People v. Briscoe

• Decision Date: 26 September 2001
• Docket Number: No. A086570.,A086570.
• Citation: 92 Cal.App.4th 568,112 Cal.Rptr.2d 401
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Khyle Armando BRISCOE, Defendant and Appellant.

112 Cal.Rptr.2d 401

92 Cal.App.4th 568

The PEOPLE, Plaintiff and Respondent, v. Khyle Armando BRISCOE, Defendant and Appellant.

No. A086570.

Court of Appeal, First District, Division 4.

September 26, 2001.

Certified for Partial Publication.^*

Rehearing Denied Oct. 17, 2001.

Review Denied Jan. 3, 2002.

Lynne S. Coffin, State Public Defender, Harry Gruber, Deputy State Public Defender, for appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Gerald A. Engler, Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General, for respondent.

REARDON, Acting P.J.

Applying the provocative act murder doctrine, a jury convicted appellant Khyle Armando Briscoe of first degree murder, first degree robbery, and first degree burglary. It also found true a special circumstances allegation on the murder charge and firearm use allegations associated with all three offenses. (See Pen.Code,¹ §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 459; see also former §§ 190.2, as amended by Stats. 1995, ch. 478, § 2 [approved by voters Mar. 26, 1996], 12022.5, subd. (a)(1), as amended by Stats.1995, ch. 377, § 9.) Briscoe was sentenced to an indeterminate term of life imprisonment without possibility of parole with an added four-year term for firearm use in the commission of the murder. He appeals, contending that (1) he was improperly convicted of murder with special circumstances under the provocative act murder doctrine; (2) the trial court erred by admitting evidence of two statements he gave to police officers and by instructing the jury about admissions he made in those statements; (3) he was deprived of a meaningful opportunity to present a complete defense in violation of his constitutional rights to due process, compulsory process and confrontation; and (4) the trial court erred in imposing his sentence. We order the sentence on the robbery count be corrected and order correction of the abstract of judgment on the fines imposed, but otherwise affirm the judgment, including the life sentence.

I. FACTS

On the night of April 2, 1998,² Alisha Rozadilla was alone at the Vacaville home of her boyfriend Ben Parovel. Shaun Pina and appellant Khyle Armando Briscoe knocked on the door, asking for Parovel. Frightened, Rozadilla armed herself with Parovel's nine-millimeter Beretta while she waited for him to return. When Parovel came home, the two men—acquaintances of his—entered the living room of the house with him. They told Parovel that they wanted to purchase marijuana. They appeared to be unarmed. Parovel—his back to Briscoe and Pina—took the Beretta from Rozadilla and hid it in his clothing. Pina and Briscoe followed Parovel into a bedroom to get the marijuana. As Parovel was weighing out marijuana, Pina pulled out a gun—a .10-millimeter Glock semiautomatic pistol with a red laser beam on it—and relieved Parovel of his Beretta. Pina demanded money. Briscoe returned to the living room where Rozadilla had remained, held a .38-caliber handgun to her neck and asked her "`Where's the gun, Bitch?'" in a very loud tone of voice. When he satisfied himself that she was no longer armed, he asked where to find the money. She told him that she had no idea. He put her in a headlock—his arm underneath her chin—and walked her back to the bedroom where Parovel and Pina were. He had his gun pointed at her head.

In the bedroom, Pina and Briscoe continued to demand money from Parovel. He handed over about $1,500, but Pina wanted more. Parovel had almost $15,000 in cash hidden in the house—money given him in the form of a cashier's check that he had recently cashed. He induced Pina out of the bedroom on the pretext that he would show him where the money was. Parovel tried to run, but Pina grabbed his hooded shirt and yanked him back. He grabbed at Pina's Glock and the two men struggled for it. The gun fell and flew across the floor.

Briscoe—hearing the struggle—left Rozadilla in the bedroom and went to investigate. As Parovel struggled to get up and retrieve the Glock, Briscoe entered the room holding the .38, then picked up the Glock and struck him in the head repeatedly with it. The magazine of the Glock fell out while Briscoe hit Parovel with it. Pina had Parovel's legs pinned and the three men struggled for several minutes.

Parovel was able to get free of Pina. The front door was open, so he ran outside with Briscoe on his back. Parovel and Briscoe continued to struggle over the Glock. Briscoe gained control of his .38. Parovel tripped, bringing Briscoe down with him. He grabbed for the .38 and the gun went off, shooting at the side of the house. When Parovel gained control of the .38, he started shooting, afraid for his life. He believed that Pina still had his Beretta and he was angry that the two men took his money. Briscoe was two feet away from him; Pina was on the driveway 13 or 14 feet away from where Parovel lay on the lawn.

Parovel shot Pina twice; the second shot made Pina drop. As Briscoe approached Pina, Parovel fled to a neighbor's house with the .38 to call the police. Parovel was bleeding from a cut on his head. He set down the .38 inside the neighbor's house. When he went outside again, Briscoe and Pina were gone.

Vacaville police responded to a report of a gunshot victim and found Pina lying on the ground, semi-conscious and with a failing pulse. A wad of money totaling almost $1,400 was removed from his clothing. No marijuana was found in his pockets and no weapon was seen near the body. Pina was declared dead at the scene.

Knowing the police were coming, Parovel threw the marijuana, a scale and a magazine for his Beretta out of the house. He did not touch the Glock. The .38 he had left at his neighbor's house was later recovered by police. It contained five empty casings and one live round of ammunition. Police searched Parovel's house and found a .10-millimeter Glock pistol without a gun magazine and a gun magazine fitting the Glock inside the house. Two bullets were found, one in the driveway and one on the garage floor. They also found a scale.

Parovel first told police that Briscoe and Pina came to the house to play videotape games. Later, he told police the truth— that he was selling marijuana to them. He told police that he thought Nate Newman—who shared Pina's apartment—had set him up. Newman had sold him a quarter pound of marijuana for $1,300 earlier that day. Parovel had heard that Newman had a Glock handgun.

On the night of April 2, Briscoe—with multiple gunshot wounds—was taken to a hospital. While lying on a gurney, he told police that he stood on a Vacaville street when an unknown man pulled a gun on him. Briscoe said that he wrestled with the man until he broke away and ran from him. The man shot at Briscoe while he was lying on the ground. Briscoe told police that he flagged down a passing vehicle and got a ride to the hospital. A police officer administered a gunshot residue test. After a five- to 10-minute interview, Briscoe was taken into surgery. The police took his clothing as evidence. They found no weapons or marijuana on his person.

On the afternoon of April 4, Briscoe gave a second statement to police while in the hospital. A nurse advised a police officer that Briscoe was not under the influence of any medication that would cause him to be unable to answer questions. Briscoe seemed alert. They spoke for 20 to 25 minutes and the statement was tape-recorded.

In this statement, Briscoe admitted that he and Pina went to the Vacaville house of a man named Ben to purchase marijuana. He told police that Ben tried to rob them and that he shot at them. He learned from police that Pina was dead. Briscoe admitted that he had been carrying a .38-caliber revolver and that Pina was also armed with a Glock. He tried to tackle Ben, who was armed and whom Briscoe thought intended to kill him. Ben also tried to wrestle Pina's gun from Pina and Briscoe felt he had to stop Ben. Briscoe tried to help Pina, who was hit and collapsed. After the police told Briscoe that they knew that he and Pina intended to rob Ben, Briscoe admitted that he knew Ben had money.

Briscoe also told police that on the night of the shooting, a car was waiting for him containing Newman and another person. These two people brought him to the hospital. Newman had given Briscoe the .38 and had given Pina the Glock. Briscoe said that Newman wanted the robbery to occur that day. Newman was to get a third of whatever Briscoe and Pina recovered.

Briscoe was arrested and ordered held without bail. At the preliminary hearing, he objected to the admission of the April 4 statement that he gave to police as taken in violation of his Miranda³ rights and as an involuntary statement. The magistrate denied the motion after conducting a suppression hearing. (See § 1538.5.)

On June 1, Briscoe was charged by information⁴ with first degree murder of Pina, robbery of Parovel and Rozadilla, and burglary of Parovel's dwelling. The information alleged that the murder of Shaun Pina was committed in the commission of robbery and burglary and that Briscoe personally used a firearm in the commission of all three offenses. (See §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 459; see also former §§ 190.2, 12022.5, subd. (a)(1).) Briscoe pled not guilty and denied all the enhancement allegations. His motion to dismiss the information and its special circumstances allegations was heard and denied. (See § 995.)

At trial, a forensic pathologist testified that Pina suffered two gunshot wounds. One of the bullets struck vital organs and proved to be fatal. A bullet was recovered from Pina's chest during an autopsy. His blood revealed evidence of marijuana in his system, but no alcohol or other drugs. Briscoe's tape-recorded statement to police was played for the jury. A criminalist testified that the bullet found in Pina's chest cavity was fired from...