Petition for Writ of Certiorari — James Michael Fayed, Petitioner v. California
Supreme Court briefAug 26, 2020
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App. 1
EXHIBIT A
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES MICHAEL FAYED,
Defendant and Appellant.
No. S198132
Los Angeles County Superior Court
BA346352
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Filed 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.
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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
1
Unless otherwise noted, all further statutory references are
to the Penal Code.
App. 2
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.
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
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.)
App. 3
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.” 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.
App. 4
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, 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
App. 5
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.
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.
App. 6
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 Abdul received word from federal authorities
App. 7
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. 1820.)
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
App. 8
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 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.
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.
App. 9
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.
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,
App. 10
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.
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 selfincrimination, 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.
App. 11
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 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
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.
App. 12
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 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.
App. 13
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 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.)
App. 14
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 1, 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. 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
App. 15
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 “brightline precharging rule against attachment of a Sixth
Amendment right” (DePriest, supra, 42 Cal.4th at p.
34), should not apply here.
For instance, notwithstanding the Sixth Amendment’s “offense specific” requirement (McNeil, supra,
501 U.S. at p. 175), defendant insists that state and
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.)
App. 16
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.
App. 17
As noted, the sham prosecution theory only applies to provide defendant relief if there were successive prosecutions by 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.)
App. 18
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 “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
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.)
App. 19
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.)
c. Defendant’s Fifth Amendment
Against Self-incrimination
Right
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
App. 20
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 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, 685686.)
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
App. 21
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 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
App. 22
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 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.)
App. 23
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 that he placed a
recording device on Smith’s person. After defense counsel recounted Smith’s criminal history, Detective Abdul
App. 24
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
App. 25
counsel to draft an appropriate instruction, which the
court said it would take up later.
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;
App. 26
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.)
With this legal backdrop, we have set out a twostep inquiry to determine the admissibility of out-ofcourt 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
App. 27
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.
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
App. 28
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 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
App. 29
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.
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
App. 30
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 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
App. 31
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 Moya would turn on him. Moreover,
any hesitation could be attributed to defendant seeking Smith’s assurances that Tony would be more
App. 32
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
App. 33
trial court questioned all jurors and alternate jurors,
but no one acknowledged leaving the 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
App. 34
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 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
App. 35
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 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
App. 36
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 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
App. 37
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.
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
App. 38
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 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
App. 39
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, several months before Pamela was killed.
App. 40
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 crossexamination, 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
App. 41
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 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
App. 42
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.
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
App. 43
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 (“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.
App. 44
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 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,
App. 45
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 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
App. 46
of a conspiracy has effectively withdrawn from the conspiracy, he is not thereafter liable for any act of the coconspirators 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 Pamela—which
App. 47
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.
App. 48
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 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
App. 49
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 “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
App. 50
(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.) 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,
App. 51
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.
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
App. 52
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.
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
7
For example, he contends that police investigative reports
actually classified defendant as being detained, not arrested, and
App. 53
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 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
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.
App. 54
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
App. 55
admissible. (See People v. Carpenter, supra, 21 Cal.4th
at p. 1040.)
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
App. 56
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 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—
App. 57
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 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.)
App. 58
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 [“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.)
App. 59
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
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
App. 60
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 threeday 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.
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
App. 61
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
App. 62
that he “believes evidence will be recovered from
Moya’s residence that 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
App. 63
“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 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
App. 64
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 midJuly (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
App. 65
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 onesentence federal indictment. The federal government
later dismissed the indictment on September 15, 2008,
the same day the prosecution 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
App. 66
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.
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,
App. 67
§ 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 defendant’s insistence that they
did not need it, and giving federal authorities a reason
App. 68
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
App. 69
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 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
App. 70
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 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,
App. 71
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, 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.)
App. 72
(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 selfincrimination, 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 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
App. 73
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 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
App. 74
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.)
App. 75
(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
App. 76
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 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’ ”].)
App. 77
(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 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
App. 78
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, 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
App. 79
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 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
App. 80
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 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.
App. 81
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.
App. 82
(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
App. 83
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, 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
App. 84
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 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
App. 85
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.
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.”
App. 86
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, 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.
App. 87
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.)
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
App. 88
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 the lying in wait—to be
subject to the lying-in-wait special circumstance violates due process. Defendant asserts that the
App. 89
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 prechecked 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.
App. 90
Based on the foregoing, we conclude the record
contains sufficient evidence to support the jury’s lyingin-wait special-circumstance finding.
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
App. 91
[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 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.”
App. 92
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.
“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
App. 93
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 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
App. 94
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 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.”
App. 95
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 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.
App. 96
(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
App. 97
warranted by the evidence.’ ” (People v. Redd (2010) 48
Cal.4th 691, 750.)
(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
App. 98
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
admonition below. “`The [prosecutor’s] misstatements,
although bearing a potential for prejudice, were not so
extreme or so divorced from the record that they could
not have been cured by prompt objections and admonitions.’ ” (People v. Dennis, supra, 17 Cal.4th at p. 521.)
B. Penalty Phase
1. Evidentiary Rulings
a. Admission of Letter Written by Pamela
As victim impact evidence, the prosecution questioned Pamela’s daughter, Desiree, about how the loss
of her mother has affected her life. The prosecution
sought to have Desiree read a letter purportedly written from her mother to both Desiree and J.F. To establish foundation, the prosecution explained the letter
was found with Pamela’s personal property in a storage shed available only to Pamela. Desiree had not yet
seen the letter. Though initially sustaining defendant’s
objection that the letter was more prejudicial than
App. 99
probative, the trial court later permitted Desiree to
read the letter.
The letter dated July 7, 2006 was read into the record: “To my dear sweet baby girls. Please hear me and
know that I am forever with you. You are the fruit of
my labor in this life and I am so proud of you both. Listen for my voice to guide you. I want so much to hold
you in my arms and kiss your sweet faces for eternity.
Please keep my family together with gentle love and
understanding. You are all that exists for me now.
Never abandon. Family is truly the only thing that is
important. Protect each other at all costs. Love you
with all my being. Mamma.” During her direct testimony, Desiree read the letter in front of the jury. When
the prosecution asked what Desiree thought as she
looked into the future without her mother, she responded: “[I]t saddens me and depresses me, and it not
only affects mine and [J.F.]’s life and everyone involved
right now, but it affects our future families.” The prosecution also referred to the letter in its closing argument.
On appeal, defendant again argues that the letter
was inadmissible hearsay and that the prosecution impermissibly “used the emotional letter as substantive
evidence in closing arguments.” We conclude the letter
was properly admitted to show the effect of Pamela’s
death on her daughter. (People v. Cruz (2008) 44
Cal.4th 636, 682.)
“Unless it invites a purely irrational response
from the jury, the devastating effect of a capital crime
App. 100
on loved ones and the community is relevant and admissible as a circumstance of the crime under section
190.3, factor (a).” (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1056-1057.) The letter, which was clearly
intended to be given to the girls on their mother’s
death, “demonstrated the relationship lost” as a result
of Pamela’s murder. (People v. Verdugo, supra, 50
Cal.4th at p. 299 [“Victim impact evidence is emotionally moving by its very nature, but that fact alone does
not make it improper”].)
b. Admission of Photographs of Pamela’s
Gravesite
During Desiree’s testimony, the prosecution
showed her a picture of her kneeling over her mother’s
casket and kissing it goodbye. Before Desiree testified,
the prosecution had asked the trial court to rule on the
admissibility of two photographs from Pamela’s
gravesite, which Desiree herself provided to the prosecution. The trial court allowed the two photographs, rejecting defense counsel’s argument that the
photographs were incendiary and cumulative. The two
photographs were properly admitted and not unduly
emotional. (See People v. Suff (2014) 58 Cal.4th 1013,
1076 [four photos of children leaving notes at mother’s
grave admissible as “evidence of the impact her death
had on them”]; see also People v. Zamudio (2008) 43
Cal.4th 327, 368 [photo of victim’s gravesite admissible
“as ‘further evidence relating to her death and the effect upon her family’ ”].)
App. 101
c. Exclusion of defendant’s mitigating evidence
To present a “full scope of the family’s life” and
show that defendant had at one time loved Pamela, defense counsel sought to elicit testimony from defendant’s high school friend, Melanie Jackman. Defense
counsel asked Jackman if defendant had called her for
advice on how to make Pamela happy. The trial court
sustained the prosecution’s hearsay objection.
Even assuming the trial court erred in excluding
this evidence, any error was harmless. (See People v.
McDowell (2012) 54 Cal.4th 395, 434 [improper exclusion of evidence at penalty phase subject to harmless
error analysis].) It is likely that the jury would have
given little weight to Jackman’s testimony. The prosecution impeached Jackman’s credibility by refuting her
assertion that defendant had never said anything negative about Pamela; the prosecution showed Jackman
e-mails defendant had sent to her, in which he called
Pamela a “sociopathic-lying-money-grubbing whore”
and a “Super-Bitch.”
2. Prosecutorial Misconduct at Penalty Phase
Defendant raises two claims of prosecutorial misconduct at the penalty phase, i.e., improperly appealing to the jury’s emotions during closing argument and
arguing facts not in evidence. “ ‘ “The same standard
applicable to prosecutorial misconduct at the guilt
phase is applicable at the penalty phase. [Citation.] A
defendant must timely object and request a curative
App. 102
instruction or admonishment.” ’ [Citation.] A defendant’s ‘failure to object and request an admonition
waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 367.)
a. Improperly Appealing to the Passion and
Prejudice of the Jury During Closing Argument
During closing argument, the prosecution told the
jury that they had a choice to make, i.e., they could either show defendant mercy and not impose the death
penalty even though defendant deserves it or could impose the death penalty because it is the “appropriate”
penalty: “Do you want to be the jury that gives mercy
when he gave none? . . . [H]e’s going to ask you for
mercy when Pam Fayed had none of these?” On appeal,
defendant maintains that by suggesting that justice
and mercy are incompatible, the prosecution improperly appealed to the passions and prejudices of the jury.
Defendant forfeited the issue by failing to object to this
argument or request an admonition. We conclude it
lacks merit in any event. “We have repeatedly approved prosecutors arguing that a defendant is not entitled to mercy, and in particular arguing that whether
the defendant was merciful during the crimes should
affect the jury’s decision.” (People v. Gamache (2010) 48
Cal.4th 347, 389-390 [citing cases].)
App. 103
b. Arguing Facts Not in Evidence
During closing argument, the prosecution told the
jury that it will be instructed that it cannot consider
sympathy for defendant’s family—specifically Pamela
and defendant’s young daughter, J.F.—as a mitigating
factor in sentencing. The prosecution underscored that
defendant “cannot come in here and use his last remaining card, his daughter, and sympathy for her as a
human shield. It doesn’t work that way. You can’t kill
the child’s mother and then say, don’t make her an orphan because if you kill me, she doesn’t have anybody
left. . . . He didn’t think about [J.F.] before. He had a
cold, calculated, deliberate, brutal, vicious plan that he
set into motion. And now to hide behind her is more
cowardly than it was to dispatch your two-bit assassins
to ambush your wife in that parking lot.”
Defendant claims that the prosecution referred to
facts not in evidence because defendant never appealed to the jury on that basis. We conclude there was
no misconduct. The prosecutor’s argument was consistent with applicable law that “[t]he impact of a defendant’s execution on his or her family may not be
considered by the jury in mitigation.” (People v. Bennett
(2009) 45 Cal.4th 577, 601.) To the extent the prosecution referred specifically to the impact on J.F., its argument was fair comment on J.F.’s tragic predicament of
being the daughter of both the victim and the murderer.
Defendant also asserts the prosecution referred to
facts outside the record by stating that Pamela “wasn’t
App. 104
just risking her own safety in cooperating; she was offering a very direct and concrete benefit to the community in her willingness to cooperate with the federal
authorities.” Defendant reiterates that there was no
evidence that Pamela was cooperating with the government and that certainly there was no evidence she
was providing some “concrete benefit” to the community. Defendant also complains that the prosecution’s
account of what Pamela’s last thoughts were (i.e., defendant “won. That’s what she’s thinking. He won. He
got me”) was not contained in the record.
There was no misconduct. While there was no evidence of a formal agreement that Pamela would cooperate with the federal government against defendant,
as the record makes clear, Pamela told her criminal defense attorney, Willingham, that she intended to testify
against defendant. The prosecution’s argument was
fair comment based on the evidence. Moreover, any
benefit that Pamela’s cooperation would give the community—arguably, because Goldfinger would no longer
provide illegal Ponzi schemes a means to launder their
money—was also fair comment. Finally, any fictional
depiction of what Pamela was thinking before she died
was within the bounds of permissible comment. (See
People v. Wash, supra, 6 Cal.4th at p. 263 [permissible
to ask jury at penalty phase “ ‘what was going through
[the] mind’ of the victim”].)
App. 105
3. Cumulative Error
Defendant argues that the cumulative effect of the
alleged guilt and penalty phase errors was prejudicial.
We have determined that one instance of prosecutorial
misconduct committed at the guilt phase (see ante, pp.
79-80) was not prejudicial. We have also assumed error
in several instances (see ante, at pp. 39, 63-64, 68, 7071, 80-81, 87), but found no error prejudicial. We are
not persuaded there was a reasonable possibility that,
absent any of these errors either alone or combined,
the jury would have reached a different verdict. (See
People v. Banks (2014) 59 Cal.4th 1113, 1208.)
4. Conflict of Interest
Though we conclude that defendant did not suffer
prejudice from the misconduct of Prosecutor Jackson
at the guilt phase, we highlight a troubling development related to this issue. Before oral argument in this
matter was set to take place, we discovered that Jackson had become a named partner at defense counsel
Mark Werksman’s law firm. Though it is unclear exactly when this partnership formed, there is no indication that Jackson joined Werksman’s firm before or at
the time defense counsel filed defendant’s opening
brief in this appeal. Our request for supplemental
briefing from the parties and the public at large, moreover, yielded no response suggesting that in light of
any conflict of interest, this court should refrain from
deciding the issues raised on appeal.
App. 106
In any event, because the partnership between
Jackson and Werksman began after defendant’s capital
trial ended, relevant facts relating to any conflict of interest issue are not part of the record. As such, we do
not address any potential conflict of interest claim
here. (See People v. Doolin (2009) 45 Cal.4th 390, 429
[“defendant has the opportunity to expand upon the
record in the context of his right to pursue a writ of
habeas corpus”].) That said, the law partnership between defense counsel and the prosecutor in this case
gives us great pause. (See Rules Prof. Conduct, rules
1.7, 1.11; Bus. & Prof. Code, § 6131, subd. (a).) We underscore that our resolution of defendant’s appellate
claims in this case does not in any way endorse or sanction this posttrial partnership.
C. Challenges to Death Penalty
Defendant makes a number of challenges to the
death penalty, all of which we have considered and rejected in the past. Because he offers no compelling reason to reconsider our long-standing precedent, we
decline to do so. We will instead dispose of each claim
without extended analysis.
“The death penalty is not unconstitutional for failing broadly to ‘adequately narrow the class of murderers eligible for the death penalty.’ ” (People v. Simon
(2016) 1 Cal.5th 98, 149.) Contrary to defendant’s
claim, we “ ‘repeatedly have held that consideration of
the circumstances of the crime under section 190.3,
factor (a) does not result in arbitrary or capricious
App. 107
imposition of the death penalty.’ ” (People v. Brasure
(2008) 42 Cal.4th 1037, 1066.) Nor is the death penalty
unconstitutional for not requiring “findings beyond a
reasonable doubt that an aggravating circumstance
(other than Pen. Code, § 190.3, factor (b) or factor (c)
evidence) has been proved, that
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