People v. Matthews

32 Cal.App.5th 792

244 Cal.Rptr.3d 331

The PEOPLE, Plaintiff and Respondent,

v.Neal A. MATTHEWS, Defendant and Appellant.

B286202

Court of Appeal, Second District, Division 2, California.

Filed February 28, 2019

Certified for Partial Publication.^*

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

HOFFSTADT, J.

A trial court in a criminal case is charged with properly instructing the jury on the elements of all crimes and enhancements. ( People v. Tidwell (1970) 3 Cal.3d 82, 87, 89 Cal.Rptr. 58, 473 P.2d 762.) Does the trial court violate its duty to instruct—and potentially entitle the defendant to a retrial—if the court (1) tells the jury that the People have to prove an element that the law does not require, and (2) fails to properly define that element? We conclude that a mistake pertaining to a superfluous element does not constitute instructional error. In light of this conclusion, as well as our determinations that the trial court did not otherwise commit instructional error and that the prosecution did not commit misconduct, we affirm the murder conviction in this case. We nevertheless conclude that there are several sentencing errors that must be corrected, and remand for the trial court to consider whether the defendant has the ability to pay a restitution fine.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The crime itself

On December 3, 1978, 20-year-old Leslie Long (Long) was working at a full-service gas station in Palmdale, California. Long was a mother of three, including a baby she was still nursing. As she finished her shift alone that evening, two men arrived at the station, demanded that she open the safe, and took between $600 and $1,200. The men abducted Long and drove her 10 to 12 miles outside of town to a secluded spot in the high desert surrounding Palmdale. Each man vaginally raped Long, and one man anally raped her. Long was shot five times in the back of the head, "execution-style," and left for dead.

B. The "cold case" investigation

More than 30 years later, law enforcement ran DNA tests on the sperm samples collected from Long’s body and ran the results through its DNA database. There was a hit. Some of the DNA in Long’s vagina belonged to Terry Moses (Moses), a long-time gang member and a repeat killer. When confronted with the DNA match, Moses initially refused to cooperate. Moses later changed his mind. In exchange for the People’s promise not to seek the death penalty, Moses pled guilty to the murder of Long and several others, to be sentenced to five life sentences (three of which were without the possibility of parole), and to name the second man who was with him in December 1978. Moses first fingered a since-deceased man. But when law enforcement indicated its intent to exhume the deceased man’s body to test for DNA, Moses admitted that his cohort was Neal Matthews (defendant). DNA tests confirmed that it was defendant’s sperm in Long’s vaginal and anal cavities.

II. Procedural Background

A. Charges

In the operative information, the People charged defendant with the first degree murder ( Pen. Code, § 187 )¹ of Long. The People alleged three special circumstances that, if true, would dictate a mandatory sentence of life without the possibility of parole (LWOP)—namely, that Long’s murder was committed in the commission of the crimes of robbery, kidnapping and rape (§ 190.2, subds. (c)(3)(i), (c)(3)(ii) & (c)(3)(iii) ). The People further alleged that defendant "personally used a firearm" (§ 12022.5, subd. (a) ) and that a principal was armed with a firearm (§ 12022, subd. (a)(1) ). The People additionally alleged that defendant had three prior felony convictions that qualified as "strikes" under our Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d) ).

B. First trial

The matter proceeded to trial, but the jury hung 11-1 in favor of guilt after the jurors reported the 12th juror refused to deliberate.

C. Retrial

The matter proceeded to a second jury trial.

The prosecutor read into the record defendant’s testimony from the first trial. In that testimony, defendant stated that (i) Long had voluntarily accompanied Moses on the 75 mile trip from Palmdale to Los Angeles so that Moses could buy angel dust at the place where defendant was staying; (ii) defendant raped Long while she was alone with him in the kitchen; and (iii) Long thereafter left with Moses, which was the last time defendant ever saw her. Defendant acknowledged that the statute of limitations had expired on the 1978 rape, so admitting the rape subjected him to no criminal liability.

The court instructed the jury on two theories of criminal liability for Long’s murder—namely, that (1) defendant himself committed the killing with "malice aforethought," and (2) defendant was liable under a felony-murder theory because Long was killed during the commission of the robbery or rape defendant aided and abetted. The jury was also instructed on the special circumstance.

The jury found defendant guilty of Long’s murder, found all three special circumstances to be true, and found that a principal was armed with a firearm. The jury rejected the allegation that defendant personally used a firearm.

Defendant waived his right to a jury trial on his prior convictions, and the trial court subsequently found them to be true.

D. Sentencing

The trial court sentenced defendant to prison for life without the possibility of parole. The court also imposed a $10,000 restitution fine, a $10,000 parole revocation fine, and ordered that a hearing be set for restitution to the victim and her family. The court awarded 901 days of actual pre-sentence custody credit, and no conduct credits.

E. Appeal

Defendant filed a timely notice of appeal.

DISCUSSION

In this appeal, defendant argues that the special circumstance finding must be overturned due to three instructional errors; that his underlying murder conviction is invalid due to prosecutorial misconduct; and that the trial court committed a number of sentencing errors.

III. Instructional Errors

Defendant launches three separate attacks on the correctness of the special circumstance jury instruction. We independently review such challenges. ( People v. Hamilton (2009) 45 Cal.4th 863, 948, 89 Cal.Rptr.3d 286, 200 P.3d 898.)

A. Failure to define "physically aided"

Defendant first contends that the special circumstance instruction is invalid because (1) the jury was instructed under the 1977 version of the special circumstance statute, which requires that the People prove, among other things, that "the defendant physically aided or committed [the] act or acts causing [Long’s death]" (former § 190.2, subd. (c), italics added); (2) the jury was not instructed that a defendant "physically aid[s] or commit[s] [the] act or acts causing death," under the 1977 version, only if "his conduct constitutes an assault or battery upon the victim or if by word or conduct he orders, initiates, or coerces the actual killing of the victim" (former § 190.2, subd. (d), as set forth in Carlos v. Superior Court (1983) 35 Cal.3d 131, 139, 197 Cal.Rptr. 79, 672 P.2d 862 ( Carlos ), overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1138-1147, 240 Cal.Rptr. 585, 742 P.2d 1306 ); and (3) the trial court’s failure to use the statutory definition is error because it differs significantly from the "commonly understood" meaning of the phrase "physically aided" ( People v. Johnson (2015) 234 Cal.App.4th 1432, 1456, 184 Cal.Rptr.3d 850 [court should instruct on "particular meaning" of phrase defined by statute]; People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023, 16 Cal.Rptr.3d 891, 94 P.3d 1089 ). The People respond that the trial court’s failure to define "physically aided" is irrelevant because the 1978 version of the statute—which was the version in effect on the date of Long’s murder—eliminated the requirement of "physical aiding." (Stats. 1977, ch. 316, §§ 1-26, pp. 1255-1266; Carlos , at pp. 140, 143, 197 Cal.Rptr. 79, 672 P.2d 862 ; see People v. Murtishaw (2011) 51 Cal.4th 574, 586, 121 Cal.Rptr.3d 586, 247 P.3d 941 [noting that 1978 version of special circumstances statute became effective on November 8, 1978].)

This case accordingly tees up the question: If a trial court mistakenly instructs the jury that the People must prove a fact as an element of a crime but does not properly define that fact, does that failure constitute instructional error when that fact is not—in actuality—an element of the crime? In other words, does a mistake in instructing the jury on a superfluous "element" of a crime constitute instructional error?

We conclude the answer is "no," and do so for three reasons.

First and foremost, what matters to the validity of a conviction is whether the jury is correctly instructed on the elements of a crime—that is, on those "fact[s] that, by law, increase[ ] the penalty for a crime." ( Alleyne v. United States (2013) 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314.) Those elements are defined by the statute(s) in effect on the date of the charged crime. ( People v. Anderson (2009) 47 Cal.4th 92, 101, 97 Cal.Rptr.3d 77, 211 P.3d 584 [" ‘Every crime consists of a group of elements laid down by the statute or law defining the offense ...’ "]; People v. Gardeley (1996) 14 Cal.4th 605, 615, 59 Cal.Rptr.2d 356, 927 P.2d 713 ["consider[ing] the version of the statutory provisions ... in effect" at the time the "crimes ... took place"], overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320.) As a result, mistakes in instructing on facts that are not elements do not undermine the validity of a conviction. If, for instance, a trial court mistakenly...