People v. Price

• Citation: 8 Cal.App.5th 409,214 Cal.Rptr.3d 1
• Decision Date: 09 February 2017
• Docket Number: A140775
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kiarra Marie PRICE, Defendant and Appellant.

8 Cal.App.5th 409

214 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Kiarra Marie PRICE, Defendant and Appellant.

A140775

Court of Appeal, First District, Division 2, California.

Filed February 9, 2017

Counsel: Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, for Plaintiff and Respondent.]

STEWART, J.

Defendant Kiarra Marie Price, then 20 years old, along with two friends, participated in a robbery of Benjamin Merrill during which one of them needlessly and senselessly shot and killed 22-year-old Merrill. The Contra Costa District Attorney charged Price and her friends, Kendra Fells and Teareney Brown, with murder and robbery, entered into plea agreements with Fells and Brown that resulted in convictions for voluntary manslaughter, robbery and other charges and 15-year sentences for each, and prosecuted Price for murder and robbery. Fells testified with immunity against Price at Price's trial. The jury convicted Price of robbery and first degree murder and found a robbery-murder special-circumstance allegation to be true, but rejected allegations that Price personally used and discharged a gun and inflicted great bodily injury on Merrill. The court sentenced Price to life without parole as required by the special circumstance statute, Penal Code section 190.2.¹

Price appeals on several grounds. Her primary argument is that the People, by representing to the court that her co-defendants committed voluntary manslaughter and prosecuting Price for murder, adopted versions of both the law and the facts that were irreconcilable and deprived Price of due process. We disagree. Voluntary manslaughter is a lesser included offense of murder and not legally irreconcilable with it. Further, defendant does not establish the prosecution engaged in misconduct in any of its factual contentions regarding Price, which were not necessarily irreconcilable with its contentions regarding Fells and Brown. Assuming these contentions contained inconsistencies, they were justified in light of the evidence available to the prosecution when they were made and in any event any purported error was not prejudicial to Price.

Price asserts several other due process-based grounds for challenging her conviction and the special circumstance determination, including that the prosecutor should not have been permitted to pursue an uncharged conspiracy theory, the instruction on robbery-murder special circumstance was unconstitutionally vague, the instruction on flight as a basis for inferring consciousness of guilt was inconsistent with the Penal Code and unfairly lightened the prosecution's burden of proof, and the prosecutor unfairly vouched for Fells, its key witness. None of these arguments is persuasive, and neither, therefore, are Price's related arguments of ineffective assistance and cumulative error. We agree with Price's challenge to the imposition of a parole revocation fine, an issue which the People concede. For these reasons, we affirm the judgment in all respects other than the parole revocation fine, which we strike.

BACKGROUND

I.The Charges, Initial Plea Agreements and Preliminary Hearing

In late November 2009, the district attorney filed a complaint charging Price, Brown and Fells with the first degree murder and second degree robbery of Merrill, both with enhancements as to Price only for personal use and discharge of a firearm and causing great bodily injury or death.

Both Fells and Brown made certain statements to investigators, both before and after entering into plea agreements. Fells in particular revealed certain limited facts beforehand. She claimed Price shot Merrill, admitted being present when he was shot, and admitted knowing there was going to be a robbery shortly before it occurred. In connection with her plea agreement she further admitted that the gun was hers, that Price had taken it from a drawer where Fells kept it, and that Fells took the gun back after the robbery and got rid of it to cover up the crime. Initially Fells denied that Brown was involved but later admitted that she was and that Brown and Price robbed Merrill before he was shot.

A preliminary hearing was held as to Price in February and March 2011. At the hearing, the prosecutor and defense counsel for Fells and Brown announced that they had reached agreements whereby these co-defendants would plead to lesser offenses, cooperate and testify truthfully against Price and receive immunity for their testimony, and that the People would dismiss the murder charges against them and recommend determinate sentences. Fells's plea agreement, which had been reached in August 2010, called for reduction of the charges to voluntary manslaughter, robbery and supplying a weapon, and a sentence of 15 years in state prison.

Fells testified at the preliminary hearing pursuant to her plea agreement in a manner consistent with her statements to police. Brown also testified pursuant to a plea agreement, which apparently involved a proposed sentence of eight years. However, her testimony diverged from her previous statements to investigators, the most significant difference being that she testified Fells was the shooter when she previously had said it was Price. Brown claimed she had lied previously because she was afraid of Fells, who was housed in the same jail module as Brown and had attempted to bribe her with "commissary and stuff."

At the conclusion of the preliminary hearing, the trial court held Price over to answer all charges and enhancement allegations, finding no serious question about the robbery and murder charges. "Whatever version of the evidence one takes, all of these people are shown to have either committed or aided and abetted in the 187."² Regarding the firearm enhancement allegations, the judge found Brown not credible and, disregarding her testimony, concluded there was "sufficient evidence for a strong suspicion as to possession and discharge of the weapon by Ms. Price." It appears that, based on the failure of Brown to consistently tell the truth, the prosecution revoked her plea agreement.

II.Price's Trial

In September 2013, the court granted a motion by Brown, joined by Price, to sever their trials, and proceeded with Price's trial first. After six-and-a-half days of testimony by more than two dozen witnesses,³ the People rested. The defense called no witnesses.

A. Kendra Fells's Testimony

Fells testified that at the time of trial, she was serving a 15-year sentence for voluntary manslaughter, furnishing a firearm and robbery that resulted from the plea agreement. She said she was testifying both because of her plea deal and to do the right thing. She understood her deal would be off if she lied to the jury, including to help the prosecutor, even though she had already served nearly three years in prison and that she would then face murder charges.

Fells testified that in November 2009, she was friends with Price and had known her for years. Both were also friends with Brown and Nickia Darden. Fells was romantically involved with Felicia Edosa, who lived in Pittsburg, California with her parents and sister. Fells sometimes spent the night with Edosa and shared Edosa's upstairs bedroom. Fells had recently purchased a revolver because "I got myself into a situation" and "needed to protect myself." When she was at Edosa's house she kept the loaded revolver in a drawer in the bedroom. She did not tell Edosa about it. Price had frequently visited Fells at Edosa's house.

On the evening of November 2, 2009, Fells and Edosa were at Edosa's house. Sometime after 11 p.m., Fells was awakened by Price entering the bedroom. Fells was "really intoxicated," having been to a funeral that day where she drank and took drugs. She told Price about an altercation she had gotten into, showed Price her revolver, and returned it to the drawer while Price was there. Fells went outside to get a CD from her car that Price requested. She saw Brown in a car she recognized as Nicky Darden's. Fells gave Price the CD, and about 20 minutes after they had arrived, Price and Brown left in Darden's car with Brown driving. Fells then went back to bed.

Sometime after 1:00 a.m., Fells woke to again find Price in her bedroom. Price asked Fells to "take a ride with her." When they went downstairs, Fells saw Price putting Fells's gun into Price's jacket. She also saw an iPhone she did not recognize on the living room couch. They left in Darden's car. Brown drove, and a man Fells did not know was in the back seat asleep. Fells learned later he was Merrill. There was no conversation, and Fells was "tired and intoxicated." Although she knew Price had her gun, Fells did not suspect something was going on or that there was going to be a robbery. They drove to a park about a mile from Edosa's house, where everyone, including the awakened Merrill, got out of the car.

Merrill went to some bushes near a sign at the entrance to the park and urinated. Fells, Brown and Price were "standing around" nearby. Merrill started rambling, and Fells could tell he was drunk. He said, "You think you better than me," talking to "[n]obody in particular." After urinating, Merrill turned around and walked in a direction away from the car. Brown was standing close to him, and Fells heard Brown say, "I got it." Brown then headed for the car. Fells was standing near the car. She did not see Price, but told her to "come on." After that, Fells heard Price say: "He got more." She saw Price next to Merrill, pointing the gun at Merrill's chest. Fells said, "Come on" and "Let's go." Fells understood Price was robbing Merrill. She did not tell Price to stop; she "just told her to come on." After that, Fells was trying to get in the car, but turned around and saw Price on...