People v. Cleland

• Citation: 134 Cal.Rptr.2d 479,109 Cal.App.4th 121
• Decision Date: 27 May 2003
• Docket Number: No. B143757.,B143757.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rebecca CLELAND et al., Defendants and Appellants.

134 Cal.Rptr.2d 479

109 Cal.App.4th 121

The PEOPLE, Plaintiff and Respondent, v. Rebecca CLELAND et al., Defendants and Appellants.

No. B143757.

Court of Appeal, Second District, Division 7.

May 27, 2003.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing June 16, 2003.

Review Denied Aug. 27, 2003.^**

Peter Gold, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant Rebecca Cleland.

Colleen M. Rohan, under appointment by the Court of Appeal, for Defendant and Appellant Jose J. Quesada.

Peter A. Leeming, under appointment by the Court of Appeal, Santa Cruz, for Defendant and Appellant Alvaro Quesada.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P.J.

A jury convicted two brothers, Alvaro Quesada (A. Quesada) and Jose J. Quesada (J. Quesada), and their cousin Rebecca Cleland of conspiring to murder and murdering (with special circumstances) Rebecca Cleland's husband, Bruce Cleland. During trial, over defense counsel's objection, the prosecutor introduced evidence of an incriminating statement made by Jose Quesada in response to police questioning following his arrest but prior to being advised of his right to remain silent and to the presence of an attorney. During the People's case-in-chief, the prosecutor also introduced evidence of J. Quesada's and Rebecca Cleland's postarrest silence and argued to the jury their silence constituted affirmative evidence of guilt. Because these actions violated J. Quesada's and Rebecca Cleland's Fifth Amendment rights, we reverse their convictions and remand for a new trial. We affirm the conviction of A. Quesada.

FACTUAL AND PROCEDURAL BACKGROUND

Bruce Cleland, a shy and frugal bachelor, worked as a software engineer for TRW, earning a substantial salary. He had not dated much until he met Rebecca Quesada Salcedo at a swap meet in late 1995. After the two began dating, Bruce Cleland became more outgoing.

While they were dating, Bruce Cleland showered Rebecca Salcedo with gifts including cars, trips, cosmetic surgery, clothes, a boat, furniture and a diamond ring. Salcedo told her friends Bruce Cleland was "pretty well off and "made good money." She disclosed her plan to marry Bruce Cleland, have a child, and then divorce him so she could collect child support and be "set for life." Prior to their marriage Salcedo used Bruce Cleland's credit cards, without his knowledge, to pay for furniture and breast augmentation surgery.

Bruce Cleland and Rebecca Salcedo were married in October 1996 in a secret civil ceremony. Although a large church wedding was already planned for January 1997, Salcedo insisted the two be married before purchasing a house. After the civil marriage Bruce Cleland bought a large home in Whittier. Rebecca Cleland, as she became known, moved into the house alone; and Bruce Cleland moved in with his parents until the January 1997 church wedding. Rebecca Cleland, who was having sexual relationships with several other people at the time, required Bruce Cleland to phone before visiting the Whittier house.

Both before and after the church wedding, Cleland¹ told friends and acquaintances she did not love Bruce Cleland, did not want to marry him, was unhappy with his sexual performance, had married him for his money and planned to divorce him quickly to obtain financial security. She also asked her sister, Lorraine Salcedo, to help her find someone to kill Bruce and make it look like an accident.

Bruce Cleland moved back to his parents' home just three months later. A. Quesada² moved into the Whittier house after Bruce Cleland moved back to his parents' home. Cleland and A. Quesada were seen to be "very affectionate towards one another" and "always hugging and kissing." Cleland also resumed a sexual relationship with Steven Rivera, a male stripper and former boyfriend.

In April 1997 Cleland consulted with a divorce attorney and presented Bruce Cleland with a draft separation agreement that would allow her to continue living in the Whittier house and would require Bruce Cleland to pay the mortgage and give Cleland spending money. When Bruce Cleland refused to sign the agreement, Cleland threatened to retaliate by claiming he had molested her young son. Bruce Cleland contacted a divorce attorney of his own, who opined that if the marriage were dissolved, Cleland would not be entitled to a sizeable property settlement or substantial spousal support.

Notwithstanding all these difficulties, Bruce Cleland apparently wanted his marriage to succeed. On July 25, 1997 he told his parents he was going to meet with Cleland to try and work out their differences. The two had dinner together that evening. During dinner, Cleland called A. Quesada or his father Arturo Quesada several times on the restaurant's pay telephone and her cellular telephone. The couple then went to Arturo Quesada's house for drinks. When they left Arturo Quesada's home at about 1:00 a.m., Cleland was driving.

Telephone records introduced at trial indicated that A. Quesada telephoned Arturo Quesada's house several times between 12:35 a.m. and 12:49 a.m. Cleland phoned A. Quesada several times between 1:00 a.m. and 1:01 a.m. on her cellular telephone. Some of these calls placed A. Quesada and his cellular telephone close to the location where Bruce Cleland was killed.

Cleland subsequently reported to the police that, shortly after leaving Arturo Quesada's house, she noticed a warning light on the dashboard indicating the rear hatch was open. She stopped near the entrance to the Interstate 5 freeway, got out of the car to shut the hatch and was struck on the back of the head and knocked to the ground. Residents of nearby houses heard gunshots, saw a man running away from the scene and heard a car door slam and a car speed away from the area. A passing taxi driver summoned emergency personnel, who arrived within minutes of the shooting and found Bruce Cleland face-down in a nearby driveway, dead from multiple gunshot wounds.

When the police arrived, Cleland's car engine was still running. Cleland's keys, purse, cellular telephone and jewelry were on the front seat. Cleland told police her diamond ring was missing. She identified Bruce Cleland as her husband, but did not attempt to approach his body or ask about his condition. She was taken to the police station, where her demeanor was described as "relaxed, lackadaisical, uninterested."

After Bruce Cleland's death, Cleland told a friend she would support herself from Bruce Cleland's life insurance policies. She quickly retained counsel and set about obtaining the proceeds from Bruce Cleland's basic life insurance policy from TRW, which would pay a sum equal to half of Bruce Cleland's annual salary, a TRW optional accidental death policy for $517,000; a $25,000 accidental death policy; a mortgage life insurance policy from Minnesota Life Insurance Company, which would pay the balance on the Whittier house in the event of Bruce Cleland's death; and the $196,000 proceeds of Bruce Cleland's TRW stock savings plan. After the murder, A. Quesada continued to live with Cleland at the Whittier house.

Cleland, A. Quesada and J. Quesada were ultimately arrested and charged with conspiracy to commit murder and first degree murder, with special allegations the murder was committed for financial gain and while lying in wait. After a jury trial, all three defendants were convicted on both counts; and the jury found the special circumstances allegations to be true. New trial motions by Cleland and A. Quesada were denied. All three defendants were sentenced to life in prison without the possibility of parole.

CONTENTIONS

Cleland contends that her Fifth Amendment privilege against self incrimination was violated by the use of her postarrest silence as affirmative evidence of guilt and by the prosecutor's comments on her silence during closing argument and that the prosecutor also impermissibly commented on the exercise of her Sixth Amendment right to counsel. J. Quesada contends his Fifth Amendment rights were violated by admission of a postarrest, preMiranda incriminating statement and by the use of his postarrest silence and the prosecutor's comments on that silence. A. Quesada contends there was insufficient evidence to support his convictions, that the trial court improperly excluded an exculpatory statement made by Cleland and that he was denied the effective assistance of counsel.³

DISCUSSION

I. The Prosecutor's Comments on Cleland's and J. Quesada's Postarrest Silence and Use of J. Quesada's Postarrest Statement as Evidence of Guilt Violated Their Constitutional Privilege Against Self-incrimination

On February 17, 1998 Los Angeles Police Department homicide detective Rick Peterson arrested Cleland at her home, put her in his police car and drove to a parking lot near the Interstate 605 freeway where he waited for his partner Detective Thomas Herman to deliver J. Quesada, who had been separately arrested by Herman. After Herman arrived with J. Quesada, the detectives moved J. Quesada to Peterson's car, which was equipped with an activated, hidden recording device. The detectives then left Cleland and J Quesada alone in the car for approximately 15 minutes. As Peterson explained, "We did it to see what the topic of discussion would be if [we] put them together in a police vehicle." However, other than an initial greeting by J. Quesada, neither defendant spoke to the other during that time.⁴

Following the silent reunion in Peterson's car, Herman returned J. Quesada to his police car and drove him to the Hollenbeck division police station. After they arrived at the station, Herman asked J. Quesada to identify the person with whom he had been left in the police car. Herman initially testified J. Quesada...