJIC No. 2.06, which permitted the jury to
consider whether defendant attempted to suppress evidence,
i.e., wanting to kill Moya as a witness, as “a circumstance
tending to show consciousness of guilt.” In closing argument,
the prosecution argued that defendant wanted to kill Moya to
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Opinion of the Court by Chin, J.
“tie up those loose ends” and “to avoid sitting in this chair for
the murder of his wife.” On appeal, defendant argues that
CALJIC No. 2.06 was unnecessary and prejudicial to the defense
because the trial court already instructed the jury on
circumstantial evidence. (CALJIC Nos. 2.00, 2.02.) We have
repeatedly rejected the claim that CALJIC No. 2.06 is repetitive
of other jury instructions on circumstantial evidence. (People v.
Friend (2009) 47 Cal.4th 1, 52-53.) We do so again here.
4. Violations of Defendant’s Fourth Amendment
Right To Be Free from Search and Seizure
Defendant made various pretrial motions to suppress
evidence seized during several searches. He unsuccessfully
argued that his Fourth Amendment right was violated based on
(1) the warrantless search and seizure of his cell phone, (2) the
issuance of a search warrant based on an intercepted telephone
conversation between defendant’s investigator and Moya, and
(3) the issuance of a search warrant of defendant’s property
(including his laptop computer) without probable cause.
Contending that the trial court erred in refusing to suppress the
evidence, defendant repeats those claims on appeal. We discuss
each in turn.
“The Fourth Amendment to the federal Constitution
prohibits unreasonable searches and seizures.” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.) A
warrantless search is per se unreasonable. (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 219.) “Nevertheless, because
the ultimate touchstone of the Fourth Amendment is
‘reasonableness,’ the warrant requirement is subject to certain
exceptions.” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.)
One such exception, as relevant here, is a search incident to
arrest. (United States v. Robinson (1973) 414 U.S. 218, 224.)
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Opinion of the Court by Chin, J.
Another exception, also relevant here, is the inevitable discovery
exception. (Nix v. Williams (1984) 467 U.S. 431, 440-450; People
v. Robles (2000) 23 Cal.4th 789, 800-801.)
Section 1538.5 provides a defendant the “sole and
exclusive” means before trial to suppress evidence obtained as a
result of a search or seizure. (§ 1538.5, subd. (m); see People v.
Williams (1999) 20 Cal.4th 119, 127.) “[D]efendants have the
burden of (1) asserting the search or seizure was without a
warrant, and (2) explaining why it was unreasonable under the
circumstances.” (Williams, at p. 129.) However, the burden is
on the prosecution to prove evidence seized during a warrantless
search falls within a recognized exception. (See People v. Willis
(2002) 28 Cal.4th 22, 36; Williams, at p. 136.) Thereafter, a
defendant can respond by pointing out any inadequacies in that
justification for warrantless search. (Williams, at p. 136.)
a. Patdown Search of Defendant and Search
Incident to Arrest for Data on the Cell Phone
On July 29, 2008, the day after Pamela was killed,
defendant called the Ventura County Sheriff’s Office to request
a welfare check on his nine-year-old daughter, J.F., who lived
with Pamela in Camarillo. Earlier that morning, an LAPD
detective had gone to the Camarillo residence to tell Pamela’s
daughters of their mother’s death. After receiving word that
defendant was heading over to the Ventura County Sheriff’s
Office with his attorneys, the detective met defendant there. He
told defendant that he was under arrest for Pamela’s murder
and that he would be transported to the LAPD West Los Angeles
Station. Officers searched defendant incident to arrest and took
his Motorola cell phone, which they placed in the front seat of
the vehicle. They handcuffed defendant and placed him in the
backseat.
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PEOPLE v. FAYED
Opinion of the Court by Chin, J.
The LAPD detective drove defendant some 45 miles from
Camarillo to the West Los Angeles Police Station. At the
station, defendant invoked his right to remain silent and refused
to speak to investigators. An LAPD officer testified that he
obtained and possessed defendant’s cell phone for an hour and
that he “manipulated” the phone to find the number associated
with the phone before handing the cell phone to an FBI agent.
Defendant was released two hours later without his Motorola
cell phone. Officers returned the cell phone the following Friday
when they were serving a search warrant at defendant’s home.
On October 9, 2009, in addition to other defense motions
discussed below, defendant filed a pretrial motion under section
1538.5 to suppress, arguing the evidence was seized from the
illegal search of his Motorola cell phone on July 29, 2008. The
pretrial hearing on the suppression motion took place on June
10, 2010. The trial court agreed with the prosecution that the
only information officers took from that cell phone was the
number itself. With this cell phone number, the LAPD in
conjunction with the FBI Fugitive Task Force, sought and
obtained a court order authorizing the use and installation of
wiretap devices for the “Subject Telephone Number.”
After hearing testimony from LAPD detectives, the trial
court concluded the search of the cell phone was “illegal,” even
if it was incident to a valid arrest. However, it agreed with the
prosecution that because there were different sources from
which to discover defendant’s cell phone number, including
Pamela’s contacts in her cell phone, the evidence was admissible
based on the inevitable discovery doctrine.
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PEOPLE v. FAYED
Opinion of the Court by Chin, J.
On appeal, defendant makes a number of corollary claims
challenging the search and his arrest on July 29, 2008.7
Ultimately, the Attorney General concedes that the trial court
was likely correct that the search of defendant’s Motorola cell
phone was unlawful. (See Riley v. California (2014) 573 U.S.
373, 387 [“[o]nce an officer has secured a phone and eliminated
any potential physical threats . . . data on the phone can
endanger no one”].) Nevertheless, as the Attorney General
underscores, even if the search or arrest, or both, were unlawful,
the evidence may nevertheless be admissible under the
exception of inevitable discovery. (See Nix v. Williams, supra,
467 U.S. 431; People v. Robles, supra, 23 Cal.4th at pp. 800-801.)
“Under the inevitable discovery doctrine, illegally seized
evidence may be used where it would have been discovered by
the police through lawful means. As the United States Supreme
Court has explained, the doctrine ‘is in reality an extrapolation
from the independent source doctrine: Since the tainted
evidence would be admissible if in fact discovered through an
independent source, it should be admissible if it inevitably
would have been discovered.’ (Murray v. United States (1988)
487 U.S. 533, 539 [108 S.Ct. 2529, 2534, 101 L.Ed.2d 472].) The
purpose of the inevitable discovery rule is to prevent the setting
aside of convictions that would have been obtained without
7
For example, he contends that police investigative reports
actually classified defendant as being detained, not arrested,
and that authorities conducted an unlawful patdown at the
Ventura County Sheriff’s Station because there was no
indication that defendant was armed and dangerous. It is
unnecessary to discuss these claims relating specifically to the
underlying search and seizure because we conclude that the
inevitable discovery doctrine applies.
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Opinion of the Court by Chin, J.
police misconduct.” (People v. Robles, supra, 23 Cal.4th at p.
800; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62
[rule ensures prosecution “is not placed in a better position”
absent the illegality but “does not require it be put in a worse
one”].)
The inevitable discovery rule “applies only to evidence
obtained as the indirect product, or fruit, of other evidence
illegally seized.” (Hernandez v. Superior Court (1980) 110
Cal.App.3d 355, 361.) The prosecution must prove “by a
preponderance of the evidence that the information inevitably
would have been discovered by lawful means.” (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 62; People v.
Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 681 [“The test
is not one of certainty, but rather of a reasonably strong
probability”].) “As this is essentially a question of fact, we must
uphold the trial court’s determination if supported by
substantial evidence.” (People v. Carpenter (1999) 21 Cal.4th
1016, 1040.)
At the suppression hearing, the prosecution presented
evidence that shortly after police recovered Pamela’s cell phone
at the crime scene, they accessed the phone’s list of contacts,
which included the cell phone number for defendant. The police
also “obtained independently” defendant’s cell phone number
from a search of Moya’s cell phone. Moreover, the search of
Goldfinger’s office led to defendant’s cell phone number. In light
of these other sources leading to the discovery of defendant’s cell
phone number, we conclude that substantial evidence supports
the trial court’s finding that the inevitable discovery rule
applied and that the evidence of defendant’s cell phone number
was admissible. (See People v. Carpenter, supra, 21 Cal.4th at
p. 1040.)
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Opinion of the Court by Chin, J.
b. Motion to Quash Search Warrant Dated July
31, 2008
On July 29, 2008, Detective Spear sought and obtained a
warrant to search the premises at the Happy Camp Ranch. In
the supporting affidavit, Detective Spear stated that his review
of the video surveillance of the parking lot where Pamela was
killed showed the alleged suspects fleeing in a red SUV rented
by Goldfinger. The affidavit further explained that a suspect
had left footprints at the crime scene, which would have been
transferred to the vehicle. Detective Spear averred he believed
the vehicle was at defendant’s residence.
Detectives executed the search warrant on July 29, and
found two locked safes that defendant refused to open. On July
30, after locating the red SUV at the Avis Rent A Car location,
detectives searched and gathered evidence from the vehicle.
Defendant did not seek to suppress evidence seized on either
July 29 or July 30. On July 31, Detective Spear sought another
warrant to search the premises at the Happy Camp Ranch. The
supporting affidavit “incorporated . . . the entirety of” the July
29 search warrant. It also included an “amendment,” adding
“personal computers, laptop computers, hard drives, electronic
equipment used to store files or written documentation, thumb
drives, locked safes, secured lock boxes, authorization of forced
entry into locked safes, financial records, soil samples from
outside the residence,” among the items to be collected. The
amendment also sought “samples of saliva from James Fayed
for comparison of evidence collected during the investigation.”
To justify the search for these additional items, the
amendment explained that during an interview with Pamela’s
adult daughter, Desiree, she revealed that “her mother kept
records and documentation that incriminates James Fayed on
48
PEOPLE v. FAYED
Opinion of the Court by Chin, J.
her personal computer. Desiree [] advised that the computers
that her mother used are in her father’s residence and contain
valuable information.” Detectives obtained a search warrant on
July 31, which was executed on that day. During the search,
authorities seized several laptop computers, over $1 million
worth of gold bars, and numerous computer thumb drives. They
also found $24,980 in cash wrapped in plastic in defendant’s
dresser drawer and another $36,000 in cash in a locked metal
briefcase located in defendant’s closet.
Defendant moved to quash the warrant, and suppress
evidence seized during the search. He alleged that there was no
probable cause to issue the warrant and that the warrant was
insufficient on its face. For instance, Desiree’s statement that
there was incriminating evidence on Pamela’s personal
computer was conclusory and “not supported by a single fact in
the affidavit.” Also, the warrant was overbroad because while
the incriminating evidence was purportedly on Pamela’s laptop
computer, the list of search items effectively allowed officers to
“search for anything—anywhere, with no specificity.” Further,
because detectives had located and searched the red SUV the
day before, there was no longer a need to search the premises
for the vehicle. Finally, the affidavit on the second warrant
contained no facts to support that new evidence had
materialized after the first search; thus, the information in the
initial affidavit was too “stale” to justify the second search.
The trial court denied defendant’s motion to quash. It
found probable cause for the issuance of the warrant. The court
further found that, even if there was no probable cause, the
officers acted in good faith by obtaining a warrant signed by a
magistrate before conducting the search. For reasons that
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PEOPLE v. FAYED
Opinion of the Court by Chin, J.
follow, we conclude that the trial court did not err in denying
defendant’s motion to quash.
When reviewing issues relating to the suppression of
evidence derived from governmental searches and seizures, we
defer to the court’s factual findings, express or implied, where
supported by substantial evidence. (People v. Macabeo (2016) 1
Cal.5th 1206, 1212.) To determine whether, based on the facts
so found, a search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment. (Macabeo,
at p. 1212.) We conclude that based on the totality of the
circumstances, the trial court correctly found probable cause for
the issuance of the July 31 search warrant. (See Illinois v. Gates
(1983) 462 U.S. 213, 230.)
First, defendant’s challenge to Desiree’s statement on the
ground it was conclusory and lacking factual support to justify
probable cause is meritless. As the trial court found, Desiree
was presumptively reliable as a “citizen informant.” (See People
v. Hill (1974) 12 Cal.3d 731, 757.) Given her relationship to
Pamela and defendant, which was clearly set out in the
affidavit, Desiree would naturally be knowledgeable about
Pamela’s activities and would be aware that Pamela and
defendant were going through a contentious divorce.
As the affidavit explained, Desiree told investigators that
her mother kept documentation “on her personal computer” and
she stated that “computers that her mother used are in her
father’s residence.” Whether Pamela used one or several
computers in defendant’s residence, it was reasonable to
describe the items in “generic terms,” thus subjecting them to a
“blanket seizure.” (U.S. v. Lacy (9th Cir. 1997) 119 F.3d 742,
746; see U.S. v. Kimbrough (5th Cir. 1995) 69 F.3d 723, 727
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PEOPLE v. FAYED
Opinion of the Court by Chin, J.
[“generic language is permissible if it particularizes the types of
items to be seized”].) Contrary to defendant’s claim, the search
warrant was not overbroad because it listed “personal
computers” and “laptop computers” as search items and did not
limit it specifically to Pamela’s laptop computer. Authorities
had no way of knowing which computer, or how many for that
matter, belonged to Pamela, or which ones she may have used.
It was acceptable for the search warrant to include such generic
terms to describe the items. (U.S. v. Lacy, at p. 746.)
Further, defendant’s related claim that the July warrant
was “moot” because the red SUV was already located and
searched is likewise meritless. After locating the SUV, there
was arguably more, not less, reason to search defendant’s
residence because evidence began tying defendant to the
murder, i.e., the recovered vehicle connected to the murder had
been rented by defendant’s company, Goldfinger. The
supporting affidavit expressly noted that authorities had
collected physical evidence from it. Armed with new physical
evidence from the SUV, authorities sought soil samples outside
the residence and samples of defendant’s saliva “for a
comparison of evidence collected during the investigation.”
Though just beginning, the investigation was intensifying as
each day passed.
Moreover, the July 31 warrant was not based solely on
obtaining evidence related to the vehicle used in the murder.
The warrant also sought Pamela’s computers that Desiree
averred were in defendant’s residence. It further sought to
recover evidence from two locked safes that defendant refused
to open during the July 29 search. Rather than seizing the safes
first and asking for a warrant later, detectives followed proper
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Opinion of the Court by Chin, J.
procedure by first obtaining a magistrate’s determination of
probable cause.
Similarly, defendant’s argument that the information in
the initial affidavit became stale because authorities failed to
seize items during the first search is without legal or factual
support. (See People v. Bryant, Smith and Wheeler, supra, 60
Cal.4th at p. 370 [whether warrant establishes “it is
substantially probable the evidence sought will still be at the
location at the time of the search”].) In this case, Pamela was
killed on July 28, 2008. The following day, detectives obtained
the first warrant to search the premises on defendant’s
Moorpark ranch. The day after that, on July 30, detectives
located the red SUV, and recovered physical evidence from the
vehicle. In the brief three-day period between the crime and the
second search on July 31, it is substantially probable that
evidence would still be located at defendant’s premises. (Ibid.)
Based on the foregoing, we reject defendant’s claim that
the trial court erroneously denied defendant’s motion to quash
the July 31 search warrant.
c. Admission of Evidence Derived from Recording
of Defense Investigator’s Questioning of Witness
Early in the murder investigation, LAPD detectives
applied for court-authorized wiretaps targeting the residential
“hardline” (or landline) telephone and two cell phones used by
defendant’s sister, Mary Mercedes, and a residential hardline
telephone used by codefendant Jose Moya. A magistrate
approved two wiretap applications on August 15, 2008 and
August 22, 2008, respectively, and granted one extension on
September 13, 2008.
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PEOPLE v. FAYED
Opinion of the Court by Chin, J.
As statutorily required, authorities provided the court
several six-day reports containing summaries of some
intercepted calls and updates on the investigation. On August
29, 2008, authorities intercepted a call Moya made from his
hardline telephone to defense investigator Glen LaPalme.
During the 19-minute telephone conversation, the two went over
telephone records detailing calls that Moya had made and
received on his cell phone. Moya had previously told detectives
he reported the cell phone lost or stolen the day after Pamela’s
murder. When Moya admitted to LaPalme he could not
remember exactly when he lost the cell phone, LaPalme
suggested: “Now if you lost, I mean if you lost the phone, like,
over that weekend before all this shit hit the fan then at least
we would, maybe it was somebody else that had the phone, you
know what I’m saying?”
Later in the call, LaPalme told Moya he had “no doubt in
my mind that [the LAPD] have the vehicle, the SUV, and they’re
probably doing all sorts of forensic examinations for hair, skin,
all that crap, and of course there were people who were using it
so you’re going to find everybody’s hair and skin there.” Moya
replied, “Except for Pam.” When LaPalme indicated he did not
hear what Moya had said, Moya told him: “No, except for Pam’s,
it wouldn’t be in there, it shouldn’t be in there.”
On or about September 10, 2008, Detective Abdul sought
a warrant to search Moya’s residence at the Happy Camp Ranch
in Moorpark. In the supporting affidavit, Detective Abdul
recounted the intercepted call on August 29 and opined that
Moya’s statement that evidence of Pam’s skin and hair should
not be in the SUV, “[t]his statement in itself proves Moya has
knowledge of the murder.” Detective Abdul averred that he
“believes evidence will be recovered from Moya’s residence that
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Opinion of the Court by Chin, J.
will link him to the murder of Pamela Fayed.” On September
10, a magistrate approved the warrant to search the Happy
Camp Ranch. The list of items to be searched included
“[u]nknown type sharp objects . . . consistent with the injuries
sustained by Pamela Fayed,” cell phones, and Moya’s bank
records and deposit slips. During the search, authorities
recovered three cell phones, which defendant later described as
evidence “crucial to the government’s theory of the case.”
Before trial, on October 9, 2009, defendant filed a motion
to traverse the affidavit, a motion to suppress the evidence
obtained in violation of wiretap provisions, and a motion to
dismiss for violation of due process. Defendant argued that the
LAPD was well aware that LaPalme was a private investigator
working for the defense and yet continued to record the call
between him and Moya. Because LaPalme was conducting
witness interviews for the defense, defendant argued the
conversation between LaPalme and Moya was protected under
the work product doctrine. Thus, the affidavit’s failure to
disclose that LaPalme was a defense investigator was an
egregious omission, one that hindered the “crucial, inference-
drawing powers of the magistrate.” (People v. Kurland (1980)
28 Cal.3d 376, 384.)
The trial court denied defendant’s motions. It rejected
defendant’s argument that the attorney work product doctrine
protected the intercepted conversation between LaPalme and
Moya. Moreover, it found “ample probable cause” to support the
search warrant even if the challenged information were not
included. The court also agreed with the prosecution that there
was no material omission in the affidavit to the magistrate. On
appeal, defendant raises similar arguments as below. He claims
that LaPalme and Moya’s conversation was protected under the
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Opinion of the Court by Chin, J.
work product doctrine and that it should be considered excised
from the affidavit.
Even assuming the intercepted call was privileged and
should be deemed omitted from the affidavit, we conclude the
affidavit’s remaining contents supported probable cause. (See
People v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford).) In
general, statements contained in an affidavit of probable cause
that are proven to be false or reckless by a preponderance of the
evidence, should be considered excised from the affidavit. (Ibid.)
As relevant here, “[i]f the remaining contents of the affidavit are
insufficient to establish probable cause, the warrant must be
voided and any evidence seized pursuant to that warrant must
be suppressed. [Citation.] [¶] A defendant who challenges a
search warrant based upon an affidavit containing omissions
bears the burden of showing that the omissions were material
to the determination of probable cause. [Citations.] ‘Pursuant
to [California Constitution, article I,] section 28 [, subdivision]
(d), materiality is evaluated by the test of Illinois v. Gates[,
supra,] 462 U.S. 213, . . . which looks to the totality of the
circumstances in determining whether a warrant affidavit
establishes good cause for a search.” (Bradford, supra, 15
Cal.4th at p. 1297.)
In this case, even without considering LaPalme and
Moya’s conversation, the affidavit’s remaining contents
provided probable cause for issuance of the warrant. The
affidavit included evidence that Moya had access (both before
and after the murder) to the red SUV seen leaving the murder
scene, statements from defendant’s employee who told
detectives Moya was not at the ranch at the time of Pamela’s
death, and statements from another employee that said
defendant directed him to give Moya $24,000 sometime in mid-
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Opinion of the Court by Chin, J.
July (several weeks before the murder). Based on the totality of
the circumstances, the trial court properly concluded the
affidavit established probable cause to support the search
warrant. (Bradford, supra, 15 Cal.4th at p. 1297.)
5. Evidentiary Rulings
A trial court has broad discretion to admit or exclude
evidence. We will not disturb its ruling unless there is a
showing the court abused this discretion by acting in an
arbitrary, capricious, or patently absurd manner resulting in a
miscarriage of justice. (People v. Vieira, supra, 35 Cal.4th at p.
292.) Unless a defendant elaborates or provides a separate
argument for related constitutional claims, we have declined to
address any boilerplate contentions. (People v. Mills (2010) 48
Cal.4th 158, 194 [“ ‘The “routine application of state evidentiary
law does not implicate [a] defendant’s constitutional rights” ’ ”].)
On appeal, defendant challenges a number of evidentiary
rulings the trial court made. We discuss each in turn.
a. Admission of Government Evidence
(1) Evidence of federal indictment against
defendant
Before trial, defendant filed an in limine motion to exclude
evidence of the February 26, 2008, federal indictment against
him for operating an unlicensed money transmitting business
(18 U.S.C. § 1960), an indictment which was originally filed
under seal. Defendant sought to specifically exclude any
reference to him as a terrorist, which was purportedly included
in an LAPD summary report and later shared with the FBI. The
terrorist reference was not included in the one-sentence federal
indictment. The federal government later dismissed the
indictment on September 15, 2008, the same day the prosecution
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Opinion of the Court by Chin, J.
filed a complaint against defendant and Moya for Pamela’s
murder.
Defendant’s in limine motion alleged that any evidence of
uncharged conduct underlying the federal indictment
constituted inadmissible character evidence (Evid. Code, § 1101,
subd. (d)) and was not otherwise admissible to prove motive,
common plan, or identity. (See People v. Ewoldt, supra, 7
Cal.4th at p. 393.) Because it was undisputed that the federal
indictment remained sealed until after Pamela’s murder,
defendant argues that it could not have provided a motive to kill
Pamela to prevent her from cooperating with federal
authorities.
The trial court denied defendant’s in limine motion to
exclude evidence of the federal indictment and investigation. It
concluded such evidence was relevant to defendant’s motive to
kill Pamela. It further rejected defendant’s claim of prejudice
under Evidence Code section 352, noting that the federal
indictment “pales in comparison” to the murder for hire
conspiracy charge and suggested that a limiting instruction
would address defendant’s concerns.
Focusing on the “lack of similarity of motive or direct
connection” between the money licensing violation and the
murder charge, defendant argues that evidence of the dismissed
federal indictment constituted inadmissible character evidence.
(See Evid. Code, § 1101, subd. (a).) He maintains that the
prosecution failed to show that Pamela agreed to cooperate with
federal authorities (and that defendant knew Pamela intended
to cooperate), which the prosecution argued provided
defendant’s motive to kill Pamela. For reasons that follow, we
deny defendant’s evidentiary claim.
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Opinion of the Court by Chin, J.
Though inadmissible to prove a defendant’s criminal
propensity, evidence of a defendant’s prior uncharged
misconduct is admissible if relevant to prove a material fact at
issue in the case, “such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident.” (Evid. Code, § 1101, subd. (b).) “In general, we have
explained that ‘[t]he admissibility of other crimes evidence
depends on (1) the materiality of the facts sought to be proved,
(2) the tendency of the uncharged crimes to prove those facts,
and (3) the existence of any rule or policy requiring exclusion of
the evidence.’ ” (People v. Kelly (2007) 42 Cal.4th 763, 783.) As
pertinent here, “the probativeness of other-crimes evidence on
the issue of motive does not necessarily depend on similarities
between the charged and uncharged crimes, so long as the
offenses have a direct logical nexus.” (People v. Demetrulias
(2006) 39 Cal.4th 1, 15.) It is enough that the “ ‘motive for the
charged crime arises simply from the commission of the prior
offense.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1115
[evidence of wife’s financial fraud relevant to show motive for
killing her husband].)
Here, the federal indictment was a key piece of evidence
that helped explain the development of defendant’s motive to
kill Pamela. Along with the indictment, the investigation
related important details of events leading up to Pamela’s
murder. The prosecution first described Pamela becoming
worried about Goldfinger’s future in light of the federal
investigation. Despite defendant’s fierce opposition, she sought
to obtain a money transmitting license and withdrew at least
$400,000 from the company’s account. The prosecution
explained how defendant was furious at Pamela for taking the
money, trying to secure a money transmitting license despite
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Opinion of the Court by Chin, J.
defendant’s insistence that they did not need it, and giving
federal authorities a reason to closely scrutinize Goldfinger.
After filing for divorce, defendant banned Pamela from
Goldfinger, alleging that she had embezzled money from the
company. Finally, in an e-mail defendant had sent to his friend,
Melanie Jackman, complaining about Pamela, he wrote: “I have
been letting her get away with this shit for years, and enough is
enough.”
The prosecution’s theory on why defendant killed Pamela,
in short, was not based simply on her possible cooperation with
federal authorities; rather, defendant’s increasing animosity
and bitterness towards Pamela came to a head when Pamela’s
actions threatened to upend their highly profitable business.
The circumstantial evidence, as the prosecution underscored,
was “overwhelming.”
Furthermore, whether there was evidence of an actual
agreement that Pamela would cooperate with the federal
authorities or whether Pamela and defendant knew about the
federal indictment itself are both beside the point. Defense
counsel conceded that defendant and Pamela both were aware
that federal authorities were investigating Goldfinger. And
while there was no evidence that Pamela had an agreement she
would testify against defendant, the prosecution argued that
defendant killed Pamela “to prevent her from making an
agreement, to prevent her from doing that. That’s our point.”
Moreover, the record reveals evidence that Pamela at least
intended to cooperate with federal authorities. Evidence further
suggested that defendant was at least suspicious, if he did not
actually know, of Pamela possibly incriminating him in the
federal case. “ ‘[T]o be admissible, evidence need not absolutely
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Opinion of the Court by Chin, J.
confirm anything. It is axiomatic that its weight is for the
jury.’ ” (People v. Peggese (1980) 102 Cal.App.3d 415, 420.)
Finally, as a practical matter, because the jury heard
defendant’s recorded jailhouse conversation with Smith, some
mention of the federal indictment was required to explain why
defendant was in federal custody in the first place.
We conclude that the probative value of evidence of the
dismissed federal indictment and related investigation
outweighed any prejudice from admitting the evidence.
Further, the trial court instructed the jury that evidence of
uncharged misconduct may only be considered “for the limited
purpose of determining, if it tends to show, that the defendant
had a motive to commit the charged crimes.” (CALJIC No. 2.50.)
We presume the jury followed the trial court’s instruction absent
evidence to the contrary. (People v. Daveggio and Michaud
(2018) 4 Cal.5th 790, 821.)
(2) Testimony of Carol Neve
Regarding evidence of Pamela’s intent to cooperate with
federal authorities on the Goldfinger investigation, the
prosecution proffered the testimony of witness Carol Neve, a
longtime friend and confidante of Pamela’s. After the parties
vigorously debated the issue, the trial court prohibited the
prosecution from eliciting Neve’s testimony that Pamela told
Neve she was going to cooperate with the federal authorities.
The trial court concluded the prosecution failed to show the link
between Pamela’s intent to cooperate and defendant’s
knowledge of that intent, which the trial court described as a
“pretty pivotal issue in this case.” However, the trial court
permitted Neve, who had a similar e-currency business and
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Opinion of the Court by Chin, J.
spoke to Pamela about it, to testify about Pamela’s intent to
obtain a money transmitting license for Goldfinger.
Over defendant’s hearsay objection, Neve testified that in
September or October of 2007, she had advised Pamela that “her
company [Goldfinger] was at risk” and told Pamela that she
should get “money transmitter licenses,” even though such
licenses were “very expensive” and had to be obtained through
the federal government. The trial court ruled such statements
did not constitute hearsay because they were not offered for
their truth; rather, Neve’s testimony was “what Miss Fayed was
advised.” Neve also testified that Pamela told her that “her
intent was to obtain those money transmitter licenses.”
Overruling defendant’s hearsay objection, the court
concluded that Pamela’s hearsay statements were admissible
under Evidence Code section 1250, subdivision (a)(2), as a
statement of future intent “to prove or explain acts or conduct of
the declarant.”
On appeal, defendant argues that the trial court erred in
allowing Neve’s testimony. Defendant again asserts that Neve’s
statement regarding what she advised Pamela was hearsay. As
the trial court concluded, however, Neve’s advisement to Pamela
was not offered for the truth of the matter stated, i.e., to show
that Pamela should have obtained the licenses, but was offered
to show Pamela’s reaction and conduct in response to the
statement. (See Evid. Code, § 1200; People v. Livingston (2012)
53 Cal.4th 1145, 1162.)
Likewise, we conclude that Pamela’s hearsay statement,
i.e., that she told Neve she intended get the money transmitting
license for Goldfinger, was admissible as a statement of the
declarant’s future intent under Evidence Code section 1250,
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subdivision (a)(2). Under this provision, “a statement of the
declarant’s intent to do certain acts is admissible to prove that
he did those acts.” (Cal. Law Revision Com. com., Deering’s
Ann. Evid. Code (2004 ed.) foll. § 1250, p. 531; see People v.
Alcalde (1944) 24 Cal.2d 177, 187-188.) Here, Pamela’s
statement of future intent to purchase a money transmitting
license was admissible to prove that she tried to obtain the
license, which in turn was relevant to show why defendant was
angry at Pamela and had a motive to kill her. Contrary to
defendant’s suggestion, the statement was not admitted to prove
Pamela’s existing state of mind under Evidence Code section
1250, subdivision (a)(1), which expressly requires that the
declarant’s mental state be “itself an issue in the action.” (See
People v. Noguera (1991) 4 Cal.4th 599, 621.)
(3) Recorded conversation of Mary Mercedes
As previously noted, the defense intended to call Mary
Mercedes as a witness to question her on whether she attempted
to solicit Taboga’s husband to kill Pamela Fayed. Though there
was some uncertainty whether the prosecution would offer
Mercedes immunity in exchange for her testimony, Mercedes
ultimately invoked her Fifth Amendment privilege against self-
incrimination, and the court declared her unavailable as a
witness. Based on Mercedes’s unavailability, the trial court
permitted the defense to elicit hearsay testimony from Taboga
that Mercedes had offered to pay Taboga’s husband, Kurt,
$200,000 to kill Pamela. (See Evid. Code, § 1230.)
After Taboga’s direct testimony, the prosecution informed
the trial court it intended to introduce the out-of-court
statement of Mercedes pursuant to Evidence Code section 1202.
In a recorded conference call between Mercedes, Detective
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Opinion of the Court by Chin, J.
Abdul, and Prosecutor Jackson, Mercedes denied Taboga’s
allegations. This telephone conversation took place on March
30, 2011, a month before Mercedes had asserted her Fifth
Amendment privilege.
Defense counsel objected, arguing in part that the
prosecution “sprung” this evidence at the last minute and that
they had not been given proper notice. The trial court, however,
explained that “this is impeachment testimony, so they don’t
have to give it to you in advance.” Defendant also claimed
“fundamental unfairness” in being unable to cross-examine a
witness whom, he asserted, the prosecution could have given
immunity to prevent her unavailability. Rejecting defendant’s
contention, the trial court found the tape admissible for
purposes of impeachment. After substantially redacting the
statement with input from both sides, the trial court admitted
Mercedes’s statement into evidence.
On appeal, defendant argues that even though this
statement was used as impeachment evidence against Taboga,
the prosecution sought admission of the tape itself as opposed to
just using information on the tape; thus, defendant asserts, the
tape constituted “real evidence” subject to timely disclosure
under section 1054.1, subdivision (c). (See People v. Tillis (1998)
18 Cal.4th 284, 292-293; § 1054.7 [disclosure 30 days prior to
trial generally required absent good cause].) Defendant
maintains the trial court should have prohibited the tape’s
admission as an authorized sanction under section 1054.5,
subdivision (b). Even assuming that the tape constituted “real
evidence” under section 1054.1, subdivision (c) that the
prosecution thereby committed a discovery violation for failing
to timely disclose it, and finally, that the trial court should have
prohibited the presentation of this tape as a sanction, any error
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Opinion of the Court by Chin, J.
was harmless. (See People v. Verdugo (2010) 50 Cal.4th 263,
280.)
Describing Taboga as his “star witness,” defendant argues
that because the prosecution delayed disclosure of this tape, it
“was able to launch a devastating counterattack at the end of
trial,” one that “gutted” their defense. Defendant overstates his
case. As noted, Taboga came forward with the information
about Mercedes a month before trial began, even though her
telephone conversation with Mercedes took place three years
earlier in May 2008, several months before Pamela was
murdered. As Taboga testified, she did not believe she had
information that “could free” defendant but wanted to get “the
information out because it needs to be heard.” On cross-
examination, the prosecution pointedly questioned Taboga why
she never told anyone about Mercedes’s purported solicitation to
kill Pamela. Taboga explained that she did tell Pamela to “just
watch herself and be careful” but admitted she never told
Pamela about her conversation with Mercedes.
Making only a brief reference to Mercedes’s denial in
closing argument, the prosecution thoroughly discredited
Taboga’s testimony, criticizing it as nonsensical and
implausible. We find that any improper admission of Mercedes’s
taped statement to impeach statements Taboga attributed to
Mercedes to be harmless. Based on the overwhelming evidence
of defendant’s guilt and in light of the discredited, implausible
testimony of Taboga, we conclude beyond a reasonable doubt
that the error, if any, in allowing such impeachment, did not
contribute to the verdict. (See People v. Pokovich (2006) 39
Cal.4th 1240, 1255.)
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Opinion of the Court by Chin, J.
(4) Pamela’s bloody clothes, eyeglasses, and
purse
During the direct testimony of LAPD Detective Eric Spear,
the prosecution displayed photographs of the crime scene,
including a picture of Pamela’s bloody shirt and pants. Based
on the amount of blood at the crime scene, Detective Spear
opined it was a “violent attack, and just brutal.” He further
concluded that because Pamela’s purse, wallet and money were
still at the crime scene, it was not a robbery. The prosecution
asked Detective Spear to show the actual shirt Pamela was
wearing when she was killed, which he described as a shirt
“which was white at one time that is obviously soaked in blood.”
Detective Spear also showed the pair of pants Pamela was
wearing at that time.
Objecting under Evidence Code section 352, defense
counsel pointed out there was no dispute that Pamela was
stabbed to death and offered to stipulate that the bloody items
belonged to Pamela, so that the prosecution would not “parade
one bloody item after another.” He also maintained the evidence
was cumulative and served only to inflame and prejudice the
jury. The prosecution countered that the manner in which
Pamela was killed was significant and showing the jury the
actual blood-soaked items instead of pictures of them would
“mak[e] the viciousness of the murder, premeditation, the
deliberation, the intent to kill much more real to the jury by way
of three or four minutes of testimony.” The trial court permitted
the prosecution to demonstrate the remaining two items to the
jury—Pamela’s eyeglasses and purse—during Detective Spear’s
testimony.
On appeal, defendant argues that the photographs of these
bloody items were more prejudicial than probative under
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Evidence Code section 352 because they were superfluous and
served no purpose but to appeal to the jury’s emotions. Though
the actual blood-stained items were presented in court and
introduced into evidence through Detective Spear’s testimony,
defendant’s focus is on the prejudicial effect of the admitted
photographs.
“ ‘As a rule, the prosecution in a criminal case involving
charges of murder or other violent crimes is entitled to present
evidence of the circumstances attending them even if it is grim’
(People v. Osband (1996) 13 Cal.4th 622, 675 [55 Cal.Rptr.2d 26,
919 P.2d 640]), and even if it ‘duplicate[s] testimony, depict[s]
uncontested facts, or trigger[s] an offer to stipulate.’ ” (People v.
Boyce (2014) 59 Cal.4th 672, 687.) Here, the prosecution
explained that the blood-soaked shirt and pants depicted in the
photographs showed the brutality of Pamela’s killing, which
suggested she was killed by a hitman. We conclude the trial
court did not abuse its considerable discretion in admitting the
photographs of Pamela’s personal effects found at the murder
scene. (See People v. Panah (2005) 35 Cal.4th 395, 477; People
v. Boyce, supra, 59 Cal.4th at p. 687 [trial court abuses its
discretion by acting “ ‘in an arbitrary, capricious, or patently
absurd manner’ ”].)
(5) Photographs of Pamela
During the direct examination of Desiree, Pamela’s then
21-year-old daughter, the prosecution showed her various
family photographs to identify. These included photographs of
Desiree, her half-sister, J.F., and Pamela; some photographs of
just Desiree and Pamela, photographs with J.F. and Pamela,
and a photograph of defendant. At one point, the prosecution
asked the trial court whether he could approach Desiree and
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show her the photographs (instead of using a projector). Defense
counsel replied that he had “no objection. If he wants to just
show her, I have no objection.” Desiree explained when and
where the various pictures were taken, which included Desiree’s
high school graduation in June 2008, a month before Pamela
was killed.
On appeal, defendant for the first time claims the trial
court erred in allowing the photographs of Pamela and her
daughters into evidence at the guilt phase because the
photographs were purportedly irrelevant and superfluous.
Defense counsel, however, did not object below but instead
stated he had “no objection” to showing Desiree the
photographs. We conclude defendant has forfeited the issue.
b. Defendant’s Cross-examination Rights
AUSA Aveis testified regarding the federal government’s
investigation into defendant and Goldfinger. During cross-
examination, defense counsel asked Aveis whether defendant
had indicated what his defense would be to the federal charge of
acting as a money exchanger without the proper licensing.
Aveis responded he learned that defendant would be alleging he
did not get a license because he did not believe he needed one.
Following up on this answer, defense counsel attempted to ask
Aveis whether Aveis knew that defendant did not agree that he
needed a license to operate Goldfinger and whether this issue
was one Aveis anticipated litigating in court. The trial court
sustained the prosecution’s hearsay objections and struck
Aveis’s answer at the prosecution’s request.
On appeal, defendant for the first time claims that the
statements were admissible under Evidence Code section 1250
as circumstantial evidence of defendant’s state of mind,
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revealing that defendant did not believe that Goldfinger needed
a money transmitting license. Defendant explains that evidence
of his state of mind was critical to rebut the prosecution’s main
theory that defendant killed Pamela because he feared she
would cooperate in the federal investigation. Defendant
purportedly had no reason to worry about the investigation (and
therefore, had no reason to kill Pamela) because he had a valid
defense to the federal charge and also because he was winding
down the business and would no longer need the license.
Defendant further asserts that his inability to ask AUSA
Aveis any questions about the strength of the government’s case
against him violated his constitutional right to confront and
cross-examine witnesses, particularly when the prosecution was
permitted to ask Carol Neve a similar question concerning
Pamela’s belief about the necessity of the money transmitting
license. The Attorney General counters that defendant forfeited
the argument by failing to challenge the trial court’s ruling
below. Even assuming he did not forfeit the issue by failing to
lay the foundation for the admission of Aveis’s testimony, we
conclude that any error was harmless.
Regardless of the actual strength of the government’s case
against defendant, there was evidence that defendant generally
worried Pamela would implicate him for wrongdoing.
Defendant complained to Smith that Pamela “ran her mouth too
much” and that she “made all these stupid accusations and
ridiculous accusations against me just to try and make me look
bad.” Further, contrary to defendant’s assertion, the
prosecution’s theory on defendant’s motive for killing Pamela
was not simply that he wanted to prevent her from cooperating
in the federal investigation. As discussed above, the prosecution
presented an extended narrative of events leading up to
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Pamela’s murder in closing argument. After outlining these
events, the prosecution underscored: “And then on top of all that
he finds out that Pamela wants to cooperate with the
authorities” and that if she does, “he stood to lose everything.”
c. Exclusion of Defendant’s Evidence
(1) Defendant’s state of mind
On appeal, defendant argues the trial court erred in
sustaining the prosecution’s hearsay objections to exclude
evidence he maintains was crucial to his defense. For instance,
the prosecution questioned Greg Herring, a family law attorney
that Pamela had hired to replace another attorney in November
2007, a month or so after defendant had filed for divorce.
Herring testified that Pamela was dissatisfied with how the
divorce case started off, which included stipulations between
defendant and Pamela allowing defendant to control the
companies and providing Pamela a modest salary. Herring also
testified about the potential assets at stake in the divorce
(“either hundreds of millions or maybe even a billion or more”),
and his concern that defendant would liquidate assets. He also
testified that the divorce proceedings had reached a “fever pitch”
shortly before Pamela was murdered.
On cross-examination, defense counsel asked Herring
about a letter defendant’s divorce attorney, John Foley, had sent
Herring about defendant’s intention to liquidate the E-bullion
and Goldfinger entities. Defense counsel questioned Herring
about statements in the letter explaining defendant’s “rationale
for why he is liquidating” the E-bullion and Goldfinger
companies. In response to the prosecution’s hearsay objection,
defense counsel explained that he would ask Herring “whether
the liquidation was motivated in part by a desire to avoid having
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to spend the money on buying licenses that Pam was insisting
on.” The trial court sustained the prosecution’s hearsay
objection, and defendant did not propose that a hearsay
exception applied, nor did he raise the issue again.
On appeal, defendant claims for the first time that this
hearsay statement was admissible under the state of mind
exception (Evid. Code, § 1250), because it would show that
defendant was intending to wind down their e-currency
business, purportedly negating various prosecution theories for
why defendant killed Pamela. Although defense counsel
explained that he intended to question Herring about the letter,
he “did not show that the testimony came within an exception to
the hearsay rule, and did not attempt, by offer of proof or
otherwise, to lay the proper foundation for that exception.”
(People v. Livaditis (1992) 2 Cal.4th 759, 778.)
Even if defendant preserved this claim for review, we
conclude that any error in preventing this line of questioning
was harmless. Without objection, defense counsel earlier asked
Herring what he thought defendant and his divorce attorney
were “trying to accomplish” by informing Pamela about their
intent to liquidate the E-bullion and Goldfinger entities and
whether Herring’s “perspective was that he was going to
threaten to liquidate the company in order to prevent you from
getting Pam Fayed a proper accounting and a proper
compensation.” Herring replied that he did not know what
defendant “was thinking” or what his attorney “was thinking
when he sent” the letter to Herring. Thus, any further
questioning of Herring on this issue would have likely yielded
little information.
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(2) Third party culpability defense
During the direct examination of Patty Taboga, defense
counsel attempted to question her about whether she spoke to
Mary Mercedes about defendant and Pamela’s divorce. In
response to the prosecution’s hearsay objection, defense counsel
argued that the exception for statements against penal interest
applied because Taboga was going to describe Mercedes
“savaging Pam” and would testify to other statements Mercedes
made showing her “animus, her intent, motive to kill Pam.” The
trial court explained that animus towards Pamela was not
enough and that Mercedes’s statements had to be against her
“penal interest.” However, the record does not disclose that
defendant laid any foundation for admitting this evidence.
On appeal, defendant asserts that these hearsay
statements were admissible to prove Mercedes’s “state of mind,
emotion, or physical sensation.” (Evid. Code, § 1250, subd.
(a)(1).) The Attorney General maintains that defendant sought
admission of the statements only under Evidence Code section
1230 and “invited” any error by limiting himself to this
exception. For reasons stated below, we conclude that any error
in excluding Mercedes’s hearsay statements that she hated
Pamela was harmless.
As noted above, the trial court permitted defendant to
present a third party culpability defense that Mercedes, and not
defendant, solicited the murder of Pamela. Even if statements
that Mercedes harbored animus towards Pamela tended to show
her motive to kill Pamela, their admission would have made
little difference to the success of this defense. As discussed
above (see ante, at p. 64), the prosecution thoroughly undercut
Taboga’s testimony about Mercedes’s solicitation to kill Pamela,
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characterizing it as illogical and unbelievable. The defense itself
was not plausible, and the fact that Mercedes may have hated
Pamela would have done little to save the defense. Moreover,
defendant was not otherwise precluded from presenting this
evidence from other sources.
Defendant also points out that based on the prosecution’s
hearsay objection, the trial court struck Taboga’s testimony that
when she had asked Mercedes whether defendant knew about
this phone call and her request that Taboga’s husband kill
Pamela, Mercedes had replied, “No.” Because defendant did not
argue below for the statements’ admissibility, he has forfeited
any claim that these hearsay statements were admissible under
an exception. (See People v. Morrison (2004) 34 Cal.4th 698,
711.)
Finally, defendant claims that the trial court erred in
excluding any evidence of Taboga’s March 9, 2011 letter to
defendant, in which she first accused Mercedes of soliciting
Pamela’s murder back in May 2008. To rebut the prosecution’s
assertion that Taboga was lying about Mercedes’s solicitation,
defendant argued the letter was a prior consistent statement
under Evidence Code section 1236. (See Evid. Code, § 791.)
However, the prosecution countered that it had never
questioned what Taboga said in the letter was somehow
inconsistent or consistent with her testimony at trial. The trial
court excluded the letter as inadmissible hearsay.
The trial court did not err in refusing to admit Taboga’s
March 9 letter to defendant. Contrary to defendant’s
contention, it is not sufficient that Taboga’s consistent
statement simply be made “prior to” her trial testimony. (People
v. Riccardi (2012) 54 Cal.4th 758, 802.) Rather, the relevant
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time is “before the bias, motive for fabrication, or other improper
motive is alleged to have arisen.” (Evid. Code, § 791, subd. (b).)
Here, Mercedes allegedly asked Taboga in May 2008 if her
husband would kill Pamela. Pamela was killed on July 28, 2008,
and a complaint charging defendant with Pamela’s murder was
filed on September 15, 2008. Arguably, Taboga would have had
a motive to fabricate Mercedes’s solicitation after defendant was
charged with Pamela’s murder. Rather than writing this letter
to defendant before or around that time, Taboga wrote the letter
three years later. “[I]f the consistent statement was made after
the time the improper motive is alleged to have arisen, the
logical thrust of the evidence is lost and the statement is
inadmissible.” (Cal. Law Revision Com. com., Deering’s Ann.
Evid. Code, supra, foll. § 791, p. 501.)
(3) Defendant’s inability to commit crime
Before trial, defendant filed an in limine motion
requesting that defendant’s two doctors be permitted to testify
that they had prescribed defendant pain medication and to
testify about the medications’ likely effects on defendant.
Defendant sought to show he “was incapable of plotting a
murder and could not have committed the acts that are alleged.”
The prosecution countered that this evidence constituted
evidence of “voluntary intoxication” and that it was only
admissible in the guilt phase to show a defendant’s diminished
capacity. (Former § 22, subd. (c), renumbered as § 29.4, subd.
(c) by Stats. 2012, ch. 162, § 120.) Because defense counsel
conceded he did not intend to offer this evidence to negate
defendant’s intent, the trial court excluded the evidence. We
conclude the trial court did not err.
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6. Insufficient Evidence of Special Circumstance
Allegations
a. Insufficient Evidence of Financial Gain
The jury found true the special circumstance that
defendant murdered Pamela for financial gain. (§ 190.2, subds.
(a)(1), (c); CALJIC No. 8.81.1.) The prosecution presented two
theories supporting this special circumstance allegation. First,
it pointed out that defendant would stand to get all—instead of
just half—of the marital and business assets if Pamela were
killed, rather than if they got divorced. Second, over defense
objection, the prosecution also argued that defendant did not
have to financially gain from the murder if he hired Moya: “In
other words, if you find that Mr. Moya was going to or did gain
financially to the tune of $25,000, then that is enough to
establish the special circumstance for financial gain.”
On appeal, defendant challenges this second theory,
arguing that the evidence was insufficient to support the finding
on this basis. Distinguishing both People v. Bigelow (1984) 37
Cal.3d 731 and People v. Freeman (1987) 193 Cal.App.3d 337, on
which the prosecution relied, defendant asserts that the
prosecution improperly argued it only had to show that Moya
received some financial gain; the prosecution was required to,
but did not, show that Moya was the actual killer. On review,
we view the evidence in the light most favorable to the verdicts.
(People v. Johnson (2016) 62 Cal.4th 600, 630.)
Under section 190.2, subdivision (a)(1), a defendant is
subject to the special circumstance if the “murder was
intentional and carried out for financial gain.” Even if the
defendant is “not the actual killer,” if that defendant “with the
intent to kill, aids, abets, counsels, commands, induces, solicits,
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requests, or assists any actor in the commission of murder in the
first degree,” he or she is also subject to this special
circumstance. (§ 190.2, subd. (c).) “Reading the two provisions
together it is clear that one who intentionally aids or encourages
a person in the deliberate killing of another for the killer’s own
financial gain is subject to the special circumstance
punishment.” (People v. Freeman, supra, 193 Cal.App.3d at p.
339 [construing 1978 version of § 190.2]; see People v. Padilla
(1995) 11 Cal.4th 891, 933.) Defendant suggests that evidence
of Moya’s financial gain is insufficient without evidence that he
was the actual killer and not just an intermediary.
Freeman did not address a multiparty situation involving
the hirer of a contract killer, the actual killer, and someone who
acts as intermediary between the two. Thus, contrary to
defendant’s suggestion, Freeman does not stand for the
proposition that the actual contract killer, as opposed to an
intermediary, must have a financial gain from the murder.
Rather, subsequent cases have rejected that interpretation.
(People v. Singer (1990) 226 Cal.App.3d 23, 44; see People v.
Battle (2011) 198 Cal.App.4th 50, 82 [following People v.
Singer].) “[I]t is hard to see why, as a matter of policy, the
Legislature would want to differentiate between a murder for
hire where there is no intermediary and one where there is.
Apart from possible causation problems where the link between
the hirer and actual killer is extremely attenuated (not our
case), the moral culpability of the hirer would be the same.
(People v. Freeman, supra, 193 Cal.App.3d 337, 340.) The
distinction urged by defendant would tend to snare amateurs
while letting practiced killers with impersonal, large networks
of thugs off the hook. It hardly makes sense.” (People v. Singer,
supra, 226 Cal.App.3d at p. 44.)
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This policy argument articulated in Singer has particular
relevance here. When responding to Smith’s incredulity at how
“this many people” got involved in Pamela’s murder, defendant
reassured Smith that he had “the insulation, cause I don’t know
them, and they don’t know me. I never met them. I never seen
them. I wouldn’t recognize him.” The prosecution reiterated
that defendant boasted he was “insulated” because it was Moya
who had “subcontract[ed]” with Simmons and Marquez.
In sum, there was sufficient evidence to support the jury’s
true finding of the financial-gain special-circumstance
allegation.
b. Insufficient Evidence of Lying in Wait
The jury also found true the lying-in-wait special
circumstance allegation. CALJIC No. 8.81.15.1 provides in part
that the jury must find: “1. The defendant intentionally killed
the victim; and [¶] 2. The murder was committed by means of
lying in wait.” In closing argument, the prosecution explained
that as to the second element, the question is, “[W]as the murder
committed while the defendant or any co-conspirator was lying
in wait? Any co-principal, any aider and abettor was lying in
wait? Well, that’s the three folks in the parking garage,
Simmons, Marquez and Moya. They were the ones lying in
wait.” Defendant did not object to the instruction as given, did
not seek to modify the instruction, and did not later object to the
prosecution’s explanation of the instruction at closing argument.
On appeal, defendant insists that section 190.2,
subdivision (a)(15) is ambiguous in terms of who must be lying
in wait. In any event, he argues that allowing an aider and
abettor—who specifically intended to kill, but did not intend to
lie in wait, did not actually lie in wait and did not aid and abet
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the lying in wait—to be subject to the lying-in-wait special
circumstance violates due process. Defendant asserts that the
prosecution’s closing argument that evidence that any of the
codefendants were lying in wait would support a true finding of
the special circumstance allegation was improper. We reject
this claim.
To determine whether an aider and abettor who is not the
actual killer can be subject to the lying-in-wait special
circumstance, “the questions are whether defendant, with the
intent to kill, aided and abetted the victim’s killing, and whether
the actual killer intentionally killed the victim by means of lying
in wait.” (People v. Johnson, supra, 62 Cal.4th at p. 630; see
People v. Bonilla (2007) 41 Cal.4th 313, 331 [interpreting earlier
version of 190.2].) The record contains ample evidence that
defendant aided and abetted Moya’s killing of Pamela by lying
in wait. Defendant admitted to Smith that “[t]here were four
different other occasions where I had it so it was perfectly clean.
Yeah, it was a rural area. I even had the times, dates,
everything, location. . . . I physically made sure that it was pre-
checked and cleared with, you know—and there’s no—no
cameras, none. But they pick the day before my fuckin’ court
hearing at the busiest place in LA.” Indeed, when describing a
prior missed opportunity for Moya to kill Pamela, defendant
essentially admitted that he wanted Moya to kill her by means
of lying in wait: “All he had to do was sit there, wait for her to
get in the car, and jack it.” Contrary to defendant’s assertion,
defendant’s liability was based on his own intent and his own
significant actions in masterminding the killing of Pamela.
Based on the foregoing, we conclude the record contains
sufficient evidence to support the jury’s lying-in-wait special-
circumstance finding.
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7. Prosecutorial Misconduct at Guilt Phase
Defendant maintains that the prosecution committed
various acts of misconduct at the guilt phase, including
mischaracterizing the evidence, misstating the law, making
inflammatory remarks, and referring to facts outside the record.
It is prosecutorial misconduct to misstate the law. (People
v. Cortez (2016) 63 Cal.4th 101, 130.) It is also misconduct to
misstate the evidence or go beyond the record. (People v.
Gonzalez (2011) 51 Cal.4th 894, 947; People v. Davis (2005) 36
Cal.4th 510, 550.) However, the prosecution “enjoys wide
latitude in commenting on the evidence, including the
reasonable inferences and deductions that can be drawn
therefrom. (People v. Hamilton (2009) 45 Cal.4th 863, 928;
People v. Rowland (1992) 4 Cal.4th 238, 277 [“hyperbolic and
tendentious” comments, even if “harsh and unbecoming,” may
be reasonable if they can be inferred from the evidence].) “A
defendant asserting prosecutorial misconduct must . . . establish
a reasonable likelihood the jury construed the remarks in an
objectionable fashion.” (People v. Duff (2014) 58 Cal.4th 527,
568); see People v. Dennis (1998) 17 Cal.4th 468, 522 [“whether
the prosecutor has employed deceptive or reprehensible
methods to persuade either the court or the jury”]; see also
People v. Osband, supra, 13 Cal.4th at p. 695 [prosecutor’s
“remark was gratuitous, but his misconduct was also de
minimis”].)
To preserve a claim of prosecutorial misconduct on appeal,
“ ‘a criminal defendant must make a timely and specific
objection and ask the trial court to admonish the jury to
disregard the impropriety. [Citations.]’ [Citation.] The failure
to timely object and request an admonition will be excused if
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doing either would have been futile, or if an admonition would
not have cured the harm.” (People v. Clark (2011) 52 Cal.4th
856, 960 (Clark); see People v. Collins (2010) 49 Cal.4th 175,
226.) We discuss each claim of alleged prosecutorial misconduct
in turn.
a. Closing Argument
During closing argument at the end of the guilt phase,
Prosecutor Jackson described Pamela’s last moments after she
had been stabbed and was still conscious. He next asked: “What
do you think she might have been thinking? Those two or three
or even four minutes when she had time to think? Time to feel?
Time to realize what was happening? She would never again
touch the hand of her daughter, never kiss the cheek of [J.F.],
never see their smiling faces. And she had time. How long do
you think a minute is? She had three or four. While all this is
going through her mind, how long do you think that minute
lasted? An eternity. Think about what she was going through.
And I am going to ask you just to think for one minute, starting
now.”
At this point, defendant objected, arguing this line of
questioning only engendered prejudice that outweighed any
probative value. Jackson countered that the circumstances of
Pamela’s death were relevant to show “the brutality of how she
died, the fact that this was a personal execution.” The trial court
overruled defendant’s objection. Afterwards, the prosecution
continued and asked the jury again to think for one minute. On
appeal, defendant argues that the prosecution improperly asked
the jury to view the crime from the perspective of the suffering
victim and that the trial court erred in overruling his objection.
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“As a general rule, a prosecutor may not invite the jury to
view the case through the victim’s eyes, because to do so appeals
to the jury’s sympathy for the victim.” (People v. Leonard (2007)
40 Cal.4th 1370, 1406.) Though we have permitted such
argument at the penalty phase (see People v. Cowan (2010) 50
Cal.4th 401, 485-486; People v. Wash (1993) 6 Cal.4th 215, 263-
264), asking jurors to “imagine the thoughts of the victims in
their last seconds of life” is rarely a relevant inquiry at the guilt
phase. (People v. Leonard, supra, 40 Cal.4th at p. 1407; see
People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) The Attorney
General does not dispute that the comments in this regard were
improper.
Nevertheless, even though these comments were
improper, defendant is not entitled to relief. Given the strength
of the evidence against defendant, not the least of which was his
jailhouse confession, he did not suffer prejudice from the
prosecutor’s comments. (See People v. Martinez (2010) 47
Cal.4th 911, 957.) It was not reasonably probable that the
verdict would have been more favorable without this
misconduct.
b. Misstatements of Law
Defendant claims that at the end of the guilt phase, the
prosecution made a number of misstatements of law in closing
argument.
For instance, with respect to the issue whether defendant
withdrew from the conspiracy, the prosecution reiterated that
defendant must “do everything in his power” to prevent the
commission of the murder. Defendant maintains that the
instruction misstates a defendant’s burden of proof for
withdrawal. Even assuming error, any misstatement was
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harmless. There was no dispute that defendant committed an
overt act, i.e., paying Moya to kill Pamela, which completed the
crime of conspiracy. (See People v. Sconce, supra, 228
Cal.App.3d at p. 703 [defendant’s “withdrawal from the
conspiracy is not a valid defense to the completed crime of
conspiracy”].)
Next, in describing defendant’s liability as an aider and
abettor, the prosecution used an analogy of a backup
quarterback who never gets on the field but is still part of the
team. Defendant claims this example misstated the law because
it suggested a defendant’s mere presence or knowledge, similar
to sitting on a bench and doing nothing, is sufficient to impose
liability as an aider and abettor. Defense counsel did not object
to the football analogy and seek an admonition and therefore,
has forfeited the claim. (See Clark, supra, 52 Cal.4th at p. 960.)
Defendant also argues that the prosecution misstated the
law on the lying-in-wait special circumstance (§ 190.2, subd.
(a)(15)), which permits aider and abettor liability if the actual
killer killed the victim while or immediately after lying in wait.
(People v. Johnson, supra, 62 Cal.4th at p. 630; People v. Bonilla,
supra, 41 Cal.4th at pp. 331-332 [construing identical language
in § 190.2, former subd. (b) as statutory basis for aider and
abettor’s liability].) Defendant focuses on the prosecution’s
following statement about what defendant was doing right
before Pamela was killed: “There is an argument that Mr. Fayed
was actually lying in wait; he was sitting in a room, not five feet
from Pamela Fayed thirty seconds before she was killed. So
certainly he was concealing his purpose as well.”
It was not reasonably likely the jury would have
understood this remark to mean defendant’s actions were
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sufficient to prove lying in wait. (People v. Osband, supra, 13
Cal.4th at p. 689.) The prosecution’s theory was not that
defendant was the actual attacker, which would require that
defendant intentionally killed Pamela by means of lying in wait.
(People v. Johnson, supra, 62 Cal.4th at p. 630.) Rather, the
prosecution consistently argued that “the three folks in the
parking garage, Simmons, Marquez, and Moya. They were the
ones lying in wait.”
c. Reference to Extra-record Evidence
(1) Statements about federal subpoena
In describing the telephone calls between defendant and
Moya and Moya and his cohorts two months before Pamela’s
murder, the prosecution emphasized the timing of these calls,
i.e., two days after the federal subpoena issued to the forensic
accountants in the Fayeds’ divorce was “leaked” on May 27,
2008. Referring to the “leaked” subpoena at least four times
(without any objection from defendant), the prosecution
explained that “[y]ou get the idea that in the hours after the
subpoena is leaked, these guys communicate and talk with each
other by way of text message and phone to let each other know.”
Based on his failure to timely object and seek an admonition,
defendant has forfeited a challenge to the characterization that
the subpoena was “leaked.” (See People v. Collins, supra, 49
Cal.4th at p. 226.)
(2) Statements about federal case
On a related point, defendant argues that the prosecution
misstated that defendant “knew” about the sealed federal
indictment before Pamela’s murder and that Pamela would
definitely be a witness against defendant in the Goldfinger
matter. Defendant forfeited the claim by failing to timely object
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and request an admonition. (People v. Collins, supra, 49 Cal.4th
at p. 209) In any event, the claim fails on the merits because
the prosecution did not mischaracterize the facts but made
reasonable inferences based on the record. (See People v.
Thomas (2011) 51 Cal.4th 449, 494-495.) The prosecution stated
that defendant and Pamela “knew exactly what was going on as
early as May of 2008. 154 days before her murder, the
indictment comes out.” Fairly read, the statements merely
underscored that defendant and Pamela were aware of the
federal investigation against Goldfinger shortly before the
indictment was filed. Also, Pamela’s criminal defense attorney,
Willingham, testified that “Pamela wanted to be cooperative”
and be a “witness” against defendant. Any technical meaning
defendant affixes to “witness” does not support his claim of
mischaracterization by the prosecution.
(3) Statements about defendant’s mental state
In depicting defendant’s anger at its height when Pamela
tried to secure a money transmitting license, the prosecution
described defendant as “enraged,” “absolutely furious,” “boiling
over with rage” and “apoplectic.” Defendant claims that these
descriptions are not supported by the record. Not so. These are
reasonable inferences based on the record, including defendant’s
outraged statements to Smith that Pamela “went out and made
all these stupid accusations and ridiculous accusations against
me just to try and make me look bad” and that with regard to
defendant’s million dollar e-currency business, “she would’ve
fucked it all up.” (See People v. Hamilton, supra, 45 Cal.4th at
p. 928.) “ ‘Closing argument may be vigorous and may include
opprobrious epithets when they are reasonably warranted by
the evidence.’ ” (People v. Redd (2010) 48 Cal.4th 691, 750.)
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(4) Statements about Carol Neve
In recounting Neve’s testimony about the money
transmitting license, the prosecution reminded the jury that
Neve testified that the licenses were “extraordinarily
expensive.” The prosecution followed up by stating that a
license can cost “[l]iterally hundreds of thousands of dollars” and
that the government imposes a high fee to “keep[] Madoff-type
things from happening.” Also, after the prosecution reminded
the jury about “the evidence that Carol Neve told you, that
Pamela Fayed wanted to get a money transference license,” it
claimed that Pamela later wrote a check to get the license that
caused defendant “to go into a downward spiral.”
On appeal, defendant complains that Neve did not testify
to the actual cost of the license or that Pamela wrote a check for
one. Defendant did not object and request an admonition. As
such, he has forfeited the claim challenging this testimony.
(People v. Mitcham (1992) 1 Cal.4th 1027, 1052.)
(5) Other statements
Finally, for the first time on appeal, defendant challenges
other statements in the prosecution’s closing argument
including comments that Moya does not know Mercedes and
would not kill Pamela on Mercedes’s behalf if “he doesn’t think
that she can pay up.” Defendant also objects to the imagined
telephone conversations and texts between Moya and defendant
after Pamela was killed. Finally, he objects that the evidence
regarding the state of Mercedes’s finances or what Moya knew
about her finances was not in the record and that the “invented”
conversations between defendant and Moya were wholly outside
the record. Defendant has forfeited the challenges to the
statements based on his failure to timely object and seek an
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admonition below. “ ‘The [prosecutor’s] misstatements,
alt
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