People v. Hunt CA6 ( 2014 )

Filed 10/30/14 P. v. Hunt CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037380
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F19825)
v.
ADAM SPENCER HUNT,
Defendant and Appellant.
THE PEOPLE, H038256
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F19826)
v.
KENNETH KIRK CLAMP,
Defendant and Appellant.
I. INTRODUCTION
Defendants Adam Spencer Hunt and Kenneth Kirk Clamp were jointly tried for
murder and other crimes against Elias Sorokin.1 Sorokin’s body had not been found by
the time of trial.
1
Although defendants were jointly tried, they were charged by separate
informations. This court ordered the appeals from the two cases considered together.
Defendant Hunt was convicted of robbery of Sorokin (Pen. Code, § 211),2 and the
trial court sentenced Hunt to five years in prison. Defendant Clamp was convicted of
first degree felony murder and robbery of Sorokin. (§§ 189, 211.) The jury further found
true allegations that Clamp had two prior serious felony convictions that also qualified as
strikes. (§§ 667, subds. (a), (b)-(i).) The court sentenced Clamp to the indeterminate
term of 75 years to life consecutive to the determinate term of 10 years. The court
granted Clamp 872 days presentence custody credit.
On appeal in case No. H037380, defendant Hunt contends that: (1) there is
insufficient evidence to support his conviction for robbery; (2) the trial court erred by
admitting evidence of his financial circumstances; and (3) the court erred by admitting
into evidence hearsay statements by Stewart Skuba. For reasons that we will explain, we
will affirm the judgment.
On appeal in case No. H038256, defendant Clamp contends that: (1) there is
insufficient evidence to support the convictions for robbery and murder; (2) the trial court
erred by admitting into evidence hearsay statements by Skuba; (3) the court erred in
failing to adequately respond to a jury question; and (4) Clamp is entitled to additional
presentence custody credit. For reasons that we will explain, we will modify the
judgment by awarding Clamp a total of 765 actual days credit, order clerical errors in the
abstract of judgment and a minute order corrected, and affirm the judgment as so
modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Hunt was charged with the murder and second degree robbery of
Sorokin. (§§ 187, subd. (a), 211; counts 1 & 2.) Defendant Clamp was separately
charged with the murder, second degree robbery, and kidnapping of Sorokin. (§§ 187,
subd. (a); 211; 207, subd. (a); counts 1–3.) It was further alleged that Clamp had two
2
All further statutory references are to the Penal Code unless otherwise indicated.
2
prior serious felony convictions that also qualified as strikes (§ 667, subds. (a), (b) - (i)),
and that he had served a prior prison term (§ 667.5, subd. (b)).
The prosecution’s theory of the case was that Skuba planned to use chloroform on
Sorokin and rob him. According to the prosecution, Skuba and his friend, defendant
Hunt, ultimately beat Sorokin at Skuba’s residence until he was unconscious. Hunt
subsequently left the residence, and defendant Clamp arrived to help Skuba. Clamp and
Skuba drove Sorokin to another location where he was thrown off a cliff. Clamp, Skuba,
and later Hunt returned to Skuba’s residence to divide up the items taken from Sorokin.3
The prosecution’s witnesses at trial included four people who were at Skuba’s residence
when the incident occurred: Kristin Roberts, who was romantically involved with Skuba;
Kristin’s father George Roberts, Sr.; Kristin’s brother George Roberts, Jr.;4 and Skuba’s
friend Timothy Wentzel. These witnesses testified inconsistently about many details.
Prior to trial, defendant Clamp filed a motion to bifurcate trial on the alleged prior
convictions. The court granted the motion.
Also prior to trial, defendants Hunt and Clamp sought to exclude hearsay
statements made by Skuba to Kristin. The trial court conducted a hearing regarding
Kristin’s proposed testimony. (See Evid. Code, §§ 402-403.) The court determined that
there was a conspiracy to rob the victim when Hunt arrived at Skuba’s residence, and that
Skuba’s subsequent statements to Kristin that the “ ‘chloroform didn’t work’ ” and that
“ ‘they got into a fight’ ” would be allowed at trial under the coconspirator exception to
3
We take judicial notice of this court’s opinion in People v. Skuba
(Dec. 26, 2013, H037984) [nonpub. opn.]. In People v. Skuba, this court affirmed the
judgment of conviction of Skuba for first degree felony murder and second degree
robbery of Sorokin. (Id. at pp. 1, 12, 23.)
4
These members of the Roberts family testified at trial. For clarity and
convenience, we will refer to Kristin Roberts by her first name. We will also refer to her
father George Roberts, Sr. and her brother George Roberts, Jr. as Senior and Junior for
clarity and convenience.
3
the hearsay rule. The court also tentatively ruled that statements against Skuba’s interest
would be admitted at trial, including his statement to Kristin that he drove the victim’s
truck, that Clamp followed in another truck, and that they threw the victim’s body off a
cliff.
During trial, the prosecution indicated an intent to show a video of an interview of
defendant Hunt by law enforcement. The video contained references to Hunt’s financial
circumstances. Hunt filed a motion to preclude the prosecution from introducing
evidence of his poverty or financial need on the ground that such evidence was
inadmissible to establish his motive for the robbery. The trial court denied Hunt’s
motion.
A. The Prosecution’s Case
1. Background
Stewart Skuba lived on Felix Street in Santa Cruz. He sold methamphetamine and
marijuana. Skuba and the victim, Elias Sorokin, had known each other for a few years
and had done marijuana deals together. The victim had been to Skuba’s mother’s house a
few times.
At the time of the incident in July 2009, Skuba was 31 years old and was
“romantically involved” with Kristin Roberts, who was 19 years old. Kristin had known
Skuba for about two years and had been living with him for about a month. Prior to that
time, Kristin was homeless and unemployed.
Kristin had known defendant Hunt for about two years and defendant Clamp for
about a month. She had met both defendants, who were older than her, through Skuba.
Skuba had music equipment in his bedroom, and it was common for Hunt to be working
on music in Skuba’s room during the late night and early morning hours. Hunt
sometimes had headphones on while he was working on music.
Kristin testified that Skuba stole checks from a housemate and that she made those
checks out to herself, Marjorie Jackson, and another person. Kristin further testified that
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she pleaded guilty to a felony violation of Penal Code section 4705 in July 2009 in
connection with the check case. Kristin’s father, George Roberts, Sr., came to Santa
Cruz in July 2009 to help her. Senior was trying to save money to rent a place but helped
bail her out instead. Skuba did not have money to pay back Senior for the bail but
promised to do so. Senior and his son, George Roberts, Jr., began staying at Skuba’s
Felix Street residence around this time. The residence had three stories, and Kristin lived
with Skuba on the first floor, Senior and Junior stayed on the second floor, and college
students lived on the third floor.
2. The Night of July 20, 2009
a. Kristin Roberts’s testimony
In July 2009, Kristin was an “extreme alcoholic” who drank as soon as she woke
up and until she went to sleep. She had also been using methamphetamine daily for
about five years. When she was under the influence of methamphetamine, Kristin was
sometimes unintelligible and experienced delusional thinking and paranoia. She also
smoked marijuana from time to time.
At trial in July 2011, Kristin testified that she had “done a 360” from where she
had been in her life. She was clean and sober for more than a year, and was a born-again
Christian and a mother. She had also pleaded guilty to robbing Sorokin. Under an
agreement with the district attorney’s office, she faced a potential term of up to five years
in prison. Other counts in the case against her were dismissed, including a count for
being an accessory after the fact, and a misdemeanor case and violations of misdemeanor
probation in other cases against her were also dismissed. One of the conditions of the
agreement was that she testify truthfully in any proceeding concerning the case. Her
testimony was also to be considered with respect to the resolution of the check case in
5
Section 470 defines the crime of forgery.
5
which she had violated probation. She was currently serving a prison sentence for
causing injury while driving under the influence.
Kristin initially testified at trial that, days before the incident, she asked Skuba
about a black container that she saw in his bedroom. Skuba stated that it was chloroform,
and that he was going to use it to knock out a person who was coming from another city.
Skuba indicated that the person had a lot of “weed” or a lot of money, and that he was
going to “jack” the person, meaning take whatever the person had. Hunt was also present
in the bedroom, but Kristin did not remember him saying anything. On the day of the
incident, Skuba again told Kristin that a person was coming from another city, that
chloroform was going to be used to knock the person out, and that Skuba was going to
take money from the person.
Kristin subsequently testified at trial, after reviewing her prior statement to
investigators, that Skuba did not mention robbing the person until the day of the incident
and that defendant Hunt was not present during the conversation. She also testified that
Skuba never talked about chloroform in relation to robbing the person; he only indicated
that he had chloroform. Kristin further testified that she was not sure whether defendant
Hunt was present during the discussion about chloroform.
Kristin testified that in the evening, she was in Skuba’s bedroom with Skuba, Tim
Wentzel, and defendant Hunt. In testimony under oath at a prior hearing, Kristin initially
stated that only she, Skuba, and Wentzel were present, and later stated she was “ ‘not
sure’ ” whether Hunt was present. At trial, Kristin testified that a person named Hatfield,
who was also known as Kenny Wayne, was at the Felix Street residence earlier in the
day, but she did not see him later. Hatfield drove a red Mustang, and Kristin did not see
the vehicle outside Skuba’s residence that night.
Since waking up, Kristin had consumed one and a half pints of bourbon whiskey,
and she continued to drink it in the bedroom. Kristin felt “fine” from drinking, and
testified that it would take a liter for her to get drunk. Skuba, Wentzel, and Kristin were
6
also smoking methamphetamine, which made Kristin feel “alert.” She did not recall
Hunt smoking. Hunt was working on music, and Kristin did not remember whether he
was wearing headphones during the course of the day while he was in Skuba’s bedroom.
After about an hour, Skuba asked Kristin to go upstairs and stated “he was going
to handle some business.” It was Kristin’s understanding that the person who Skuba had
previously talked about was coming over. Kristin testified that defendant Hunt remained
downstairs while she and Wentzel went upstairs to a living room. Kristin’s father and
brother were already upstairs sleeping in a bedroom.
While upstairs in the living room, Kristin continued drinking whiskey and watched
episodes of the television show “That’s So Raven” with Wentzel. Kristin never
mentioned in interviews with investigators that Wentzel was upstairs with her.
After Kristin went upstairs, she heard someone enter the front door and then heard
Skuba’s bedroom door shut. Skuba’s bedroom had two doors, one of which led to the
interior of the house, and a second door which led to an outdoor patio that was next to a
door to the garage. While upstairs, Kristin eventually heard someone saying loudly,
“ ‘Please, don’t. Stop.’ ” It was not the voice of Skuba or defendant Hunt. The person
sounded frightened and the voice was muffled as though a hand was over the person’s
mouth. The upstairs living room where Kristin was located was on top of the garage and
Skuba’s bedroom, and the voice sounded like it was coming from the garage. Kristin
testified that the struggle she heard occurred during the third episode of “That’s So
Raven,” but she told investigators it occurred during the second episode.
Kristin heard “a bunch of banging around downstairs” for approximately five
minutes. It sounded as though “somebody was getting in a fight,” with “a bunch of
movement” and “something was in the way and they knocked it over.” Kristin paced
back and forth, turned up the volume on the television, and said “ ‘No, Skuba, no.’ ” She
thought Skuba was involved in something downstairs with the person who had come
over.
7
According to Kristin, her father and brother came out of the bedroom while the
“banging” noise continued. Both were really mad, and Kristin’s father was going to call
911. Kristin stopped him because she “didn’t think that the situation would turn out the
way it did and [she] didn’t want to get [defendant Hunt] or [Skuba] in trouble.” Kristin
also told her brother to go back to sleep. According to her testimony at a prior hearing,
Kristin tried to push her father and brother back into the bedroom, but at trial she did not
remember trying to do so. Her father and brother eventually went downstairs and left the
residence.
After the noise stopped, Kristin did not hear any further sounds from the garage.
Skuba eventually came upstairs holding clothes. He was sweating and looked “freaked
out.” He proceeded to the third floor, started the washer, and then went back to the first
floor. Kristin went downstairs about half an hour after she heard the struggle in the
garage. Wentzel had left the residence.
While downstairs, Kristin heard water running in the bathroom. She knocked on
the door and heard defendant Hunt say, “ ‘I’m in here.’ ” Kristin never mentioned this
exchange with Hunt during her first interview with investigators, and indicated that she
was not sure who was in the bathroom during her second interview with investigators.
Kristin saw Skuba on a patio outside his bedroom, so she joined him to have a
cigarette for about 10 minutes. Skuba still looked sweaty and “freaked out.” He was also
wearing different clothes than when she saw him previously. Skuba told Kristin that the
chloroform “didn’t work,” that “ ‘[w]e got into a fight,’ ” and that the person was
“knocked out” in the garage. Skuba never clarified who “we” referred to. Kristin
assumed Skuba was referring to defendant Hunt “because he was the one there.” In an
initial interview with investigators, Kristin reported only that Skuba told her to “keep it
solid,” “don’t say anything,” and “don’t go in the garage.” While Kristin was standing
outside with Skuba, she was eight to ten feet from the door of the garage. She did not
8
hear any noise coming from the garage, or anything to suggest that there was someone
alive in the garage.
Kristin went to the front of the residence and smoked another cigarette. She saw a
big gold truck, with a camper shell, that she had never seen before. She went to the
passenger seat to look for something to steal and saw cell phones. Skuba appeared and
told her to get out of the truck. Kristin did not take anything and went back into the
residence.
Kristin testified that she heard Skuba say on his cell phone, “ ‘Hey, homeboy, get
over here. I need your help.’ ” Kristin variously stated under oath and to investigators
that Skuba stated before, during, or after this call that defendant Hunt had left. Skuba
was upset. The phone call took place about half an hour after Kristin had smoked a
cigarette on the patio with Skuba.
Defendant Clamp arrived at the residence about 15 minutes after the call. Kristin
saw Clamp’s red truck at the residence at some point. Clamp asked Skuba, “ ‘What . . . is
she doing here?’ ” Skuba responded with “something along the lines that [Kristin] was
okay.” In the ensuing conversation, Clamp indicated that he was upset that Skuba had
“ripped . . . off” the victim with defendant Hunt and not with Clamp. Clamp also asked
Skuba “if he could live with this for the rest of his life.” Skuba said, “ ‘Yes, he knows
where my mom lives.’ ” Although Kristin testified that she was in the bedroom during
this conversation, she previously told investigators that she was outside the room and that
she had heard this portion of the conversation through the door. Kristin testified that
Clamp next told her “to clean up the blood in the garage while they were gone.” She
previously told investigators that she did not know who asked her to clean up the blood.
Kristin eventually went back upstairs and outside onto a balcony. There was a
strong smell of chemicals that Kristin had never smelled before. She saw Skuba outside
walking to the garage with a big blue blanket. Kristin did not know where defendant
Clamp was. Kristin heard the garage door open, a “dragging” sound, “a big thud” like
9
someone was being put in the truck bed, and then the tailgate shut. She eventually heard
the garage door close and the engines of two “trucks reversing out of the driveway”
“[m]aybe a little less” than an hour after she had gone to the upstairs balcony. She did
not actually see the vehicles leave the residence. She testified at a prior proceeding that
she heard only one vehicle and that she “ ‘assume[d]’ ” the other vehicle “ ‘went right
behind it.’ ”
Kristin got some “409” cleaner from the kitchen and walked through Skuba’s
bedroom. She noticed items in the room that she had not seen earlier in the evening.
There was a guitar, a laptop computer, and a wallet. In the wallet, Kristin found the
victim’s driver’s license and more than four credit cards. There was also a duffle bag and
boxes of “Green Bean” pills in the room. In testimony at a prior hearing, Kristin also
stated that she saw marijuana. She previously told investigators, however, that she did
not see marijuana until later.
At some point, Kristin cleaned up blood in the bathroom, where she saw “specks”
of blood in the sink and on the floor.
Kristin eventually went outside and saw defendant Hunt approaching the
residence. She had not seen him since she had left Skuba’s bedroom with Wentzel to
watch television. Kristin testified that Hunt gave her a bottle of “409.” Although Kristin
had been interviewed by investigators between August 2009 and May 2010, she did not
mention until May 2011 that Hunt had given her “409” cleaner.
Defendant Hunt asked, “[w]here did they go,” and Kristin responded, “they took
off.” Kristin asked Hunt where he had been and he indicated at his car. Kristin did not
remember seeing any blood on Hunt or his clothes being wet as if he had tried to clean
them. Kristin proceeded to the garage. She did not know where Hunt went thereafter.
She had previously seen Hunt drive a white Honda, but she never saw his car that day.
In the garage, Kristin saw a “bunch” of blood. In the back of the garage, there
were “[s]pecks” of blood as though the blood “had gotten flung.” Nearby was a “pool”
10
of blood where most of the blood was in the garage. There was also a line of blood about
six inches wide running the length of the garage, from the pool of blood in the back of the
garage to the front where the garage door lifts up. Regarding this line of blood, Kristin
testified that it looked like the blood had smeared while the victim was dragged with the
blanket across the garage. Kristin dumped both bottles of cleaning fluid on the blood on
the ground and used a towel and a torn T-shirt, which “was already there for” oil leaks, to
clean up the blood. She then went back inside the residence.
Skuba and defendant Clamp returned to the residence after more than an hour, and
defendant Hunt arrived at the residence 45 minutes after them. After Hunt arrived,
Kristin never heard any statement by Skuba or defendants such as, “ ‘ “Where have you
been?” ’ ” Kristin previously told investigators that she cleaned up the blood after Skuba
and Clamp had returned to the residence.
There were 5 to 10 one-pound bags of marijuana, which was divided equally
among Skuba, defendant Hunt, and defendant Clamp. The pills were also divided among
the three men. Clamp put his portion of marijuana in a black North Face bag. By this
point at least, Kristin was intoxicated from the alcohol and the methamphetamine.
Kristin testified that, when the marijuana was being divided, Skuba and defendant
Hunt had a conversation about the chloroform not working, the victim getting “beat . . .
up,” and “one of them land[ing] on the other one.” In an interview by investigators,
Kristin indicated that the conversation did not take place that night and that she did not
remember the specific time.
After the items were divided up, defendants Clamp and Hunt left Skuba’s
residence. Hunt never came back to the residence and Kristin never saw him again.
Kristin later asked Skuba what they did with the victim. Skuba indicated that he
had driven the victim’s truck with the victim in the back, and that defendant Clamp “was
right behind him in a red truck.” Skuba stated that they went up the coast, “that they
11
threw him off a cliff and that his body went thudding down.” Skuba and Clamp then
proceeded back to Skuba’s residence.
Kristin testified that Skuba gave her a pound of marijuana in one bag, which was
one-half of what he had, and some pills. She previously testified that Skuba gave her one
bag of marijuana, and that he kept two bags. Kristin sold some of the marijuana and also
gave some of the marijuana to her brother and her father.
Kristin testified that she had a cell phone but that it broke prior to July 20, 2009.
Thereafter she could not make calls on the phone, but she could check her voicemail by
calling from someone else’s phone. When shown phone records reflecting calls from
defendant Hunt’s phone to her phone on July 21, 2009, at 12:58 a.m., 1:12 a.m., and
3:07 a.m., she testified that she did not recall receiving those calls and that she did not
have any phone conversations with him that morning. When asked whether she
remembered getting voicemail from Hunt, Kristin testified, “I didn’t check it, I’m pretty
sure, until way later.”
b. Timothy Wentzel’s testimony
Timothy Wentzel testified that Skuba was a friend who regularly supplied
methamphetamine to him and another friend, Felicia Wilkins. Wentzel was a “heavy
user” of methamphetamine in July 2009, and used it every day. He stopped using
methamphetamine in June 2010, about 11 months before trial. When Wentzel smoked
methamphetamine, it made him paranoid and most of the time he heard and saw things
that were not real. It also affected his memory, particularly his ability to remember
things in chronological order, and affected his ability to keep track of time.
On the night of the incident, Wilkins dropped Wentzel off at Skuba’s residence to
buy methamphetamine. Wentzel went to Skuba’s bedroom and saw Skuba, Kristin who
was drinking alcohol, and defendant Hunt who was using the computer to work on music.
During the entire time Wentzel was in Skuba’s bedroom, Hunt had on headphones.
Skuba, Wentzel, and possibly Hunt proceeded to smoke methamphetamine. After an
12
hour, Skuba asked Wentzel and Kristin, but not Hunt, to go upstairs so he could “handle
some business.”
Wentzel and Kristin went upstairs, sat on a couch that was above the garage, and
watched “That’s So Raven” on television. Within the first half-hour episode, Wentzel
heard a “ruckus, like someone was moving a lot of stuff around” or “knocked some stuff
over” downstairs. Kristin turned up the television volume “to drown it out,” and said,
“ ‘Skuba, don’t. Skuba, don’t. Why, Skuba?’ ” Kristin appeared very emotional to
Wentzel and on the verge of tears. The banging and slamming noises grew louder.
Wentzel was high at the time and felt paranoid, which made him think that he was
hearing things and that there were people outside trying to get in the house. He did not
hear any voices from downstairs.
Senior and Junior came out of their room and argued with Kristin. Wentzel never
saw Junior go to the balcony before the noise started. Senior and Junior eventually went
downstairs, and Wentzel did not see them again.
Skuba came upstairs out of breath and told them he was “done with his business”
and that they could go back downstairs. The noise had already stopped by this point.
Wentzel exited the residence. He did not see Kenny Wayne that night, and he did not see
any vehicles parked around Skuba’s residence.
Thereafter, Wentzel smoked more methamphetamine with Wilkins at other
locations. Wilkins and Wentzel called Skuba to see if “everything was okay.” Skuba
said he was “okay” and would call later. Wentzel testified that he never called Skuba
thereafter and never saw Kristin or defendant Hunt again. Phone records reflect
numerous calls between Wentzel’s phone and Skuba’s phone from July 16 to 30, 2009.
There were also calls between Wentzel’s phone and defendant Clamp. Wentzel testified
that Wilkins had used his phone to talk to Clamp and Skuba.
13
c. George Roberts, Sr.’s testimony
George Roberts, Sr. had been convicted of grand theft in 1985 and 1993 and
vehicle theft in 1993. According to Senior, when Kristin drank alcohol, she would get
hysterical and often exaggerated things. Senior’s 17-year-old son, Junior, was having
problems related to marijuana and had been homeless. Senior testified that during the
July 2009 time period, he took what Kristin or Junior said “with a grain of salt.”
After Senior posted bail money for Kristin and paid for her work release, he was
“[p]retty close” to being broke. Skuba told Senior that he would pay back the bail
money, but Senior did not think Skuba would actually do so.
Senior and Junior began staying at Skuba’s Felix Street residence before the
incident occurred. A few days before the incident, Senior saw a little black bottle in
Skuba’s room. Skuba said it was chloroform. Senior jokingly told Skuba that Senior
“would use chloroform” on a real estate agent that had “ripped [Senior] off.”
On July 20, 2009, Senior went to bed about 8:30 or 9:00 p.m. He had taken
medications that made him groggy and drowsy, and he had also used marijuana. Senior
was awoken by Junior, who appeared agitated, excited, and hyper. Senior believed there
was a “grave situation” downstairs based on Junior’s statements about what he had heard.
Junior indicated that it sounded like somebody was being “ ‘killed’ ” or “ ‘beaten up.’ ”
Senior grabbed his phone, walked out of the room, and saw Kristin and Wentzel sitting
on a sofa. Senior went to the stairs and asked Kristin what was “ ‘going on’ ” and
indicated that he was about to call 911. Kristin told him not to call 911, that it was just
“ ‘an argument,’ ” and that Senior should “ ‘[g]o back to bed.’ ” Ultimately, Senior did
not call 911 because he did not hear any disturbance, and because Kristin and Junior may
have been under the influence and exaggerating things. At most, Senior heard a
“furniture noise,” such as a chair moving, but no noise from downstairs that sounded like
a fight.
14
Senior was upset at being woken up for what may have been nothing and because
Kristin would not explain what was going on. He went back to his room, got dressed,
and left the house. Senior did not want to be involved if something was going on. He did
not hear anything outside. He saw a gold Toyota Tacoma pickup truck with a camper
shell on it parked near the garage. Senior went to his own car for a few minutes, then
took his dog for a walk. Junior accompanied Senior for the walk. Senior and Junior
eventually returned to Senior’s car. Prior to falling asleep in the car, Senior saw a red
pickup pull into the driveway. Senior later woke up to see the red pickup and then the
gold pickup leave. He did not see the driver of either vehicle. When Senior saw these
vehicles, he did not see any red Mustang. He also did not see Kenny Wayne at Skuba’s
residence on the day of the incident.
d. George Roberts, Jr.’s testimony
George Roberts, Jr. testified that he had “done a lot of drugs,” specifically
marijuana and methamphetamine, and that his memory had been affected by the drugs,
among other things. He tried to stop using methamphetamine about two weeks before
trial but had had two relapses. Junior was homeless and was worried about being viewed
as a snitch for testifying at trial. According to Junior, if a person cooperates with the
police, the person is viewed as a rat by others living on the street, and gets “beat down”
and “kicked out of Santa Cruz.”
Junior testified that on the day of the incident, he was smoking weed all day and
got drunk. Before going to bed, he saw Kristin and “Tim.” Junior fell asleep and then
got up later to smoke a cigarette on a balcony. Junior observed three males outside. The
first, who Junior only saw from behind, was wearing a brown golfer’s hat. Junior later
saw a missing person poster with Sorokin wearing a similar hat. The second person was
Skuba. Junior previously reported to investigators that the third person was defendant
Hunt, and he later stated it was Ken Hatfield. By the time of trial, Junior was not certain
of the identity of the third person.
15
Junior went back to sleep but was awoken by a muffled noise which continued for
15 or 20 minutes. It sounded like someone was screaming with a hand over the mouth.
Junior was worried, so he woke up Senior, who was groggy, and told him that it sounded
like someone was getting “beaten up” downstairs. Senior exited the room and threatened
to call the police. Kristin responded, “ ‘No. No. No. You don’t need to do that. Don’t
get involved in anybody else’s business.’ ” Kristin tried to push both of them back into
their room. Senior eventually exited the residence. Junior testified that he screamed at
Kristin and asked what was going on, and that she slapped him after he refused to go
back into his room. Junior eventually went to his room and gathered some of his clothes
to leave.
When Junior went downstairs, he saw defendant Hunt walking out of Skuba’s
room. Hunt looked “a little jumpy” and as though he had just gotten in a fight. Junior
asked, “ ‘[D]o you know anything that’s going on?’ ” Hunt responded, “ ‘Did you hear
something?’ ” Junior said, “ ‘A little bit.’ ” Hunt said, “ ‘Don’t worry about it,’ ” and
walked into the bathroom. Junior saw Hunt look at himself in the mirror just before the
bathroom door closed, and Junior heard “the sink turn on” and water running. Junior
acknowledged that he could not have seen inside the bathroom from where he was
standing at the foot of the stairs.
Junior went outside and saw in the driveway a newer “[s]ilverish” four-door
Toyota truck with a shell on it. Junior tried to jump up to look through a little window in
the garage door, but did not see anything. Junior walked about half a block from the
residence when Skuba came up to him. Skuba looked “a little nervous and jumpy.” He
told Junior, who was crying because Kristin had slapped him, to stop crying and stated,
“ ‘I just did something to help you guys and I put both of our lives . . . in jeopardy.’ ”
Skuba also stated something to the effect that “our money problems are solved now” and
that they had “ ‘obtained a pickup truck.’ ” Junior asked Skuba what he was talking
about, but Skuba would not say what he had done.
16
Junior saw Skuba return to his residence, come outside with two rolling suitcases,
load them into the front passenger seat of the truck, and drive away. Junior never saw
anything loaded into the back of the truck. A red Mustang followed the truck. Ken
Hatfield, who was also known as Kenny Wayne, drove a red Mustang, and Junior may
have seen him at the residence before the incident. Junior never saw a red truck. At
some point, Junior saw a smaller Toyota truck pull up and two males exit and walk
toward the driveway. Junior did not recall whether this smaller truck left at the same
time as the silver truck. After the silver truck left, Junior and Senior walked their dog
and then returned to their car to sleep. Later, Junior went back inside Skuba’s residence
and Kristin gave Junior about an ounce of marijuana.
e. Cell phone records
An intelligence analyst testified concerning various individuals’ cell phone
records. The analyst worked for a multi-agency task force that handled major drug cases
and provided assistance to government agencies “when they need[ed] help with looking
at a case and looking for patterns and trends,” including phone patterns.
When a call is made on a cell phone, the call connects to one of multiple antennas
on a cell phone tower. The resulting information provides “a general idea of where the
call is made” although not the exact location. The exact range of a cell phone tower is
difficult to determine and depends on topography, the amount of cell phone traffic, and
other factors. When the cell phone records of the victim, Skuba, and defendants Clamp
and Hunt were analyzed by the prosecution, it was assumed that the cell phone towers
had a three mile radius.
On July 20, 2009, there were three calls between defendant Clamp’s phone and
Skuba’s phone between 6:15 p.m. and almost 8:00 p.m.
The last call between the victim’s phone and Skuba’s phone was on July 21, 2009,
at 12:31 a.m., with Skuba’s phone being in an area of Santa Cruz that included his Felix
Street residence.
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Thereafter, also on July 21, 2009, there were two phone calls between Skuba’s
phone and Clamp’s phone at 1:01 a.m. and 1:03 a.m., and two more phone calls between
the phones at 1:51 a.m. and 1:59 a.m. About an hour later, there were phone calls from
Clamp’s phone to Skuba’s phone at 2:54 a.m. and 2:57 a.m. The phone records for these
latter two calls were consistent with Clamp’s phone moving westbound out of Santa Cruz
on Highway 1 north. There was no other call activity on Clamp’s phone for the next
hour. There were also no further cell towers in the westerly direction that Clamp’s phone
was traveling.
Prior to 2:55 a.m., the phone records for Skuba’s phone were consistent with him
making calls from his residence on Felix Street. Between 2:55 and 2:58 a.m., there were
four phone calls from Skuba’s phone. The phone records were consistent with Skuba’s
phone moving westbound up Highway 1 out of Santa Cruz. One of the calls, at
2:57 a.m., was to Clamp’s phone. By the time of the call at 2:58 a.m., Skuba’s phone had
continued moving and was west of the last cell phone tower. There was not another cell
phone tower for some distance up the coast. The phone records of Skuba and defendant
Clamp were consistent with the two of them traveling in separate vehicles westbound on
Highway 1 north shortly before 3:00 a.m. For approximately the next hour, from 2:58 to
3:58 a.m., no calls were made from Skuba’s phone, and all calls to his phone went to his
voicemail. There was “the same void” of calls on Clamp’s phone during that same time
period. If a phone is turned off, or if it is out of range of a cell phone tower, a call to that
phone will go to voicemail.
For example, at 3:08 a.m., a phone call was made from defendant Hunt’s phone to
Skuba’s phone, but the call went to Skuba’s voicemail. Just prior to this call, a 22-second
call was made from Hunt’s phone to the phone number associated with Kristin. Hunt’s
phone records were consistent with him being in the general area of Felix Street and
downtown Santa Cruz between 12:53 a.m. and 4:00 a.m.
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At 3:57 a.m., Clamp’s phone called an unknown phone. During the call, Clamp’s
phone was moving in an easterly direction, coming back into Santa Cruz on the west side.
During the next call to the same phone number at 3:58 a.m., Clamp’s phone continued
moving in an easterly direction on southbound Highway 1.
At 3:56 a.m., a call was made from Hunt’s phone to Skuba’s phone. Hunt’s phone
was in an area of Santa Cruz that included Felix Street. Skuba’s phone was moving in an
easterly direction, coming back into Santa Cruz on the west side. Skuba’s phone received
another call at 4:02 a.m., and the phone records reflect that Skuba’s phone was moving in
an easterly direction down Highway 1. The analysis of defendant Clamp’s and Skuba’s
phone records was consistent with the two of them returning in tandem back into Santa
Cruz just before 4:00 a.m.
3. Subsequent Events
a. Kristin Roberts’s testimony
Within days of the incident, Skuba and Kristin went to Target and tried to use the
victim’s credit card, but the card did not work. In an interview with investigators, Kristin
denied using the credit card and denied knowing that the credit card belonged to the
victim.
Regarding the guitar that Kristin had seen in Skuba’s room after the incident, she
learned that Skuba later gave the guitar to her brother. Her brother found a cell phone in
the guitar case. Kristin broke the phone because she thought it belonged to the victim
and she was concerned that someone might get in trouble.
At some point, Kristin saw the victim’s picture in the paper. She also talked to her
father about her involvement in the case. Her father wanted to report it. Kristin was
scared “that they wouldn’t want [her] around to tell on them.”
Although Kristin testified that she was scared of defendant Clamp, in the days
after the incident she was “regularly hanging out with” Clamp’s brother. Further, on
July 29, 2009, Kristin visited Clamp’s residence on the west side and gave him a birthday
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card. The red truck that Kristin had previously seen was at Clamp’s residence. Clamp
was upset that Skuba had left town. Kristin, Clamp, his brother, and his brother’s
daughter went to a bar. Clamp told Kristin that he started a forest fire. At the time,
Kristin did not know what he was referring to. Later, Kristin saw a news story about the
victim’s truck on fire up the coast. At some point, Kristin had seen the gold-colored
truck parked down the street from where Clamp was staying on the west side.
On July 30, 2009, Kristin went to a Watsonville hotel where Skuba was staying.
She and Skuba talked about selling their remaining marijuana and about the burned truck.
Skuba, Kristin, and two others were subsequently in a vehicle to sell marijuana when they
encountered Watsonville police.
On the third day of Kristin’s testimony at trial, while she was being cross-
examined by defendant Hunt’s counsel, Kristin looked in defendant Clamp’s direction
and stated, “Excuse me. Why don’t you do that on the record?” Kristin later testified
that Clamp had made a “cutting motion” across his throat while he was “hiding behind
his attorney and from the jury.” Kristin interpreted the motion to mean, “You’re dead,”
and was frightened and cried after she saw it. A video of the courtroom at the time of
Clamp’s hand motion was played for the jury. Kristin testified that the video showed
Clamp’s hand moving under his neck.
b. Timothy Wentzel’s and Felicia Wilkins’s testimony
Wentzel testified that a few nights after the incident at Skuba’s residence, he was
with Wilkins in her car in a parking lot when defendant Clamp pulled up. Wilkins and
Clamp were close friends. Wentzel testified that Clamp was driving a silver, four-door
truck, and that Clamp had said he borrowed it from a friend. Wilkins testified similarly
about the encounter with Clamp. According to Wilkins, Clamp was in a silver, four-door
Toyota truck. Wilkins never saw the truck again.
Wentzel testified that a few months later, he learned from a news article that
Skuba and defendants Hunt and Clamp had been criminally charged. Wentzel was
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concerned that he had been at the Felix Street residence when something had happened.
He also saw an article about a truck getting burned and noticed that the truck, based on a
picture and a description, looked similar to the one defendant Clamp had been driving.
Wentzel testified that he lied to a defense investigator by stating he was not
present the night of the incident, that he did not know defendant Hunt, and that Skuba had
come upstairs with swollen and purple lips and a red mark on his forehead. He further
testified that he lied by saying that he saw and heard defendant Clamp the night of the
incident, and that Skuba met with Clamp while Wentzel was downstairs. Wentzel also
testified that he lied to an investigator from the district attorney’s office when he stated
that Hunt had come in from the garage with blood on his hands and then went to the
bathroom to wash himself; that Skuba went out to the garage and then came back, telling
Wentzel, “ ‘I think he [Hunt] killed my friend’ ”; and that Hunt pushed Skuba against the
wall, said something, and then left.
Wentzel made some of the statements he claimed were false during or after he
spent time in jail with Skuba. Wentzel was in jail between June and September 2010,
about a year after the incident and a year before trial, for felony and misdemeanor
convictions of petty theft with a prior. Skuba was in the same jail pod as Wentzel.
Wentzel testified that Skuba asked him to lie about what had happened, and that they
came up with a story for Wentzel to tell to “minimize [Skuba’s] involvement . . . and up-
play [Hunt’s] input.” Wentzel testified that he went along with the lie because Skuba had
taken him “under his wing” and protected Wentzel while in jail.
c. George Roberts, Sr.’s testimony
Senior returned to the Felix Street residence after the incident to collect his
belongings. While in Skuba’s room, Kristin told Skuba to give Senior a credit card, but
Senior refused it. The credit card had Sorokin’s name on it. Senior overheard Kristin
and Skuba talk about credit cards that were taken from the gold truck and that the value
of the cards was up to $50,000. Kristin had a bag of marijuana and she gave a handful to
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Senior. The whole house smelled like marijuana. Senior testified that the marijuana and
credit cards he was given or offered “[c]ould have been” in lieu of the money Skuba
owed him for Kristin’s bail.
After sleeping in a car for one or two nights, Senior and Junior moved to the
National 9 motel, where they stayed for two or three weeks. Kristin eventually moved
into Senior’s motel room and brought “green beans” with her. While Senior was at the
motel, he testified inconsistently about whether he received marijuana from Ken Hatfield.
Hatfield was at Skuba’s residence on a regular basis.
Phone records show numerous calls between Senior’s and Skuba’s phones from
July 20 through 29. Senior testified that the calls were between him and Kristin, or
between Kristin and Skuba.
Senior testified that he went to the police on July 30, 2009, after he had talked to
Kristin who was hysterical and afraid for her life. Since the incident, Kristin had
continued drinking and had an ongoing conversation with Senior about what had
happened although not in great detail. Kristin showed Senior a newspaper article about a
missing man and a burned truck. She told Senior that the marijuana had come from the
man who had a “bunch” of it. She also stated that she knew something was going to
happen but did not know “ ‘it was going to go that far.’ ” She told Senior that she had
been forced to clean up blood, and that she had been threatened with getting “capped.”
Kristin did not tell Senior who threatened her, and he saw her with Skuba, Clamp, and
Hatfield after the July 20 incident. Kristin further told Senior that she saw a lot of credit
cards and a book of checks on Skuba’s bed.
Senior was scared and went to the police. He told the police that on the evening of
the incident, he had been awakened at the Felix Street residence by a noise, that he heard
banging and crashing sounds, that it sounded like someone was getting pushed into
something, and that he had heard a muffled scream and “ ‘muffled sounds like “Help.” ’ ”
Subsequently at trial, he stated that Junior had told him these things upon waking him up,
22
and that he (Senior) had actually not heard anything. Senior testified that by telling the
police he had heard sounds and that Junior’s knowledge was based only on what Senior
had told him, Senior was trying to protect Junior and “insulate him from contact with law
enforcement.” Senior also testified that he was trying to protect his children “from any
kind of involvement in trouble,” and that he would lie to protect his children. During the
police interview, Senior had a panic attack and was taken to the hospital after he was told
that he could become an accessory after the fact. After about an hour at the hospital,
Senior returned to finish his interview with the police.
While Senior was being interviewed by the police, he was told that Kristin had
been taken into custody. He also had multiple phone communications with Junior, who
informed him during one of the calls that the police were searching their motel room.
Shortly after learning of the search, Senior told the police that he thought the garage
incident had something to do with the credit cards, checks, and marijuana. Junior also
asked Senior during one of the calls, “ ‘what should I say? I want to make sure I get it
right.’ ”
d. George Roberts, Jr.’s testimony
On the day following the incident, Skuba told Junior he had “weed” for him.
Skuba also agreed to give Junior a guitar that Junior had seen in Skuba’s closet. Skuba’s
closet had “a lot of weed” in black plastic garbage bags. Skuba opened one bag and
inside was a clear bag containing five or six pounds of marijuana. Skuba gave Junior
close to one pound of marijuana. Junior sold a part of it over the next several days.
Skuba gave Senior a handful, or about an eighth of an ounce, of marijuana.
After Junior and Senior went to the motel, Kristin came over with at least a pound
of marijuana in plastic bags and some green bean marijuana pills. She gave Junior a
handful of marijuana and Senior about an ounce. Kristin left the motel after telling Junior
not to touch the remainder of the marijuana and that she would be back. Junior
23
nevertheless took more marijuana and two or three vials of the pills. He eventually sold
the marijuana for $3,000.
According to Junior, Skuba stated that he got about ten pounds of marijuana as a
result of the incident. Junior saw Skuba with three pounds of marijuana at the motel
about three days after the incident. Junior also testified that Kristin admitted going to San
Jose in the silver truck with Skuba to sell some of the marijuana.
Junior was interviewed by the police on July 30, 2009. He was allowed to talk to
Senior by cell phone during the interview. Junior testified that during the interview he
was feeling the effects of the marijuana and alcohol he had used, that his mind was
“cluttered,” and that he was “[f]orgetting very quickly” what he had said. He further
testified that when the police brought him to the police station, he had to wait for more
than three hours. Junior testified that he was livid and did not attempt to answer their
questions truthfully. Rather, he said “anything and everything” to get himself out. Junior
did not want to have anything to do with the case, he was mad at Kristin for putting him
and their father in the situation, and he felt like the police were not listening to him when
he told them that he knew very little and that they should talk to Kristin.
Junior testified that he lied, exaggerated, and/or was “trying to connect the dots”
about what had happened when he reported to the police that he saw defendant Hunt in
the bathroom; that he saw blood coming off Hunt’s hands; that he later checked the
bathroom sink and saw blood; that he saw blood in the garage after he had exited the
residence; that Skuba said “ ‘I killed someone’ ” when he caught up to Junior outside the
residence; that he saw the silver Toyota Tacoma pull up, the driver enter the residence,
and then the driver come out and talk on his cell phone; and that Kristin’s prints were all
over the truck because she had searched it. He also repeated hearsay or gossip, such as
that Kristin had burned the victim’s truck with another person, without making clear to
the police that he did not have firsthand knowledge.
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e. Investigation
In late July 2009, Denise Basaldua attempted to pass a $4500 check at a bank on
Sorokin’s account. Basaldua later told the police that she had gotten the check from
Skuba at the Felix Street residence on July 24, that $800 was supposed to be her portion,
and that Kristin was also at the residence.
Sorokin drove a gold colored 2008 Tacoma truck with a camper shell on it. On
the evening of July 28, 2009, the truck was found on fire in a forested area approximately
125 feet from the road, and within a half mile of the intersection of Smith Grade and
Empire Grade. The truck ultimately burned down to its frame. When a Santa Cruz
County sheriff’s deputy later processed the truck, it had an unusually strong odor of
gasoline.
On July 30, 2009, Watsonville police observed Kristin, Skuba, and two others exit
a stolen car. When ordered to stop, Kristin walked away while the others ran. Kristin
was detained and searched. She had $410 in her pocket and a purse containing a cell
phone, more than 50 grams of marijuana, and six bottles of marijuana pills or “green
beans.” The marijuana was from Skuba from the night of the incident and was in a
plastic oven bag. In the trunk of the car was a laptop case containing 431 grams of
marijuana and a cell phone. Skuba was ultimately located, arrested, and searched. He
had $730.
After Kristin learned that she was going to be charged regarding the stolen vehicle
and the marijuana, she asked to speak with a detective. Although Kristin did not appear
to be under the influence of alcohol or methamphetamine to law enforcement, Kristin
testified at trial that she was high and drunk at the time. Watsonville Police Detective
Morgan Chappell met with Kristin, who seemed nervous and scared. Kristin stated that
she wanted to talk about a murder, and that she would not say anything unless she had
protection. At trial, Kristin testified that she was concerned that she would get killed for
being a “snitch.” She testified that her mother “was killed because she snitched on
25
somebody and they threw her body off a cliff making it look like a car accident.” Kristin
told law enforcement that she wanted protection for herself, her father, and her brother.
Kristin testified at trial that she had reported what happened at the Felix Street residence
because she “could not live with it for the rest of [her] life.”
Kristin eventually provided information regarding the victim to multiple law
enforcement agencies during several interviews between July 30 and August 3, 2009.
Kristin reported that the victim was involved with marijuana. She disclosed that she had
heard a muffled voice saying, “ ‘Please, don’t. Stop,’ ” and that her father and brother
had heard sounds. She also reported that chloroform may have been involved, that there
was a lot of blood in the garage, and that the victim was beat up, put in the back of his
truck, and thrown off a cliff. She reported that Skuba and defendants Hunt and Clamp
were involved. Kristin testified that she tried to minimize her involvement when making
the report to law enforcement because she “already knew [she] was in trouble.” For
example, she initially denied knowing that marijuana was involved in the case, initially
denied knowing that the victim’s credit card had been used, denied cleaning the garage or
going into the garage until much later, and stated that she was forced into becoming
involved in the case.
On the evening of July 30, 2009, law enforcement contacted defendant Clamp and
searched the bedroom of a Santa Cruz residence where he had been staying. Clamp had
1.8 grams of a substance that tested presumptive positive for heroin in his pocket. In the
bedroom, there were approximately 0.2 grams of methamphetamine and a glass
methamphetamine pipe.
There were also approximately 900 grams, about two pounds, of marijuana. Some
of the marijuana was in plastic oven bags. Those plastic bags were in a backpack and a
North Face duffle bag. The marijuana was “well-groomed” and “processed,” containing
a high THC percentage and with almost no stems or leaves. It appeared that the
marijuana was possessed for sale based on the quantity of the marijuana and the type of
26
packaging which gave it a shorter “shelf life.” A digital scale and resealable sandwich
bags were also in the bedroom. If the marijuana was sold in half-pound increments, it
would be worth $7,000 to $9,000. If it was sold in smaller increments, it could be worth
more than $10,000. The duffle bag also contained 48 bottles that were labeled “ ‘Green
beans’ ” and “ ‘Medical marijuana product.’ ”
Law enforcement also discovered a smaller red Mazda pickup truck that was
registered to another resident. The keys for the truck were on defendant Clamp’s bed.
There were also gas cans in Clamp’s room.
Clamp was arrested and interviewed by law enforcement. A video recording of
the interview was played for the jury. In the recording Clamp admitted that he knew a
person named Stewart, but denied that the person had asked him for help. Clamp
indicated that he had passed through the person’s house recently. He did not know why
the person might have gotten arrested, and he indicated that he did not do anything
wrong, and that he would not “rat.” He claimed to share his phone with another person
and to split the phone bill with that person.
Skuba’s Felix Street residence was searched pursuant to a search warrant on
July 31, 2009. Evidence suspected to be blood was collected from the downstairs
bathroom sink and garage and subjected to DNA analysis. There were more than two
contributors to the blood in the sink trap, and Sorokin was not one of them. Sorokin’s
DNA profile matched the profile of DNA taken from suspected blood on the garage floor,
and from suspected blood and hair under the ignition of a scooter in the garage. The
match provided “strong evidence” that the DNA detected for those items was from
Sorokin.
A senior criminalist from the California Department of Justice testified that not all
the suspected blood on the scooter from Skuba’s garage was tested for DNA, so it was
unknown whether all the blood came from the same person and on the same date.
Further, the suspected blood on the scooter was documented, but no in-depth analysis
27
was conducted. For example, the apparent blood on the scooter included blood spatter
and a fine mist. Blood can be spattered in various ways, including from impact or from
being flung off a tool. The fact that suspected blood and tissue — which the criminalist
estimated was a three or four millimeter clump of blood, tissue, and possible hair — were
under the ignition likely meant it came up from some kind of impact, such as a beating,
or was flung up from below. There were also blood drops on the scooter that were
consistent with being flung off an object, such as an object repeatedly hitting a bloody
part of a body. Blood near the scooter was more consistent with a medium force, such as
a beating, with a hand or a tool hitting into an open wound. Suspected blood on the
floorboard area of the scooter was more consistent with a bludgeoning. A fine mist of
specks of suspected blood on the scooter could have been caused by a very fast force,
such as a gunshot, a baseball bat, or “high-speed machinery” like a chainsaw, which can
break blood up into very tiny specks. However, experiments would be required to
determine what caused the specks. Further, without a weapon or a wound on a body to
examine, and in the absence of evidence from the rest of the scene, the criminalist
testified that the information was limited with respect to determining what had happened.
The National 9 motel room, where Senior, Junior, and later Kristin had stayed,
was searched pursuant to a search warrant on July 31, 2009. The items seized included
more than three ounces of marijuana; tiny black plastic bags; a pill grinder consistent
with a device used to grind marijuana; and bottles containing “green bean” pills, other
pills, and marijuana. The green bean pills appeared to be the same brand as those
collected from defendant Clamp’s residence. The quantity of marijuana and the number
of tiny baggies were consistent with the sale of marijuana in small quantities. The
marijuana was similar to the type found in defendant Clamp’s bedroom, in that it was
“well manicured and processed the same” so no leaves or stems were seen protruding
from the buds.
28
The search for Sorokin by law enforcement included a search of the coast near
Davenport on July 31, 2009, and in the mountains the following week near Bonny Doon
Road and Empire Grade. Sorokin’s body was not found by the time of trial.
Defendant Hunt voluntarily came to the police department after news reports
apparently mentioned his name in connection with the victim who was missing. A video
recording of his August 1, 2009 interview by law enforcement was played for the jury. In
the interview, Hunt indicated that he knew Skuba through music and would go to Skuba’s
residence to use the computer. There were a lot of people going in and out of Skuba’s
residence. Hunt stated that he had not done anything and that someone might be using
him as a scapegoat. Hunt provided his mother’s address where he claimed to be living
with his girlfriend and two children. The residence was searched pursuant to a warrant
that evening. Nothing was found to indicate that Hunt, his girlfriend, or the children
lived at the residence. One of Hunt’s vehicles was at the residence.
An audio recording of a March 2010 phone call between defendant Hunt while he
was in jail and a woman was played for the jury. In the call, Hunt states that he had
nothing to do with the kidnapping and murder. In seeking the woman’s help in finding
case law “similar to the situation [he is] dealing with,” Hunt states that he “wasn’t there”
and that there was an “unexpected intervening cause,” meaning someone else “who
wasn’t around during the initial . . . felonies . . . comes in and then takes over and . . .
does something else” when Hunt was not present. Hunt explains that if you hit a person
in the head, and the person starts bleeding, falls down, and you leave the person, it is
reasonable to assume that the person is going to bleed to death right there. He then states
that it is not reasonable to assume that someone else is going to walk by, see the person
lying there, pick the person up, take the person somewhere, and kill the person.
At some point Skuba was interviewed and arrested in connection with the victim’s
disappearance.
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B. The Defense Case
1. Defendant Hunt’s Case
A defense investigator for Hunt reviewed cell phone records regarding various
individuals and spoke to employees of the cell phone provider. According to the defense
investigator, a handset could be up to 10 miles from a cell phone tower and the call
information would be recorded.
Between July 14 and 30, 2009, there were no calls between the phones associated
with defendants Hunt and Clamp, or between defendants and the victim.
Between July 14 and 30, 2009, there were calls on several days between the
phones associated with defendant Hunt and Skuba. One of the calls, on July 20, 2009,
was a four-second call at 11:52 p.m., from Skuba’s phone to Hunt’s voicemail. The
phone records do not reflect where Hunt’s phone was located. A prior call on Hunt’s
phone to someone other than Skuba reflects that Hunt’s phone was in Santa Cruz at
11:30 p.m.
On July 21, 2009, there were 11 calls between defendant Hunt’s and Skuba’s
phones in the early morning hours between 12:58 a.m. and 3:56 a.m. Many of the calls
were not answered or went to voicemail. According to the defense investigator, a series
of calls involving Hunt’s phone between 1:15 a.m. and 2:00 a.m. were consistent with the
phone being out of range of the cell towers associated with the Felix Street residence.
A series of calls involving defendant Clamp’s phone between approximately
5:00 a.m. and 7:00 a.m. on July 21, 2009, were not inconsistent with Clamp being at his
residence.
On July 25, 2009, Gerardo Rios and Jose Galvan attempted to use the victim’s
credit card at a store in Watsonville. Rios later told police that he had found more than
two credit cards on a trail. Someone also attempted to use the victim’s credit card at a
Verizon store that same day.
30
Skuba was subleasing the Felix Street residence from another tenant. The owner
of the Felix Street residence testified that the door on the downstairs bathroom opens
outward. If the door is open, it is impossible for a person standing near the staircase to
see into the bathroom, except through a half-inch crack between the door and the
doorframe.
Comcast Cable was provided to tenants of the residence, and no other cable
television was hooked up to the residence in July of 2009. The television show “That’s
So Raven” aired one time in Santa Cruz on July 20, 2009 at 11:30 p.m., and did not air
again until the following night on July 21, 2009 at 11:30 p.m.
A college student who lived at the Felix Street residence testified that after he
returned from a one-week vacation in June 2009, various items were missing from his
residence, including nine personal checks from his checkbook. He was also notified by
the bank that his account was overdrawn, after two checks for about $740 were passed.
In June of 2009, Kristin asked Marjorie Jackson, with whom she and Skuba used
methamphetamine, to cash a check for her. Kristin told Jackson that she (Kristin) was
being paid under the table at work and that she did not have identification or a way to
cash the check. Jackson cashed more than one check for Kristin for a total of about
$1,000. Eventually, one of the checks bounced and Jackson’s checking account “went
under.” Jackson realized that Kristin “was trying to scam” her. Jackson had never seen
defendant Hunt use methamphetamine on the two occasions he had been to her place.
The investigator who interviewed Junior on July 30, 2009, testified that Junior
often made statements during the interview as though they were from his own personal
knowledge. In asking follow-up questions, the investigator tried to find the source of
Junior’s information. Junior told the investigator that when he was walking outside
Skuba’s residence, Skuba came up to him and stated that he (Skuba) had done something
that put their lives in jeopardy and that Skuba eventually admitted that he had killed
someone. Junior also indicated that he saw a bottle of chloroform that Skuba had, and
31
that Skuba “ ‘planned it.’ ” Junior further told the investigator that Skuba “pulled up
first,” and then Kenny Wayne, who drove a red Mustang, “followed.” Junior also
reported that he saw ten pounds of marijuana in Skuba’s closet, and that Skuba still had
three pounds of marijuana a week prior to Junior’s July 30, 2009 interview. When asked
by an investigator how he could see blood coming off of defendant Hunt’s hands into the
sink, Junior stated something to the effect that he saw the reflection of the blood in the
bathroom mirror through the crack in the door.
When Wentzel was interviewed by an investigator on March 2, 2011, he stated
that defendant Hunt did not smoke methamphetamine on the night of the incident.
2. Defendant Clamp’s Case
A sheriff’s deputy who was assigned to the courtroom for security testified about
his observations during trial. He was seated two or three feet from defendant Clamp
during the time that Kristin claimed Clamp made a threatening hand motion. The deputy
testified that he had been watching Clamp and saw Clamp’s hand near the neck area, but
that he did not see the hand motion. The deputy also watched the courtroom video and he
did not believe that Clamp made a cutting or slashing motion in his neck area.
An attorney assisting in defendant Clamp’s defense testified that she watched
nearly one weeks’ worth, or about 30 hours, of security footage of the courtroom. At the
request of Clamp’s counsel, she took notes of any movement that Clamp made around his
face with his arms or hands, and specifically movement where he was touching his collar
or neck. Clamp touched his neck, collar, or chin 85 or more times during that timeframe.
Defendant Hunt and defendant Clamp did not testify at trial.
C. Rebuttal
An investigator for the district attorney’s office was sitting in the back of the
courtroom when Kristin, who was testifying, pointed to defendant Clamp and said words
to the effect of, “ ‘Why don’t you put that on the record?’ ” The investigator testified that
Kristin had a startled look on her face and her eyes got big before she pointed in the
32
direction of Clamp, and that she was crying afterwards. The investigator did not know
what caused Kristin’s reaction. Throughout the trial, the investigator had seen defendant
Clamp adjust his collar or make movements around his throat.
D. Verdicts
The jury found defendant Hunt guilty of robbery, and not guilty of first degree
felony murder and the lesser offense of involuntary manslaughter. The jury found
defendant Clamp guilty of first degree felony murder and robbery. The jury was unable
to reach a verdict on the kidnapping count against Clamp, and a mistrial was declared as
to that count.
E. Findings on the Priors, Motion for a New Trial, and Sentencing
Prior to the bifurcated trial on defendant Clamp’s alleged prior convictions, and on
motion of the prosecutor, the trial court dismissed the prison prior allegation. The court
also granted the prosecutor’s motion to amend the information to add an allegation that
Clamp had previously been convicted of another robbery. (§ 211.) Following the
bifurcated trial, the jury found that Clamp had previously been convicted of two separate
felony violations of section 211 and one felony violation of former section 245,
subdivision (a)(1).
Defendant Clamp filed a motion for new trial and a Romero motion,6 requesting
that the trial court strike his strikes. The trial court denied both motions. The court
sentenced Clamp to prison for an indeterminate term of 75 years to life (25 years to life,
tripled) on count 1 for murder, consecutive to a determinate term of 10 years for the prior
serious felony conviction enhancements (§ 667, subd. (a)). The sentence on count 2 for
robbery was ordered stayed pursuant to section 654.7 On motion of the prosecution, the
6
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
7
As the abstract of judgment and the minute order of sentencing erroneously state
that the sentence on count 2 is concurrent rather than stayed, we will order the abstract of
judgment and minute order amended to correct this error.
33
court dismissed count 3 (kidnapping) in the interest of justice. The court granted Clamp
872 days presentence credit for actual time in custody.
The trial court sentenced defendant Hunt to the upper term of five years for second
degree robbery.
III. DISCUSSION
A. Defendant Hunt
1. The Sufficiency of the Evidence
a. The parties’ contentions
Defendant Hunt contends that there is insufficient evidence to establish his intent
to commit robbery and his participation in the robbery. He further contends that there is
insufficient evidence to establish his liability as a coconspirator or as an aider and abettor.
The Attorney General contends that there is sufficient evidence to support the
robbery conviction.
b. Analysis
“ ‘Robbery is the taking of “personal property in the possession of another against
the will and from the person or immediate presence of that person accomplished by
means of force or fear and with the specific intent permanently to deprive such person of
such property.” [Citation.]’ [Citation.]” (People v. Clark (2011) 52 Cal. 4th 856, 943
(Clark).)
“A conspiracy is shown by ‘evidence of an agreement between two or more
persons with the specific intent to agree to commit a public offense and with the further
specific intent to commit such offense, which agreement is followed by an overt act
committed by one or more of the parties for the purpose of furthering the object of the
agreement.’ [Citation.]” (People v. Longines (1995) 34 Cal. App. 4th 621, 625-626
(Longines).) “ ‘Evidence is sufficient to prove a conspiracy to commit a crime “if it
supports an inference that the parties positively or tacitly came to a mutual understanding
to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the
34
conduct, relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy.” ’ [Citations.]” (People v. Maciel (2013) 57 Cal. 4th 482,
515-516 (Maciel).) “ ‘ “[T]he agreement may be inferred from the conduct of the
[individuals] mutually carrying out a common purpose in violation of a penal statute.” ’
[Citations.]” (Longines, supra, at p. 626.)
Regarding aider and abettor liability, “ ‘[a]ll persons concerned in the commission
of a crime . . . whether they directly commit the act constituting the offense, or aid and
abet in its commission, or, not being present, have advised and encouraged its
commission, . . . are principals in any crime so committed.’ [Citation.] ‘Thus, a person
who aids and abets a crime is guilty of that crime even if someone else committed some
or all of the criminal acts.’ [Citation.] ‘[O]utside of the natural and probable
consequences doctrine, an aider and abettor’s mental state must be at least that required
of the direct perpetrator . . . .’ [Citation.] ‘[A]n aider and abettor will “share” the
perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s
criminal purpose and gives aid or encouragement with the intent or purpose of facilitating
the perpetrator’s commission of the crime.’ [Citation.]” (Maciel, supra, 57 Cal.4th at
p. 518.)
“Among the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime, companionship, and conduct
before and after the offense. [Citations.]” (In re Lynette G. (1976) 54 Cal. App. 3d 1087,
1094-1095; accord, In re Juan G. (2003) 112 Cal. App. 4th 1, 5.) “Mere presence at the
scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to
take action to prevent a crime . . . . Likewise, knowledge of another’s criminal purpose is
not sufficient for aiding and abetting; the defendant must also share that purpose or intend
to commit, encourage, or facilitate the commission of the crime.” (People v. Nguyen
(1993) 21 Cal. App. 4th 518, 529-530.)
35
“The standard of appellate review for determining the sufficiency of the evidence
is settled. On appeal, ‘ “we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] In conducting
such a review, we ‘ “presume[] in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence.” [Citation.]’ [Citations.] ‘Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal. 4th 620, 632
(Lee).)
“An appellate court must accept logical inferences that the jury might have drawn
from the circumstantial evidence.” (People v. Maury (2003) 30 Cal. 4th 342, 396
(Maury).) “ ‘It is blackletter law that any conflict or contradiction in the evidence, or any
inconsistency in the testimony of witnesses must be resolved by the trier of fact who is
the sole judge of the credibility of the witnesses. It is well settled in California that one
witness, if believed by the jury, is sufficient to sustain a verdict.’ ” (People v. Watts
(1999) 76 Cal. App. 4th 1250, 1258-1259 (Watts).) “The standard for rejecting a witness’s
statements . . . requires ‘ “ ‘either a physical impossibility that they are true, or their
falsity must be apparent without resorting to inferences or deductions.’ ” ’ [Citation.]”
(People v. Thompson (2010) 49 Cal. 4th 79, 124.) “It also is true that uncertainties or
discrepancies in witnesses’ testimony raise only evidentiary issues that are for the jury to
resolve. [Citation.]” (Watts, supra, at p. 1259.) Reversal is warranted only if it appears
“ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].’ ” (People v. Bolin (1998) 18 Cal. 4th 297, 331 (Bolin).)
36
We determine that there is sufficient evidence to support the robbery conviction.
First, there was evidence giving rise to a reasonable inference that defendant Hunt
was directly involved in the attack on the victim, given the circumstances under which
Hunt was seen at Skuba’s residence immediately before and after the attack. Wentzel
testified that Hunt was present in Skuba’s room when Skuba asked everyone except Hunt
to go upstairs. The victim was attacked in the garage thereafter. Junior testified that
when he later went downstairs, he saw defendant Hunt, who was coming out of Skuba’s
room. Hunt appeared “jumpy,” looked like he had been in a fight, and told Junior not to
“ ‘worry about’ ” whatever Junior had heard. Hunt then went into the bathroom and
Junior heard the water running. Kristin similarly testified that when she went downstairs,
she heard Hunt in the bathroom and the water running. Around this time, Skuba had
started the washing machine and changed clothes. A reasonable inference arises that
Skuba and Hunt were trying to hide the fact that the attack had occurred and their
participation in it.
Kristin testified that she again saw defendant Hunt before she cleaned the blood in
the garage. Hunt gave her a bottle of “409” cleaner and asked, “Where did they go[?]”
The nature of this encounter with Kristin gives rise to a reasonable inference that Hunt
was aware of the attack. Kristin then saw Hunt 45 minutes after Skuba and defendant
Clamp had returned to the residence. Significantly, Kristin testified that the bags of
marijuana were divided equally among Skuba, Hunt, and Clamp, and that they also
divided up the marijuana pills. Given that the estimated value of the marijuana found in
Clamp’s residence was $7,000 or more, a reasonable inference arises that Hunt’s share of
the marijuana was also worth a significant sum, and that he had received an equal share
because of his significant and direct participation in the attack on the victim.
Second, phone records support the inference that Hunt was involved with Skuba in
the attack on the victim. Regarding the time of the attack, the evidence indicates that the
attack occurred in the early morning of July 21, 2009, between approximately 12:30 a.m.
37
and 1:00 a.m. Specifically, the last phone call between the victim and Skuba was at
12:31 a.m., which suggests the victim arrived at Skuba’s residence sometime thereafter.
Kristin testified that after the attack, Skuba talked on his phone and then defendant
Clamp came to the residence. The phone records reflect calls between Skuba and Clamp
around 1:00 a.m., 2:00 a.m., and 3:00 a.m. on July 21, 2009. The evidence established
that by 3:00 a.m., Clamp and Skuba were traveling out of Santa Cruz with the victim. In
view of Kristin’s testimony about the chronology and timing of events, Clamp must have
arrived sometime after the 2:00 a.m. calls, and thus the attack must have occurred
between approximately 12:31 a.m. and 1:00 a.m. on July 21, 2009.
Consistent with Hunt participating in an attack during this timeframe, the first call
placed on Hunt’s phone to anyone on July 21, 2009, was at 12:53 a.m. This meant that
Hunt was available to participate in an attack prior to that time. Significantly, there were
no calls between Hunt’s and Skuba’s phones for roughly an hour between about midnight
on July 20, 2009, until 12:58 a.m. on July 21, 2009. In contrast, during the early morning
hours of July 21, 2009, from about 12:58 a.m. to 4:00 a.m., after the attack had
apparently occurred, there were numerous calls between Hunt’s and Skuba’s phones
(although some calls were not answered). There were also three calls from Hunt’s phone
to Kristin’s phone between 12:58 a.m. and 3:07 a.m. Hunt’s phone records further
indicate that he was in the general area of Felix Street and downtown Santa Cruz between
12:53 a.m. and 4:00 a.m., which is consistent with the inference that he participated in an
attack prior to 12:53 a.m. in that area of town, and that he left the residence more than
once yet remained close enough to return with the cleaning product for Kristin and to
obtain a share of the marijuana. Thus, the frequency, timing, and location of the calls
involving Hunt’s phone give rise to a reasonable inference that Hunt was involved with
Skuba in the attack on the victim.
Third, other evidence concerning Hunt’s conduct after the attack gives rise to an
inference that he was involved in the attack. For example, when Hunt was interviewed
38
by law enforcement after the incident, he lied about where he was living. As a result,
while law enforcement was able to search the residences of Skuba and defendant Clamp,
as well as the motel where Kristin, Senior, and Junior were staying, and locate items that
were stolen from the victim, law enforcement was unable to conduct a similar search of a
residence for Hunt. The jury could reasonably have concluded that Hunt lied about
where he was living in order to hide physical evidence of his participation in the crime.
Moreover, in the recorded jail call, in which Hunt sought help in finding case law
“similar to the situation [he was] dealing with,” Hunt appears to acknowledge that he was
involved in the initial attack on the victim, but that he was not present when the victim
was later moved.
In sum, given the circumstances under which defendant Hunt was observed at
Skuba’s residence on the night of the attack, the phone records, and Hunt’s statements to
law enforcement and in a recorded jail call, we determine that substantial evidence
supports the inference that Hunt directly participated in the attack on the victim in the
garage.
In addition to the evidence that Hunt participated in the attack on the victim, a
reasonable inference arises that Skuba discussed with Hunt either just before the attack,
or at some earlier point in time, the plan to rob the victim. In this regard, there was
evidence that Skuba had planned ahead of time to rob the victim and to use chloroform,
that Hunt remained in Skuba’s room while Kristin and Wentzel were asked to go upstairs,
and that Hunt subsequently participated in the attack. Further, a reasonable inference
arises that Hunt was a member of a conspiracy to commit robbery and aided and abetted
the robbery, in view of his knowledge about the planned robbery and planned use of
chloroform, and his subsequent participation in the attack, which disabled the victim and
facilitated the taking of the victim’s property. Moreover, he provided Kristin with a
cleaning product to clean up the blood in the garage, and he equally shared in the
marijuana taken from the victim with Skuba and defendant Clamp. Accordingly, we
39
conclude that substantial evidence supports Hunt’s conviction for robbery. (Lee, supra,
51 Cal.4th at p. 632.)
2. The Evidence of Financial Circumstances
a. Background
Defendant Hunt’s interview with law enforcement contains references to his
financial circumstances. Prior to the prosecution showing the video of the interview to
the jury, Hunt filed a motion in limine to “preclude the prosecution from introducing
evidence of his poverty or financial need.” Hunt argued that “evidence of the defendant’s
poverty or financial need at the time of the offense is clearly inadmissible to provide a
motive for the robbery or to prove the defendant’s intent,” citing People v. Carrillo
(2004) 119 Cal. App. 4th 94 (Carrillo), among other authorities. He further argued that,
although such evidence may be admitted to eliminate other explanations for a defendant’s
sudden wealth after a theft offense, there was no evidence of Hunt’s sudden wealth in this
case. The trial court was provided with a transcript of the law enforcement interview,
and Hunt’s counsel marked those portions that he believed should be redacted regarding
poverty or financial need, or otherwise redacted on other grounds.
At a hearing on the motion outside the presence of the jury, the trial court
explained that it had reviewed defendant Hunt’s interview with law enforcement. The
court indicated that its “preliminary thoughts” were as follows: “[R]eferences to lack of
employment and[/]or money are minimal in this interview . . . and not emphasized
compared to the situation in [Carrillo] . . . and other cases that cite Carrillo. In those
cases, it was . . . clear that the prosecution hammered away each time that a witness or the
defendant [lacked money]. [¶] Now, we’ve also had some testimony about what the
value of marijuana is through some of the other witnesses and the amount that Mr. Hunt
is alleged to have received. So I do find that the parts about Mr. Hunt’s employment and
the work that he’s doing were -- or not doing work all things considered, could remain.”
40
Defendant Hunt’s trial counsel argued that the cases did not “turn[] on how much
or how little the prosecution emphasizes things” and that the “basic rule” precluded
“going into defendant’s poverty to show motive to rob.” The trial court responded that
“[t]he prosecutor kind of went over the top in [Carrillo], though.” Hunt’s counsel stated:
“I agree with you it’s not super emphasized in here. In fact, I would say generally it’s not
even, to be forthright, it’s not even in response to questioning in a lot of ways but the idea
of Mr. Hunt being evicted and . . . he is asked about his work. He says he’s been taking
care of his newborn and then he works for a while, gets unemployment. I think all those
things do go to a lack of wealth, and . . . should be excluded.”
The prosecutor argued that although defendant Hunt had disclosed the financial
information during his interview with law enforcement, “there isn’t a purpose as far as
going after these things . . . to establish poverty. . . . [T]his is not a situation like in
Carrillo or other cases where there is this pursuit by law enforcement as far as showing
because you’re impoverished or because specifically you’re not working at this particular
point that you’ve got a motive to have committed this particular crime or crimes.”
The trial court denied defendant Hunt’s motion. The court believed that the
“general theme” in the opinions where the evidence was excluded was when “there’s
over emphasis,” and Carrillo “was over the top.” In contrast, when the court “looked at
[the detective conducting the interview] and . . . looked at Mr. Hunt and . . . listened to
the words within the interview, . . . [the court] just didn’t find it was overly obtrusive.”
b. The parties’ contentions
On appeal, defendant Hunt contends that he “and his interviewer made various
references to his lack of employment and money,” and that the trial court committed
prejudicial error by denying his motion to exclude such references. As for the particular
references at issue, Hunt cites seven pages from the transcript of the interview by law
enforcement, and indicates that the pages reflect that he “had three small children to feed
41
and house, was not then working, had been evicted, and tried to earn money working on
and selling cars.”
The Attorney General contends that Carrillo is distinguishable with respect to the
amount and nature of evidence that was admitted, and that the court in this case did not
abuse its discretion in admitting the evidence of Hunt’s financial circumstances.
c. Analysis
“Ordinarily, ‘[e]vidence of a defendant’s poverty or indebtedness, without more, is
inadmissible to establish motive for robbery or theft because it is unfair to make poverty
alone a ground of suspicion and the probative value of the evidence is deemed to be
outweighed by the risk of prejudice.’ [Citations.]” (Clark, supra, 52 Cal.4th at p. 929.)
There are circumstances, however, “under which evidence of a defendant’s
unemployment or financial status is relevant and admissible to a charge of robbery . . . .”
(Ibid.) For example, evidence of a defendant’s poverty may be admitted “for the limited
purpose of rebutting an assertion that [the defendant] did not commit the charged
robberies because [the defendant] did not need money. [Citations.]” (Ibid., fn. omitted.)
Alternatively, the evidence may be admissible to eliminate legitimate explanations for the
defendant suddenly coming into possession of a greater than usual sum of money after
the crimes. (Ibid.)
In Carrillo, “the prosecution introduced a considerable amount of evidence
showing [the defendant] was in difficult financial straits when she allegedly aided and
abetted her boyfriend in a robbery.” (Carrillo, supra, 119 Cal.App.4th at p. 97; see id. at
p. 103.) The boyfriend had taken a chain and medallion from the victim’s neck and then
had run to the defendant’s car. The defendant tried to drive away, but was blocked by
another vehicle. The boyfriend fled. The defendant claimed that she had no idea her
boyfriend had committed a robbery and that she had no intention of helping him get
away. (Id. at p. 98.) At trial, the prosecutor elicited “considerable evidence regarding
[the defendant’s] financial circumstances,” including that she was unemployed in the
42
months leading up to the robbery, that her rent was several hundred dollars per month,
and that she acquired a car possibly a couple of months before the robbery. (Ibid.; see id.
at pp. 99-100.) In closing argument the prosecutor reminded the jury that the defendant
and her boyfriend were out of work at the time of the robbery. (Id. at p. 100.) The
prosecutor also argued that “ ‘if you are somebody looking to get something of value so
you can get some money, boom, of course, quick, easy, take the chain, guaranteed.
Guaranteed value right there. Go to your local pawn store, you get whatever, 50 bucks,
whatever it is, 40 bucks.’ ” (Ibid.) The defendant was convicted of robbery. (Ibid.)
The appellate court determined that the evidence concerning the defendant’s
financial situation was inadmissible. The court observed that, “ ‘Lack of money gives a
person an interest in having more. But so does desire for money, without poverty. A rich
man’s greed is as much a motive to steal as a poor man’s poverty. Proof of either,
without more, is likely to amount to a great deal of unfair prejudice with little probative
value.’ [Citation.]” (Carrillo, supra, 119 Cal.App.4th at p. 102.)
After evaluating the error under People v. Watson (1956) 46 Cal. 2d 818 (Watson),
the appellate court reversed the judgment. (Carrillo, supra, 119 Cal.App.4th at pp. 103-
104.) The court explained that the case against the defendant “was entirely
circumstantial,” the defendant “offered the jury a marginally plausible explanation of
events that was consistent with her claim of innocence,” and the jury appeared to struggle
with that explanation in view of the nature of its questions during deliberations. (Id. at
p. 104.) The court believed that the jury, “knowing [the defendant] was an unemployed,
unwed mother on government assistance, . . . may very well have been inclined to view
her as a feckless pauper whose station in life and lack of support for her two children
provided her with a motive to steal. Although the prosecutor did not expressly argue this
point, she did not have to. The evidence of [the defendant’s] finances was so extensive,
the notion was virtually inescapable.” (Ibid.)
43
In this case, the transcript of the law enforcement interview of defendant Hunt is
approximately 57 pages single-spaced. On appeal, Hunt cites seven pages as containing
objectionable material. We observe that Hunt did not object in the trial court to any
material on three of those seven pages. Regarding the other four pages, some of the
material that Hunt now claims is objectionable was not the subject of an objection by
Hunt below. Because we determine that he was not prejudiced by the admission of the
material, we do not address whether Hunt has forfeited his claim with respect to those
portions he objects to for the first time on appeal. (See Evid. Code, § 353; People v.
Champion (1995) 9 Cal. 4th 879, 918.)
Specifically, without deciding whether it was error for the trial court to admit
those portions of the interview which defendant Hunt claims is evidence of poor financial
circumstances, we determine that it is not reasonably probable that a result more
favorable to him would have been reached in the absence of the admission of the
evidence. (Watson, supra, 46 Cal.2d at pp. 836-837.)
First, the evidence concerning defendant Hunt’s financial circumstances about
which he now complains was relatively brief. (People v. McDermott (2002) 28 Cal. 4th
946, 999 [finding no prejudice in the admission of evidence of the defendant’s poverty or
indebtedness because the testimony was relatively brief among other reasons].) In the
seven pages cited by Hunt as containing objectionable material, there are two references
to him having been evicted, two references to him not currently working, one reference to
him being unemployed and receiving unemployment insurance, and one reference to him
spending the night at his mom’s house a lot within the prior two weeks because he was
on a budget. We believe Hunt’s trial counsel was correct in stating below that the
information about Hunt’s financial situation was not “super emphasized” during the
interview by law enforcement, and that some of Hunt’s references to his financial
situation were “not even in response to questioning.” Moreover, although Hunt was
apparently unemployed at the time of the interview, he also indicated that he had worked
44
within the prior year doing “temp work,” customer service, and construction. He also
told the interviewer that he was not poor and that he was not homeless.
In addition, regarding Hunt’s discussion with the interviewer about working on
and selling cars, the pages of the interview transcript cited by Hunt indicate that he had
“car issues” with respect to his three cars and for that reason he was “working” on his
cars. He indicated he intended to sell only one of them, a Gran Torino, “while the movie
is still out.” Admitting into evidence these references to Hunt owning and fixing three
cars, one of which he planned to sell at an opportune time, was not prejudicial error in
this case. Similarly, the admission into evidence of references to Skuba’s indebtedness to
Hunt over a bicycle, and Hunt’s attempt to collect that debt, was not prejudicial error in
Hunt’s case. (See Clark, supra, 52 Cal.4th at p. 929 [stating that evidence of a
“ ‘defendant’s’ ” indebtedness is generally inadmissible to establish a motive for a
robbery].)
Second, defendant Hunt does not identify any question posed by the prosecutor to
a witness suggesting that Hunt’s motive for the robbery was based on his financial
circumstances. Significantly, the prosecutor did not argue to the jury that Hunt’s motive
to commit the robbery was based on his financial circumstances. (See Clark, supra,
52 Cal.4th at p. 930 [finding no prejudicial error because, among other reasons, the
prosecutor “did not refer to defendant’s unemployment or poverty during closing remarks
when urging the jury to convict him of robbery”].)
In arguing that the admission of evidence concerning his financial status resulted
in prejudicial error because the case was “close,” defendant Hunt observes that jury
deliberations lasted three days, the jury asked for a read back of a portion of Junior’s
testimony, the jury sent a note indicating that it was considering the lesser charge of
grand theft, and the jury failed to convict on all counts.
We are not persuaded by defendant Hunt’s arguments. Regarding the length of
jury deliberations, the record reflects that there were extensive trial proceedings in a case
45
involving a serious crime and multiple perpetrators. More than 40 witnesses testified on
20 days between May 24 and August 4, 2011, and numerous exhibits were admitted into
evidence. Jury instructions were given on August 8, 2011, and counsel presented
argument to the jury on August 9, 10, and 11, 2011. Under these circumstances, the
length of deliberations suggests a diligent and conscientious jury. (Cf. People v. Cooper
(1991) 53 Cal. 3d 771, 837 [deliberations for 27 hours showed a “conscientious” jury,
rather than a close case, in a three-month trial with complex scientific testing]; People v.
Houston (2005) 130 Cal. App. 4th 279, 301 [deliberation over four days may reflect jury’s
diligence and “conscientious performance,” rather than a close case, where extensive trial
proceedings involved more than three dozen witnesses on 10 days spread over three
weeks, and lengthy closing arguments and jury instructions spread over two additional
days].)
Hunt also bases his argument that this was a “close case,” and that therefore the
admission of evidence concerning his financial status resulted in prejudicial error, on the
jury’s request for a read back of some of Junior’s testimony, the jury’s note concerning
the lesser charge of grand theft, and the jury’s failure to convict on all counts. Regarding
the read back of testimony, the jury requested Junior’s testimony “starting when he
comes down the stairs until just after where he is on the sidewalk and Skuba comes out
and talks to him. Both direct and cross-examination.” Hunt fails to explain the
significance of this request with respect to the admission of evidence about his financial
circumstances and whether prejudicial error occurred. In this regard Hunt also fails to
persuasively explain the significance of the following jury question, “Can Hunt be found
guilty of manslaughter without being guilty of grand theft?” (Cf. People v. Filson (1994)
22 Cal. App. 4th 1841, 1852 [holding that erroneous rulings could not be found harmless
where, among other factors, the “jury deliberated long and hard, troubled (as evidenced
by its request for additional instructions) by the matter of defendant’s intent, the very
issue the defense would have developed but for the trial court’s rulings”], disapproved on
46
another ground in People v. Martinez (1995) 11 Cal. 4th 434, 452.) Lastly, Hunt fails to
persuasively articulate why the jury’s finding of guilt as to the robbery charge, and its
findings that he was not guilty as to the first degree felony murder and involuntary
manslaughter charges, reflect that the case was close regarding the robbery conviction.
In sum, in view of the limited and at times favorable references to defendant
Hunt’s financial circumstances, the lack of any argument by the prosecutor that Hunt’s
financial circumstances were a motive for the robbery, and the substantial evidence of
Hunt’s involvement in the robbery as described above, we determine that it is not
reasonably probable that a result more favorable to defendant Hunt would have been
reached in the absence of the admission of the evidence concerning his financial
circumstances. (Watson, supra, 46 Cal.2d at pp. 836-837.)
3. The Out-of-Court Statements
a. Background
Prior to trial, the prosecutor filed a memorandum of points and authorities seeking
to introduce at trial Skuba’s statements to Kristin that “the chloroform didn’t work” and
because of that they had “gotten into a fight.” According to the prosecutor, Skuba made
this statement to Kristin after disposing of the victim’s body and returning to the
residence. The prosecutor contended that this and other statements by Skuba were
“admissible as coconspirator statements against defendants Hunt and Clamp” under
Evidence Code section 1223.
Defendant Hunt filed opposition, contending that there was insufficient evidence
that he had conspired with Skuba to rob the victim, and that even if there was evidence of
a conspiracy, the coconspirator exception to the hearsay rule did not apply to many of
Skuba’s alleged statements. Hunt requested a hearing pursuant to Evidence Code
sections 402 and 403 with respect to the statements that Kristin claimed Skuba had made
to her. Hunt contended that Skuba’s alleged statement about the chloroform and a fight
“is not admissible as an exception to the co-conspirator rule as the conspiracy had ended
47
and the statement does not in any way further the conspiracy. Skuba makes this alleged
statement to [Kristin] after disposing of Mr. Sorokin and returning to his house. Skuba’s
statement is merely a description of past events that does not ‘in some measure, or to
some extent, aid[] or assist[] towards . . . the consummation of the object of the
conspiracy.’ ”
The trial court held a hearing (see Evid. Code, §§ 402-403) at which Kristin
testified about the incident involving the victim and Skuba’s statements to her. Kristin
testified that, after hearing the incident in the garage and going downstairs where she
heard defendant Hunt in the bathroom, she smoked a cigarette outside with Skuba. Skuba
told her, “ ‘The chloroform didn’t work; that they got into a fight. He’s knocked out. Do
not go in there.’ ” Kristin testified that Skuba and Clamp eventually left the residence.
After Kristin testified at the pretrial hearing, the trial court tentatively ruled that
the conspiracy was “ongoing” from defendant Hunt’s arrival at Skuba’s residence to the
division of the marijuana. The court further determined that Skuba’s statements to
Kristin, that the “ ‘chloroform didn’t work,’ ” that they “got into a fight,” and that she
should not “go in there,” were admissible as a “continuing statement of the conspiracy.”
The following day, the trial court clarified its tentative ruling and heard argument
from counsel before making its “final ruling.” The court clarified that its tentative ruling
was to allow the following statement by Skuba to Kristin as a statement in furtherance of
the conspiracy: “ ‘The chloroform didn’t work. We got into a fight. He’s knocked out.
Do not go there.’ ”
Defendant Hunt’s counsel argued that the portion, “ ‘we got into a fight,’ ” should
be “redact[ed]” to “I got in a fight,” so that the statement referred only to Skuba. The
court disagreed and ultimately determined that Skuba’s statement would be allowed at
trial as previously set forth in its tentative ruling, and that the conspiracy began when
Hunt arrived at Skuba’s residence and did not end until the next morning when everyone
left the residence after the marijuana was divided up.
48
Kristin testified at trial that, after hearing the incident in the garage and going
downstairs where she heard defendant Hunt in the bathroom, she smoked a cigarette
outside with Skuba. Skuba told her that the chloroform “didn’t work,” that “ ‘[w]e got
into a fight,’ ” and that the person was “knocked out” in the garage. Kristin also testified
that, in an initial interview with investigators, she had reported that Skuba told her to
“keep it solid,” “don’t say anything,” and “don’t go in the garage.”
b. The parties’ contentions
On appeal, defendant Hunt contends that the trial court prejudicially erred in
admitting Skuba’s statements “that the chloroform did not work and ‘we’ got into a fight”
under the coconspirator’s exception to the hearsay rule set forth in Evidence Code
section 1223. Hunt contends that (1) there was insufficient evidence of a conspiracy and
(2) the statements did not further the objective of a conspiracy to commit robbery.
The Attorney General contends that defendant Hunt forfeited the second
contention, that the statements were properly admitted under the coconspirator’s
exception to the hearsay rule, and that any error was harmless.
c. Analysis
As an initial matter, we understand defendant Hunt to challenge the court’s
pretrial ruling that Skuba’s statements were admissible under the coconspirator’s
exception to the hearsay rule. Hunt’s argument that the ruling was erroneous is based,
however, on the insufficiency of the evidence at trial regarding whether there was a
conspiracy.
“ ‘[T]he general rule is that “when an in limine ruling that evidence is admissible
has been made, the party seeking exclusion must object at such time as the evidence is
actually offered to preserve the issue for appeal . . . .” ’ ” (People v. Letner and Tobin
(2010) 50 Cal. 4th 99, 159 (Letner), italics omitted.) “[A]n in limine motion, without a
contemporaneous objection at trial, is sufficient to preserve an objection for appeal only
when ‘(1) a specific legal ground for exclusion is advanced and subsequently raised on
49
appeal; (2) the motion is directed to a particular, identifiable body of evidence; and
(3) the motion is made at a time before or during trial when the trial judge can determine
the evidentiary question in its appropriate context.’ ” (Id. at p. 160.)
In this case, the trial court made its pretrial determination of the existence of a
conspiracy, and that Skuba’s statements were made in furtherance of the conspiracy, after
Kristin testified at the pretrial hearing (see Evid. Code, §§ 402-403). Defendant Hunt
makes no argument that the trial court’s ruling was erroneous based on Kristin’s
testimony at the pretrial hearing. Rather, Hunt’s argument is directed to the sufficiency
of the evidence presented at trial. To that extent, however, Hunt was obligated to object
at trial to Kristin’s testimony about Skuba’s statements, the lack of sufficient evidence of
a conspiracy, and the lack of a statement in furtherance of a conspiracy. Hunt fails to
provide a citation to the record reflecting that such an objection was made at trial. At that
time, “ ‘the trial judge [could have] determine[d] the evidentiary question in its
appropriate context.’ ” (Letner, supra, 50 Cal.4th at p. 160.) In view of Hunt’s failure to
show that an objection was made during trial to the testimony about which he now
complains, we determine that he has failed to preserve his claim on appeal.
Even assuming defendant Hunt preserved his claim for appeal, we determine the
claim is without merit for the following reasons.
We apply the abuse of discretion standard in reviewing the trial court’s
determination to admit or exclude hearsay evidence. That standard applies to questions
about the existence of the elements necessary to satisfy the hearsay exception. (People v.
Poggi (1988) 45 Cal. 3d 306, 318-319; People v. Martinez (2000) 22 Cal. 4th 106, 120.)
“Under Evidence Code section 1223, evidence of a hearsay ‘statement’ of a
coconspirator is inadmissible against the defendant absent ‘ “independent evidence to
establish prima facie the existence of . . . [a] conspiracy.” ’ [Citations.]” (People v.
Cowan (2010) 50 Cal. 4th 401, 482.) We have already determined there is substantial
evidence that defendant Hunt was a member of the conspiracy to rob the victim.
50
“Once independent evidence to establish the prima facie existence of the
conspiracy has been shown,” the prosecution must also show “ ‘ “that the declaration was
in furtherance of the objective of that conspiracy.” ’ ” (People v. Hinton (2006)
37 Cal. 4th 839, 895.) “ ‘[W]hether statements made are in furtherance of a conspiracy
depends on an analysis of the totality of the facts and circumstances in the case.’
[Citation.]” (People v. Arceo (2011) 195 Cal. App. 4th 556, 578.)
Defendant Hunt contends that Skuba’s statements to Kristin shortly after the attack
that the chloroform did not work and “ ‘[w]e’ ” got into a fight were “merely a narrative
description of past events,” “did not advance the objectives of the conspiracy,” and “did
not seek to enlist Kristin’s cooperation or assistance. That did not come until much later
when, before they left, Skuba or Clamp told her to clean up the blood in the garage.”
We are not persuaded by defendant Hunt’s argument. In addition to Skuba’s
statements to Kristin that the chloroform “didn’t work” and that “ ‘[w]e got into a
fight,’ ” there was also evidence that Skuba told Kristin that the victim was “knocked
out” in the garage, “don’t say anything,” and “don’t go in the garage.” A reasonable
inference arises that Skuba was concerned Kristin would go into the garage, see the crime
scene, and subsequently interfere with, meddle in, or otherwise hamper the ongoing
conspiracy to rob the victim, divide the items taken from the victim, and hide the crime.
Indeed, Kristin was later told to get out of the victim’s truck when looking for something
to steal, and was told to clean up the garage only after the victim was removed from the
garage. Skuba may have also been concerned that the victim might regain consciousness
while Kristin was in the garage. Accordingly, by telling Kristin what had happened in
the garage and the victim’s status, it is reasonable to infer that Skuba was trying to give
Kristin a compelling reason to stay out of the garage until the victim was moved and to
keep quiet about the events of that evening. Hunt fails to show an abuse of discretion by
the trial court in admitting Skuba’s statements on the basis that they were made in
furtherance of the conspiracy.
51
B. Defendant Clamp
1. The Sufficiency of the Evidence
a. The parties’ contentions
Defendant Clamp contends that there is not substantial evidence that the victim
was still alive when Clamp first became involved in the incident, and that his convictions
for robbery and murder, which was based on a felony-murder theory, must therefore be
reversed. According to Clamp, his involvement began when he purportedly told Kristin
to clean up the blood in the garage, and before Skuba retrieved the victim’s body and
loaded it into the truck.
The Attorney General contends that the jury could reasonably have concluded that
the victim was alive when Clamp became involved.
b. Analysis
As we stated above, in determining the sufficiency of the evidence, “ ‘ “we review
the entire record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” [Citation.]’ [Citation.] In conducting such a review, we ‘ “presume[]
in support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” [Citation.]’ [Citations.]” (Lee, supra, 51 Cal.4th at p. 632.) We
“must accept logical inferences that the jury might have drawn from the circumstantial
evidence.” (Maury, supra, 30 Cal.4th at p. 396.) “A reasonable inference, however,
‘may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to probabilities without evidence.’ ”
(People v. Morris (1988) 46 Cal. 3d 1, 21, disapproved on another point in In re
Sassounian (1995) 9 Cal. 4th 535, 543-544, fn. 5.)
52
Defendant Clamp and the Attorney General agree that Clamp arrived at Skuba’s
residence at least an hour to an hour and a half after the assault on the victim. This
estimate is consistent with the evidence. As we explained above, the attack occurred
between approximately 12:31 a.m. and 1:00 a.m., and Clamp arrived sometime after the
calls with Skuba around 2:00 a.m.
Substantial evidence supports a finding that defendant Clamp became involved
while the victim was alive. Kristin testified that when she saw Skuba on the patio after
the attack, he stated that the chloroform did not work, that a “fight” had occurred, and
that the victim was “knocked out.” Kristin’s testimony that she did not hear any noises
coming from the garage after the attack is consistent with Skuba’s comment that the
victim was “knocked out.”
Further, the conversation between defendant Clamp and Skuba after Clamp’s
arrival at the residence supports a finding that the victim was alive after the attack in the
garage. According to Kristin, Clamp asked Skuba “if he could live with this for the rest
of his life.” Skuba stated, “ ‘Yes, he knows where my mom lives.’ ” (Italics added.) The
logical inference from Skuba’s response is that the victim was still alive in the garage
after the attack.
Regarding the crime scene, Kristin testified that there was a “bunch” of blood in
the garage, including “specks” that appeared to have been “flung” and a “pool” of blood
that contained most of the blood. Although the exact amount of blood in the garage was
not established, Kristin testified that she cleaned up the garage with two bottles of
cleaner, along with a towel and a “torn T-shirt that was already there for” oil leaks There
was no evidence suggesting that the amount of blood lost by the victim necessarily meant
the injury suffered by the victim was fatal.
The criminalist from the state crime lab testified about the patterns of apparent
blood in the garage but was not able to offer any opinion as to what happened to the
victim. According to the criminalist, the blood patterns may have been the result of an
53
impact from a beating with a hand or a tool, from being flung off an object, from a
bludgeoning, and/or from a very fast force, such as a gunshot, baseball bat, or “high-
speed machinery” like a chainsaw. The criminalist testified that an in-depth analysis of
the blood spatter was not conducted, that experiments were required to determine the
cause of some of the specks of suspected blood, and that, in the absence of a weapon or a
wound on a body to examine, the information was limited as to determining what
happened in the garage.
However, the noises reported by the witnesses who heard the attack were
consistent with a fight, rather than the use of a gun or “high-speed machinery” to attack
the victim as suggested by the criminalist. Kristin testified that she heard “banging”
noises, and that it sounded as though “somebody was getting in a fight,” with “a bunch of
movement” and “something was in the way and they knocked it over.” Wentzel similarly
testified that he heard a “ruckus, like someone was moving a lot of stuff around” or
“knocked some stuff over,” and that there were banging and slamming noises. Senior
likewise testified that he heard a “furniture noise,” such as a chair moving. Junior
testified that it sounded as though someone was getting “beaten up.”
In sum, substantial evidence supports a finding that the victim was alive
immediately following the attack in the garage, in view of the witnesses’ testimony about
the noises emanating from the garage which were consistent with a fight not involving a
gun or high-speed machinery; Skuba’s comments to Kristin that the chloroform did not
work, a “fight” had occurred, and the victim was “knocked out”; and Skuba’s later
conversation with defendant Clamp that included Skuba’s statement that the victim
“ ‘knows where [Skuba’s] mom lives.’ ” (Italics added.) Further, it was reasonable for
the jury to infer that the victim was still alive when Clamp and Skuba had the discussion
about the victim and when Clamp thereafter told Kristin to clean up the blood, because
Clamp and/or Skuba had checked on the victim by going through the side door to the
garage near Skuba’s room, or because Skuba already knew the victim was still alive
54
based upon the nature of the attack and the condition of the victim immediately
thereafter. Indeed, given that the victim was alive immediately after the attack, it is not
unreasonable to infer that Skuba at some point checked on the victim to make sure he was
still knocked out before Skuba and Clamp had the discussion about what to do with the
victim. In other words, the nature of the conversation between Skuba and Clamp
supports an inference that at least one of them did check on the victim and that the victim
was still alive at that time.
Although defendant Clamp acknowledges that this court “does not subjectively
assess witness credibility,” he nevertheless contends that Skuba’s statements, including
that the victim was knocked out and that the victim knew where Skuba’s mom lived,
came from Kristin who “was a weak, inconclusive, and questionable source.” Clamp also
points to Junior’s testimony that Skuba stated to him outside the residence after the attack
that their lives were “in jeopardy.” Clamp contends that this statement, along with the
lack of noise or movement in the garage, the nature of the assault, and the amount of
blood and its pattern, “all point to [the victim] Sorokin either having died during the
attack, or having survived for a very short time, and certainly not until Skuba dragged his
body to the truck.”
As the California Supreme court has explained, “ ‘[c]onflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence.’ [Citation.]” (Lee, supra, 51 Cal.4th at p. 632.) Further, “[t]hat the evidence
might lead to a different verdict does not warrant a conclusion that the evidence
supporting the verdict is insubstantial. [Citation.]” (People v. Holt (1997) 15 Cal. 4th
619, 669.) Reversal is warranted only if it appears “ ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ ” (Bolin, supra,
55
18 Cal.4th at p. 331.) In this case, as we have explained, substantial evidence supports
the finding that the victim was alive after the attack, including at the point when Clamp
arrived and when he shortly thereafter told Kristin to clean up the blood. We therefore
determine that Clamp’s claim of insufficiency of the evidence does not warrant reversal
of the judgment.
2. The Out-of-Court Statements
a. Background
Defendant Clamp joined in a pretrial motion in limine by defendant Hunt to
exclude statements by Skuba to Kristin. In the motion, Hunt contended, among other
arguments, that Skuba’s statements “must be limited to those statements specifically
disserving of Skuba’s interest” in order to be admitted as declarations against interest
under Evidence Code section 1230, and that any statements admitted must be redacted to
eliminate any reference to defendants. Relevant here, Hunt specifically referred to
Skuba’s statement to Kristin “that ‘they’ disposed of the body.” To the extent the trial
court was inclined to admit Skuba’s statements, Hunt requested a hearing pursuant to
Evidence Code sections 402, 403, and 702 to determine, among other things, what
Roberts was claiming Skuba had told her.
At a hearing prior to trial, Skuba invoked his Fifth Amendment right not to testify.
The trial court found him to be an unavailable witness under Evidence Code section 240.
After hearing argument from the parties concerning Kristin’s anticipated
testimony about out-of-court statements by Skuba and defendants, the trial court
conducted a hearing (see Evid. Code, §§ 402-403). Kristin testified that after the
marijuana was divided up and defendants had left Skuba’s residence, Skuba told her what
they had done with the victim. According to Kristin, Skuba stated that “they drove up
north and threw his body off a cliff and he could hear it go thudding down the cliff.” On
cross-examination by Hunt’s counsel, Kristin further testified: “[Skuba] said that he
drove [victim] Elias’[s] truck and Clamp drove some other truck, followed him up north
56
wherever they went and they threw the body off a cliff there. They could hear it thudding
all the way down.” When asked by Clamp’s counsel whether Skuba provided any
specifics about his conduct, Kristin testified: “Stewart [Skuba] drove [victim] Elias
Sorokin’s truck. Clamp followed him. They drove up the coast and they threw Elias
Sorokin’s body off the cliff and it went thudding down.” Kristin further testified on
cross-examination that Skuba did not provide a detailed description about the body being
thrown off the cliff, and that he did not tell her “who was positioned where.”
The prosecution subsequently filed a motion to admit into evidence Skuba’s
statements on the ground that they were declarations against interest under Evidence
Code section 1230. After hearing argument from counsel, the trial court explained that
the statement concerning driving a body up, throwing it off a cliff, and the thudding
sound was “clearly” a statement against interest. Based on the information elicited on
cross-examination of Kristin at the pretrial hearing, the court believed that there was “no
shifting of blame or responsibility” by Skuba to Clamp. The court told counsel that “it
would be more appropriate to give you all a few hours to digest that and come back at
1:30 with your responses. [¶] But my tentative ruling would be to admit the statement”
that Skuba and Clamp “drove the body up and they threw the body up.” The court cited
several cases which were “the basis of [the court] ruling tentatively.” The court told
Clamp’s counsel that “we’ll take up your arguments at 1:30.” The record on appeal does
not reflect that Clamp’s counsel made any further argument on the issue of the
inadmissibility of Skuba’s statement, or that the court issued a final ruling on the issue.
Kristin testified at trial, without objection from defendant Clamp, that she asked
Skuba what “they did with [the victim].” Skuba told her that “they went up the coast,”
“[he] was driving Elias’s vehicle and [Clamp] was right behind him in a red truck,”
“Elias was in the back of his truck,” “they threw him off a cliff and they could hear his
body go thudding down,” and “[t]hey came back to [Skuba’s].”
57
b. The parties’ contentions
On appeal, defendant Clamp contends the trial court erred by admitting Skuba’s
out-of-court statements pursuant to the hearsay exception for declarations against interest
under Evidence Code section 1230. Clamp contends that Skuba’s statements were
“partially, if not wholly, exculpatory” and that, “to the extent some were against his
interest, they were not properly redacted to eliminate the portions that were not.”
The Attorney General contends that the trial court did not err in admitting Skuba’s
statements, and that any error was harmless.
c. Analysis
As an initial matter, none of defendant Clamp’s citations to the record reflect that
the trial court made a final ruling on the issue which had been raised in pretrial motions
by defendants and the prosecution. “ ‘A tentative pretrial evidentiary ruling . . . will not
preserve the issue for appeal if the appellant could have, but did not, renew the
objection . . . and press for a final ruling . . . .’ ” (People v. Ennis (2010) 190 Cal. App. 4th
721, 736.) In Ennis, the court explained: “[T]he distinction between a tentative ruling
and a final one does not turn on whether the court has given significant consideration to
the issue; it turns on whether the court has finished its consideration of the issue. Here,
the court made clear it had not, and explicitly agreed to hear further argument on the
issue [at a later point]. It was [defendant], and not the court, who decided not to pursue
the matter further, and thus it was [defendant] who abandoned the issue. Having done so,
[defendant] cannot complain that the court erred in its ruling.” (Ibid., italics omitted.)
Similarly, in the instant case, the trial court twice indicated that its ruling to admit
Skuba’s statements was tentative, and it expressly stated that it would “take up” argument
from Clamp’s counsel later that day. In the absence of any indication that Clamp pursued
the matter further in the trial court, we determine that he may not contend on appeal that
the ruling was erroneous.
58
Even assuming Clamp has not abandoned the issue, we determine that there is no
basis for reversing his convictions due to the admission of Skuba’s statements.
“In California, ‘[e]vidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the statement, when made, . . . so far subjected him to the
risk of . . . criminal liability . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.’ ([Evid. Code,] § 1230.) The
proponent of such evidence must show that the declarant is unavailable, that the
declaration was against the declarant’s penal interest when made and that the declaration
was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]”
(People v. Duarte (2000) 24 Cal. 4th 603, 610-611 (Duarte).)
“ ‘To determine whether [a particular] declaration [against penal interest] passes
[Evidence Code][section 1230’s] required threshold of trustworthiness, a trial court “may
take into account not just the words but the circumstances under which they were uttered,
the possible motivation of the declarant, and the declarant’s relationship to the
defendant.” ’ [Citation.] We have recognized that, in this context, assessing
trustworthiness ‘ “requires the court to apply to the peculiar facts of the individual case a
broad and deep acquaintance with the ways human beings actually conduct themselves in
the circumstances material under the exception.” ’ [Citation.]” (Duarte, supra,
24 Cal.4th at p. 614.)
“There is no litmus test for the determination of whether a statement is trustworthy
and falls within the declaration against [penal] interest exception. The trial court must
look to the totality of the circumstances in which the statement was made, whether the
declarant spoke from personal knowledge, the possible motivation of the declarant, what
was actually said by the declarant and anything else relevant to the inquiry. [Citations.]”
(People v. Greenberger (1997) 58 Cal. App. 4th 298, 334 (Greenberger).) “When
examining what was actually said by the declarant special attention must be paid to any
59
statements that tend to inculpate the nondeclarant. This is so because a statement’s
content is most reliable in that portion which inculpates the declarant. It is least reliable
in that portion which shifts responsibility. Controversy necessarily arises when the
declarant makes statements which are self-inculpatory as well as inculpatory of another.
This is why Evidence Code section 1230 only permits an exception to the hearsay rule for
statements that are specially disserving of the declarant’s penal interest. [Citation.] This
is not to say that a statement that incriminates the declarant and also inculpates the
nondeclarant cannot be specifically disserving of the declarant’s penal interest. Such a
determination necessarily depends upon a careful analysis of what was said and the
totality of the circumstances. [Citations.]” (Id. at p. 335.)
In People v. Cervantes (2004) 118 Cal. App. 4th 162 (Cervantes), a nontestifying
codefendant, Morales, inculpated himself and his two codefendants, Cervantes and
Martinez, in a murder and an attempted murder while speaking to a friend of all three
defendants, Ojeda. (Id. at pp. 166-167.) On appeal the two codefendants contended that
Morales’s statement to the friend should have been excluded. (Id. at p. 169.) The
appellate court found that the trial court did not err in admitting evidence of the statement
at the defendants’ joint trial. Following Greenberger, the court found that the statement
qualified as a declaration against penal interest and satisfied the constitutional standard of
trustworthiness. (Cervantes, supra, at p. 177.) “The evidence here showed Morales
made the statement within 24 hours of the shooting to a lifelong friend from whom he
sought medical treatment for injuries sustained in the commission of the offenses. . . .
Regarding the content of the statement, Morales did not attribute blame to Cervantes and
Martinez but accepted for himself an active role in the crimes and described how he had
directed the activities of Martinez.” (Id. at p. 175.) “Ojeda consistently reported that
Morales admitted shooting at the second male with Cervantes. The statement Cervantes
shot the first male, as well as the statement Morales shot at the second male, both
incriminated Morales because Morales was acting in concert with Cervantes at all
60
relevant times. Thus, the discrepancies in the statement as repeated by Ojeda do not
preclude a finding the statement was trustworthy.” (Id. at p. 176.) “Regarding the claim
the statement should have been redacted to exclude reference to the nondeclarants,
Greenberger specifically held this is not required where the statement admitted into
evidence is disserving to the interests of the declarant. We agree with Greenberger’s
analysis on this point.” (Ibid.)
In this case, Skuba stated that “they went up the coast,” “[he] was driving Elias’s
vehicle and [Clamp] was right behind him in a red truck,” “Elias was in the back of his
truck,” “they threw him off a cliff and they could hear his body go thudding down,” and
“[t]hey came back to [Skuba’s].” Skuba’s statements implicated himself, as well as
defendant Clamp, in the crimes against the victim. Skuba did not attempt to mitigate his
own conduct or to shift the blame to Clamp. As Clamp acknowledges on appeal, the
statements implicated both of them as being equally responsible. Further, at the time
Skuba made the statements to Kristin, he had no motive to lie. “[T]he most reliable
circumstance is one in which the conversation occurs between friends in a noncoercive
setting that fosters uninhibited disclosures. [Citations.]” (Greenberger, supra, 58
Cal.App.4th at p. 335; Cervantes, supra, 118 Cal.App.4th at p. 175.) Under these
circumstances, we determine that Skuba’s statements to Kristin were against his penal
interest and bear a particularized guarantee of trustworthiness. Further, “[r]egarding the
claim the statement should have been redacted to exclude reference to the
nondeclarant[], . . . this is not required where the statement admitted into evidence is
disserving to the interests of the declarant.” (Cervantes, supra, 118 Cal.App.4th at
p. 176.) Accordingly, the admission of Skuba’s statements did not violate state law.
Assuming one or more of Skuba’s statements, such as the statement that
“[defendant Clamp] was right behind him in a red truck,” should have been excluded, we
determine that the error was harmless under People v. Watson (1956) 46 Cal. 2d 818, 836-
837 (Watson). (See Duarte, supra, 24 Cal.4th at pp. 618-619.) Skuba’s statements, as
61
described by Kristin at trial, established that Skuba and Clamp drove up the coast in
separate vehicles, that Skuba was driving with the victim in the victim’s truck, that Skuba
and Clamp disposed of the victim’s body, and that they then returned to Skuba’s
residence.
First, this testimony was essentially cumulative because other testimony by
Kristin, combined with the cell phone records, established most of the same facts. For
example, Kristin testified that she saw Skuba walk to the garage with a blanket, and that
she heard the garage door open, a “dragging” sound, “a big thud” like someone was being
put in the truck bed, and then the tailgate shut. She then heard two trucks reverse out of
the driveway. Her descriptions of the gold and red trucks that she had earlier seen at
Skuba’s residence were consistent with the victim’s truck and the truck for which
defendant Clamp had keys. When Kristin subsequently went into the garage to clean it,
the victim was not there. Kristin further testified that Skuba and Clamp returned to the
residence after more than an hour, and that Hunt did not arrive until 45 minutes after
them. The cell phone records were consistent with Skuba and Clamp traveling in
separate vehicles on Highway 1 north about the same time, and with both of them being
near the coast and out of the range of cell phone towers from about 3:00 a.m. to
4:00 a.m., whereupon the two of them returned in tandem to Santa Cruz. In contrast,
Hunt’s phone records were consistent with him remaining in the general area of Felix
Street and downtown Santa Cruz between approximately 1:00 a.m. and 4:00 a.m.
We do not believe that the jury would have rejected this other testimony by Kristin
(along with the corroborating cell phone records) which established Skuba’s and
defendant Clamp’s movements with the victim, and instead relied on testimony by
Kristin about Skuba’s statements to establish the same facts. To the extent the jury
believed Kristin, her testimony about Skuba’s statements concerning Clamp’s and his
movements with the victim was essentially redundant. Kristin’s testimony about Skuba’s
statements could only serve to buttress her other testimony and the cell phone records,
62
and either the jury already found that other testimony credible or it did not; Kristin’s
vouching for her own testimony through statements attributed to Skuba would add
nothing to the jury’s credibility evaluation of Kristin.
Second, the specified statements by Skuba did not resolve one of the key issues
raised by defendant Clamp – whether the victim was still alive at any point during
Clamp’s involvement. Rather, the specified statements by Skuba were inconclusive on
the issue of whether the victim was still alive during the timeframe covered by Skuba’s
statements.
Third, defendant Clamp’s involvement was demonstrated by independent and
more convincing evidence than Kristin’s testimony about what Skuba said. In addition to
Kristin’s testimony regarding Clamp’s presence, statements, and conduct at Skuba’s
residence after the victim was attacked, the cell phone records just discussed indicate that
Clamp’s movements were coordinated with Skuba’s following the removal of the victim
from the residence. Further, testimony by investigators established that Clamp had gas
cans in his room, which buttressed testimony that he was involved in burning the victim’s
truck. Also in Clamp’s room was marijuana in a North Face bag, which was the same
brand of bag that Clamp had used to carry his share of the victim’s marijuana from
Skuba’s residence, and green bean pills similar to the ones that Kristin brought to the
motel. This evidence corroborated Kristin’s testimony that Clamp had received a share
of the victim’s drugs, and strongly supported the inference that Clamp was involved in
the crimes perpetrated against the victim. In sum, Clamp’s level of involvement
following the attack on the victim was more convincingly established by other evidence
than Kristin’s testimony concerning Skuba’s statements.
Defendant Clamp suggests that his coordinated movements with Skuba after the
victim was removed from the garage, as reflected in the cell phone records, “could simply
have indicated that [Clamp] went home for a while” given that Clamp lived on the west
side of Santa Cruz. Clamp does not cite any evidence to support the assertion that the
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movement of his cell phone at that time could be consistent with him going home. To the
extent Clamp cites testimony concerning cell phone evidence that may be consistent with
him being at his residence on the west side of Santa Cruz, the evidence pertains to calls
on his phone between 5:00 a.m. and 7:00 a.m., which was at least an hour after he and
Skuba had returned to Santa Cruz.
Defendant Clamp also argues that his “liability must be based on assisting Skuba
in disposing of [the victim’s] body,” the prosecutor “consistently argued this theory,” and
that “[t]he only direct evidence of his involvement came from Kristin’s testimony about
Skuba’s statements.” (Italics added.) The record reflects, however, that the prosecutor
argued aiding and abetting by Clamp at an earlier point in time. The prosecutor argued
that Clamp, after he arrived at the residence, “immediately jump[ed] into this thing”
involving marijuana as far as “need[ing] to get rid of” the victim. According to the
prosecutor, Clamp aided, facilitated, promoted, encouraged, and/or instigated Skuba’s
commission of the robbery before they left the residence with the victim. For example,
the prosecutor referred to Clamp’s question to Skuba, about whether he could live with it
for the rest of his life, as an indication of Clamp communicating, “yeah, I can do it, . . .
just as long as you’re not going to get weak on me at some point, let’s do it.” The
prosecutor argued that Clamp must have had some conversation with Skuba indicating
that Clamp would “go with” Skuba to “take [the victim] someplace.” We also observe
that Kristin testified that Clamp told her to clean up the blood in the garage before he and
Skuba left the residence. In sum, there was evidence other than the statements at issue by
Skuba that strongly pointed to Clamp’s involvement in the incident well before the actual
disposition of the victim’s body.
Defendant Clamp also argues that this was a close case because the jury
deliberated for “almost three days.” As we have explained above regarding defendant
Hunt’s contentions, we are not persuaded that the length of deliberations in this case
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supports a finding of prejudicial error. Rather, given the extensive nature of the trial, the
length of deliberations suggests a diligent and conscientious jury.
In sum, we conclude that it is not reasonably probable that a result more favorable
to defendant Clamp would have been reached in the absence of the purported error in
admitting the specified statements by Skuba. (Watson, supra, 46 Cal.2d at pp. 836-837;
Duarte, supra, 24 Cal.4th at pp. 618-619.)
3. The Response to the Jury’s Note
a. Background
Defendant Clamp’s counsel acknowledged making “a tactical decision” with
Clamp during trial to decline a jury instruction regarding the crime of accessory after the
fact. As the court later observed, defendant Clamp’s counsel made the “tactical decision”
to not seek an instruction regarding accessory liability under section 32, a lesser related
offense, “even when [the prosecutor] requested it during” the jury instruction conference.
After the jury had been instructed and during deliberations, the jury sent a note to
the trial court stating: “There is some confusion about charges: [¶] . . . [¶] . . . Can
Clamp be found guilty of another crime of ‘accessory after the fact’?” The court met
with the parties outside the presence of the jury and stated: “[T]he answer to that is no
because that lesser related instruction was not requested.” Defendant Clamp did not
object to this proposed answer by the court and did not request any further instruction to
the jury in response to the question. The court ultimately responded, “No,” in writing to
the jury.
b. The parties’ contentions
On appeal, defendant Clamp contends that the trial court committed prejudicial
error by failing to “clarif[y] the jury’s understanding of [accessory after the fact], and/or
elaborat[ing] on its answer to ensure the jury correctly understood it, and thus understood
what it had to determine to find [him] guilty.” Clamp argues that the court must instruct
on defense theories, and that he “essentially relied on having been an accessory as a
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defense, i.e. since the substantive offenses were complete before he arrived he could not
be found guilty of them, because he only helped cover them up.” Clamp further argues
that, “what an accessory is, and how that related to [his] potential guilt, was a general
principle of law governing the case, necessary for the jury to understand the case, and
[his] theory of defense. At a minimum, the court should have clarified the jury’s
understanding, and further instructed to ensure [his] theory of defense was properly
explained and presented.”
The Attorney General contends that defendant Clamp has forfeited the claim
because he earlier objected to an accessory after the fact instruction sought by the
prosecution, and he did not object to the trial court’s response to the jury question. The
Attorney General further contends that there is no reasonable likelihood that the jury
misapplied the law, and therefore the court did not err in its response to the jury.
c. Analysis
We determine that defendant Clamp has forfeited his claim by failing to object to
the trial court’s response to the jury’s note. (People v. Boyette (2002) 29 Cal. 4th 381,
430 [the defendant did not object to the court’s proposed decision not to respond to a
juror’s note and thus he failed to preserve the issue for appeal “and, indeed, may be held
to have given tacit approval of the trial court’s decision”]; see People v. Bohana (2000)
84 Cal. App. 4th 360, 373 [a defendant’s consent to the court’s response to jury questions
waives any claim of error regarding the response].)
Even if defendant Clamp has not forfeited the claim, he fails to persuade us that
the trial court should have provided a different response.
A trial court’s response to jury questions is governed by section 1138, which
provides: “After the jur[ors] have retired for deliberation, . . . if they desire to be
informed on any point of law arising in the case, they must require the officer to conduct
them into court. Upon being brought into court, the information required must be given
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in the presence of, or after notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called.” (§ 1138.)
“[T]he statute imposes a ‘mandatory’ duty to clear up any instructional confusion
expressed by the jury.” (People v. Gonzalez (1990) 51 Cal. 3d 1179, 1212; People v.
Moore (1996) 44 Cal. App. 4th 1323, 1331 [court must “help the jury understand the legal
principles it is asked to apply”].) However, “[t]his does not mean the court must always
elaborate on the standard instructions. Where the original instructions are themselves full
and complete, the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information. [Citation.]
Indeed, comments diverging from the standard are often risky. [Citation.]” (People v.
Beardslee (1991) 53 Cal. 3d 68, 97.) “An appellate court applies the abuse of discretion
standard of review to any decision by a trial court to instruct, or not to instruct, in its
exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal. 4th
690, 745-746.)
In this case, no abuse of discretion has been shown. Defendant Clamp
acknowledges that “the jury was properly instructed on the charged offenses.” At the
same time, he explains that he “does not claim the court should have given a substantive
accessory instruction that would have opened up the possibility of a conviction for that
offense.” Consequently, given that the jury was properly instructed on the charged
offenses, and given that those charged offenses did not include liability as an accessory,
the court did not abuse its discretion in responding in the negative to the jury’s question
about whether Clamp could be found guilty of another crime of accessory after the fact.
The jury’s question was clear and simple, and a short answer of “no” was warranted and
sufficient. Moreover, under the circumstances, we believe that inquiring into the jury’s
understanding of an accessory and instructing on principles of law concerning an
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accessory, as proposed by Clamp on appeal, would have introduced additional and
irrelevant issues into the case by the court8 and potentially caused juror confusion.
We are also not persuaded by defendant Clamp’s attempt to characterize the issue
of an accessory as a “defense” that the trial court should have instructed on, and that the
court’s failure to do so violated his federal constitutional rights. Being an accessory to a
robbery is not a defense to robbery. Rather, being an accessory is a separate criminal
offense. (§ 32; People v. Jennings (2010) 50 Cal. 4th 616, 668 (Jennings) [“Being an
accessory to murder is not a defense to aiding and abetting the commission of murder—it
is a separate criminal offense”].) A defendant may be convicted of both robbery and
being an accessory to robbery if the defendant aids the principal both before and during,
as well as after, the robbery is committed. (See Jennings, supra, at p. 668.) In this case,
an issue for the jury was whether defendant’s involvement occurred before or after the
victim’s death. Receiving instructions on accessory principles, which pertain to a
defendant’s conduct after a felony has been committed, would not have assisted the jury
in the determination of when the victim died. Defendant fails to demonstrate error in the
court’s succinct response to the jury’s note.
4. The Presentence Custody Credit
a. The parties’ contentions
The trial court granted defendant 872 days presentence credit for the actual time
he purportedly spent in custody prior to sentencing. On appeal, defendant Clamp
contends that he should have received a total of 953 actual days credit, reflecting the time
8
We note that defendant Clamp argues on appeal that “the jury, without the issue
having been mentioned, raised this legal issue on its own.” The record reflects, however,
that defendant Clamp’s counsel raised the issue of accessory after the fact in argument to
the jury. Counsel argued that, to the extent Clamp did anything after the victim was
dead, “it’s called an accessory after the fact. It’s a different crime. . . . It’s not the crimes
he’s charged with. . . . [Y]ou could argue that he would be guilty of coming along after
the fact and helping . . . Skuba dispose of [the victim’s] remains. Again, we don’t have
proof of that at all.”
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he was purportedly taken into custody on July 30, 2009, through sentencing on
March 8, 2012.
The Attorney General contends that defendant Clamp was taken into custody on a
parole hold in another case in July 2009, and that he was not in custody for the murder
charge in this case until February 3, 2010. Because Clamp fails to establish that “the
conduct that led to his conviction in this case was a ‘but for’ cause of his custody during
the earlier period,” the Attorney General contends that Clamp is not entitled to custody
credit for the earlier period.
In reply, defendant Clamp contends the trial testimony reflects that law
enforcement searched for and found him in connection with the investigation of the
victim’s disappearance, took him into custody on July 30, 2009, and questioned him the
next day about the case. Clamp argues there is no evidence that his time in custody was
for any reason other than his alleged involvement in the crimes against the victim, and it
is speculation to state the parole hold was for something other than those events.
b. Analysis
Penal Code section 2900.5 provides that a convicted person shall receive credit
against the person’s sentence for all days spent in presentence custody (subd. (a)), but
“only where the custody to be credited is attributable to proceedings related to the same
conduct for which the defendant has been convicted” (subd. (b), italics added). (See
People v. Bruner (1995) 9 Cal. 4th 1178, 1180.) “The California Supreme Court has
interpreted the language of Penal Code section 2900.5, subdivision (b) to mean ‘a
prisoner is not entitled to credit for presentence confinement unless he shows that the
conduct [that] led to his conviction was the sole reason for his loss of liberty during the
presentence period.’ (People v. Bruner, supra, 9 Cal.4th at p. 1191.) Thus, presentence
custody credits should be denied toward a new term when such custody is ‘attributable to
a parole revocation caused in part, but not exclusively, by the conduct that led to the new
sentence.’ (Id. at pp. 1182-1183.) To be entitled to presentence custody credits, a
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defendant must establish that ‘the conduct [that] led to the sentence was a dispositive, or
“but for,” cause of the presentence custody.’ (Id. at p. 1180.)” (People v. Kennedy
(2012) 209 Cal. App. 4th 385, 392 (Kennedy).)
In this case, the probation report states that “[o]n July 31, 2009, Kenneth Clamp
was arrested by the Santa Cruz County Sheriff’s Office on a parole hold.” The probation
report further states that “[o]n February 3, 2010, Clamp was arrested in custody for the
murder, kidnapping and robbery of Sorokin.” On appeal, defendant Clamp does not
dispute that he was initially arrested on a parole hold in July 2009, and that he is not
entitled to additional custody credit unless the conduct that led to his sentence was a “but
for” cause of this earlier period in custody.
We determine that defendant Clamp fails to make the requisite showing. Clamp
points to trial testimony concerning law enforcement’s investigation in the instant case
and his arrest. The cited testimony does not reflect the basis for the parole hold or how
the parole matter was resolved. It is possible that Clamp was arrested for a parole
violation based on his possession of methamphetamine and a glass methamphetamine
pipe at the time his residence was searched on the evening of July 30, 2009. In the
absence of further information about the parole hold, Clamp fails to show “ ‘that the
conduct [that] led to his conviction was the sole reason for his loss of liberty during the
presentence period’ ” (Kennedy, supra, 209 Cal.App.4th at p. 392; People v. Bruner,
supra, 9 Cal.4th at p. 1191), or that “ ‘the conduct [that] led to the sentence was a
dispositive, or “but for,” cause of the presentence custody’ ” (Kennedy, supra, at p. 392;
People v. Bruner, supra, at p. 1180). We therefore conclude that Clamp is not entitled to
additional presentence custody credit.
We further observe that, based on defendant Clamp’s arrest in this case on
February 3, 2010, through the date of sentencing on March 8, 2012, he is entitled to 765
actual days credit, rather than the 872 actual days credit granted by the trial court. We
will modify the judgment accordingly.
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IV. DISPOSITION
In case No. H037380 against defendant Adam Spencer Hunt, the judgment is
affirmed.
In case No. H038256 against defendant Kenneth Kirk Clamp, the judgment is
modified by awarding defendant a total of 765 actual days credit. The abstract of
judgment and the March 8, 2012 minute order of sentencing are ordered corrected to
reflect the oral pronouncement of judgment by stating that the term on count 2 is stayed
pursuant to Penal Code section 654. As so modified the judgment is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MÁRQUEZ, J.
__________________________
GROVER, J.