People v. Fayed

• Decision Date: 02 April 2020
• Docket Number: S198132
• Citation: 9 Cal.5th 147,460 P.3d 1149,260 Cal.Rptr.3d 761
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Michael FAYED, Defendant and Appellant.

9 Cal.5th 147

460 P.3d 1149

260 Cal.Rptr.3d 761

The PEOPLE, Plaintiff and Respondent,

v.James Michael FAYED, Defendant and Appellant.

S198132

Supreme Court of California.

April 2, 2020

Law Offices of Mark J. Werksman, Mark J. Werksman and Kelly C. Quinn, Los Angeles, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Chin, J.

A Los Angeles County jury found defendant James Michael Fayed guilty of the first degree murder of his estranged wife, Pamela Fayed, ( Pen. Code,¹ § 187, subd. (a) ) and of conspiracy to commit murder (§ 182, subd. (a)(1)). (As discussed further below, defendant was not the actual killer but arranged for someone to kill Pamela.) The jury further found true the special circumstance allegations of financial gain (§ 190.2, subd. (a)(1)) and lying in wait (§ 190.2, subd. (a)(15)). Following the penalty phase, the jury returned a verdict of death. The trial court denied defendant’s automatic application for modification of the verdict (§ 190.4, subd. (e)) and sentenced defendant to death.

This appeal is automatic. (§ 1239.) For reasons that follow, we affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

1. Overview

Shortly after initiating divorce proceedings in October 2007, defendant arranged for Pamela Fayed’s² murder by paying the couple’s employee, Jose "Joey" Moya, $25,000 to kill her. Moya, in turn, enlisted Gabriel Jay Marquez, the boyfriend of his niece, and Steven Simmons, Marquez’s nephew. On July 28, 2008, Pamela was stabbed to death in a Century City parking garage, moments after she had left a meeting with defendant and their respective attorneys. At the time of her murder, defendant and Pamela were under federal investigation for allegedly laundering money for Ponzi schemes through their e-currency business.

Defendant and Pamela were married in 1999, and had one young daughter, J.F. Pamela’s older daughter from a previous marriage, Desiree G., also lived with the family. In or around 2002, the Fayeds started a business, Goldfinger Coin & Bullion (Goldfinger), in Camarillo. Goldfinger was an Internet company that provided money and precious metal transfer services for a fee. They also had an associated company, E-Bullion Company (E-Bullion), which was incorporated in the country of Panama with its business offices in California.

After the financial success of Goldfinger, the family bought a home in Camarillo and a second home on an over 200-acre ranch in Moorpark, which they called "Happy Camp Ranch." Joey Moya, who was hired to assist defendant and to help on the ranch, moved into a second house on the ranch.

In or around April 2007, Pamela spoke with her good friend, Carol Neve, who had a similar e-currency business. After Neve advised Pamela that Goldfinger needed a money transmitting license to comply with federal regulations, Pamela wrote a check for $400,000 on October 6, 2007 to secure a license. Defendant had told Pamela that a license was not required. Defendant filed for divorce in October 2007. He banned Pamela from Goldfinger offices and fired Desiree, who had worked there for two years. In divorce filings, defendant alleged that Pamela had embezzled $800,000 from Goldfinger.

2. Unrelated Federal Investigation of Goldfinger

In or around early 2008, before Pamela’s murder, the United States Attorney’s Office led by Assistant United States Attorney (AUSA) Mark Aveis began a formal investigation into Goldfinger for its involvement in a money laundering scheme. In their joint investigation of two Ponzi schemes, the FBI and the IRS discovered that money from these two schemes "was flowing through Goldfinger" and that Goldfinger had made over $9 million in 2002 and upwards of $160 million in 2007. Though defendant and Goldfinger were not directly involved in the Ponzi schemes, the federal government sought an indictment against them "to obtain leverage" with defendant, i.e., to allow the FBI to "monitor the flow of money to his business to ferret out and uncover illegal money transmitting activity."

On February 26, 2008, five months before Pamela’s murder, defendant and Goldfinger were indicted on federal charges of operating an unlicensed money transmitting business ( 18 U.S.C. § 1860 ). Pamela was not named in the indictment, which was sealed and not made public. However, in June 2008, after the United States Attorney’s Office subpoenaed the accountants involved in auditing the divorce, Pamela learned that Goldfinger and defendant were being investigated by the FBI and IRS.

About a month later, Pamela’s first criminal defense attorney, David Willingham, contacted AUSA Aveis and told him that "Pamela wants to come in." Aveis took that comment to mean that Pamela wanted to cooperate in the criminal investigation against defendant and Goldfinger, though there was no understanding, arrangement, or agreement that Pamela would do so. Before Aveis could meet with Pamela, she was killed. At that time, there was no indication defendant knew about the sealed indictment against him; Aveis admitted that the government never got around to putting pressure on defendant to cooperate.

3. Murder of Pamela Fayed

On July 28, 2008, the day of the murder, defendant and Pamela met with their respective attorneys to discuss the ongoing federal investigation into their Goldfinger business. The prearranged meeting, which took place at the Century City offices of defendant’s former attorney, lasted from 3:30 p.m. until approximately 6:30 p.m. that evening. After the meeting, Pamela returned alone to her car, which was parked on the third floor in the adjacent parking structure. She was stabbed multiple times in the head, neck, and chest and had defensive wounds

on her arms. The fatal stab wound was a deep cut to the front of her neck.

Witness Edwin Rivera described the assailant as a tall and skinny male, wearing a black hooded sweatshirt and jeans. Rivera, however, could not see the assailant’s face.

4. Crime Scene and Murder Investigation

Los Angeles Police Department (LAPD) Detective Eric Spear arrived shortly after Pamela’s body was removed from the crime scene. Detective Spear identified a red SUV as a suspect vehicle and obtained an image of the SUV’s license plate from one of the parking lot cameras. The SUV was rented from Avis Rent A Car company in Camarillo on behalf of Goldfinger and defendant. Pamela’s blood was found in the interior of the SUV, which had been steam cleaned before being returned to the rental company. A fingerprint found on the parking garage ticket matched that of Simmons.

Telephone records showed that cell phones registered to Marquez and Simmons made contact with a cell tower located close to the murder scene at almost the same time as the murder. Records also showed that defendant and Moya exchanged multiple text messages shortly before and after the murder, though the messages were deleted from defendant’s phone.

On August 1, several days after Pamela’s murder, the federal indictment was unsealed, and defendant was arrested by federal agents. At the time, the other suspects under investigation for the murder (Moya, Marquez, and Simmons) had not yet been arrested.

5. Recorded Jailhouse Conversation with Shawn Smith

LAPD Detective Salaam Abdul was assigned to investigate Pamela’s murder. On September 9, 2008, Detective Abdul received word from federal authorities that Shawn Smith, who was sharing a cell with defendant at the men’s federal detention center, wanted to speak to police. After meeting with Smith, Detective Abdul arranged for Smith to wear a wire when he returned to the cell he shared with defendant.

In their secretly recorded conversation, defendant told Smith that he had paid Moya to murder Pamela and asked Smith to solicit Smith’s fictional hitman "Tony" to kill Moya to eliminate him as a witness. The jury heard the recorded conversation between defendant and Smith in its entirety and also received a written transcript of the conversation. The substance of the conversation is discussed in greater detail below as relevant to the issue defendant raises. (See post , 260 Cal.Rptr.3d at pp. 783–785, 460 P.3d at pp. 1168–1169.)

6. Procedural Background

On or about September 15, 2008, a complaint charged defendant and codefendant Moya with the first degree murder of Pamela. ( § 187, subd. (a).) It alleged the special circumstance allegations of murder for financial gain (§ 190.2, subd. (a)(1)) and murder by means of lying in wait (id ., subd. (a)(15)). Count 2 also charged defendant with one count of conspiracy. (§ 182, subd. (a)(1).) That same day, the United States Attorney for the Central District of California moved to dismiss the federal indictment against defendant.

On August 13, 2010, nearly two years after defendant and Moya were charged with Pamela’s murder, the prosecution filed an indictment against coconspirators Marquez and Simmons and filed a notice of joinder of all four defendants a month after. On February 11, 2011, the prosecution filed a notice seeking the death penalty against defendant only. Although the cases were initially consolidated, the trial court granted defendant’s severance motion after the prosecution sought the death penalty against defendant only.³

Guilt phase jury deliberations began on May 17, 2011. After deliberating for two days, the jury found defendant guilty of first degree murder and one count of conspiracy to commit murder. It also found true the special circumstance allegations of murder for financial gain and murder by means of lying in wait. After penalty phase deliberations, the jury fixed the penalty at death. Defendant moved to modify the verdict under section 190.4, subdivision (e), which motion the trial court denied. The trial court fixed the penalty at death.

B. Penalty Phase

1. Prosecution Evidence

The...