PEOPLE v. REARDON (1985)

After a jury trial defendant/appellant Edward H. Reardon (appellant) was found guilty of solicitation of murder (Pen.Code, § 653f(b)) and not guilty of felony battery (Pen.Code, §§ 242 and 243(d)).   He seeks reversal of his conviction arguing that the trial court committed reversible error when it (1) allowed the prosecutorial use, for impeachment purposes, of an 18-year-old California conviction for child molestation and an approximately 34-year-old conviction for grand larceny;  (2) denied his motion for Judgment of Acquittal on the solicitation of murder charge;  (3) allowed allegedly improper rebuttal testimony by the prosecution;  and (4) did not allow appellant to call witnesses at the sentencing hearing.   For reasons discussed below, we remand.

This trial consisted of a long parade of witnesses for the case in chief, for the defense, in rebuttal, in surrebuttal, etc., etc.   Both appellant and the attorney general masterfully summarize this voluminous testimony.   We adopt primarily the Statement of Facts prepared by appellant with modifications.   The changes are additions suggested upon a careful reading of the attorney general's summary and the trial transcript.

STATEMENT OF FACTS

The principal and only witness to the alleged solicitation of murder was a David Faircloth.

David Faircloth testified that he had first met appellant in approximately December of 1982 when they were both singing at the Windsor Park Inn in Valencia, California.   He characterized himself as an acquaintance of appellant.   On May 22, 1983, appellant contacted Faircloth, said someone was bothering him and the two agreed to meet later on that evening.   They met in Newhall at a Denny's Restaurant.   Not wanting to talk in a restaurant, appellant suggested they take a drive.   He eventually directed Faircloth to Los Angeles International Airport.   Faircloth testified that during this drive, appellant told him (Faircloth) that there was a court action that was forthcoming, that he was in serious trouble, that a certain individual had something on him that was going to burn him and if the person was not taken care of, he was in a “world of trouble.”   When appellant asked if he would “hit someone for him,” Faircloth testified that he asked what “hit” meant and was told that it meant “killing.”   Faircloth testified that appellant revealed as little as possible about the victim as this was all Faircloth “needed to know.”   Faircloth testified that later on during the conversation appellant told him that the victim was a woman, that someone else had been following this woman for several months, knew her every move and that she had a four-year-old son.   Appellant explained to Faircloth how he wanted the victim killed, specifically showing Faircloth various locations on the freeway, the route that the victim would take following leaving her employment at United Airlines at the airport.   Faircloth testified that appellant explained that he wanted it to look like an accident, that he wanted Faircloth to obtain a stolen truck, and hit her at one of the locations along the freeway as she drove home.   Appellant also told Faircloth, “I'm gonna be in a car behind you, and as soon as you hit this chick, all you have to do is get rid of the truck, dump it off the highway.   I'll pick you up, load you up, and be here when the heat comes down.”

Appellant and Faircloth began to drive back to the Denny's Restaurant.   On the way, appellant said that it had to be done before June 15 and cautioned Faircloth not to wait until the last minute.   Appellant stated that he preferred it be done on a Tuesday or a Wednesday.   When Faircloth inquired why, appellant stated, “․ that's another one of those things you don't need to know.   The less you know, the less—you don't need to know any more than I have already told you․  I have already told you too much to get me in trouble.”   Arriving at the Denny's, appellant asked Faircloth to make a decision by the next day.   The two men made plans to meet again at the Denny's the following evening.

Faircloth testified that after this meeting he contacted the police regarding the incident.   The next day, May 23, 1983, Faircloth met with certain members of the Los Angeles County Sheriff's Department who fit him with a listening device and gave him certain instructions.

At approximately 8:00 on the evening of May 23, Faircloth, while under surveillance of the detectives, Deputy Ane and Sgt. Sarter, met appellant at a restaurant.   The two got in appellant's car and again drove south on the freeway, heading towards Los Angeles Airport.   Faircloth testified that appellant expressed his pleasure at the fact that Faircloth was going to do the job.   During this ride Faircloth testified that appellant volunteered, “After you take care of this chick for me, I have another bastard down in Marina Del Rey that I want you to off.”   Faircloth testified that he replied, “Off?” and appellant said “Killed.”   Faircloth further testified that trying to get appellant to talk about the solicitation he said:

D.F.  “As I stated, I said, ‘What—you want me to murder this chick?’   And when I said the word ‘murder,’ he said, ‘Never use that word.’   And it was right after that he got extremely nervous and started looking in his rearview mirror.”

Faircloth testified that appellant became suspicious of surveillance.   Appellant began to speed at 85 to 90 miles per hour, eventually exiting the freeway near Moorpark.   Off the freeway, appellant drove in an evasive manner, taking detours and circling blocks.   Eventually, appellant and Faircloth changed cars.   At the point where they switched cars, Faircloth noticed that the police van had caught up with them and was parked down the street.

Appellant continued his evasive driving in the new car.   He drove six or eight times around a traffic circle, stating that he wanted to be certain he was not being followed.   As they drove, appellant cautioned Faircloth not to do any more talking.   Deputy Ane, overhearing appellant mention that he thought a truck was following him, asked other police officers to follow appellant in a different car;  but the other officers were unable to pick up the surveillance in time, and Deputy Ane lost sight of appellant and Faircloth.

After a stop at Tracton's Bar, the two men drove to a Travel Lodge near the Los Angeles airport.   Appellant called United Airlines and asked for the arrival time of a certain flight from Chicago.   He then drove Faircloth to the United Airlines employees' parking lot at the airport.   Appellant pointed out a Toyota being driven by his wife and told Faircloth that they were going to follow her home.   Trailing her onto the freeway, appellant told Faircloth that he wanted her killed by Wednesday night.   Appellant said, “this deal needs to be taken care of and it needs to be taken care of by a certain time.”

Appellant and Faircloth then retrieved appellant's original car and returned to the Denny's Restaurant.   Shortly thereafter, Faircloth reported to the police officers everything appellant had said.

As corroboration, the prosecution called several police detectives.   Deputy Ane and Sgt. Sarter testified that on the evening of May 23, they were following appellant's vehicle for a portion of the evening, taping the conversation and listening to it over a separate speaker.   Both testified that the only matter of substance they heard was the reference to “offing” a man in Marina Del Rey.

Ane testified, however, that although he could clearly hear this exchange while following Faircloth and appellant down the freeway, he could not hear it nor any other conversation when he replayed the tape because of engine static and road noises.   Although Deputy Ane admitted to being familiar with tape enhancement proceedings that eliminate such interferent sounds, he made no attempt to have the tape enhanced but rather destroyed what was on it by recording over it.

Sgt. Sarter testified that it was not their procedure to replay such tapes to discern what was on them when operating as undercover or surveillance officers assisting other investigators, but that, on the contrary, the procedure was merely to turn the tape over to the primary investigating officers.

Moreover, although Ane claimed to have discussed the Marina Del Rey “offing” remarks in some detail with the investigating officer, Deputy Parra, and although virtually every other observation of Ane was contained in the investigative report prepared within a few days after the 23rd, the report contained no mention of any such remarks by appellant.   Ane testified that Parra had asked him that same night to prepare a supplemental report of his observations.   Sarter, who was present with Ane that evening, denied that either he or Ane had been asked to prepare a supplemental report.

Ane admitted to having prepared a supplemental report several months later at the request of the Deputy District Attorney handling the case.   This was after Faircloth testified at the preliminary hearing that (1) the Marina Del Rey conversation had taken place;  (2) immediately thereafter, he (Faircloth) spoke into the listening device requesting that officers “blink their lights” if they overheard the conversation, and that the officers did, in fact, do so.   Although Ane's testimony as to the details of the conversation in question mirrored almost word for word Faircloth's testimony, his report gave a substantially different version of the conversation.   Further, although Ane testified that the Marina Del Rey remarks occurred while both vehicles were driving down the freeway, his report indicated that the remarks about a man in Marina Del Rey took place while both vehicles were, in fact, at rest.

Deputy Parra, the investigating officer in this case, testified to and laid the foundation for the admission into evidence of three taped telephone conversations between David Faircloth and appellant.   The first occurred on the evening of May 23, wherein David Faircloth called appellant to confirm their meeting at 8:00 that evening.

The second tape was a call from David Faircloth to appellant at approximately 7:00 of the evening of May 24, 1984.   David Faircloth told appellant that he was going to be bringing a friend (Deputy Ane) with him and where did they want to meet that evening.   Faircloth told appellant that his friend was “cool.”   When Faircloth told appellant that he and his friend would “do our thing,” appellant responded, “And I don't have to be there?”

The third tape played for the jury consisted of a telephone conversation between David Faircloth and appellant that occurred when Faircloth placed a call to appellant later on May 24, 1984, at approximately 9:00 in the evening.   Prior to this telephone conversation, Deputy Ane had testified that he, appellant and Faircloth had met earlier that day.   Both Ane and Faircloth admitted that in this meeting between the three no one had said anything about “offing,” “killing,” or hurting anyone.

During this third taped telephone conversation, Faircloth was angry at appellant for treating his “friend” so poorly.   When Faircloth stated, “You fucking call me and ask me to off a fucking chick,” appellant replied, “What?”—“What?” and responded, “We're talking here about—a record deal here now.”   When Faircloth complained that he did not want to deal with “paranoid” people, appellant replied that they were talking about promoting and selling records and that he did not want to talk on the phone.

Faircloth was impeached in many matters.   Faircloth testified that he knew that appellant had a son prior to the alleged solicitation;  however, had testified during the preliminary hearing that he did not know that the intended victim had a son.   He also admitted that his statement in the police report said that he didn't want to be involved in the killing of a four-year-old child.

Faircloth testified that he did not know who the female victim was when the solicitation allegedly occurred, that he did not know or ascertain that the intended victim was appellant's wife when appellant showed him the victim's employment parking lot at the airport that night, and that he had only met Mrs. Reardon briefly on one occasion.   Three defense witnesses testified that each had seen Faircloth and Mrs. Reardon together at the Windsor Park Inn on one occasion for at least ten minutes, on at least one occasion for forty-five minutes, and seated together on at least five or six occasions.

Faircloth's testimony regarding the initial solicitation was contradicted by the testimony of two defense witnesses.   The first, Penny Robens, testified to a conversation she had overheard at appellant's home the evening of May 22.   During that conversation, appellant had stated his desire that Faircloth follow his wife to obtain evidence as to when his wife was away from home on overnight flights, as well as her other activities when she was supposed to be available to care for their four-year-old son.   Ms. Robens testified that Faircloth suggested that he could solve appellant's problems permanently by running his wife off the road, and that when appellant reacted angrily and negatively to this suggestion, Faircloth expressed the fear that appellant might “give him up” or “turn him in” for making the proposition.

Malcolm Parker testified for the defense that at about 10:30 on the same evening that the solicitation was supposed to have taken place, Faircloth came into Parker's restaurant, and while having a beer, confirmed the fact that appellant had asked him to follow appellant's wife, that he, Faircloth, had suggested running his wife off the road, and that appellant “turned white” at the suggestion and refused to go along with it.

At the close of the prosecution's case in chief, the defense moved for a dismissal of the solicitation of murder charge.   The motion was based on the prosecution's failure to prove the crime in accordance with Penal Code section 653f(d), requiring proof of the solicitation by two witnesses or one witness and corroborating circumstances.   The court interpreted the motion as pursuant to section 1118.1 of the Penal Code and denied the motion.

The defense called numerous witnesses including Malcolm Parker whose testimony is summarized above.

Linda Grillo, an attorney who was representing appellant in a custody battle with his wife, confirmed that she had suggested the necessity of having someone conduct a surveillance of Mrs. Reardon for purposes of demonstrating his wife's unavailability to act as primary custodial parent;  that she told him that utilizing a licensed private investigator would probably cost him many thousands of dollars;  that she rebuffed his suggestion that he do it himself, explaining that he could not even be present when such a surveillance was occurring;  and that appellant told her that he would find someone else to conduct the surveillance.

In addition to the testimony of Penny Robens, referred to above, the defense called a witness who had testified that she had known David Faircloth since 1982, had personal and business dealings with him, and that in her opinion he was a liar and a con man.

Appellant did not take the stand and testify on his own behalf.

In its rebuttal case, the prosecution offered the testimony of another investigating officer who stated that he had interviewed Malcolm Parker after the appellant was arrested, and that at this meeting, Parker did not tell him of his meeting and conversation with David Faircloth on the evening of May 22.   On cross examination, the officer admitted that during almost the entire period of time of the interview David Faircloth, described as a large man, was present.

In rebuttal and over the objection of the defense, the prosecution called Mrs. Deanna Murray.   She testified that appellant had called her six months before the purported solicitation, specifically, on Christmas Eve of 1982, and had asked her to make a telephone call to appellant stating that his wife was transporting dope and messing around with the wrong people and threatening that if she didn't desist from this activity, she would get hurt.   Mrs. Murray testified that her telephone number was unlisted;  that it hadn't been listed for years;  that she had never given it to appellant and had no idea how he had gotten it.   Further, Mrs. Murray testified that this was the first time that appellant had ever called her and that he had never before asked her to do any favors for him.   She testified that she had met appellant on one occasion and knew him primarily through her ex-husband, having seen him at the nightclub where he entertains.

In surrebuttal, the defense presented the testimony of two witnesses, Ralph Benson and Kathy Derse, who both testified that in December 1982, Deanna Murray had offered, in their presence, to do something much more harmful to appellant's wife than to merely frighten or threaten her;  that Mrs. Murray had offered, in fact, to call the airlines, pose as an employee, and accuse Mrs. Reardon of transporting or using cocaine.   Appellant rebuffed her offer.   Kathy Derse additionally testified that Mrs. Murray had given her phone number to appellant in Ms. Derse's presence.

A defense witness in surrebuttal testified that on three occasions in 1978, 1979 and 1982, she had accompanied Pam Reardon to the ladies' room and on each occasion saw Pam Reardon using cocaine.

As a further rebuttal witness, the prosecution called appellant's wife, Pam Reardon.   She denied having met David Faircloth other than briefly at the appellant's birthday party;  denied that she had ever used cocaine in the presence of the defense witness Karen Sicurella and, in fact, had never used nor sold cocaine.   She testified to an event that occurred in October of 1982 where, after a telephone conversation with appellant during which she informed him that she did not intend to come back, she took a flight to Hawaii.   Before boarding she was told that she was suspected of carrying cocaine, and was searched.   Nothing was found.   On her return flight to Los Angeles she discovered some cocaine in her purse which she discarded.   After her return to Los Angeles, she informed appellant of what had happened and he made a further search of her baggage and found cocaine.

In further surrebuttal, a defense witness testified to overhearing a telephone call from Pam Reardon to her husband on June 4, 1983, wherein Pam Reardon told the appellant that he should not think that he had won anything in court the day before, referring to a court appearance on the custody hearing, and that he was going to get what he tried to do to her and that “you're going to go to jail ․”

A second defense witness testified that on two occasions Pam Reardon called him and his wife stating that she was determined to get full custody of their son and that she would do everything in her power to discredit and ruin appellant so that she could get custody.

DISCUSSION

Prior Felony Convictions:  Prior to trial, appellant made a Motion in Limine that the two prior felony convictions be suppressed for either substantive or impeachment purposes.   In arguing the motion, the defendant relied heavily on People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, reasoning.   He asserted that the evidence of his prior convictions should be suppressed because they had occurred long ago and were followed by a legally blameless life.   In addition, he averred that their admission into evidence would be highly prejudicial because it would prevent his testifying at trial when his testimony was essential since the only two persons present at the time of the alleged solicitation of murder were himself and the informer.   Thus, admission of the convictions would deny him his constitutional right to testify on his own behalf.

The prosecution countered that under the Proposition 8 standard (now art. I, § 28, subd. (f) of Cal. Const.), evidence of prior felony convictions could be admitted without limitation.¹

The court weighed these arguments and concluded, “I tend to agree, [defendant's counsel], with your analysis, but I feel bound by Proposition 8 ․ which provides that any felony, any prior felony conviction of any person of any criminal proceeding shall subsequently be used without limitation for purposes of impeachment or enhancement in any criminal proceeding.   And specifically I think that that section overrules People v. Beagle, which prior to Proposition 8 allowed the court to do exactly what you're asking, that is, to evaluate those prior convictions and place them face to face with the crime charged and look at their remoteness and their relationship to what might be normally used to test credibility of the witness.   But I think Proposition 8 has done away with that analysis and, consequently, I will deny your motion to exclude the alleged two prior convictions of Mr. Reardon and allow the People, if they choose, to use those prior conviction for impeachment only.   That doesn't mean that they can be used for any other purpose.”

 This particular section of Proposition 8 was recently interpreted by the Supreme Court in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.   In Castro, the court ruled that “always subject to the trial court's discretion under section 352 ² —subdivision (f) authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.”  (Ibid., at p. 306, 211 Cal.Rptr. 719, 696 P.2d 111.)   The court continued, “․ it will be necessary to determine with respect to each felony conviction offered for impeachment—difficult though this may prove to be—whether it does or does not involve moral turpitude.   If it does not, that is the end of it.   If it does, it is prima facie admissible, subject to the exercises of the trial court discretion.”  (Ibid., at p. 316, 211 Cal.Rptr. 719, 696 P.2d 111.)   There is no question that defendant's two prior convictions for child molestation and grand larceny “involve moral turpitude.”  (Castro, supra.)   Remand is required, however, because the statement of the trial court's reasons for its ruling on defendant's motion is devoid of any section 352 discretionary analysis.   In fact the trial court stated that Proposition 8 precluded such analysis on his part.   The Supreme Court in People v. Castro has held otherwise.   Because the ruling had the effect of denying defendant his fundamental right to testify on his own behalf had the court excluded the prior felonies under section 352, this error is prejudicial.   However, in place of a straight reversal we believe a remand is appropriate.   As stated earlier in this opinion, the trial court had given a responsive ear to defense counsel's arguments concerning admission of the priors, but had not thoughtfully considered the problem pursuant to section 352 because it felt bound by Proposition 8.   On remand, after a hearing and argument from both sides, it can rule on the admissibility of these prior convictions in light of People v. Castro, supra.

This remand will produce one of two results:  (1) the trial court could determine that exclusion of the prior felonies is required, necessitating a new trial;  or (2) the trial court may conclude that the priors are still admissible under the standards of Castro, therefore a new trial would be unnecessary.   Because of the latter possibility, we will discuss the other issues raised by appellant.   We find none to be meritorious.

Evidence of Corroboration.  Penal Code section 653f(d) provides:  “An offense charged in violation of subdivision (a), (b) [solicitation of murder] or (c) must be proved by testimony of two witnesses, or of one witness and corroborating circumstances.”   Appellant asserts that the requisite corroborating circumstances were absent in the instant case and that, therefore, the court erred when it did not grant his motion for acquittal at the end of the prosecution case-in-chief.

In analyzing this contention we are guided by the rule that “Our power to weigh the evidence is of course limited by due deference to the trier of fact, and we must therefore view the record in the light most favorable to the verdict.  [Citation.]”  (People v. Samuel (1981) 29 Cal.3d 489, 505, 174 Cal.Rptr. 684, 629 P.2d 485.)   We conclude that when so viewed, the record reveals sufficient corroborating evidence.

 Though circumstantial and slight, evidence of corroboration may nevertheless be sufficient “if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the trier of fact that the witness who must be corroborated is telling the truth.”   (People v. Rissman (1957) 154 Cal.App.2d 265, 277, 316 P.2d 60.)   In the instant case, Faircloth testified that during his second drive with appellant, appellant had said, “After you take care of this chick for me, I have another bastard down in Marina Del Rey that I want you to off.”   When Faircloth queried, “Off?”, appellant answered, “Killed.”   This conversation was overheard by Deputy Ane and Sgt. Sarter, who were following and taping appellant and Faircloth.   Appellant makes much of the fact that no effort was made to enhance the tape, and that it was taped over.   However, the fact remains that both sheriff deputies testified that they heard appellant's statement regarding another “offing,” the implication being that there was a first person appellant wanted killed.   This corroboration coupled with the entire conduct of the parties, i.e. the high speed down the freeway, the roundabout and circuitous route, the switching of automobiles, was sufficient for the trier of fact to conclude that Faircloth was telling the truth.   (Rissman, supra, at 277, 316 P.2d 60.)

The Prosecution's Rebuttal Evidence.   Over appellant's objections, the trial court allowed the prosecution, during rebuttal, to present a witness, Ms. Murray, whose testimony revealed appellant's attempt to have her make a telephone call threatening to his wife to appellant's residence.   This request was made six months before the solicitation for which appellant was on trial.   Appellant argues that the trial court erred because Ms. Murray should have testified during the case-in-chief inasmuch as her testimony went to appellant's intent.   We disagree.

 “The order of proof ․ lies within the sound discretion of the trial court under Penal Code section 1094.”  (People v. Mosher (1969) 1 Cal.3d 379, 399, 82 Cal.Rptr. 379, 461 P.2d 659.)   We tamper with it only upon a showing of abuse of discretion.

 The record reveals that upon counsel arguing whether the prosecution should be allowed to present Ms. Murray's testimony, the court responded, “All right.   I'm going to overrule the objection and allow the evidence in as rebuttal evidence to the state of mind evidence that was allowed in defendant's case.”   We concur.   Throughout the defense, appellant offered, over the prosecution's objection, evidence of appellant's “innocent” intent, primarily through the testimony of Ms. Grillo, appellant's attorney in the custody matter.   Ms. Grillo testified that she had instructed appellant to arrange for someone, not himself, to follow Mrs. Reardon to ascertain the quality of child care being given the Reardon child.   In addition, the witness Ms. Robens had testified about overhearing appellant's request to Faircloth to follow his wife and appellant's alleged distress when Faircloth suggested he might permanently settle the custody dispute by killing Mrs. Reardon.   The witness Mr. Parker had also proffered testimony of appellant's innocent intent.   We cannot say that the court abused its discretion when it allowed the prosecution to rebut this evidence.   Besides, not only was appellant given full opportunity to cross-examine Ms. Murray, he also presented two witnesses who directly contradicted her testimony.

 Sentencing Hearing.   Appellant argues that the court at the sentencing hearing erroneously considered the unsworn statements of the victim, Mrs. Reardon, and refused to allow appellant to call her as his own witness in order to reveal her alleged bias and motive to lie.   We cannot agree.   Not only is case law to the contrary (People v. Zikorus (1983) 150 Cal.App.3d 324, 197 Cal.Rptr. 509), but we believe to rule otherwise would be to denigrate the ability of the trial court to weigh evidence and to consider all the necessary factors before imposing sentence.   We have read the transcript of the sentencing hearing and find it evidences the contrary.   The court was clearly conscious of Ms. Reardon's bias and prejudice.   In addition, the court heard statements from appellant's counsel and appellant himself.   Both refuted the statements made by Ms. Reardon.

The case is remanded to the trial court to conduct an Evidence Code section 352 analysis of the prior felonies and, if necessary, for a new trial.

FOOTNOTES

1.   Article I, section 28, subdivision (f), provides“any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

2.   Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing issues, or of misleading the jury.”

HASTINGS, Associate Justice.

FEINERMAN, P.J., and ASHBY, J., concur.