People v. Fultz

69 Cal.App.5th 395

284 Cal.Rptr.3d 515

The PEOPLE, Plaintiff and Appellant,

v.Finley FULTZ, Defendant and Respondent.

C088566

Court of Appeal, Third District, California.

Filed September 27, 2021

Xavier Becerra and Matthew Rodriquez, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Assistant Attorneys General for Plaintiff and Appellant.

Diane Nichols, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent.

Robie, J. Isaac Zafft was brutally shot to death for nothing more than being in the wrong place at the wrong time. The extent of defendant Finley Fultz's involvement is unknown because the only people who can provide evidence in that regard are defendant's alleged accomplices. The story the accomplices tell is as follows: Throughout the first half of 2014, Nathan Philbrook and Daniel Devencenzi stole marijuana from multiple marijuana farms and greenhouses Philbrook's wife, Amber N., helped locate on Google Earth, which provides aerial views of land throughout the world. In July 2014, Philbrook invited defendant to a marijuana theft with him and Devencenzi. Philbrook and defendant drove to California from Nevada in defendant's truck and Devencenzi followed in his truck. Philbrook and Devencenzi used their cell phones at various times along the journey, defendant did not. Just after midnight, the group approached a greenhouse in Penn Valley; a greenhouse Philbrook and Devencenzi stole marijuana from a week or so before. The group intended to steal marijuana they thought may still be there. Philbrook entered the greenhouse's back door, while Devencenzi stayed outside the back door and, according to Philbrook, defendant walked to the front of the greenhouse. Zafft was asleep on the greenhouse's floor. Zafft awoke to the sound of Philbrook's presence and saw the laser sight attached to Philbrook's AR-15 style handgun. Zafft ran out the front door of the greenhouse where defendant was located. Defendant shot the AR-15 rifle he possessed five times. Zafft was hit multiple times and died. The group then fled back to Nevada, all the while Philbrook and Devencenzi used their cell phones and defendant did not. Upon their return to Nevada, defendant admitted to Amber he delivered the fatal shots, and Philbrook made statements inculpating defendant as the shooter.

The investigation that commenced took several years and continued during trial. The Nevada County Sheriff's Department became aware of defendant's, Philbrook's, and Devencenzi's involvement in Zafft's murder because of an anonymous tip Amber supplied several months after the murder. Deputies subsequently conducted three interviews with her; the recording of the second interview was lost, as were photographs of Amber's shoes. After defendant's arrest and the filing of a complaint, the Nevada County District Attorney's Office placed an undercover officer in defendant's jail cell for the purpose of eliciting incriminating statements from him concerning the murder, violating his Sixth Amendment right to counsel. Then during a police interview, defendant's invocation of his Fifth Amendment right to counsel was ignored.

During the pendency of defendant's, Devencenzi's, and Philbrook's joint criminal prosecution, Devencenzi and Philbrook pled guilty in exchange for reduced sentences. The prosecution failed to inform defendant that those bargains were offered as package deals, contingent on both Devencenzi and Philbrook accepting the plea bargains and fulfilling the bargains’ terms for either to benefit. The prosecution also failed to inform defendant the offers were contingent upon Philbrook and Devencenzi including in a written factual statement that they and defendant participated in a robbery and defendant killed Zafft. When making those bargains, Devencenzi and Philbrook agreed to be interviewed by the prosecution, which the prosecution failed to audio record. Finally, the prosecution continued its investigation of the case against defendant during trial and did not disclose material it intended to use against him until shortly before it was to be offered into evidence.

Based on the government's conduct throughout the investigation and trial, the trial court made several credibility findings rejecting the prosecution's innocent explanations for the constitutional violations. The trial court then dismissed the case against defendant finding there was no possibility he could receive a fair trial considering the nature of the evidence against him and the violations surrounding his accomplices’ pleas and interviews.

At its core, this People's appeal concerns the level of gamesmanship the prosecutor can engage in during a criminal prosecution before that gamesmanship is so unconstitutional the pending murder charge against a defendant must be dismissed because no fair trial could possibly be held. The standard for dismissal is high. ( United States v. Morrison (1981) 449 U.S. 361, 365, 101 S.Ct. 665, ["Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy [of dismissal] in that proceeding, which can go forward with full recognition of the defendant's right to counsel and to a fair trial"].)

In this case, the trial court believed no fair trial could be had because the prosecution placed Devencenzi and Philbrook under a strong compulsion to testify to specific facts, thereby tainting their testimony beyond redemption. ( People v. Medina (1974) 41 Cal.App.3d 438, 449-456, 116 Cal.Rptr. 133.) We conclude that finding was made in error. Because the record demonstrates the trial court believed a fair trial could be had in the absence of the Medina error, we believe it appropriate to reverse the judgment and remand the matter to the trial court to again tailor relief to neutralize the taint resulting from the prosecutor's other misconduct.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Investigation

On July 7, 2014, at approximately 3:00 a.m., Zafft's body was found with four gunshot wounds delivered from a distance of at least two feet away. The shell casings and bullet fragments found at the crime scene belonged to .223-caliber bullets, which typically are fired from a low-caliber but high-powered gun. Several shoe prints were found in and around the greenhouse, and a fingerprint was found on the back door of the greenhouse.

In November 2014, an anonymous tip was called into the Washoe County Sheriff's Department in the state of Nevada regarding Zafft's murder. As a result of that tip, Nevada County Deputy Sheriff Russell Greene interviewed Amber twice in November and once in December 2014. During those interviews, Amber told Deputy Greene that Philbrook, Devencenzi, and defendant were responsible for Zafft's murder, while also minimizing her own involvement in the events leading to Zafft's death. Deputy Greene's report from one of the interviews indicates he may have taken photographs of Amber's shoeprint.¹ Deputy Greene also interviewed Jeff Sorce in December 2014, who relayed statements Philbrook had made to him about Zafft's murder.

Deputy Greene received recordings of each of Amber's interviews from the Washoe County Sheriff's Department and wrote reports regarding those interviews. Two of the videos were booked into evidence, one was not.

Deputy Greene could not explain why the recording of Amber's second interview was not booked into evidence or capable of being located. He claimed to have not known the recording was missing until June 2017 when the prosecution was preparing for the preliminary hearing. At that time, he looked through his own records for the misplaced recording. Initially, Deputy Greene testified he contacted the Washoe County Sheriff's Department when he noticed the recording was missing, only to later testify he contacted them when asked to do so by the prosecution in November 2018. When explaining his typical process of booking evidence, Deputy Greene initially said he booked the recordings after writing the reports concerning those recordings, he then said it was typical for him to book all of the evidence at once.

Amber gave Deputy Greene the phone numbers for Philbrook, Devencenzi, and defendant during her interviews. Deputy Greene then wrote a search warrant for a data dump² of the cell phone tower nearest to the greenhouse where Zafft was murdered. Both Devencenzi's and Philbrook's cell phones were shown to have used that tower around the time of Zafft's murder. Defendant's cell phone did not use that tower. Deputy Greene wrote a report conveying that information in March 2015.

Based on the phone numbers Amber gave him, Deputy Greene also wrote a search warrant for Devencenzi's, Philbrook's, and defendant's cell phones. Information was returned on that warrant in February 2015. No substantive information was returned on the search of defendant's cell phone because he owned a cell phone through Cricket Wireless, which retained usage records for only 180 days. Philbrook's and Devencenzi's records showed they called each other near the time of the murder. Deputy Greene wrote a report conveying this information. Deputy Greene did not recall looking for calls between defendant and Philbrook at the time he discovered calls between Philbrook and Devencenzi.

Thereafter, the investigation stalled until June 2015 when Nevada County Sheriff Sergeant Robert Jakobs was assigned to the major crimes unit. At that time, he was asked to analyze Philbrook's and...