People v. Stewart CA2/1 ( 2021 )

Filed 4/9/21 P. v. Stewart CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301204
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095772)
v.
ORDER MODIFYING OPINION
RANDALL DEE STEWART, AND DENYING REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on April 2, 2021,
be modified as follows:
1. On page 2, line 5, “80 years to life in prison” will be
modified to read “60 years to life in prison.”
2. On page 36, the first sentence in the last full paragraph,
“80 years to life” will be modified to read “60 years to life.”
This modification effects no change in the judgment.
Appellant’s petition for rehearing is denied.
NOT TO BE PUBLISHED
____________________________________________________________
CHANEY, J. BENDIX, Acting P. J. FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
2
Filed 4//2/21 P. v. Stewart CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301204
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095772)
v.
RANDALL DEE STEWART,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eric C. Taylor, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Randall Dee Stewart appeals from a judgment entered
after a jury found him guilty of second degree murder and found
firearm enhancement allegations to be true under Penal Code
section 12022.53, subdivisions (b)-(d).1 The trial court sentenced
him to 80 years to life in prison, after finding prior conviction
allegations to be true. Stewart contends (1) the murder
conviction and true findings on the firearm enhancement
allegations are not supported by sufficient evidence; (2) the trial
court erred in declining to remove a juror for alleged bias against
Stewart and witnesses; (3) the trial court erred in denying
Stewart’s motion for new trial based on insufficiency of the
evidence and ineffective assistance of trial counsel in failing to
call a witness; (4) the judgment must be modified in light of
Senate Bill No. 136 to strike prior prison term enhancements
under section 667.5, subdivision (b) because Stewart did not serve
a prior prison term for a sexually violent offense; and (5) the
matter must be remanded because the trial court did not exercise
informed discretion and consider whether to impose a term less
than 25 years to life for the firearm enhancement. We agree with
Stewart’s contentions regarding the prior prison term
enhancements and the firearm enhancements and reject his other
contentions. We modify the judgment to strike the prior prison
term enhancements and remand the matter for the trial court to
determine whether to strike the firearm enhancement under
section 12022.53, subdivision (d) and impose the enhancement
provided under section 12022.53, subdivision (b) or (c).
1Further undesignated statutory references are to the
Penal Code.
2
BACKGROUND
I. Procedural history of case
An April 4, 2017 information charged Stewart with one
count of murder (§ 187, subd. (a)) and one count of misdemeanor
vandalism (§ 594). The information also alleged firearm
enhancement allegations as to the murder (§ 12022.53, subds. (b),
(c) & (d)) and prior conviction allegations (§§ 667, subds. (a)-(j),
667.5, subd. (b) & 1170.12).
Stewart went to trial in July 2017. The jury found him
guilty of misdemeanor vandalism but could not reach a verdict on
the murder charge, deadlocking 11-to-one in favor of a guilty
verdict. The trial court declared a mistrial as to the murder
count. On appeal, Stewart does not challenge the verdict on the
vandalism charge.
The prosecution retried Stewart on the murder count in a
second trial that commenced in October 2017.2 Below is a
summary of the pertinent facts presented at Stewart’s second
trial.
II. Prosecution Case
In October 2015, defendant Stewart and Anthony Depiazza,
the murder victim, rented rooms in a home owned by Bruce
Ciarrocchi. As described below, evidence presented at trial
demonstrated Depiazza’s murder occurred at Ciarrocchi’s home
in October 2015.
2In Stewart’s first trial, the jury only had the option of
finding him guilty of first degree murder. In his second trial, the
jury was instructed on first and second degree murder.
3
A. The residents of the home where the murder
occurred
Ciarrocchi owned a two-story, four-bedroom home in
Rancho Palos Verdes. In October 2015, he slept in the
downstairs den and rented out the four bedrooms. Stewart and
his girlfriend, Marjorie Bellhouse, rented the upstairs master
bedroom. Regina Arcuri rented the bedroom across the hall from
Stewart. Depiazza (known to the other residents of the home as
“Tone”) rented the room next to Arcuri. Jade McMahan and her
boyfriend Jason Hodges rented the downstairs bedroom. Among
the residents and friends who frequented the home, drug use
(and abuse) was common, namely heroin and methamphetamine.
B. Deputies conduct a welfare check for Depiazza
On October 31, 2015, at around 1:00 a.m., six deputies from
the Los Angeles County Sheriff’s Department conducted a
welfare check at Ciarrocchi’s home based on an anonymous tip
that Depiazza had been shot (not necessarily killed) at the home
on October 25, 2015. At least one of the deputies was familiar
with the home because he had been there on 15 to 20 prior
occasions for drug-related calls. He also knew that Ciarrocchi
rented out bedrooms in the home.
Ciarrocchi answered the door and allowed the deputies to
walk through the house. The deputies noticed that one of the
upstairs bedrooms appeared unoccupied. It was clean and nearly
empty, containing only a bed and a dresser, while the remainder
of the home was very dirty and unkempt. The deputies
questioned Ciarrocchi, Stewart, Bellhouse, Arcuri, McMahan,
Hodges, and two nonresidents, inquiring about Depiazza, using
his given name not his nickname, Tone. Stewart told a deputy he
did not know Depiazza, and Depiazza did not live at the home.
4
The deputies did not note anything that required further
examination or inquiry.
C. Deputies locate Depiazza’s body
On November 23, 2015, a man notified the Riverside
County Sheriff’s Department that he had observed what
appeared to be remains the day before, while on a bicycle ride
with his son in a rural area of Perris, in Riverside County. The
item was wrapped in a tarp and buried under dirt, next to a tree.
Initially, the man thought the item might be a dog’s body. After
discussing the matter with a friend, the man contacted the
sheriff’s department the next day, and returned to the scene with
a deputy. The deputy made a cut in the tarp and observed part of
a human foot. He called additional deputies to the scene, and
eventually the body (later identified as Depiazza’s body) was
transported to the coroner’s office.
On November 24, 2015, a forensic pathologist performed an
autopsy on Depiazza’s body. When the pathologist received the
body, it was wrapped in three layers of tarps and a bed sheet.
Depiazza’s nude body was under the bed sheet and on top of a
jacket. His legs were wrapped in cellophane and inside a garbage
bag. His head was also wrapped in cellophane, and his left arm
was in a garbage bag. The pathologist determined Depiazza died
as a result of two gunshot wounds to the chest, one in the center
and the other in the upper left part of the chest. The bullets
exited the body. Based on the wounds, the pathologist
determined that Depiazza’s body was lower than the gun when
the gun was fired. Some of the fingers on Depiazza’s right hand
(which had not been wrapped in a garbage bag like the left hand)
were missing. The pathologist testified that a small animal had
chewed off Depiazza’s fingers.
5
In the investigation of the shooting, there was no
determination regarding the type of gun or caliber of bullet used.
D. Deputies arrest Ciarrocchi on an unrelated
warrant and take all persons present at the
home to the station for questioning
On December 7, 2015, at around 8:00 a.m., nine sheriff’s
deputies went to Ciarrocchi’s home and served him with an
arrest warrant for driving on a suspended license. The homicide
division of the Los Angeles County Sheriff’s division tasked the
deputies with seeking the cooperation of everyone in the home to
be transported to a sheriff’s station for questioning regarding
Depiazza’s death. Without incident, and within five to 10
minutes of the deputies announcing their presence, Ciarrocchi,
Arcuri, McMahan, Hodges, and two nonresidents exited the home
and were transported to the station.
The deputies determined there were two people in an
upstairs bedroom who had not exited the home (later identified
as Stewart and his girlfriend Bellhouse). The deputies
repeatedly issued demands over a loudspeaker for Stewart and
Bellhouse to come out. There was no response. At around 8:30
a.m., a detective went upstairs and called out to Stewart and
Bellhouse. They did not respond, and the detective heard no
noise coming from the bedroom. The detective waited upstairs
for a few hours in a protective stance, armed with an AR-15 rifle,
periodically calling out for Stewart and Bellhouse to exit the
room. Around 11:30 a.m., the detective heard a toilet flush in the
bathroom attached to the master bedroom. The detective again
called out for Stewart and Bellhouse to exit. Stewart responded
that he would come out after he finished his cigarette. Sometime
after 12:00 p.m., Stewart and Bellhouse exited the home. In the
6
more than four hours the deputies were at Ciarrocchi’s home,
they had established a perimeter around the house, made about
50 announcements over the loudspeaker for Stewart and
Bellhouse to come out, evacuated neighbors, and called in their
Special Enforcement Bureau (a SWAT team).
Two members of the Special Enforcement Bureau escorted
Stewart from the house to Deputy Ashly Castro’s patrol car.
Stewart sat in the back of the patrol car for about 30 minutes
before Castro transported him to the station. During that time,
Stewart had two outbursts when he banged his head against the
patrol car window three to four times (six to eight times total),
breaking the window frame.3 He also yelled (making a sound, not
a word). Castro told Stewart to stop banging his head, and he
did. He did not speak to her while he sat in the patrol car or on
the drive to the station.
Deputy Castro did not observe any signs indicating Stewart
was under the influence of alcohol. She watched him as he was
escorted from the house to her patrol car, and he did not stagger.
Nor did he have trouble walking when she escorted him into the
station. She did not notice an odor of alcohol when she was near
him. In filling out the booking forms, Castro asked Stewart if he
regularly used drugs. He told her he used heroin and methadone
every day and had last used heroin the day before on December 6,
2015. Castro was with Stewart for about an hour and a half on
3 The guilty verdict on the vandalism count in Stewart’s
first trial was based on evidence that Stewart broke the window
frame in the patrol car.
7
December 7, 2015, and during that time it did not appear to her
that he was under the influence of alcohol or drugs.4
E. Detectives interview witnesses at the station
1. Regina Arcuri’s interview
At trial, the prosecutor played for the jury audio recordings
from Arcuri’s December 7, 2015 interviews with detectives at the
station. The prosecutor also provided transcripts of the
interviews, which were admitted into evidence and are included
in the record on appeal.
Arcuri’s first interview with the detectives investigating
Depiazza’s shooting began at about 9:30 a.m. on December 7,
2015, an hour and a half after deputies served the arrest warrant
on Ciarrocchi. The detectives showed Arcuri a photograph of
Depiazza, and she identified him as “Tone,” a man who moved
into Ciarrocchi’s home in September 2015 and stayed in the
bedroom next to hers. They asked her who stayed in the bedroom
across the hall from her, and she named Stewart, who she
referred to by the nicknames “Slow Lane” or “Slow.” She stated
that McMahan and Hodges (who she knew as Jade and Jason)
lived in the downstairs bedroom.
The detectives asked Arcuri about the rental arrangement
between Ciarrocchi and Depiazza. According to Arcuri,
Ciarrocchi did not know Depiazza well when he rented the room
to him. Depiazza paid Ciarrocchi some rent money but not the
4 At trial, Stewart presented the theory that he did not
refuse to exit the house for several hours (disputing
consciousness of guilt). Instead, he presented the theory that he
was so intoxicated and sleeping so deeply that he did not hear
deputies calling out to him over a loudspeaker and outside his
bedroom door for more than three hours.
8
entire amount he was supposed to pay. Ciarrocchi asked
Depiazza about the outstanding amount a few times, but they did
not argue about it. Arcuri explained that none of the residents
paid their rent, and Ciarrocchi still allowed them to stay at his
home. Arcuri had been living there for three months and she had
only paid $500, the amount of one month’s rent.
The detectives asked Arcuri to tell them what happened at
Ciarrocchi’s house before Halloween (the month after Depiazza
moved into the home). They told her they did not believe she was
involved in the incident. She stated that Depiazza and his
friends “got into Slow’s [Stewart’s] stuff”; Stewart confronted
Depiazza; and Depiazza left Ciarrocchi’s house in the middle of
the night “with some girl.” When she did not see Depiazza for
three or four days, she inquired about him, and some of the
residents told her he had moved out of Ciarrocchi’s house.
Arcuri provided further details about what led to the
confrontation between Stewart and Depiazza. She stated that a
man named Shane, who associated with some of the residents,
brought another man to Ciarrocchi’s home. While the
(unidentified) man was in the house, Shane stole the man’s
property from the man’s car. Then Shane lied and told the man
that Stewart stole his property. Shane and the man were friends
with Depiazza.
The detectives asked Arcuri if Stewart had a gun. She told
them she had only seen him with a fake, gold gun. The detectives
told Arcuri they were investigating Depiazza’s murder. Arcuri
stated she did not know Depiazza was dead. The detectives said
they knew what happened. They already knew the answers to
the questions they were asking, and they wanted Arcuri to tell
them the truth. Throughout the interview, the detectives
9
referenced Arcuri’s criminal history and her numerous
incarcerations.
Arcuri stated that while she was home and Stewart was
out, Depiazza, Shane, and a man named Isaac (later identified as
trial witness Quaid Isaac Erekson) broke into Stewart’s bedroom
and went through all his stuff. While this was going on, Arcuri
was in her bedroom with the door shut, watching a movie with a
woman named Kyschlehohn Adoberavoski (who Arcuri and other
witnesses referred to as Kysch). Arcuri called Stewart to notify
him that the men were in his room, but she could not reach him.
In the early evening, when Stewart returned to the house, Arcuri
told him what happened, and Stewart went into Depiazza’s room
and confronted him. Arcuri heard Stewart and Depiazza arguing
about Depiazza going into Stewart’s room. She heard Depiazza
blaming Shane for the incident. Arcuri told the detectives that
she was a heroin addict—a fact she repeatedly volunteered—and
that she and Kysch were in her bedroom using heroin and
“nodding off” as the confrontation was occurring.
The detectives inquired about who else was in the house
when the confrontation between Stewart and Depiazza occurred.
Arcuri said Hodges was not there; she was not sure if McMahan
was there; Bellhouse (Stewart’s girlfriend) may have been home;
and she recalled that Ciarrocchi “was nodded off downstairs”
when she went around the house looking for someone to give her
a cigarette.5 There was a woman with Depiazza, who was also in
the house.
Arcuri said to the detectives that she did not know
anything about anyone being shot at Ciarrocchi’s house, and she
5 Like Arcuri, Ciarrocchi was a heroin user.
10
denied hearing gunshots. She recalled the day after the
argument between Stewart and Depiazza, a woman named Birdie
came to the house and asked her if Depiazza got shot. Arcuri
denied it and asked Birdie why she would say that, and Birdie
said Quaid Isaac Erekson told her Depiazza’s body had been
found. According to Arcuri, while Birdie was crying in her
presence about Depiazza’s purported death, Depiazza called
Birdie on her cell phone, so Arcuri realized he was not dead.
The detectives asked Arcuri why people were saying she
“helped clean the house, clean the room [referring to Depiazza’s
bedroom].” She indicated she helped clear out Depiazza’s
personal property four or five days after he moved out because he
left several items there (clothes, a television, laptops, a bag of
wigs). She added, “Everybody helped clean up. Everybody
helped move his stuff downstairs.” The detectives asked how she
knew Depiazza was not coming back to pick up his property. She
responded that Stewart told her Depiazza was not coming back.
Ciarrocchi asked her to help clean up the room because he
wanted to rent it out. Kysch helped too. Arcuri did not see any
blood in the room.
According to Arcuri, a new couple moved into Depiazza’s
old room in or around November 2015. Before they moved in,
Ciarrocchi replaced the carpet and painted the walls.
Arcuri told the detectives she had the stomach flu and
needed to be in her bed. The detectives ended the interview, but
Arcuri remained in custody.
About an hour later, a detective interviewed Arcuri again,
asking her to start over and explain what happened. Arcuri
began as follows:
11
“[Arcuri:] Okay. I was in my room watching TV with
[Kysch].
“[Detective:] About what time?
“[Arcuri:] I just know it was evening time.
“[Detective:] Okay.
“[Arcuri:] And . . . fuck, I do not want to do this. And
um . . . Slow, Randy [referring to defendant Randall Stewart] . . .
went into Tone’s [Depiazza’s] room and I heard two shots.
“[Detective:] You heard two gun shots?
“[Arcuri:] Yes. I heard two gun shots.
“[Detective:] Okay.
“[Arcuri:] And . . . there was a lot of people in the house.
There was a lot of people. There was the girl that Tone had with
him. There was Jade [McMahan]. There was me, there was
[Kysch]. There was Bruce [Ciarrocchi]. . . .”
Arcuri stated that after she heard the gunshots, Stewart
opened her door and asked if everybody was okay. She told him
they were fine and asked what happened. Stewart responded,
“Nothing, don’t worry about it.” Arcuri told the detective she did
not see Depiazza’s body, and she did not know what they did with
it. She remained in her bedroom and did not help clean. Kysch
helped clean the room and the blood, which made Arcuri mad.
She asked Kysch why she would do that and told Kysch she was
now an accomplice.
According to Arcuri, the shooting occurred as the sun was
setting. She recalled that, because of the time of day, Stewart
was worried that the neighbors had heard the gunshots and
would call the police.
Arcuri told the detective Hodges was not home when the
shooting occurred. She recalled that as soon as he returned,
12
McMahan told him she had heard two gunshots. McMahan “was
freaking out.” Hodges came to Arcuri and asked if what
McMahan heard were gunshots. Arcuri denied it because that is
what Stewart had told her to say.
During the interview, the detective asked Arcuri if she was
okay and if she needed water. Arcuri responded, “I’m just sick. I
need to go home.”
Arcuri revealed during this interview that a man named
Nick Sola, who she referred to as “Stranger,” was in the bedroom
with her and Kysch when the shooting occurred. The bedroom
door was closed. The three of them had just used heroin. Sola
overdosed. Arcuri was reviving him when she heard the
gunshots. Sola jumped up and ran out of the bedroom, leaving
the door partly open; and that was when Stewart came into her
room and asked if everyone was okay. According to Arcuri,
Ciarrocchi was downstairs in his den, McMahan was downstairs
in her bedroom, and Depiazza’s female friend was downstairs in
the kitchen at the time of the shooting.
Arcuri added that prior to the gunshots, she heard the
sound of a “door being kicked open.” Seven to 10 seconds later
she heard the gunshots. She assumed Stewart was the person
who kicked in the door because he was the only person in the
hallway right after she heard the gunshots.6 Stewart appeared
6 Deputy Lamont Dobbins testified at trial that when he
walked through Ciarrocchi’s house on October 31, 2015 during
the welfare check for Depiazza, he did not notice a door that
looked like it had been kicked in or replaced. He only quickly
scanned the upstairs area of the home, however, because there
were already four other deputies upstairs, and he wanted to cover
the garage area of the home.
13
“frantic” when he asked if everyone was okay. Arcuri thought
Stewart wanted to know who was in the house and where they
were located. She added, “I think it [the shooting] happened out
of anger and he [Stewart] didn’t realize how many people were in
the house when it happened.”
Arcuri again told the detective that Depiazza and his
friends had broken into Stewart’s room three to four days earlier,
and Stewart had been “steam[ing]” about it. Describing what the
men did in Stewart’s room, Arcuri said: “[They took] everything--
jewelry, um . . . family heirlooms, clothes--anything and
everything, they took from him. They turned his room upside
down. They poured oil on his dresser, they poured--stuff they
didn’t have to do, you know what I mean? They tossed his room
up.” She reiterated that Shane had lied and told Depiazza and
his friend that Stewart had stolen the man’s property. She
explained that Shane had asked Stewart to store the man’s
backpacks in Stewart’s room. When Depiazza and his friends
broke into Stewart’s bedroom, the man recovered his backpacks
and Depiazza and the others (Shane and Erekson) stole Stewart’s
property and “trash[ed]” his room. According to Arcuri, Stewart
“walked around the house angry” for three or four days, saying,
“that motherfucker’s got his nerve walking by my room smiling
and grinning, speaking about Tone [Depiazza].” Arcuri
maintained that she had never seen Stewart with a gun.
Arcuri stated that the day after she helped move Depiazza’s
property out of the house, she “got scared” and “spooked,” so she
left the house with Kysch and they stayed in a hotel room for two
days. After Arcuri returned to Ciarrocchi’s home, Kysch asked
her every few days or every week if the police had come to the
house. Arcuri thought about calling the police but did not
14
because she lived with Stewart, and he told her to say Depiazza
“packed up and split in the middle of the night . . . with some
girl,” if she were ever confronted by the police.
The detective asked Arcuri if she knew where Depiazza was
shot. She responded, “[h]is chest and his neck.” The detective
asked how she knew that. She said Stewart told her: “When he
was telling me to tell, to say, um . . . oh, god, they’re going to kill
me. Um, when he said to say that he packed up and left with the
girl or whatever, and I said why? Is he not here anymore? And
he said no, I put one in his chest and one in his neck.”
Arcuri said she did not understand why she had been
booked for the murder when the detectives knew she was not
involved. She said she told the truth and she wanted to go home.
Detective Margarita Barron, who participated in both of
Arcuri’s interviews, testified at trial that Arcuri was curled up on
the floor, going through heroin withdrawal, during part of the
interviews. Detective Barron also confirmed that Arcuri was
sniffling throughout the interviews—as heard on the audio
recordings played for the jury—which is a symptom of heroin
withdrawal.
2. Quaid Isaac Erekson’s interview
On January 6, 2016, while he was in Los Angeles Police
Department custody after an arrest unrelated to the shooting,
Erekson asked to speak to the investigating detective in this case,
stating he had information to share. The detective interviewed
Erekson. The prosecutor played for the jury the audio recording
of this interview. The prosecutor also provided a transcript of the
interview, which was admitted into evidence and is included in
the record on appeal.
15
Erekson told the detective that on one occasion when he
visited Ciarrocchi’s home, there was “a lot of commotion” because
Shane had stolen another man’s property (Xbox and Play Station
gaming systems), sold the property to Stewart (who Erekson
referred to as “Slow Lane”), and Shane and Depiazza (who
Erekson referred to as “Tone”) “made it look like” Stewart had
stolen the property. Depiazza, Shane, and the man broke into
Stewart’s room. The man took back his property, and Depiazza
and Shane used the incident as an opportunity to go through
Stewart’s things and mess up his bedroom.
During this incident, Erekson was in Arcuri’s bedroom.
Depiazza came into the room and told Erekson, “there’s an open
season shopping right here, uh, in Slow’s room.” Erekson filled
up a large bag with stuff he wanted from Stewart’s room and left
the house with it. Between the men, they “took everything that
was of value” from Stewart’s room. Erekson sold some of
Stewart’s property.
The following day, Erekson heard that “Mexicans . . . with
tattoos . . . went to the house looking for” him. He was concerned,
so he packed up the items he had not sold and brought them back
to Ciarrocchi’s house. He gave the items to Bellhouse, Stewart’s
girlfriend. He told her and Stewart, “I took your stuff, you know,
my bad, I didn’t know who you were.” While he was at
Ciarrocchi’s house that day, Erekson ran into Depiazza, who said,
“fuck that dude Slow Lane [Stewart] like he’s a bitch. He ain’t
gonna do shit, you just should have just kept the stuff type shit
[sic].” Erekson responded, “naw man, that shit ain’t right. Like
that fool is, like, kinda crazy I think.”
Erekson told the detective that Stewart had a .25 caliber
handgun, and he had seen Stewart and Shane “test firing” that
16
handgun sometime before Depiazza’s shooting. Erekson also told
the detective that the men were looking for the handgun when
they ransacked Stewart’s room before the shooting.
Erekson added that Depiazza told him to take stuff from
Stewart’s room as payback because Depiazza owed Erekson
money after Erekson stole checks and gave them to Depiazza.
Erekson explained, “that’s why I felt it was okay to go take some
stuff from Slow Lane. Because I didn’t know Slow Lane, I never
met him or anything.”
Erekson and the detective discussed Erekson’s criminal
history and the case for which he was in custody. The detective
asked Erekson if he was “hooked on meth.” Erekson responded
affirmatively and said he wanted to “go to rehab,” asserting, “Jail
is not going to benefit me.”
Explaining why he came forward with this information,
Erekson stated: “I see an opportunity to take and I took it. But I
don’t know if it helps you in any [sic] but, like--man I’d appreciate
if you could get me out, like I know where there’s an AK-47 too,
like a loaded one.”7 The detective said he would see what he
could do but he could not make any promises.
F. Bruce Ciarrocchi Dies
On December 4, 2016, a year after the arrest that began
the investigation in this case, Ciarrocchi was found dead. An
autopsy showed he died of natural causes, a combination of heart
disease and diabetes.
7There is no evidence in the record indicating the reference
to an AK-47 was related to this case.
17
G. Arcuri does not appear at trial, and her
conditional examination is read to the jury
In June 2017, a month before Stewart’s first trial
commenced, Arcuri appeared for a conditional examination in
court under oath.8 Arcuri did not appear at trial (either the first
or the second trial that is at issue here). The prosecution read
Arcuri’s testimony from the conditional examination to the jury
at the second trial. As described below, during her June 2017
conditional examination, Arcuri recanted her December 2015
statements to detectives about Stewart being the shooter, and for
the first time she identified Ciarrocchi (who was deceased by the
time of her conditional examination) as the shooter.
On June 15, 2017, at the outset of the first day of her
conditional examination, Arcuri testified that she called the
prosecutor that afternoon at 1:13 p.m. to request a ride to court
for her conditional examination. She explained that during the
drive to the courthouse, she told the prosecutor she was “loaded”
because she had used heroin that day at 10:30 a.m., after only
sleeping for two or three hours the night before. At that point,
the prosecutor stopped his examination of Arcuri and asked the
trial court to suspend the conditional examination. Arcuri
responded: “I can’t go to jail right now. What’s up with that?
Retarded. Retarded. All my stuff is out there on the fucking
8 In connection with Stewart’s motion for new trial, the
prosecutor explained that the reason for the conditional
examination was that the defense requested a continuance of the
first trial. The trial court granted the defense’s request but
allowed the prosecution to conduct the conditional examination of
Arcuri (presumably to preserve her testimony in case she failed
to appear for trial which is exactly what occurred).
18
street. I came last night. I didn’t voluntarily come. It was a
subpoena. This is retarded.” That concluded the June 15, 2017
portion of the conditional examination, as read to the jury at
Stewart’s second trial. The trial court explained to the jury that
Arcuri was remanded into custody and was taken back to court
four days later, on June 19, 2017.
The prosecution then read to the jury Arcuri’s testimony
from her June 19, 2017 continued conditional examination.
Arcuri testified that she was homeless and did not have a cell
phone, which was the reason it was difficult for the prosecution to
contact her. She provided the location of the intersection where
she stayed.
Arcuri confirmed that she lived at Ciarrocchi’s home for
three or four months but said she did not remember what year
she lived there. Ciarrocchi allowed her to live at his home for
free; she did not pay rent. Arcuri testified that she did not
remember who else lived in the home with her and Ciarrocchi.
She identified Stewart in court as “Slow Lane” and “Randy,”
someone she had known for five years on a casual “hi, bye” basis.
She said she had seen Stewart at Ciarrocchi’s home but did not
know if Stewart lived there. She knew Stewart had a girlfriend
named “Margie” (Bellhouse).
Arcuri identified the upstairs bedroom where she stayed
when she lived in Ciarrocchi’s home, based on photographs the
prosecutor showed her. When the prosecutor asked her who
stayed in the room next to her, she responded: “Some tweaker
dude. Some tweaker dude. I never seen his face. I don’t know
his name. I know he -- he lived in that room.” The prosecutor
asked if she recognized the name “Tone” (Depiazza). She replied,
“I can’t tell you if he lived in that room or not.” The prosecutor
19
showed her a photograph of Depiazza, and she said she did not
recognize him and did not know if he stayed in the room next
door to hers. She also denied knowing who stayed in the room
across the hall from her (which she previously identified as
Stewart’s room in her statements to detectives). Later in her
examination, however, she stated that Stewart could have been
the person who stayed in that room, but she was “unclear.”
When asked where Ciarrocchi stayed, she responded, “In a den, I
think. He could have stayed in a bedroom, in the bedroom”
downstairs.
Arcuri denied she witnessed Shane and others steal from or
vandalize Stewart’s room in October 2015. She said she did not
know who Shane was, and she did not know if Depiazza and
Shane were friends because she did not know who Depiazza was
either. The prosecutor showed her a photograph of Quaid Isaac
Erekson. She said she did not recognize him in the photo, but
she recognized his name as someone who used to come to
Ciarrocchi’s house. She said she had never had a conversation
with him and did not remember if he had ever been in her room.
Arcuri also denied hearing gunshots at Ciarrocchi’s home
in October 2015. She stated she “barely” remembered her
interviews with detectives on December 7, 2015, and she did not
remember telling them she heard gunshots.
At this point in the second trial, the prosecutor played for
the jury the audio recording of Arcuri’s first interview with
detectives on December 7, 2015 (the same audio was played at
the same point during Arcuri’s conditional examination). The
trial court read to the jury the following stipulation of the parties:
“A recording is being played to you. It’s not uncommon for
officers to tell witnesses that they know the answers to
20
something to extract statements from the witness. You’re not to
take the officer’s statement in that questioning as proof of any
fact in this case.”
Arcuri acknowledged it was her voice on the recording, and
she said she recognized the detectives’ voices. The prosecutor
asked her: “Is that an accurate rendition of the first interview
that was conducted between yourself and the two detectives?”
Arcuri responded: “I don’t remember. I know I was really dope
sick that day because I had just gotten into a high-pursuit [sic]
chase, and when I got home, I didn’t feel well. I went to bed. I
was sick, and the sheriffs came in. So I really -- I was really,
really dope sick. [¶] I know the second time they questioned me,
I was on the floor wrapped up in a blanket throwing up, the
second time.”9
Arcuri explained that her memory of the events at issue in
this case was clearer at the time she spoke to detectives in
December 2015 than it was when she gave her conditional
examination testimony in June 2017. She also confirmed she told
the detectives the truth during her first interview on December 7,
2015. She stated that listening to the audio of that interview did
not refresh her recollection of events at Ciarrocchi’s house in
October 2015.
9 During her interviews with detectives on December 7,
2015, Arcuri mentioned that she had been involved in a high-
speed chase the night before (she was a passenger in the vehicle),
and that her back and side were hurting as a result of that
activity. As set forth above, a detective confirmed at trial that
Arcuri was curled up on the floor, going through heroin
withdrawal, during the interviews.
21
The prosecutor showed Arcuri photographs of various
vehicles. She identified one as Bellhouse’s car. After her
identification of Ciarrocchi’s car, Arcuri spontaneously identified
Ciarrocchi as the person who shot Depiazza. The exchange
between her and the prosecutor was as follows:
“[Prosecutor:] Let me ask you about the cars. Did you
recognize the cars, the ones in the driveway?
“[Arcuri:] Not the black truck. I recognize the other as
Bruce’s [Ciarrocchi].
“[Prosecutor:] So, you said you don’t recognize the black
truck that is parked in the driveway?
“[Arcuri:] I don’t know whose car it is.
“[Prosecutor:] You do recognize the car parked on the curb
in front of the house?
“[Arcuri:] Correct.
“[Prosecutor:] That’s Bruce [Ciarrocchi]. You said, that
was -- you identified in People’s 2-AA, that’s Bruce that I’m
showing you?
“[Arcuri:] Yes. That one. That’s Bruce. Bruce, the one
that shot Tone [Depiazza].
“[Prosecutor:] Excuse me?
“[Arcuri:] Bruce, the one that shot Tone.
“[Prosecutor:] So, you’re saying that Bruce is the one that
shot who?
“[Arcuri:] Tone.
“[Prosecutor:] I thought you said you didn’t even know who
Tone was?
“[Arcuri:] I do after you showed me the picture. I said I
couldn’t pick him out of the lineup until you told me it was Tone.
“[Prosecutor:] Let me back up. What lineup?
22
“[Arcuri:] If he was in a lineup, I would not have been able
to pick him out until you told me that was Tone. I did not know
that was Tone until you told me that was Tone in the picture. It
was a long time ago.”
Arcuri acknowledged this was the first time she had ever
identified Ciarrocchi as the shooter. She said she was scared to
do so before, but the prosecutor recently informed her that
Ciarrocchi was dead.10
According to Arcuri, Ciarrocchi told her he shot and killed
Depiazza over unpaid rent.11 Ciarrocchi threatened her, telling
her “if [she] told anybody, he would do the same thing to [her].”
It was about a week after the shooting when they had this
conversation in her room. Ciarrocchi “scared [her.]” She added:
“Bruce had a different side to him not too many people knew. He
had a very angry, violent side to him.”
At this point in her conditional examination, Arcuri
acknowledged that the shooting occurred in October 2015.
Despite her fear of Ciarrocchi based on his threats to shoot and
kill her, she lived in his home until December 7, 2015, when he
was arrested. Explaining why she stayed, she testified: “Because
drugs are very important to me, and he had lots of them. So I
stayed.” The prosecutor followed up: “But wouldn’t you say that
there are between drugs and your life, there are a lot more drugs
As set forth above, Ciarrocchi died in December 2016,
10
more than six months before Arcuri gave her conditional
examination testimony.
11As discussed above, the evidence at trial indicated
Depiazza moved into Ciarrocchi’s home less than two months
before he was killed.
23
outside that house?” She replied, “Not when you can get them
free from Bruce.”
Arcuri explained the reason she had a second interview
with the detective on December 7, 2015 was because she
requested it. The prosecutor played for the jury the audio from
that interview. Arcuri acknowledged it was her voice on the
recording, she recognized the detective’s voice, and she confirmed
the entirety of the second interview was on the recording. She
added: “But I was really dope sick and wanted to go home. I
would have said anything. I would have told them anything to go
home that day.”
Arcuri testified that she lied when she told the detective
Stewart shot Depiazza. She stated she never had a conversation
with Stewart in which he confessed to being the shooter, despite
what she told the detective. She added: “I guess I assumed Slow
did it because Slow was the one that came up to my door, but
Bruce [Ciarrocchi] told me a week or so after that he was the one
who did it.”12 Arcuri explained that she told the detectives
Stewart was the shooter because she was scared of Ciarrocchi,
but she was not scared of Stewart because she had known
Stewart for a long time. That concluded the reading of the
transcript of Arcuri’s June 19, 2017 testimony.
Arcuri’s conditional examination continued the following
day on June 20, 2017. The prosecution read the transcript to the
jury at Stewart’s second trial.
Arcuri identified the following people at Ciarrocchi’s home
at the time of Depiazza’s shooting: Herself, Ciarrocchi, Stewart,
12This conversation with Ciarrocchi would have occurred
more than a month before Arcuri told the detectives that Stewart
was the shooter.
24
McMahan, Kysch, Stranger (Nick Sola), and Depiazza’s
girlfriend. She knew that Hodges (McMahan’s boyfriend) was not
home at the time of the shooting because she went downstairs to
ask him for a cigarette, and he was not there. She recalled
telling Hodges after he returned home that the noises McMahan
heard were not gunshots, consistent with what she told the
detective during her second interview. She could not recall who
instructed her to say that to Hodges, and she did not remember
telling the detective that Stewart told her to say that. Hearing
the audio did not refresh her recollection regarding the statement
she made. Nor did she remember telling the detective that
Stewart told her what to say if anyone asked about Depiazza’s
disappearance. Later in her testimony, she stated that it was
Ciarrocchi, not Stewart, who told her what to say about
Depiazza’s disappearance.
Arcuri stated she did not know if the shooting occurred in
October 2015 (although she testified the day before that it did).
She confirmed that at the time of the shooting she was in her
bedroom with Kysch and Nick Sola, and the bedroom door was
closed. She testified about Sola overdosing on heroin and her
reviving him seconds before she heard the gunshots, as she told
the detective. She stated she knew that Ciarrocchi was in
Depiazza’s room next door to hers at the time of the shooting
because she heard his voice; she heard him yell “ ‘now’ or
something like that.” She did not remember telling the detective
that Ciarrocchi was in his den downstairs. She said she did not
know where Stewart was at the time of the shooting.
Arcuri acknowledged during her testimony that Stewart
entered her bedroom after the gunshots to see if everyone was
okay. She said he looked “like he got out of bed.” She added, “He
25
could have been still asleep. It looked like he got startled with
something, something woke him up, and he fled out of bed.”
Arcuri also acknowledged that at some point prior to the
shooting Shane, Erekson and Depiazza went into Stewart’s room
and stole his property and vandalized his room, although earlier
in her conditional examination testimony she said she had no
knowledge of this. She tried to call Stewart to warn him about
the men in his room, but she could not reach him. She said she
did not know if Stewart ever learned who entered his room, and
she could not remember if she told him who it was.
On cross-examination by defense counsel, Arcuri testified
that prior to her interviews with detectives, they fingerprinted
her and charged her with Depiazza’s murder. They showed her
photographs of Stewart and Ciarrocchi and told her they were
suspects in the murder. They also showed her photographs of
Depiazza and six other individuals she did not know. Defense
counsel asked her: “Did the police tell you at any point in time
that Mr. Stewart was a suspect that they were very interested in
or in some way thought was involved with this or had done the
crime? Arcuri responded, “I believe so.”13 She testified that she
made up her statements about Stewart being the shooter because
she was in pain due to heroin withdrawal and wanted to go home,
and she believed she was telling the detectives what they wanted
to hear.
Arcuri stated she had seen Ciarrocchi with a gun prior to
the shooting. About six months before she moved into his home,
13 Detective Margarita Barron, who participated in both of
the interviews with Arcuri, testified at trial that the detectives
did not ask Arcuri any questions or show her any photographs
prior to the start of the recorded interviews.
26
she fired a revolver with him in the backyard. She testified that
she was afraid of Ciarrocchi. He had threatened to kick her out
of his home for not paying rent, and he threatened her with
bodily harm a few times after the shooting. She had also heard
him ask Depiazza about paying rent a few times. According to
Arcuri, Ciarrocchi was angry with Depiazza and did not want
him at the house anymore. Depiazza had stolen Ciarrocchi’s
heroin.
As she told the detectives, Arcuri testified she had never
seen Stewart with a gun or any weapon. She had seen him with
a lighter that looked like a gun. She said she had never heard
about Stewart threatening anyone, and she was never afraid of
Stewart. She had not communicated with him since December 7,
2015.
Arcuri testified that the prosecutor promised to secure
Section 8 housing for her and help her get her kids back if she
told the truth. According to Arcuri, during that conversation
with the prosecutor, he circled Stewart’s name on the subpoena
he asked her to sign, and he tapped the paper. On another
occasion, the prosecutor bought dinner for her and her boyfriend.
He gave her his work and personal telephone numbers and told
her to call him if she needed food.
Arcuri testified that she had a prior conviction for
possession of a controlled substance while armed with a loaded
firearm.
H. Other witnesses’ trial testimony
1. Quaid Isaac Erekson’s trial testimony
Erekson testified at Stewart’s second trial. He conceded he
had an extensive criminal history, including convictions for grand
theft auto, burglary, robbery, and drug-related offenses. He had
27
been using methamphetamine since 2012. He sometimes stole
and sold items so he could use the money to buy drugs.
Erekson stated he had been to Ciarrocchi’s home four to six
times. He described it “as a trap house,” with “dozens of people
coming in and out, all day all night” and “[h]igh traffic.” He went
there to visit Depiazza, who he knew for a year or two before the
shooting. He used to bring stolen goods to Depiazza to trade for
drugs or other stolen goods. At the time of the shooting, he did
not consider Depiazza to be a friend because Depiazza owed him
money from a deal regarding checks Erekson stole. He described
Depiazza as his “connection” for drugs, guns, and other items. He
believed Depiazza moved into Ciarrocchi’s home around August
2015.
Erekson stated he met Arcuri and interacted with her
during the four to six times he visited Ciarrocchi’s house. He did
not consider Arcuri to be a friend. She was someone he “got high
with.”
Erekson admitted he burglarized the upstairs master
bedroom of Ciarrocchi’s home with two other individuals. At the
time he entered the room and stole property, he believed it was
Ciarrocchi’s bedroom. He later learned it was Stewart’s bedroom.
Erekson explained that prior to the date he stole property
from Stewart’s bedroom, Depiazza had invited him to Ciarrocchi’s
house on a couple of occasions to case the home for items to steal.
According to Erekson, Depiazza described Ciarrocchi as “a good
dude,” but “a little bitch,” and said Erekson could “take whatever
[he] want[ed]” from Ciarrocchi’s home. Depiazza also told
Erekson that Ciarrocchi would not care if they stole items
because the house was going into foreclosure and Ciarrocchi had
no family and was a drug user.
28
Regarding the theft of Stewart’s property, Erekson
testified that two men broke the lock on Stewart’s bedroom door
and entered the room. At that time, Erekson was in Arcuri’s
bedroom using drugs. After the men left, Depiazza invited
Erekson to take whatever he wanted from the room, telling him it
was “open season.” Erekson and Depiazza entered the room and
tore the room apart, searching for anything of value. Erekson
took jewelry, shirts, and coin and stamp collections from
Stewart’s room. Erekson considered Depiazza’s debt to him paid
because Depiazza allowed him to take whatever he wanted from
the room. Erekson bagged up the property and left Ciarrocchi’s
house.
Erekson explained that he traded some of the property for
drugs and money. He bought beer, cigarettes, and other items
with the money. Two or three days later, he had a “change of
heart.” He was using crystal meth and he became paranoid. He
learned that the property he had stolen belonged to Stewart. He
heard rumors that someone might call the police on him or injure
him. Depiazza was not answering his calls, and he knew that the
residents of Ciarrocchi’s home knew where he lived. It was rare
for him to return property he had stolen; he had only done it
three times. When asked by the prosecutor, however, he denied
he was afraid of Stewart.
Erekson stated he went back to Ciarrocchi’s house and
returned the property to Stewart’s girlfriend (Bellhouse).
Stewart was there. Erekson had also taken some of Ciarrocchi’s
property, and he returned that as well. He apologized, and
everything was fine. Stewart was not angry with him.
The prosecutor played the audio recording of Erekson’s
January 2016 interview with one of the investigating detectives
29
in this case (summarized above). Erekson commented: “Most of
this -- it is basically all fabricated. I wanted to get out of jail. I
was willing to do almost anything to get out of jail at any cost. I
wanted to get high. I wanted to go back to my wife who was
pregnant and had a miscarriage. I wanted to be back on the
street.” He explained that he downplayed his involvement in
breaking into and ransacking Stewart’s bedroom when speaking
with the detective because he did not want to be charged with
burglary. At this point in his trial testimony, Erekson admitted
that it was he and Depiazza who broke into Stewart’s bedroom,
and Shane was there as well.
On cross-examination, Erekson testified that he had never
seen Stewart with a gun, despite what he told the detective in
January 2016 (that he had seen Stewart and Shane test firing a
.25 caliber gun prior to the shooting). He stated that two weeks
before the shooting, however, he saw Ciarrocchi with a .357
caliber revolver on two occasions. He also saw Ciarrocchi with a
bag of .357 and .38 caliber ammunition. He had not told this to
the detective.
Erekson also testified on cross-examination that he saw
bank records Depiazza stole from Ciarrocchi indicating
Ciarrocchi’s house was in foreclosure. According to Erekson,
Ciarrocchi was stressed about money, and the people staying at
his house told him they were going to pay him rent, but they were
just manipulating him.
2. Jade McMahan’s trial testimony
McMahan testified that she had been struggling with drug
addiction off and on since 1995. In 2015, she regularly used
methamphetamine.
30
In mid-September 2015, McMahan and her boyfriend,
Jason Hodges, began renting the downstairs bedroom in
Ciarrocchi’s home. They moved out after Ciarrocchi was arrested
on December 7, 2015. During their tenure in Ciarrocchi’s home,
McMahan and Hodges made one rent payment in the amount of
$200 or $300 (McMahan could not recall the exact amount). On
occasion, McMahan bought food for Ciarrocchi and Hodges gave
him drugs. Ciarrocchi never demanded money from McMahan
and Hodges. McMahan never heard Ciarrocchi demand money
from any of the residents in the home, but she heard him
complain sometimes that no one was paying him. According to
McMahan, Depiazza moved into Ciarrocchi’s home around the
same time McMahan and Hodges moved in, mid-September 2015.
McMahan testified that on the Sunday before Halloween in
2015, she came home to Ciarrocchi’s house just before it started
to get dark outside. When she pulled up to the house, Ciarrocchi
was outside watering the lawn. When she went into the house,
she saw Kysch. McMahan went into her bedroom, locked the
door, and started putting away her groceries. Ten to 20 minutes
later, she heard two loud noises, back to back, that sounded like
firecrackers. She did not know what was going on, and she felt
scared. She called Hodges but did not reach him. He called her
back 30 to 45 minutes later and told her he was on his way home.
McMahan stated that before Hodges arrived home, Arcuri
came to the bedroom door and asked McMahan what she was
doing and if she was okay. She also asked McMahan if she could
have a cigarette. McMahan did not want to open the door
because she did not feel comfortable. She told Arcuri she was
fine and that she could not open the door because she was about
to get into the shower and was not dressed, which was untrue.
31
She might have slipped a cigarette under the door to Arcuri.
According to McMahan, it seemed like Arcuri was anxious and
really wanted McMahan to open the door. Arcuri’s visit to
McMahan’s room occurred about 45 minutes to an hour after
McMahan heard the two loud noises.
Hodges came home around 30 minutes later. McMahan
told him about the loud noises she had heard. They gathered
their things and went to a hotel for the night.
McMahon testified that she had never seen Ciarrocchi act
in violence or anger. She described him as a nice person who
never really bothered anyone, including about the rent. She did
not interact much with Stewart, and never had any negative
dealings with him.
III. Defense Case
A. Clementine Knox Bolling’s trial testimony
Clementine Knox Bolling testified at trial that she was a
custody assistant jailer, who interacted with Stewart when he
was booked for murder on December 7, 2015. She filled out an
“Intoxication Observation Sheet,” noting on the form that
Stewart was staggering and unsteady; his breath smelled like
alcohol; his eyes were bloodshot, watery, and glassy; his speech
was slurred; and he was uncooperative. Due to her observations,
Stewart was placed in the “drunk tank” or “sobering cell,” where
he would be checked on every 30 minutes until he appeared
“okay.”
B. Nick Sola’s trial testimony
Nick Sola was incarcerated in prison for a felony conviction
at the time he testified at trial.
He testified about an occasion when he went to the house
where Arcuri was staying and used heroin and drank alcohol
32
with her in her bedroom. Kysch was there too. He used too much
heroin and overdosed. He passed out and was unconscious.
When he came to, he heard Ciarrocchi (who he knew by the
nickname “Bird Dog”) yelling and arguing with someone. Then,
he heard gunshots and quickly left the house. He recognized
Ciarrocchi’s voice because he had used heroin with him.
On cross-examination, Sola acknowledged that when a
detective interviewed him about the shooting, he did not mention
hearing Ciarrocchi yell before the shots were fired.
Subsequently, he was interviewed by a defense investigator, who
told him that Ciarrocchi was dead. During that interview, he
said for the first time that he heard Ciarrocchi yell before the
shots were fired. He testified that he only felt comfortable saying
that after he learned Ciarrocchi was dead.
Sola also acknowledged he had been on the same bus as
Stewart more than two times when the two of them were
transported to court for this trial. He said hello to Stewart but
did not say anything else.
C. Corinne Orbison’s trial testimony
Corinne Orbison testified she had known Stewart and his
girlfriend Marjorie Bellhouse her entire life because both of them
were her neighbors when she was growing up. She also described
Bellhouse as a close family friend. She had never seen Stewart
with a gun or ammunition. Nor had she ever seen him fighting
with, yelling at, or angry with anyone.
Orbison stated that shortly before Halloween in 2015,
Bellhouse asked her to drive to Rancho Palos Verdes and pick up
her and Stewart and drive them to Bellhouse’s aunt’s home in
Wilmington. When Orbison arrived at the house in Rancho Palos
33
Verdes that evening, Bellhouse and Stewart were waiting outside
with their suitcases. Orbison drove them to Wilmington.
D. Marjorie Bellhouse’s trial testimony
Stewart’s girlfriend, Marjorie Bellhouse, testified at trial.
She stated she had known Stewart for 30 years because he was
her neighbor, and they had been dating for two years.
Bellhouse produced receipts and testified that she and
Stewart regularly paid Ciarrocchi rent from March through
November 2015. She stated that Ciarrocchi signed the receipts.
Originally, they paid $400 a month for a smaller bedroom, but
when they moved into the master bedroom, they started paying
around $800 a month.
Bellhouse testified that on October 25, 2015, she and
Stewart were lying down in their bedroom when she heard a
sound like a door being kicked in. The noise woke her up. Then
she heard Ciarrocchi yell “ ‘out’ ” and other words she could not
make out. Next, she heard “a couple popping sounds,” like
“firecrackers.”
According to Bellhouse, Stewart jumped out of bed and left
the room for around 20 minutes. She heard him check on Arcuri.
When he returned, he told her to get dressed and said they were
leaving the house. Bellhouse called Corinne Orbison to come pick
them up and drive them to her aunt’s house. A few days later,
they returned to Ciarrocchi’s house.
Bellhouse testified that for the three days before the
deputies came to Ciarrocchi’s house on December 7, 2015 to serve
the arrest warrant, she and Stewart had been drinking alcohol
and doing drugs (heroin and “speed”) without sleeping. They
finally went to sleep at around 5:00 a.m. on December 7.
According to Bellhouse, Stewart passed out before she did. When
34
she woke up, deputies were banging on the door. She and
Stewart got up and got dressed. It took a while (around 30
minutes) because they were still intoxicated. Before she woke up,
she did not hear the deputies trying to get her and Stewart’s
attention.
Bellhouse testified she had never seen Stewart with a gun
or ammunition. Nor had she ever seen him fight with anyone.
She described him as a “very docile man.”
On cross-examination, Bellhouse testified that she did not
know until December 7, 2015—when she was taken to the station
for questioning—that the popping sounds she heard on October
25, 2015 were gunshots. Prior to December 7, she never heard
anyone mention gunshots. During her December 7 interview
with detectives, they asked her about blood on the stairwell in
Ciarrocchi’s house. During her testimony, she explained: “I told
them that a few people had fallen right there. I had been one of
them, and I had hit my head, and it was blood from me cracking
my head on the back. And another guy had fallen right there
too.” She did not tell detectives that she was in bed with Stewart
when she heard the gunshots or that she heard Ciarrocchi’s voice
before she heard the gunshots.
Bellhouse testified about Erekson returning the property
he had stolen from her and Stewart’s bedroom. She said she
accepted his apology and told him she and Stewart would not give
him any problems.
Bellhouse believed Depiazza had only lived at Ciarrocchi’s
home for a couple weeks prior to his death.
35
IV. Verdicts, Motion for New Trial, and Sentence
The jury found Stewart guilty of second degree murder and
found true the three firearm use allegations under section
12022.53, subdivisions (b)-(d).
As described in more detail below, the trial court appointed
new counsel for Stewart, and he filed a motion for new trial based
on ineffective assistance of trial counsel and insufficiency of the
evidence presented at trial. After an evidentiary hearing, the
trial court denied the motion for new trial.
In a court trial, the trial court found true the following
special allegations: (1) Stewart served prison terms for seven
prior felony convictions (§ 667.5, subd. (b)); (2) Stewart had a
prior strike conviction under the “Three Strikes” law (§§ 667,
subds. (b)-(j) & 1170.12); and (3) Stewart had a prior serious
felony conviction (§ 667, subd. (a)(1)).14
The trial court sentenced Stewart to 80 years to life in
prison: 15 years to life for the murder, doubled to 30 years under
the Three Strikes law, plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d), and five
years for the prior serious felony under section 667, subdivision
(a)(1). The court stayed the sentence on the prior prison term
enhancements under section 667.5, subdivision (b). For the
misdemeanor vandalism, the court imposed a term of six months,
with credit for time served.
The prior strike and prior serious felony were from the
14
same 2002 conviction for first degree burglary.
36
DISCUSSION
I. Sufficiency of the Evidence Supporting the Murder
Conviction and the True Findings on the Firearm
Enhancements
Stewart contends this court must reverse his murder
conviction and the true findings on the firearm enhancements for
insufficiency of the evidence, under both state and federal law
standards. He argues “no rational trier of fact could have found
beyond a reasonable doubt the prosecution proved he committed
the offenses.” For the reasons explained below, we reject his
substantial evidence challenge.
“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light
most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
[Citation.] The federal standard of review is to the same effect:
Under principles of federal due process, review for sufficiency of
evidence entails not the determination whether the reviewing
court itself believes the evidence at trial establishes guilt beyond
a reasonable doubt, but, instead, whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies
mainly on circumstantial evidence. [Citation.] ‘ “Although it is
the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is
37
the jury, not the appellate court[,] which must be convinced of the
defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment.” ’ ” ’ ” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.)
Substantial evidence presented at trial demonstrated
Stewart had a motive for the murder. A few days before the
shooting, Depiazza, a new resident of Ciarrocchi’s home—who
had only lived there for about a month—invited, encouraged, and
collaborated with nonresidents of the home to break into
Stewart’s locked bedroom, vandalize the room, and steal any and
all property they wanted, including clothing, jewelry, and stamp
and coin collections.
Substantial evidence also demonstrated consciousness of
guilt. The same evening as the shooting, Stewart and Bellhouse
packed suitcases and called a friend to take them away from
Ciarrocchi’s house. They stayed away for a few days. A couple
days later, when deputies conducted the welfare check for
Depiazza, Stewart denied knowing Depiazza and said he had
never lived at Ciarrocchi’s home. On December 7, 2015, when all
other residents and nonresidents in Ciarrocchi’s home exited
within five to 10 minutes of the deputies’ arrival, Stewart and
Bellhouse remained inside for more than four hours after
deputies set up a perimeter around the home, evacuated
neighbors, made at least 50 requests over a loudspeaker for them
to exit, and banged on their bedroom door and called to them
from right outside the door several times during a three-hour
period, with no response from Stewart and Bellhouse. After
38
Stewart was placed in the patrol car, he had two angry outbursts,
yelling and breaking the window frame of the car by banging his
head against it.15
Although Arcuri expressed reluctance about identifying
Stewart as the shooter during her second interview with the
detective—noting “they’re going to kill me”—she never wavered
during her interviews from her initial and immediate statement
that it was a confrontation with Stewart over the theft of
Stewart’s property that led to Depiazza’s disappearance (initially
stating Depiazza left in the middle of the night with a woman
after his argument with Stewart). Stewart points out that
Arcuri’s statements to detectives were not under oath, while her
conditional examination testimony (in which she identified
Ciarrocchi as the shooter) was under oath. It was for the jury to
decide which of Arcuri’s accounts it believed: her statements to
detectives in which she readily identified her fellow residents and
the persons who stole Stewart’s property; or her conditional
examination testimony in which she denied knowing who lived
with her on the second floor of Ciarrocchi’s home, said she could
not identify a photograph of Depiazza (who lived in the bedroom
next door to hers for at least a month), and spontaneously
15 It was for the jury to decide whether this evidence
demonstrated consciousness of guilt or if there were other
reasonable inferences to be drawn from the evidence (e.g., that
Stewart only knew Depiazza as “Tone” and did not know who the
deputies were referring to when they conducted a welfare check
for “Anthony Depiazza,” or that Stewart and Bellhouse were so
intoxicated that they did not hear the deputies’ demands for them
to exit the house for more than three hours, or that they were
only two of several residents who packed bags and left the home
for a night or two after the shooting).
39
identified Ciarrocchi for the first time as the shooter, around 19
months after the shooting.16
Stewart emphasizes Arcuri’s poor physical condition
(heroin withdrawal) during her interviews with detectives, and
her motive to lie (she wanted to tell the detectives something they
wanted to hear so they would let her leave). The jury was fully
apprised of Arcuri’s physical condition and that she had been
booked for murder. The jury heard Arcuri’s statements on the
audio recordings of her interviews, including symptoms of her
heroin withdrawal (e.g., the sniffling). It was for the jury to
evaluate Arcuri’s credibility.17
Stewart complains that the jury could not properly
evaluate Arcuri’s credibility because she did not appear in person
at trial. However, he does not challenge on appeal the reading of
her conditional examination testimony, and the fact she did not
appear in court does not impact our review for sufficiency of the
evidence.
16 Of course, the jury was tasked with evaluating the
credibility of defense witnesses as well, including Bellhouse’s
testimony that she did not know or even suspect that the popping
sounds she heard on October 25, 2015 were gunshots until she
was taken to the station for questioning on December 7, 2015,
and that the blood on the stairwell in Ciarrocchi’s home was from
her and other persons falling and injuring themselves.
17Stewart notes Arcuri’s statement to the detective that
Depiazza was shot once in the chest and once in the neck was
incorrect. The autopsy showed Depiazza suffered two gunshot
wounds to the chest. The jury was apprised of this discrepancy
and was instructed on how to weigh such a discrepancy. It is not
cause for us to reverse the murder conviction or the firearm use
enhancements.
40
Testimony of a single witness, unless “physically impossible
or inherently improbable,” is sufficient to support a conviction.
(People v. Brown (2014) 59 Cal.4th 86, 106; see Evid. Code,
§ 411.) Arcuri’s identification of Stewart as the shooter during
her interview with the detective—which she listened to and
testified about during her conditional examination—was not
physically impossible. She acknowledged even in her conditional
examination testimony that Stewart came to her bedroom—the
bedroom right next door to the murder scene—immediately after
the shots were fired. Nor was Arcuri’s identification of Stewart
as the shooter inherently improbable, given his motive for the
murder—Depiazza’s orchestration of the burglary and vandalism
of Stewart’s locked bedroom. A lack of physical evidence linking
Stewart to the murder (a gun, a bullet) does not render
insufficient the evidence supporting his murder conviction and
the true findings on the firearm use enhancements, given the
evidence of Stewart’s confession to Arcuri and his motive for the
murder. Similarly, a lack of evidence of prior violence by
Stewart—a fact Stewart highlights on appeal—does not render
his conviction and the jury’s true findings unsupported by
sufficient evidence.
Stewart argues that Ciarrocchi’s motive for murder was
stronger than Stewart’s motive for murder. It was the jury’s task
to weigh and assess the evidence regarding motive: for Stewart,
that Depiazza invited, encouraged, and collaborated with
nonresidents of the home to break into Stewart’s locked bedroom,
vandalize the room, and steal whatever property they wanted;
and for Ciarrocchi, that his house was going into foreclosure and
Depiazza did not pay rent for a month—one among several
residents who did not pay rent—and stole heroin from Ciarrocchi
41
(a drug Ciarrocchi freely gave away to other residents). To the
extent the jury found Stewart had a motive for murder, that
finding was reasonable based on substantial evidence.
In summary, the evidence showed that Stewart had a
motive and was present at the home at the time of the killing;
Erekson saw Stewart in possession of a handgun sometime prior
to the shooting; Arcuri heard a confrontation between Stewart
and Depiazza immediately prior to the shooting; and Stewart
admitted to Arcuri that he shot Depiazza two times. After
reviewing the entire record, we conclude a reasonable jury could
have found Stewart guilty beyond a reasonable doubt of murder
and found true the firearm use enhancement allegations, based
on substantial evidence presented to the jury.
II. Denial of Stewart’s Request for Removal of Juror for
Alleged Bias
Stewart contends the trial court erred in denying his
request to remove a juror for alleged bias, and in failing to make
further inquiry of the jurors (which neither side asked the court
to do).
A. Proceedings below
At the outset of the third day of the prosecution’s case-in-
chief—after law enforcement witnesses and Quaid Isaac Erekson
testified and a portion of Arcuri’s conditional exam was read and
a portion of the audio from Arcuri’s interviews with detectives
was played for the jury, on days prior—Juror No. 3 approached
the trial court, outside the presence of the other jurors, and
expressed some concerns. The following exchange between the
court, Juror No. 3, and counsel for both sides occurred:
“The Court: We’re at sidebar with both counsel and Juror
Number Three.
42
“Juror No. 3: Yes.
“The Court: Juror 3, there was something you wanted to
say?
“Juror No. 3: I have a couple concerns regarding a couple
witnesses. Well, that one witness you had brought in yesterday,
what was his name? Not Shane.
“[The prosecutor]: Quaid Isaac Erekson?
“Juror No. 3: And the defendant. [¶] Listening to
testimony -- and I understand shady people go back and forth,
they’re on drugs, and not a lot of value can be said to what they
do.
“The Court: Hold on. I can’t have this kind of discussion
about the evidence in the case.
“Juror No. 3: Let me just state my concern. [¶] I’m a little
worried. What if we get followed home with what has been
conducted so far listening to everything [sic]. So, my concern is if
we are to be followed home. How can we be safe and sure? I
don’t want anything --
“The Court: There’s nobody in the audience on this case, I
mean, with --
“Juror No. 3: What about the defendant though?
“The Court: He’s not following anybody.
“Juror No. 3: I understand that. I understand he’s in
custody. What if he has a possibility of someone to reach out to?
Is that possible? Can he reach out to somebody and have us
followed?
“The Court: Nobody knows any of your information. They
don’t know your name, anything about you.
43
“Juror No. 3: And -- but is there a possibility he could
actually, say, reach out to somebody and say, hey, look out for
this -- this particular person, blah, blah, blah.
“The Court: Without knowing anything about you, I mean,
the most he can say is her -- is your badge number.
“Juror No. 3: Okay.
“The Court: And you’re among 14 people.
“Juror No. 3: I understand that. But there was a concern
just because hearing everything yesterday. I just don’t want to
have to worry about certain things.
“The Court: I understand, and if there is an issue with
that, believe me -- I’m here too. They know my name, and they
know [defense counsel], [the prosecutor], and they know
witnesses. So, but --
“[Defense counsel]: There’s a different issue I’m concerned
about, the fairness of my client in regards to what this juror is
now saying.
“The Court: Meaning she is concerned she might be
followed home?
“[Defense counsel]: No. I’m concerned this is -- what she’s
expressing is prejudicial against Mr. Stewart.
“The Court: Okay. Well, we can have that conversation.
[¶] Otherwise, do you have any questions for her?
“[Defense counsel]: No, other than that.
“The Court: Anything else you want to express?
“Juror No. 3: That was just my concern.” The trial court
thanked Juror No. 3, and she exited the courtroom.
The discussion between the court, defense counsel, and the
prosecutor continued, with defense counsel moving to dismiss
Juror No. 3, arguing the juror’s concern that Stewart was “able to
44
reach out to get somebody to follow her” showed “a bias and
prejudice against” Stewart. Defense counsel pointed out that
neither Stewart nor any witness had stared at the jurors or done
anything to intimidate them. He also noted this case is not gang-
related, and the “events in this case ha[ve] been limited to one
house and the participants inside.” Defense counsel further
asserted Juror No. 3’s comments about witnesses indicated she
was “prejudging this case before the court’s instructions.”
The prosecutor disputed Juror No. 3 had “voiced a bias or
prejudice,” arguing “most people if they sit and hear the type of
evidence that has been presented to the jury would be fearful or
potentially that’s something that might have entered their mind.
She has just voiced that to the court. She has not voiced a bias or
prejudice.” The prosecutor also asserted that Juror No. 3’s
comment about the credibility of Erekson’s testimony “seems
helpful for the defense because she talked about people of his ilk
[and] not being able to believe them.”
The trial court disagreed with defense counsel’s assertion
Juror No. 3 was “prejudging” the case. The court stated: “She’s
not prejudging. She’s hearing evidence. None of it is really
pleasant. [¶] What she did was she seemed to be reflecting on
what she heard so far. She didn’t say she would stop deliberating
or would stop listening. She said she was concerned about her
safety because of the element in the courtroom on the stand and
otherwise.” The court added: “I think the jurors are here to
make a decision about the case that would impact Mr. Stewart,
and if it impacts him negatively, it’s logical a person would think
that there might be some ramification to them.”
The trial court also disagreed with defense counsel’s
statement that the events in this case were contained within the
45
house where the shooting occurred. The court noted Erekson,
who was not a resident, came into the house and stole items from
Stewart’s room. Then, as summarized by the court, Erekson “saw
the light and realized maybe he messed around with the wrong
guy and returned the property.” The court commented: “I don’t
necessarily think there’s some wall around that house and that
everything necessarily happens in that house.”
The trial court denied defense counsel’s motion to dismiss
Juror No. 3. A couple minutes later, Juror No. 11 came into the
courtroom, and the following exchange occurred, outside the
presence of the other jurors:
“The Court: There’s another juror. [¶] This is juror
number?
“Juror No. 11: 11.
“The Court: Okay. You wanted to talk?
“Juror No. 11: Yeah. I just have a simple question. It’s
because development of the trial and some attitudes we’re seeing
[sic].
“The Court: Okay. Just tell me the theme you want to talk
about without details.
“Juror No. 11: Retribution against jury members.
“The Court: Okay. You want to ask a question about it?
“Juror No. 11: Is that possible? [¶] I mean, they don’t
know us. They don’t -- do they know us? Do they --
“The Court: No. They only know your badge number.
That’s the only thing that was said in court.
“Juror No. 11: Okay.
“The Court: Nobody --
“Juror No. 11: There’s no way --
“The Court: Nobody has information about you.
46
“Juror No. 11: I’m worried about my family, not me
personally, but, you know, they don’t know where we live or --
“The Court: No. Okay?
“Juror No. 11: That’s fine.
“The Court: Okay.
“Juror No. 11: It came to me yesterday during the trial.
So, you know -- [¶] Okay.
“The Court: I appreciate the question.
“Juror No. 11: I didn’t want to be unfair and sit there and
have something in my mind that would alter my judgment --
“The Court: Sure.
“Juror No. 11: -- at all, so I’m clear.
“[Defense counsel]: This is not going to -- this thought is
not going to affect your ability to make a decision?
“Juror No. 11: Absolutely not. I was just ignorant of that,
and I didn’t realize that.
“The Court: You’re not the first person in trials -- in the
history of trials to ask that question. So --
“Juror No. 11: Very good.
“The Court: I understand. [¶] Okay.
“Juror No. 11: Thank you, Your Honor.” Defense counsel
did not ask the trial court to remove Juror No. 11.
After Juror No. 11 exited the courtroom, the prosecutor
suggested the trial court follow up with Juror No. 3 and ask her
the question defense counsel asked Juror No. 11 (“this thought is
not going to affect your ability to make a decision?”). The trial
court agreed to bring Juror No. 3 back for further inquiry. Before
the juror entered the courtroom, the following exchange occurred
between the court and defense counsel:
47
“The Court: Let’s do it. [¶] You know, here’s one thing:
Fairness is different once the evidence has started. Fairness at
the beginning is fair, but once you started hearing people and
they heard part of the People’s case and heard opening
statements, it’s not fair. It’s are you -- are you -- do you
understand your obligation to keep an open mind until the end of
the trial. And are you doing that?
“[Defense counsel]: That’s fine. I can ask that question.
But they’re not supposed to come to any conclusions.
“The Court: That’s fair.
“[Defense counsel]: You can ask her if she made any
conclusion because --
“The Court: I can’t ask about conclusion, but I can ask, you
know your obligation to keep an open mind. Are you still doing
that?
“[Defense counsel]: Okay. That’s fine.
“The Court: Good enough?
“[Defense counsel]: That’s good enough.”
Juror No. 3 entered the courtroom and the trial court
inquired as follows:
“The Court: Hello. [¶] This is Juror [No. 3]. [¶] So, I have
one question I didn’t ask. [¶] Do you understand you have an
obligation to keep an open mind until the end of the case? Can
you still do that?
“Juror No. 3: Absolutely.
“The Court: Okay. Thank you.
“Juror No. 3: I just want to make clear, I’m not trying to
get out of this.
“The Court: No, no. I don’t think you are. No. I just had
to ask that question.
48
“Juror No. 3: I wanted to state I’m not trying to get out of
this. I will be clear and open minded, but I also have a
responsibility to my family and our safety.
“The Court: I understand.
“Juror No. 3: So, I had to ask.
“The Court: I understand. You’re not the first person in
the history of the jurydom [sic] to ask that.
“Juror No. 3: I didn’t watch any movies on juries or --
didn’t influence me [sic], but --
“The Court: Okay. I appreciate that. [¶] Okay. Thank
you.
“[Defense counsel]: Okay.”
After Juror No. 3 exited the courtroom, defense counsel
noted he had already made a motion for Juror No. 3’s removal.
The trial court commented: “I think it’s a legitimate concern for
people serving on a criminal case especially murder cases. They
want to make sure they can act in the vacuum of the jury room in
their job as a juror and not have it spread out to their family lives
where honestly it could impact how they vote in the case. [¶] If
they feel secure in what they are doing, they can do a fair job, and
I haven’t heard that anything prompted either of them to ask
that question.”
Then, the trial court inquired of counsel: “Is there
anything happening in the hallways. Who are the people coming
to trial to watch?” Defense counsel explained that whenever he
exited the courtroom at lunchtime or at the end of the day, he
waited for the jurors to go down the elevator before he took the
elevator, and he had not observed any interaction in the hallway
between a juror and a witness. Defense counsel also stated he
believed the two men in the courtroom watching the trial were
49
friends of Stewart, but they were not witnesses. Defense counsel
did not believe the two men had said or done anything to
intimidate the jurors.
The trial court further inquired of counsel: “Should I have
anything to be concerned about what’s going on with these jurors,
and is there something else going on?” Defense counsel
responded: “Not that I’m aware of. My client has no other
charges, nothing else pending.” The court replied: “I’m going to
keep thinking about this issue.”
Based on the record, there was no further discussion about
this issue and no further concern expressed by any juror.
B. Applicable law and analysis
Under section 1089, a trial court may discharge a juror for
good cause if the court determines the juror is unable to perform
his or her duty. “A sitting juror’s actual bias that would have
supported a challenge for cause also renders the juror unable to
perform his or her duties and thus subject to discharge.” (People
v. Romero (2017) 14 Cal.App.5th 774, 781.) “ ‘Actual bias’ in this
context is defined as ‘the existence of a state of mind on the part
of the juror in reference to the case, or to any of the parties,
which will prevent the juror from acting with entire impartiality,
and without prejudice to the substantial rights of any party.’ ”
(Id. at p. 780, quoting Code Civ. Proc., § 225, subd. (b)(1)(C).)
“Once a trial court is put on notice that good cause to discharge a
juror may exist, it is the court’s duty ‘to make whatever inquiry is
reasonably necessary’ to determine whether the juror should be
discharged.” (People v. Espinoza (1992) 3 Cal.4th 806, 821;
People v. Cunningham (2001) 25 Cal.4th 926, 1029.)
The “ ‘ultimate decision whether to retain or discharge a
juror[] rests within the sound discretion of the trial court.
50
[Citation.] If any substantial evidence exists to support the trial
court’s exercise of its discretion pursuant to section 1089, the
court’s action will be upheld on appeal.’ [Citation.] ‘The juror’s
inability to perform must appear as a “demonstrable reality” and
will not be presumed.’ ” (People v. Sattiewhite (2014) 59 Cal.4th
446, 486.) “ ‘The decision whether to investigate the possibility of
juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound
discretion of the trial court.’ ” (People v. Manibusan (2013) 58
Cal.4th 40, 53.)
A juror’s concern about her or her family’s safety does not
necessarily mean the juror is biased against the defendant and
unable to perform her duty. (See, e.g., People v. Navarette (2003)
30 Cal.4th 458, 500.)
For the reasons explained below, we conclude the trial
court did not abuse its discretion in declining to remove Juror No.
318 and in not inquiring further of the jurors (an inquiry neither
side asked the court to make).
There is no indication that any juror was influenced by
information from outside the trial. Juror No. 3 and Juror No. 11
expressed safety concerns based on the testimony they heard in
this case. The trial court’s comments in allaying the two jurors’
concerns were proper, and there is no indication the jurors had
lingering concerns that would have affected their abilities to
properly discharge their duties as jurors. No further concerns
were raised, and there is no indication the jurors’ earlier concerns
affected deliberations. As set forth above, we do not presume a
18Stewart did not ask the trial court to remove Juror No.
11, and he does not argue on appeal that the court should have
removed Juror No. 11.
51
juror’s inability to perform his or her duties; such inability must
appear on the record as a demonstrable reality. (People v.
Sattiewhite, supra, 59 Cal.4th at p. 486.) Juror No. 3—the only
juror Stewart asked the court to remove—stated she would
remain openminded until the end of the case (i.e., not allow her
safety concerns to influence her decision).
Stewart argues the trial court should have asked Juror No.
3 and Juror No. 11 (1) specifically “whether their concerns would
affect their ability to be fair and impartial” and (2) whether they
had discussed these concerns, or [Juror No.] 3’s opinions of
Stewart and witnesses, with any of the other members of the
jury.” Neither defense counsel nor the prosecutor asked the trial
court to make such an inquiry, and we conclude the trial court
did not err in not making such an inquiry of its own accord.
As discussed above, it is within the trial court’s discretion
to make whatever inquiry is reasonably necessary to determine if
it should discharge a juror. The court found the two jurors’
concerns to be rational, based on the evidence in the case, and not
an indication that they were prejudging the case or harbored an
improper bias. The court explained to the two jurors who
expressed a concern that they were not in danger and that their
identifications were protected. The record indicates the two
jurors were satisfied with the court’s explanation, and their
concerns would not affect their abilities to discharge their duties.
It is reasonable that the court would not highlight these concerns
to other jurors who had not expressed such concerns, either by
addressing the entire jury or questioning each juror individually.
Moreover, based on the record before us, we have no reason to
conclude the jurors who expressed a concern were unable to
perform their duties with impartiality and without prejudice to
52
Stewart’s substantial rights, even though the court did not
specifically use the words “fair” and “impartial” in its inquiry of
them.
III. Denial of Stewart’s Motion for New Trial
Stewart contends the trial court abused its discretion in
denying his motion for new trial based on insufficiency of the
evidence and ineffective assistance of counsel for failure to call a
specific witness at trial.
We review a trial court’s ruling on a motion for new trial for
abuse of discretion. Such a ruling “ ‘ “is so completely within that
court’s discretion that a reviewing court will not disturb the
ruling absent a manifest and unmistakable abuse of that
discretion.” ’ ” (People v. Thompson (2010) 49 Cal.4th 79, 140.) A
trial court abuses its discretion in ruling on a motion for new trial
if it bases “its decision on impermissible factors [citation] or on an
incorrect legal standard [citations].” (People v. Knoller (2007) 41
Cal.4th 139, 156.)
A. Proceedings below
At a hearing after the jury returned its guilty verdict on the
murder charge, the trial court appointed new defense counsel for
Stewart because Stewart wanted to move for new trial based in
part on ineffective assistance of trial counsel. Stewart’s new
counsel filed a motion for new trial based on the following
grounds: (1) Stewart’s trial counsel “was incompetent for not
calling [Stewart’s friend] Shirley Knocke, a potential defense
witness, who would have testified that the homeowner . . ., Bruce
Ciarrocchi, admitted to her that he [Bruce] was the actual killer”;
(2) trial counsel failed to require a due diligence hearing before
the admission into evidence of the transcript of Arcuri’s
53
conditional examination;19 and (3) insufficiency of the evidence
within the meaning of section 1181, subdivision (6) (as stated in
the motion, “[t]he defense is asking [the trial] court to sit as the
thirteenth juror and grant a new trial based on the insufficiency
of the evidence”).
Stewart attached to his new trial motion (1) a letter Shirley
Knocke wrote a few months after the jury in the second trial
returned its guilty verdict on the murder charge, describing
Bruce Ciarrocchi’s alleged confession to the murder20 and (2) a
report from trial counsel’s investigator describing his interview
with Knocke, which he conducted on October 13, 2017, while
Stewart’s second trial was underway.
The prosecution did not file a written opposition but orally
opposed the new trial motion at an evidentiary hearing. Stewart
called witnesses at the evidentiary hearing. Leonard Garber,
19On appeal, Stewart does not argue his trial counsel
should have requested a due diligence hearing for Regina Arcuri,
and he does not contend the trial court abused its discretion in
declining to grant a new trial on this ground. We include below a
summary of trial counsel’s testimony regarding his decision not
to request a due diligence hearing because the factual
circumstances are relevant to Garber’s decision not to call Shirley
Knocke as a witness, an issue Stewart does raise on appeal.
20 The letter indicates Knocke wrote it to the trial judge.
Knocke provided copies of the letter to courtroom staff and
Stewart’s new defense counsel. Courtroom staff gave the court’s
copy of the letter to the prosecutor. The trial judge did not see
the letter until Stewart filed his motion for new trial. We do not
include a summary of the letter because Knocke testified at the
evidentiary hearing, and we summarize her testimony below.
54
Stewart’s trial counsel, and Shirley Knocke testified. The
prosecution did not call any witnesses.
B. Investigation report regarding Shirley Knocke
In his report, the investigator wrote the following about his
October 13, 2017 discussion with Knocke regarding her
conversation with Bruce Ciarrocchi:
“Ms. Knocke told me that she addressed Bruce by saying:
Too bad about Randy [Stewart] being in jail. Bruce responded:
He will not stay there too long.
“Ms. Knocke told me that she then asked Bruce: How do
you know that? And Bruce responded: He didn’t do it.
“Ms. Knocke told me that she asked Bruce: Who did it
then? Bruce responded by ‘[t]apping [his] right hand on his chest
several times, indicating he did it.’
“Ms. Knocke told me that she then asked Bruce: Don’t you
feel guilty for Randy being in jail? Bruce responded: No, he is
going to get out pretty soon.” (Bold font omitted.)
As set forth in the report, although the investigator
considered “Knocke to be a good witness for [the] [d]efense,” the
investigator had reservations about Knocke’s statement because:
(1) she waited until Stewart’s second trial was underway before
making this statement, even though her alleged conversation
with Ciarrocchi occurred before Stewart’s first trial (Ciarrocchi
died before the first trial); and (2) she did not report the
information to the police, and indicated she had no intention of
reporting the information to the police, even if Garber had not
agreed to meet with her and refer her to his investigator.
55
C. Trial counsel’s testimony
Garber represented Stewart at his preliminary hearing, his
first trial held in July 2017,21 and his second trial held in October
2017.
Garber testified that he first became aware of Shirley
Knocke when she accompanied Stewart’s girlfriend, Marjorie
Bellhouse, to a meeting in Garber’s office in May 2016, around 10
months before Stewart’s preliminary hearing. At that meeting,
Knocke did not mention Bruce Ciarrocchi or state she had
information about Depiazza’s murder. Instead, she informed
Garber “that she was a driving force to get someone else off [a
defendant in a criminal case], and that she knew how to do it.”22
She added that “she was aware of the system, and she was aware
of what had to be done, or what she could do to help.”
Garber explained why he did not request a due diligence
hearing before Regina Arcuri’s testimony from her conditional
examination was read to the jury at the trial at issue here (the
second trial). Garber did not believe it was in Stewart’s interest
to challenge the admission of Arcuri’s conditional examination
testimony in which she stated Ciarrocchi was the shooter because
21 As described above, at the first trial, the jury found
Stewart guilty on the vandalism charge but could not reach a
verdict on the murder charge, and the trial court declared a
mistrial as to the murder charge.
22At a prior hearing, Stewart’s newly appointed defense
counsel informed the trial court that Knocke “was the instigator”
who approached an innocence project in a high-profile murder
case with information that led to the defendant’s exoneration.
The trial court indicated it was familiar with that other case and
Knocke’s role.
56
Arcuri had previously told Garber’s investigator a version of
events that did not include Ciarrocchi as the shooter, as
summarized below. As Garber characterized it, Arcuri “had
statements that were all over the place,” including her statement
to detectives that Stewart was the shooter.
According to Garber, Arcuri gave a statement to Garber’s
investigator in July 2016, a year before her conditional
examination, and the statement was different from her testimony
at the conditional examination (which was different from her
statements to detectives).23 In the statement to the defense
investigator (given before Ciarrocchi died), Arcuri did not say
Ciarrocchi shot Depiazza, as she did during her later conditional
examination (which occurred after Ciarrocchi died). Arcuri told
the defense investigator a version of the events in which she did
not identify the shooter, stating she was staying with Shirley
Knocke (Stewart’s friend) and Marjorie Bellhouse (Stewart’s
girlfriend) and “she didn’t want to tell the truth in front of them.”
Arcuri told the investigator that Quaid Isaac Erekson and Kysch
were present at the time of the shooting, and Kysch told Arcuri
that she and Erekson dragged Depiazza’s body out to the garage
and cleaned up the blood. Thereafter, they asked Arcuri to
inspect the house for any blood they missed. Arcuri told the
defense investigator that she did not provide this information to
the detectives because she was afraid of Erekson.
23The investigation report summarizing Arcuri’s July 2016
statement to Garber’s investigator is not in the record before us.
Stewart did not attach it to his motion for new trial. His new
counsel showed it to Garber at the evidentiary hearing on the
motion for new trial, and Garber testified about its contents.
57
Turning to his second interaction with Shirley Knocke,
Garber testified that Knocke approached him at the courthouse
in October 2017, as the second trial was getting underway, and
informed him that she had learned some information about the
shooting from a conversation with Bruce Ciarrocchi (who died in
December 2016). Knocke did not tell Garber that Ciarrocchi
expressly stated he killed Depiazza; rather Knocke said
Ciarrocchi “pointed to himself, and said that Mr. Stewart would
be out of trouble because he was going to be cleared.” Garber
asked his investigator to interview Knocke and prepare a report.
After speaking to his investigator and reviewing the report
(which we summarized above), Garber decided not to conduct his
own follow-up interview with Knocke, explaining, “I didn’t do it
because I felt I wasn’t going to call her because I felt she was
lying.” Garber testified he was suspicious about Knocke’s new
information because (1) she did not bring it to him until Stewart’s
second trial, even though Ciarrocchi allegedly confessed to her
before the first trial; (2) Arcuri did not mention Ciarrocchi as the
shooter until her conditional examination in July 2017, after
Ciarrocchi’s death; and (3) Stewart’s girlfriend, Bellhouse, did not
mention to Garber before the first trial that her friend Knocke
had information helpful to Stewart’s case. Garber’s investigator
shared Garber’s suspicions about Knocke’s new information, as
set forth in the investigator’s report. Garber mentioned during
his testimony that Knocke had a criminal history involving theft
and drugs like the other persons involved in this case.
D. Shirley Knocke’s testimony
Knocke testified she had been friends with Stewart for at
least 30 years, and she met Marjorie Bellhouse when Bellhouse
became Stewart’s girlfriend several years before this evidentiary
58
hearing. Knocke also knew Ciarrocchi, Kysch, and Arcuri. She
never visited the house where the shooting occurred, but she
knew Ciarrocchi owned it.
Knocke stated that when she visited Garber’s office with
Bellhouse in 2016, she told Garber she was going to talk to
Ciarrocchi. Thereafter, she spoke to Ciarrocchi several times
before his death in December 2016. During the first
conversation, she asked Ciarrocchi who killed Depiazza. In
response, Ciarrocchi pounded twice on his chest with his right
fist. Ciarrocchi told her he was upset with Depiazza because
Depiazza was not paying his rent. Ciarrocchi asked Depiazza to
move out of the home, but Depiazza did not move out. Knocke
“was under the impression” that Bruce was “intimidated by”
Depiazza. Ciarrocchi also told Knocke that the night before the
shooting, Depiazza raped Kysch, and Ciarrocchi “was really upset
about it” because he “was extremely fond of” Kysch. The next
day, Ciarrocchi confronted Depiazza about the rent situation and
the rape. Ciarrocchi brought a gun with him; Knocke “guess[ed]”
it was because “he felt intimidated.” Ciarrocchi told Knocke that
Depiazza “came at him,” he “got scared,” and he “shot the gun
twice before [Depiazza] stopped.” Ciarrocchi also told her he “got
rid of [the] body” by dumping it in Riverside with the help of an
unidentified man. Ciarrocchi said he used bolt cutters to cut off
three or four of Depiazza’s fingers “to try to make him
unidentifiable.” He did not cut off the rest of Depiazza’s fingers
because “it grossed him out” and he could not finish.
According to Knocke, Ciarrocchi expressed remorse about
the killing and became teary-eyed. He said he “didn’t mean for it
to happen.” Knocke asked Ciarrocchi if he felt guilty that
Stewart was in jail for something Ciarrocchi did. Ciarrocchi told
59
her there was no evidence against Stewart and he would not be
convicted, so he would only be in jail through trial. Knocke did
not know why Ciarrocchi would disclose all of this information to
her when she had not known him for very long. She speculated:
“Because he knew how much I helped [the defendant in the other
case], and I guess he thought it would be helpful. I don’t know
why. I really don’t know why. I wondered that myself. I think
he just wanted to talk, and I was there, and he found me
trustworthy.”
Knocke testified that prior to Stewart’s first trial, she “was
not able to get ahold of” Garber to give him the above-described
information she had learned from Ciarrocchi about the shooting.
Beginning the day after her first conversation with Ciarrocchi,
she called Garber’s office several times and left messages with his
secretary, but he did not call her back. She knew Bellhouse was
“in touch” with Garber, so she asked Bellhouse to tell Garber she
needed to talk to him. Bellhouse told Knocke she relayed the
message to Garber, but Garber did not say anything to her
(Bellhouse) about it. Knocke did not tell Stewart about the
information she learned from Ciarrocchi during the numerous
telephone calls Stewart made to her from jail. Nor did she report
the information to the police. She testified that, within a week of
her conversation with Ciarrocchi regarding the shooting, she did
tell Bellhouse, Arcuri, her friends, and her sons about it.
Knocke did not describe much about the substance of her
subsequent conversations with Ciarrocchi. She recalled that they
talked once when he “came by [her] house.” On another occasion,
she talked to him at Bellhouse’s home “when [she] went to visit
her, and he happened to be there.” Knocke said he “didn’t really
like talking about” the shooting, so they spoke about other things
60
like his mother’s death. During questioning by the trial court
about these subsequent conversations, Knocke recalled
Ciarrocchi said he told Arcuri and Kysch “to lie about who did the
shooting” or he would “cut them both off” and stop supplying
them with heroin. Knocke also recalled she told Ciarrocchi that
when Arcuri was staying at her home, Arcuri first told her that
Erekson was the shooter; then she told Knocke that Ciarrocchi
was the shooter.
Knocke stated that around the time of the second trial,
Bellhouse asked Garber if he wanted Knocke to testify. Garber
told Bellhouse to have Knocke meet him at the courthouse.
Knocke went to the courthouse and briefly spoke to Garber, who
“was in a hurry” and “working on another case.” Knocke told
Garber she had talked to Ciarrocchi. She told him some of what
Ciarrocchi said, but not everything. Garber said he would have
his investigator call her. The investigator called Knocke, and
they spoke on the phone three or four times over the next week.
She acknowledged during her testimony that she did not tell the
investigator that Ciarrocchi expressly admitted to shooting
Depiazza; she only told the investigator that Ciarrocchi “hit
himself on the chest indicating himself.” She explained that she
told the investigator “what [she] could remember from that
conversation” with Ciarrocchi.
According to Knocke, Garber’s investigator told her she
“was a very good witness” and “Garber was going to use [her] in
court.” Therefore, during Stewart’s second trial, she came to
court and sat outside the courtroom a couple times, “hoping [she]
would be called” as a witness. Garber never told her he planned
to call her as a witness.
61
In response to questioning by the trial court, Knocke
testified that she is 72 years old and has memory issues due to
“old age.”
E. Trial court’s ruling
After hearing argument from the parties on Stewart’s
ineffective assistance of counsel claim in his motion for new trial,
the trial court took the matter under submission. Thereafter, the
court issued a minute order denying the motion for new trial
based on ineffective assistance of counsel. Although the court
found Knocke “presented [as] very credible,” the court also found
Garber’s testimony regarding his reasons for not calling Knocke
as a witness at Stewart’s second trial to be “credible and
reasonable.”
At a subsequent hearing, defense counsel reminded the
trial court it had not ruled on Stewart’s insufficiency of the
evidence claim in his motion for new trial. The court replied, “So
you’re asking for a specific finding” by the court “as a 13th juror.”
Defense counsel responded affirmatively. The court ruled as
follows:
“The court denies on that ground, too. I sat through the
trial. I think a reasonable jury could have found the way that
they did. I didn’t see anything glaring that would jump out to me
that would make me think there was any type of error in what
the jurors did. There was a lot of evidence in the case that was --
it was a long case. People could defer [sic] about their
interpretation of things, but I don’t think there was insufficient
evidence. Maybe an appellate court will disagree.”
62
F. Applicable law and analysis – sufficiency of the
evidence claim
In ruling on a motion for new trial made on the ground that
the verdict is contrary to the evidence under section 1181,
subdivision (6), “the trial court’s function is to ‘see that the jury
intelligently and justly perform[ed] its duty and, in the exercise
of a proper legal discretion, to determine whether there is
sufficient credible evidence to sustain the verdict.’ [Citation.]
The trial court’s duty is to review the evidence independently and
satisfy itself that the evidence as a whole is sufficient to sustain
the verdict.” (People v. Dickens (2005) 130 Cal.App.4th 1245,
1251.) The “presumption that the verdict is correct does not
affect the trial court’s duty to give the defendant the benefit of its
independent determination as to the probative value of the
evidence.” (Id. at p. 1252.) “In short, the trial court ‘extends no
evidentiary deference’ when ruling on a new trial motion under
section 1181, subdivision (6). [Citation.] ‘Instead, it
independently examines all evidence to determine whether it is
sufficient to prove each required element beyond a reasonable
doubt to the judge, who sits, in effect, as a “13th juror.” ’ ” (People
v. Watts (2018) 22 Cal.App.5th 102, 112.) “The trial court has
broad discretion in determining whether the evidence has
sufficient probative value to sustain the verdict [citation], and its
order will not be reversed on appeal ‘absent a manifest and
unmistakable abuse of that discretion.’ ” (Dickens, at p. 1252.)
Stewart asserts: “From the record, it appears the trial
court misunderstood the duty to independently reweigh the
evidence to satisfy itself that the evidence as a whole is sufficient
to sustain the verdict.” He adds: “Here, it appears the court
simply gave deference to the jury’s weighing of the evidence
63
without making an independent review and deciding the proper
weight to accord it.” The record belies Stewart’s assertions.
When defense counsel reminded the trial court that it had
not yet ruled on Stewart’s insufficiency of the evidence claim in
the motion for new trial, the court responded: “So you’re asking
for a specific finding” by the court “as a 13th juror,” a statement
consistent with the court’s obligation when ruling on such a
claim. (People v. Watts, supra, 22 Cal.App.5th at p. 113 [in ruling
on an insufficiency of the evidence claim in a motion for new trial,
the court “ ‘independently examines all evidence to determine
whether it is sufficient to prove each required element beyond a
reasonable doubt to the judge, who sits, in effect, as a “13th
juror” ’ ”].) At the conclusion of its ruling on Stewart’s
insufficiency of the evidence claim, the court stated, “I don’t think
there was insufficient evidence.” The court was not deferring to
the jury’s verdict there, it was expressing its own independent
opinion after hearing the evidence. (People v. Price (1992) 4
Cal.App.4th 1272, 1275 [“the court’s exercise of its independent
judgment is reflected in its statement that the evidence was
sufficient. The court’s further comment there was substantial
evidence to support the jury’s determination is surplusage”].)
This is not a case like People v. Watts, supra, 22
Cal.App.5th 102—a case Stewart cites on appeal—where this
court reversed the trial court’s order denying a motion for new
trial for abuse of discretion because the trial court, in ruling on a
claim of insufficiency of the evidence, concluded there was
sufficient evidence to let the matter go to the jury for decision
(“there was evidence to let the jury decide”), an incorrect
standard for ruling on such a claim. (Id. at pp. 110-111, 115.)
Here, the trial court found the evidence sufficient to sustain the
64
jury’s verdict. The record does not indicate the court applied an
incorrect standard.
G. Applicable law and analysis – ineffective
assistance of counsel claim
Stewart contends the trial court abused its discretion in
denying his motion for new trial based on ineffective assistance of
trial counsel in failing to call Shirley Knocke as a witness at the
second trial.
“[I]neffectiveness of counsel may be argued in a new trial
motion.” (People v. Smith (1993) 6 Cal.4th 684, 693.) “ ‘To
establish a violation of the constitutional right to effective
assistance of counsel, a defendant must show both that his
counsel’s performance was deficient when measured against the
standard of a reasonably competent attorney and that counsel’s
deficient performance resulted in prejudice to defendant in the
sense that it “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” ’ ” (People v. Thompson, supra, 49
Cal.4th at p. 122.)
“Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
“ ‘Reviewing courts will reverse convictions on the ground of
inadequate counsel only if the record on appeal affirmatively
discloses that counsel had no rational tactical purpose for his act
or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
Garber’s decision not to call Knocke as a witness at the
second trial was a tactical one, which was not unreasonable.
65
First, Knocke was not an impartial witness. She had been
friends with Stewart for 30 years. Bellhouse and Arcuri stayed
at her home for some period of time while Stewart was in jail on
the murder charge.
Second, there were questions about why Knocke did not
make a statement about Ciarrocchi being the shooter until
Stewart’s second trial was underway, although she claimed to
have known the information for around a year before that. She
did not report the information to the police. She did not tell
Stewart about it, even though he phoned her frequently from jail,
and she was allegedly having trouble getting in touch with his
attorney. Calling a witness whose testimony raises credibility
questions can result in those credibility questions permeating the
entire defense case or tainting other defense witnesses by
association.
Third, while Stewart argues that Knocke’s testimony would
have corroborated and enhanced Arcuri’s conditional examination
testimony, an equally strong argument could be made that
Knocke’s testimony would have damaged the credibility of
Arcuri’s conditional examination testimony that Ciarrocchi was
the shooter. Knocke asserts that in one of her conversations with
Ciarrocchi about the shooting, she told him that Arcuri gave
many accounts of the shooting, initially telling Knocke that
Erekson was the shooter. Moreover, the fact that Knocke and
Bellhouse continued to socialize with Ciarrocchi after Ciarrocchi
purportedly told Knocke he killed Depiazza, and Knocke
expressed no fear of Ciarrocchi, belied Arcuri’s claim she did not
come forward with her information about Ciarrocchi until after
he died because he threatened to kill her if she told anyone he
was the shooter.
66
Fourth, Knocke’s statement that Ciarrocchi told her he was
the shooter because he trusted her—a close personal friend of
Stewart and Bellhouse—and he wanted to be “helpful”—which
would have put his own liberty in jeopardy was questionable.
Fifth, Knocke’s statement that Ciarrocchi told her he used
bolt cutters to cut off some of Depiazza’s fingers so the body could
not be identified contradicted the pathologist’s determination
that a small animal chewed off the fingers on Depiazza’s right
hand.
Finally, Knocke testified at the evidentiary hearing that
she was a 72-year-old woman with memory problems due to her
age.
Garber’s decision not to conduct a follow-up interview with
Knocke—after speaking with her briefly at the courthouse,
speaking with his investigator about the interview with Knocke,
and reviewing the investigator’s report about the interview—does
not constitute ineffective assistance of counsel. The concerns
about Knocke’s potential testimony were evident at that point,
and Garber had sufficient information to support a reasonable
and tactical decision not to call Knocke as a witness at the second
trial.
For these reasons, the trial court did not abuse its
discretion in denying Stewart’s motion for new trial based on
ineffective assistance of trial counsel.24
IV. Prior Prison Term Enhancements
Stewart contends the prior prison term enhancements
under section 667.5, subdivision (b) that the trial court stayed
24We reject Stewart’s contention that cumulative error
requires reversal of his conviction. As explained above, there are
no errors here to cumulate.
67
must be stricken in light of Senate Bill No. 136. At the time of
his sentencing hearing, section 667.5, subdivision (b) provided a
one-year sentence enhancement for prior prison or county jail
terms served for felony convictions. Senate Bill No. 136 amended
section 667.5, subdivision (b) to impose the enhancement only if
the prior prison or county jail term was served “for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.” (§ 667.5, subd. (b); Stats 2019,
ch. 590, § 1.) The amendment went into effect on January 1,
2020, before the judgment of Stewart’s conviction became final.
(See Cal. Const., art. IV, § 8, subd. (c).) Stewart contends, the
Attorney General concedes, and we agree, the new legislation
applies retroactively in Stewart’s case. (See People v. Lopez
(2019) 42 Cal.App.5th 337, 341-342 [applying Senate Bill No. 136
retroactively when appeal not final by January 1, 2020].)
Stewart served seven prior prison terms for drug and theft-
related convictions, none of which are sexually violent offenses.
(See Welf. & Inst. Code, § 6600, subd. (b).) We therefore strike
the prior prison term enhancements the trial court stayed
because section 667.5, subdivision (b), as amended, does not allow
for the enhancement in Stewart’s case.
V. Firearm Enhancements
Stewart contends the matter must be remanded because
the trial court did not exercise informed discretion and consider
whether to impose a term less than 25 years to life for the
firearm enhancement.
A. Proceedings below
At the sentencing hearing, defense counsel asked the trial
court to strike the prior conviction for purposes of the Three
Strikes law and also strike the 25-years-to-life firearm
68
enhancement under section 12022.53, subdivision (d). Defense
counsel argued a sentence of 15 years to life for second degree
murder was sufficient punishment based on the facts of the case,
Stewart’s age (59), and the absence of prior violence in his
criminal history. Counsel further asserted that if the court
declined to strike the prior conviction and the section 12022.53,
subdivision (d) enhancement, Stewart’s sentence would
effectively amount to life without the possibility of parole.
The trial court declined to strike the prior conviction or the
section 12022.53, subdivision (d) firearm enhancement, stating it
“just can’t see how that would be in the interest of justice.” The
court expressed concern about (1) Depiazza’s body being driven to
and dumped in another county; and (2) “the barricade issue,” i.e.,
Stewart’s failure to exit the home for several hours when law
enforcement executed the warrant for Ciarrocchi’s arrest and
ordered everyone to come outside.
B. Applicable law and analysis
Under section 12022.53, subdivision (h), “The court may, in
the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.”
In this case, the jury returned true findings on the three
firearm use enhancement allegations under section 12022.53:
personal use of a firearm under section 12022.53, subdivision (b)
(a 10-year enhancement); personal and intentional discharge of a
firearm under section 12022.53, subdivision (c) (a 20-year
enhancement); and personal and intentional discharge of a
firearm causing death under section 12022.53, subdivision (d) (a
25-years-to-life enhancement).
69
At the sentencing hearing, Stewart asked the trial court to
strike the 25-year-to-life firearm enhancement under section
12022.53, subdivision (d). There was no discussion at the hearing
about the fact the jury had found true the firearm use
enhancements under section 12022.53, subdivisions (b) and (c).
Nor was there any discussion about the court’s discretion to
substitute one of the lesser firearm use enhancements for the
greater one. (See People v. Tirado (2019) 38 Cal.App.5th 637,
644, review granted Nov. 13, 2019, S257658 [if the jury had found
all three section 12022.53 enhancements to be true, “the court
would have had the discretion to strike the section 12022.53,
subdivision (d) enhancement and then either impose one of the
other two enhancements or strike them as well”].)
Because the issue of striking the greater and imposing a
lesser firearm enhancement under section 12022.53 was a new
issue in the courts, we conclude Stewart did not forfeit the issue
by failing to raise it below. It is not clear from the record that the
trial court or the parties were aware of the trial court’s discretion
in this regard. “ ‘Defendants are entitled to “sentencing decisions
made in the exercise of the ‘informed discretion’ of the sentencing
court,” and a court that is unaware of its discretionary authority
cannot exercise its informed discretion.’ ” (People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.)
The record does not show a remand would be futile in this
instance. Nothing in the trial court’s comments indicates it
would not have imposed a 10 or a 20-year term for the firearm
enhancement instead of 25 years to life if it understood it had
that discretion. (People v. McDaniels, supra, 22 Cal.App.5th at p.
423 [“a remand is necessary because the record contains no clear
indication that the trial court will not exercise its discretion to
70
reduce [the defendant’s] sentence”].) Accordingly, we remand the
matter for the trial court to exercise its informed discretion and
consider whether to substitute the firearm enhancement under
section 12022.53, subdivision (b) or (c) for that imposed under
section 12022.53, subdivision (d).
DISPOSITION
The judgment is modified to strike the one-year prior
prison term enhancements the trial court stayed under section
667.5, subdivision (b). Upon remand, the trial court shall
determine whether to strike the firearm enhancement under
section 12022.53, subdivision (d) and impose the enhancement
provided under section 12022.53, subdivision (b) or (c). If the
court strikes the section 12022.53, subdivision (d) enhancement,
the court shall reduce the sentence accordingly. The clerk of the
superior court is directed to prepare an amended abstract of
judgment and to forward it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J. FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
71