People v. Vance

188 Cal.App.4th 1182

116 Cal.Rptr.3d 98

10 Cal. Daily Op. Serv. 12,716

2010 Daily Journal D.A.R. 15,289

The PEOPLE, Plaintiff and Respondent,

v.Andrew James VANCE, Defendant and Appellant.

No. A122777.

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

Sept. 29, 2010.

Matthew Zwerling, Executive Director and Tara Mulay, Staff Attorney, First District Appellate Project under appointment by the Court of Appeal, for Defendant and Appellant.

Edward G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Masha A. Dabiza, Deputy Attorney General, for Plaintiff and Respondent.

RICHMAN, J.

*1187 There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970, 71 Cal.Rptr.3d 253, 175 P.3d 4 and decisions cited.)

A jury found defendant Andrew James Vance guilty of first degree murder, without special circumstances, following which he was sentenced to state prison for the term prescribed by law. He contends he is entitled to reversal by reason of: (1) numerous instances of misconduct by the prosecutor; (2) erroneous admission of a post-arrest confession elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and (3) the jury improperly learning that he had been incarcerated in San Quentin. We conclude that the prosecutor made a sustained Golden Rule closing argument so blatant that it alone requires reversal, particularly when conjoined with improper references to what was in plain effect victim impact evidence, and a snide and utterly unwarranted attack on defense counsel's valiant attempts to halt the flood of misconduct. An unfortunate factor in aggravation was the trial court's refusal to give the admonition requested by the defense. Given the peculiar balance of the sole evidentiary point submitted to the jury—defendant's intent—we conclude the misconduct qualifies as prejudicial, requiring reversal.

In light of this conclusion, all but one of defendant's remaining contentions need not be addressed because they involve matters unlikely to recur at a retrial. The one contention we do address is defendant's claim of Miranda error, which we conclude is without merit.

BACKGROUND

Except in one particular, the jury was not presented with material conflicts in the evidence, only the strength of the incriminating conclusion to be drawn from the largely undisputed testimony and trial exhibits.

It appears accepted that the victim, Dipak (Deuce) Prasad, died on June 2, 2006.¹ It further seems that it all began with Prasad telling defendant's girlfriend, Jennifer Delong, that he, defendant, was sleeping with another woman. Delong confronted defendant with this report, and its source, and left town, much to defendant's distress.

**103 On the afternoon of June 2, defendant confronted Prasad about what he, Prasad, had told Delong. Prasad thought what he told defendant had defused defendant's anger. The two thereafter spent several hours getting and consuming methamphetamine, all the while Prasad unaware that defendant was bent on revenge.

Defendant intended to teach Prasad a lesson with a beating. His friend Kevin West agreed to assist.² Defendant and Prasad met up with West, and, with Prasad driving his Lexus, they then went to Ronnie Pedrosa's auto shop. Pedrosa, who had been in prison with defendant and West, had also agreed to help with the beating of Prasad. They all ingested some methamphetamine provided by Prasad. Pedrosa had to beg off participating in the beating because he had to take care of a friend's children.³ Before the group left, and without telling either West or Pedrosa, defendant took some black plastic "zip ties" from Pedrosa's shop.⁴

Prasad drove defendant and West in Prasad's Lexus to a friend's house, where they had more methamphetamine. They then drove to Palomares Canyon, looking for an address where defendant said they could get more methamphetamine. Palomares Canyon is located in an area that is not densely populated, and only poorly and intermittently lighted.⁵ The canyon has a creek at its bottom, approximately 75 feet down a steep incline from Palomares Road. It was about midnight.

Stopping in a driveway, the three got out of the Lexus. Defendant then put Prasad in a choke hold and rode him down to the ground; this occurred in a period West estimated as 30 to 90 seconds. According to West, Prasad " went limp" and began making snoring sounds. According to both West and defendant, neither of them ever kicked or punched Prasad, or hit him with any kind of object.

West testified that he and defendant then bound Prasad's hands and feet, West using a shoelace from one of Prasad's shoes to "tie up" his legs; they then put him in the trunk of the Lexus. Before Prasad was put in the trunk, West heard the sound of adhesive tape being unrolled. Defendant and West drove a short way to a more isolated part of the canyon. According to West—who described Prasad as being unconscious but still snoring—he and defendant threw him down the embankment of the canyon. Defendant followed this by throwing Prasad's shoe, presumably the one from which the lace had been removed, down the embankment.

Defendant testified that he put Prasad in a headlock for 20 to 30 seconds. He did not intend to actually choke Prasad, only "to restrain him ... [¶] so Kevin could tie him up." "It was just [a] spur of the moment" decision. Defendant did not know that a choke hold could be life-threatening. Defendant let go of Prasad when "he wasn't resisting anymore" and "started to ... breathe funny," emitting "like a snoring sound." Defendant thought "I just rendered him unconscious," and Prasad "just passed out," because he was breathing and making the snoring sounds.

Defendant's version was that his plan was not to take Prasad into Palomares Canyon to kill him, just to beat him up, and then "leave him there, teach him a lesson," and take his car. According to defendant, West was the only one who took tape—black electrical tape—into Palomares Canyon, and the only one who did any binding of Prasad's hands and feet; it was West who fastened the zip ties on Prasad's hands, put his hands behind his back, and pinioned Prasad's feet with "black electrical tape and [a] shoelace." Defendant kept hold of Prasad, whose body was "wiggling a little bit." When he and West took Prasad out of the trunk of the Lexus, Prasad was not moving, but he was "still breathing" and "still snoring." "Then we ... placed him on the side of the road." Prasad was not thrown into the ravine. And it was West who threw Prasad's shoe into the ravine.

Defendant and West then returned to Pedrosa's shop in Prasad's Lexus. According to West, defendant asked if Pedrosa "had any tools for digging," and whether he knew anyone who might want to buy the Lexus. Defendant told Pedrosa that he had "choked him [Prasad] out" and then "threw him off the cliff." Pedrosa was not sure if defendant was serious or merely bragging. Defendant later told Delong the same thing. Defendant denied making any statement about tools. He did tell Pedrosa and Delong that he had thrown Prasad over the cliff, but he also told them that Prasad was alive when he was left in Palomares Canyon.

According to Pedrosa, a day or two later, he and defendant were driving in Palomares Canyon, and at one point defendant said something to the effect that he wondered whether Prasad "would climb back up from where [defendant] threw him off." Defendant drove the Lexus for several days, and later sold it in Fresno. Although Delong initially did not believe defendant's statement of what he did to Prasad, she came to believe it when defendant sold the Lexus, and after she received a telephone call from Prasad's sister trying to locate him. That same call apparently started defendant thinking that Prasad "might not be alive anymore" because "it's been so many days and he has not turned up." At that point defendant "was thinking that he might be deceased."

Things started unraveling on June 12, when Pedrosa was arrested for a parole violation, and he raised the subject of Prasad's situation in hope of receiving "some consideration." Under police guidance, Pedrosa made a number of recorded telephone calls to defendant in which defendant**105 indicated awareness that Prasad's body was still in Palomares Canyon, and that the restraining zip ties should be removed.⁶ Pedrosa also arranged a meeting with defendant at which defendant was arrested.

Prasad's body was found partially submerged in the creek of Palomares Canyon, with his hands tied behind his back "in an unnatural position" with black plastic zip ties. Both tennis shoes and socks were found nearby. A shoelace from one of the shoes was found attached to duct tape.

Due to decomposition and/or animal mutilation, forensic pathologist Dr. Thomas Rogers testified that the cause of death could not be pinpointed. The autopsy revealed no signs of bone fractures or blunt force trauma on the body. Dr. Rogers further testified a person can die of asphyxiation from a choke hold minutes after being released, and during this period the victim may appear unconscious or make noises such as wheezing, gasping, or snoring. Moreover, the duration of a choke hold resulting in death "can be just a few seconds or it can be upwards to minutes."

Defendant and West were arrested on June 13. The next day, defendant gave a lengthy statement to detectives Norton and Kelly, and a then a shorter statement to an assistant district attorney. In his statement, and in his testimony at trial, defendant...