People v. Petrilli

• Decision Date: 28 May 2014
• Docket Number: A131141
• Citation: 172 Cal.Rptr.3d 480,226 Cal.App.4th 814
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven PETRILLI, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

226 Cal.App.4th 814

172 Cal.Rptr.3d 480

The PEOPLE, Plaintiff and Respondent,

v.Steven PETRILLI, Defendant and Appellant.

A131141

Court of Appeal, First District, Division 1, California.

Filed May 28, 2014

Certified for Partial Publication.^*

See 2 Witkin, Cal. Evidence (5th ed. 2012) Witnesses, § 189.

Trial Court: San Francisco City and County Superior Court; Trial Judge: Hon. Newton J. Lam. (No. 204890-01/02362614)

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General for Plaintiff and Respondent.

Margulies, Acting P.J.

Late one night, defendant Steven Petrilli drove a stolen minivan around San Francisco with his wife and two acquaintances. The acquaintances periodically left the van, committed a robbery, and returned to the van. Once they were back inside, defendant drove away. After the fourth such robbery, police spotted the van, and defendant drove off at a high speed. The subsequent pursuit ended when defendant rammed the van into a police car, killing a police officer in the car. Defendant was convicted of felony murder with special circumstances, as well as four counts of robbery and other crimes.

Defendant contends, and the Attorney General concedes, that the felony murder conviction must be reversed because of instructional error. We agree.

Defendant also contends the trial court erred in admitting the testimony of his wife. She had earlier testified under subpoena before a grand jury investigating the incident, and when she sought to invoke the spousal testimonial privilege to avoid testifying at trial, the trial court ruled she had waived the privilege by appearing before the grand jury. Applying the plain language of Evidence Code ¹ section 973, which governs waiver of the spousal testimonial privilege, we conclude a spouse's testimony before a grand jury does not waive his or her subsequent assertion of the spousal testimonial privilege at a criminal trial. We further conclude the admission of defendant's wife's testimony was prejudicial in connection with three of defendant's four robbery convictions. We accordingly reverse defendant's convictions for special circumstances murder, conspiracy to commit robbery, and three counts of robbery, but we affirm the remainder of defendant's convictions.

I. BACKGROUND

Defendant and two others were charged in an indictment, filed April 4, 2008, with special circumstances murder, committed in the course of a robbery. (Pen.Code, §§ 187, 190.2, subd. (a)(17)(A); count I.) The three were also charged with implied malice second degree murder alleged to be a serious felony (Pen.Code, §§ 187, 1192.7, subd. (c)(1); count II); conspiracy to commit robbery (Pen.Code, § 182, subd. (a)(1); count III); four counts of robbery, all alleged to be serious and violent felonies (Pen.Code, §§ 211, 667.5, subd. (c); 1192.7, subd. (c); counts IV, V, VI, VII); evading a police officer and causing serious bodily injury (Veh.Code, § 2800.3, subd. (a); count VIII); and vehicular manslaughter (Pen.Code, § 192, subd. (c)(1); count IX). Defendant alone was charged with driving a stolen vehicle. (Veh.Code, § 10851, subd. (a); count X.)

Defendant was tried separately from his two codefendants. Witnesses testified to four separate robberies in San Francisco on the night of July 26, and the early morning of July 27, 2006. Although the details varied, each robbery was committed by two African–American men. Following each robbery, the men entered a minivan, and the van drove away. The victim of the first robbery said a third person was driving the van, but he was unable to provide any identifying information about the driver. The two victims of the second robbery were unable to see the driver of the van at all. A witness to the third robbery saw a man driving the van, but she, too, was unable to provide any further information about him. Two of these witnesses saw a woman in the passenger seat of the van.

The victim of the fourth robbery was able to confront the driver of the van, whom the victim identified as defendant. When defendant threatened him, the victim attempted to kick defendant's face through the open window, but defendant drove the van away. This victim called 911, and two officers arrived in a patrol car within five minutes. After some questions, the police asked the victim to ride with them in an attempt to locate the van, and the three drove off. The victim eventually spotted a van similar to the one involved in his robbery in the drive-through lane of a McDonald's restaurant. When the officers checked the license plate of the van, they learned it had been reported as stolen. After the patrol car made a U-turn and activated its lights, the van left the drive-through lane, drove over a curb, and took off at high speed. The patrol car followed. The victim saw defendant in the driver's seat.

A reckless, high-speed chase ensued, on and off the highway, involving several police cars. Eventually, the van left the highway and, at high speed, ran into a patrol car stopped in an intersection, flipping the patrol car. The van then weaved into parked cars and came to a stop. Defendant, the two codefendants, and defendant's wife, Jessica Chamberlain, emerged from the wrecked van. A police officer who was in the driver's seat of the rammed patrol car eventually died as the result of injuries suffered in the collision.

Chamberlain testified at trial under a grant of immunity. She explained she and defendant took the van to a Burger King restaurant that night to pick up one of the codefendants, who was a mutual friend.² With him was the second codefendant, whom she had not met before. The four rode around for awhile, defendant driving. They ended up in the parking lot of a Safeway grocery store, where the two codefendants got out of the van and committed a robbery. When the two returned to the van, defendant drove off. Chamberlain then recounted three other robberies and the chase, generally confirming the testimony of the other witnesses. Chamberlain said defendant was the driver of the van throughout.

Following the last robbery, Chamberlain testified, they drove the van to a McDonald's restaurant on Third Street, but the restaurant was closed. Defendant then drove to a McDonald's restaurant on Bayshore, where they entered the drive-through lane and ordered food. While they were waiting to pick up their food, Chamberlain saw the police car and alerted defendant. The four at first decided to remain calm and ignore the police vehicle, but just before they were to pay, the occupants of the van panicked. Defendant drove over the curb and took off.

A videotape of the four talking together in a room at the jail following the crash was played for the jury. The codefendants made vague references to at least three of the robberies. One of the codefendants told defendant, “[Y]ou don't have no robbery on you. All you, all you have is evading the police.” Defendant told them he tried to get the van to go faster, but he could not get it past 85 miles per hour. All regretted stopping at McDonald's, a decision they blamed on Chamberlain.

Defendant was found guilty of all charges, and the enhancement allegations were found true. He was sentenced to a term of life without the possibility of parole on the special circumstances murder charge, as well as a combined consecutive determinate term of 7 years 8 months on the charges of evading a police officer and driving a stolen vehicle. Sentences on the remaining counts were imposed and stayed.

II. DISCUSSION

Defendant raises three claims of error, one of which the Attorney General concedes to be meritorious.

A. Error in Instructing on the “Escape Rule”^**B. Waiver of the Spousal Testimonial Privilege

Defendant contends the trial court erred in holding Chamberlain waived her right to invoke the spousal testimonial privilege by providing testimony to the grand jury.

1. Procedural Background

Chamberlain's testimony was admitted over a defense objection under the spousal testimonial privilege, asserted on Chamberlain's behalf. Chamberlain had testified before the grand jury under subpoena, giving testimony materially the same as her eventual testimony at trial. During a hearing on defendant's objection held prior to trial, Chamberlain explained she appeared before the grand jury “So I could stay out of jail” and believed she would go to jail if she did not testify. At the time, she claimed, she did not know that the proceeding “had something to do with [defendant].” Had she known she was testifying against her husband, she said, she would not have appeared.

Chamberlain was represented by appointed counsel in connection with her grand jury testimony. In declarations submitted to the court, the attorney said he did not recall discussing the issue of spousal privilege with Chamberlain, since “the focus of my representation of Ms. Chamberlain quickly became her potential exposure to prosecution and ensuring that I protected her Fifth Amendment rights.” The attorney discussed an immunity agreement for Chamberlain with the deputy district attorney, but the deputy “said that he was not going to give [Chamberlain] immunity for her testimony because he did not think she had exposure. However, he promised me that she would not be prosecuted in connection with these events unless she perjured herself before the Grand Jury.” On that assurance, the attorney permitted Chamberlain to testify.

The trial court entered a written decision allowing the testimony, basing its decision on People v. Resendez (1993) 12 Cal.App.4th 98, 15 Cal.Rptr.2d 575 (Resendez ), which held that a spouse's testimony at a preliminary hearing waived the assertion of the spousal testimonial privilege at trial. With respect to Chamberlain's testimony regarding the circumstances of her...