1

Filed 11/19/13 P. v. Lankford CA4/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DESMEN LANKFORD,

Defendant and Appellant.

 A133944

 (Alameda County

 Super. Ct. No. C163147)

A jury convicted appellant Desmen Lankford of two counts of first degree murder 

(Pen. Code,1§ 187, subd. (a)) and found true the allegations that he personally used a 

firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)) and personally inflicted great bodily 

injury (§ 1203.075) when he committed the murders. He was also convicted of being a 

felon in possession of a firearm (§ 12021, subd. (a)(1)), and ammunition (§ 12316, 

subd. (b)(1)). Sentenced to life in prison without the possibility of parole, Lankford 

appeals. He contends reversal is required because the trial court erred by admitting his 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 
2

statements to a jailhouse informant because they were obtained in violation of his right to 

counsel. Lankford further contends that various evidentiary errors require reversal.

We affirm. 

I. FACTS 

A. The Murders

Around midnight on September 18, 2008, Christopher Morris was walking his two 

dogs on Sacramento Street in South Berkeley. As he approached Carleton Street, Morris 

noticed an individual walking between Carleton and Derby Streets on Sacramento and 

another individual coming around the corner on Carleton onto Sacramento. The two men 

were walking in the southbound direction on the other side of the street from Morris. The 

individual walking in front was a Black male, between five-eight and six feet tall, 

wearing a brown sweatshirt. The other individual was a half-block behind the first and 

was shorter and skinnier.2 He wore a black sweatshirt with a picture of a skeleton on it. 

This man was in the process of putting his hood up on his head and Morris thought he 

was a Black male as well. Morris did not notice anything distinctive about the second 

man’s hair.

The two men walked at a good pace, which Morris described as neither hurried 

nor relaxed. Morris saw the man with the skeleton sweatshirt stop and reach for 

something around his ankle. Both men turned right onto Derby Street. Morris continued 

walking his dogs towards the intersection of Sacramento and Derby Streets and the two 

men disappeared from his view down Derby Street. As he approached Derby Street, 

Morris heard two gunshots, followed quickly by a second set of gunshots. It came from 

the same vicinity where the two men had gone. Following the second round of shots, 

Morris saw a red four-door sedan, with the driver as the lone occupant, drive through the 

intersection of Derby and Sacramento and crash into a parked car. The car came from the 

 

2

The second man was “definitely shorter” than Morris, who was six feet tall. He 

estimated the second man was between five feet two inches and five feet four inches tall,

but he could not be certain. Morris agreed that the second man could have “easily” been 

a “couple of inches taller.”
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same direction where the two men had gone. Morris took cover behind a car and called 

911. 

B. The Investigation 

1. Evidence at the Scene 

Officer Robyn Fuentes of the Berkeley Police Department responded to the scene. 

When she arrived, she saw what appeared to be a vehicle collision between a red Chrysler 

and a green Honda. There was severe front end damage to the Chrysler and considerable 

damage to the rear end of the Honda. The Honda was unoccupied and appeared to be 

parked. 

Officer Fuentes approached the Chrysler and observed the lone occupant in the 

driver’s seat. The car was smoking and still idling and inching forward. The driver, later 

identified as Kelvin Davis, aka “Twin,” suffered severe head wounds from gunshots to 

the head. Davis had a faint pulse, but later died from the multiple gunshot wounds. 

Meanwhile, Berkeley Police Officer Lionell Dozier arrived at the scene, where he 

saw a body lying in the street. The body was later identified as Kevin Parker, aka “KK.” 

Parker was unresponsive and with multiple gunshot wounds to the head, which were later 

deemed to be the cause of death. Numerous shell casings were found around Parker’s 

body. There were 12 .40 caliber casings and two .357 caliber shell casings. There was 

also a live .357 round at the scene, as well as bullet fragments. One .357 shell casing was 

found on the right rear passenger door of the Chrysler.

Detective David Marble of the Berkeley Police Department also had been 

dispatched to the scene. As the designated lead detective, Detective Marble was 

responsible for writing the majority of the police report and testifying in court. He found 

bullet fragments underneath Parker’s head.

2. Ralph White aka “Bony Ralph” Arrested in Unrelated Matter

On the evening of September 25, 2008, Detective Marble received a call from 

Detective Chu of the Berkeley Police Department Narcotics Unit. Detective Chu had 

arrested an individual named Ralph White aka “Bony Ralph” in connection with a 

narcotics violation. Detective Chu told Detective Marble that White wanted to speak 
4

with someone from the Homicide Division regarding the murders of Davis and Parker. 

Detective Marble interviewed White at the Berkeley Police Department the following 

day.3 

White told Detective Marble that appellant was responsible for the homicides. 

White came across appellant quite often in the course of his (White’s) work as a cocaine 

dealer, selling both crack and powder. Appellant was one of White’s customers; the two 

would frequently stop and talk to each other. Appellant came over to White’s residence a 

couple of times a week to socialize, smoke marijuana, and buy cocaine. Appellant went 

by the nickname of “Spice” and was associated with the North Oakland street gang, a 

rival of the South Berkeley gang. 

White knew victim Kelvin Davis. Kelvin Davis was known as “Twin” because he 

had a twin brother named Melvin. White also knew of victim Kevin Parker, but did not 

know his real name. White only knew him as “KK.” Both Kelvin and Melvin Davis 

were associated with the rival South Berkeley gang. 

The day after the murders of Davis and Parker, appellant came over to White’s 

apartment. Appellant was acting normally and they smoked marijuana together. 

Appellant asked White if he knew anyone who wanted to buy a .357 gun. Shortly 

thereafter, appellant asked White if he had heard about the murders of Davis and Parker. 

Appellant said he saw Davis at a gas station on 6th and Ashby. Davis was sitting inside a 

car with another individual. Appellant was also with someone in his car. Appellant 

watched the two men for a while and saw Davis switch seats and get into the driver’s 

seat. Appellant followed the men in his car to Derby and Sacramento. When Davis 

stopped the car, appellant drove past and parked around the corner. From his position, 

appellant could see Davis and Parker smoking a blunt.4 After watching Davis and Parker 

smoke the blunt for a while, appellant got out of his car and snuck up on the two men. 

 

3 Although Detective Marble videotaped the interview, due to a recording 

malfunction the interview was not preserved on tape.

4 White explained that a blunt is created by removing the tobacco from a cigar and 

replacing it with marijuana.
5

Appellant admitted killing Davis and Parker. Appellant told White that he went up on the 

driver’s side and shot the two men in the car. According to appellant, Davis hit the gas 

pedal after he was shot and tried to drive off. Parker managed to get out of the car and 

attempted to run off. Appellant told the person he was with to go and shoot Parker 

because he could identify them. Appellant’s partner shot Parker. Appellant and his 

cohort ran off after shooting the victims.

Appellant told White that the intended target actually was Melvin Davis, but since 

he could not find Melvin, killing his twin brother Kelvin was good enough. White said 

appellant never identified his partner in crime, but White added that in the month before 

the homicides, appellant only hung around with Wilkins Owens aka “Wick-Wack.” In an 

attempt to corroborate White’s statement, the police searched the red Chrysler and found 

two blunts from the car.

3. Appellant’s Arrest and Related Residential Search 

In October 2008, Officer Larry Robertson of the Oakland Police Department 

Targeted Enforcement Task Force (TETF) received information that appellant might be 

staying at 1718 13th Street and that he went by the alias of Jason Johnson. At that time, 

Officer Robertson, who worked in surveillance, was a plain clothes officer with long hair 

and a beard, and he drove an unmarked car.

On October 9, 2008, Officer Robertson, along with other members of the TETF, 

surveilled the area around 1718 13th Street. For approximately two hours, Officer 

Robertson, who was alone in his unmarked car, was parked directly across the street from 

the residence. From this vantage point, he was able to see an individual, believed to be 

appellant, coming in and out of the residence on several occasions. He could not tell if 

appellant used a key to gain access, but could see that appellant did not knock on the 

door. Around 8:00 p.m., Officer Robertson saw a green Chrysler arrive; appellant left the 

residence, got behind the wheel of the Chrysler and drove off. Officer Robertson radioed 

the arrest team and advised them to stop the car. While appellant was detained at the 

traffic stop, Officer Robertson and other team members entered 1718 13th Street and 

conducted a search. 
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During that search, officers recovered a black hoodie with a white skeleton design 

from a bedroom believed to be appellant’s room. They also found a loaded Sig Sauer 

.357 magnum semi-automatic pistol in the closet of appellant’s bedroom, along with 

ammunition for a .357 caliber weapon and a .45 caliber weapon. A pink, digital camera 

was recovered from appellant’s bedroom; the camera contained several photographic 

images of appellant, holding guns in his hands. Drug paraphernalia, including cutting 

agents, a funnel, plastic baggies, a scale, and toy balloons used to package narcotics were 

also found in the house.

4. Forensic Evidence 

The .357 Sig Sauer retrieved from the closet in appellant’s bedroom was tested 

and found to be in proper functioning condition. The .357 casings found at the scene of 

the murders all were fired from the same weapon, the .357 Sig Sauer found in appellant’s 

residence. Moreover, bullet fragments found at the scene had the same class 

characteristics as the Sig Sauer, in terms of number of grooves, number of lands, and the 

direction of the twists, but there was not enough detail to make a definitive identification. 

They could not have been from a .40 caliber weapon. All of the .40 caliber casings and 

bullet fragments were fired from one firearm. 

The skeleton hooded sweatshirt observed by witness Morris and found in 

appellant’s residence was also analyzed. Possible gunshot residue was found on the right 

and left sleeves of the sweatshirt, suggesting that the sweatshirt was in close proximity to 

a gun as it was discharged or it came into contact with a surface contaminated with 

gunshot residue. It could not be determined how long the residue had been on the 

sweatshirt.

C. Gordon Gray: Jailhouse Informant 

On June 23, 2010, Gordon Gray was placed in North County Jail in connection 

with a felony assault with a deadly weapon count. Upon arriving at North County, Gray 

was assigned to appellant’s cell. About a month or so after appellant and Gray became 

cellmates, appellant began telling Gray about the charged murders, as well as his 

involvement in the murder of Ronnie Easley. Appellant told Gray that he and his “ 
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‘coz’,” Will Owens aka “Wick Wack,” killed two men because of a feud with a rival 

gang. Appellant said he used a .357 Sig Sauer, while Owens used a .40 caliber. 

Appellant told Gray that the police had the .357 Sig Sauer and also had his girlfriend’s 

camera with photos of the gun he used. Appellant said he was “ ‘scared about those 

photos.’ ” 

Appellant revealed that he had told an individual named Bony Ralph about the 

murders and that Bony Ralph turned around and testified against him at his preliminary 

hearing. Appellant told Gray he had been sending coded letters to a friend about getting 

rid of Bony Ralph, but he did not think his friend understood what needed to be done. 

Appellant talked to Gray about when Gray would be released and asked Gray to deliver 

“letters” and “paperwork” to appellant’s brother, Chris P. aka “Blast Holiday” that would 

boldly explain that Bony Ralph needed to be killed. Sometime between September 22, 

2010, and October 6, 2010, appellant asked Gray if he would kill Bony Ralph when Gray 

got out of jail. The plan was for Gray to deliver the “paperwork” to Chris P. and that 

Gray, Chris P., and Wick Wack would “hook up” and set out to kill Bony Ralph.

1. Gray’s Meeting with the District Attorney

On October 14, 2010, after advising his attorney that he wanted to talk to someone 

at the district attorney’s office, Gray met with Deputy District Attorney James Meehan 

and District Attorney Investigator Philip Dito at North County Jail.5 At the meeting, 

Gray discussed how appellant admitted to committing the charged murders. Appellant 

also admitted that he killed an individual named Ronnie Easley and that he “ ‘did 10 

months on it.’ ”

Gray revealed that appellant had asked him to deliver some “paperwork” upon his 

release from custody. Gray also said that appellant asked him for help in killing Bony

Ralph. Gray agreed to speak with Berkeley homicide investigators regarding the 

statements made to him by appellant. No specific promises were made to Gray during 

 

5

The interview was not recorded, but notes of the meeting were taken.
8

this interview, but he was advised that he might be able to resolve his case with a 

nonprison term in exchange for his cooperation as a witness.

2. Gray’s First Meeting with Detective Marble 

On November 9, 2010, Gray met with Detective Marble at North County Jail.6 In 

that interview, Gray repeated how appellant described the circumstances of the charged 

murders, as well as his involvement in the murder of Ronald Easley. According to Gray, 

appellant liked to brag about his criminality, discussing how he killed Easley, as well as 

saying that he had knowledge about another murder that happened about two weeks ago. 

According to Gray, appellant said that Gary Ferguson was killed as part of the “Berkeley 

North Oakland feud.” Apparently, one of appellant’s friends, “White Boy,” was shot and 

another person was killed. Appellant told Gray that a “dude” named “Colione” killed 

Ferguson in retaliation. 

Detective Marble told Gray that he was the lead detective in the Ferguson case and 

that the information Gray provided about that case was “very important” but ultimately 

not usable because it was hearsay. However, as to the Easley murder, Detective Marble 

explained that he could use that information because, even though the charges had been 

dropped, it was “technically still open.” Detective Marble asked Gray if appellant had 

mentioned any other murders, explaining that the jury would hear about this and other 

character evidence. Gray said that appellant talked about “trying to kill other people . . . 

[but] [h]e never really says anything about who he killed.” When it appeared that Gray 

was annoyed about appellant not actually naming the other people, Detective Marble 

advised him: “Just be careful about, you know, questioning him . . . .”

Gray told Detective Marble about appellant’s efforts to solicit his assistance in 

killing Bony Ralph and in delivering certain “paperwork” upon Gray’s release from 

custody. During the interview, Detective Marble made no promises to Gray and neither 

directed Gray to question appellant about his case nor asked Gray to encourage appellant 

 

6 Although this interview was recorded, it appears that only a transcript of the

interview and not the actual recording was presented in the trial court. As in the trial 

court, only the transcript of the interview is provided in the record on appeal.
9

to write letters for Gray to deliver. Gray told Detective Marble that he intended to give 

the letter to the police, but he did not want to actually deliver it because he did not want 

to be involved in the conspiracy. When Detective Marble asked Gray what he would do 

if the police asked him to follow through and deliver the letter, Gray said, “Then I would 

deliver . . . I would do that.” Detective Marble replied, “Well that would be something 

that we would really have to consider. Now you didn’t want to do it. That’s one thing. 

We can’t force you to do it.” Gray added, “I don’t want to do it but see he trusts me . . . I 

just didn’t know if it was a good thing for you guys to think that I should deliver that

letter.” Detective Marble responded with the following: “I just automatically assumed 

that we would get the letter. We would Xerox [it] and then . . . have it delivered but you 

brought up a good point and it is your safety . . . . You know, if you were to deliver that 

letter and something were to happen to you that could be a problem. So I’ll talk to the 

district attorney about that.” Gray offered that the police could follow him to “a neutral 

safe spot” where it would be less likely that appellant’s associates would try to do 

anything.

3. Gray’s Second Meeting with Detective Marble

On December 15, 2010, Gray again met with Detective Marble. In this second 

interview, Gray reiterated that appellant openly discussed the murders of Davis and 

Parker. Gray said he was supposed to take “some paperwork” to appellant’s brother, 

Chris P., regarding the planned murder of Bony Ralph. Gray told Detective Marble that 

he told appellant he would meet up with Chris P. and Wick Wack and that they would kill 

Bony Ralph. Gray explained appellant asked him about it many times and that he assured 

appellant he would make it happen. However, Gray never had any intention of joining in 

this plan. Rather, his real plan was to let the police know about appellant’s plot to kill 

Bony Ralph.

D. Trial 

1. Appellant’s Pre-Arrest Confession

White testified at trial pursuant to a plea bargain, under which his pending cases 

were dismissed. White identified a photograph of appellant from 2008, depicting him 
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with long dread locks to the shoulder. Consistent with what he told Detective Marble, 

White testified that appellant admitted to killing Parker and Davis.

2. Evidence of Appellant’s Jailhouse Confession

Detective Marble testified that upon Gray’s release from custody, he handed over 

letters that appellant had given him to deliver to his friends. In one letter addressed to 

“Cash Flow,” dated December 19, 2010, appellant said he hoped that Cash Flow could 

understand his hidden message, “I gotta put that to keep them off my hidden message. So 

I be hope’n you read between the lines. I could really give a fuck about a lawyer right 

now. My question is why this nigga still walk’n around breath’n, (Bony Ralph)?” 

Appellant also wanted to know about what was being done about the attack on 

“WhiteBoi,” also known as Anthony Thomson. The letter is signed by “Cold Gunnaz 

Finest,” “Spice City.” Detective Marble testified that “Cold Gunnaz” is the name of 

appellant’s gang, and appellant has these words tattooed on his forearms.7 Detective 

Marble also testified that “Spice City” was a nickname for appellant. Also included in 

the envelope to “Cash Flow” was a six-page summary of White’s statement to the police 

and transcript of an interview with White.

In another letter to “Kleet Da Muthafuckin Banga,” aka Jason Johnson, appellant’s 

cousin, appellant said to him, “At trial I’ma need you to put it on alot thicker then you did 

at prelim bout the house (west) and room and shit. I know that shit scary to get up on that 

stand, but this time around you gotta get up there wit confidence and swagg like you ain’t 

got a care in the world cuz it’s gone be in front of the jury! Don’t trip I’ma write down 

all the questions and answers fa you that my lawyer gone ask you and all you gotta do is 

read and go over it and spit it on the stand best you can. My lawyer gone have a copy of 

the same questions and answers you got so everythang gone be on point. All you gotta 

do is stick to the script. I told my mom to ask you was you gone claim the gun in the 

room? I know that seem like sum scary shit to do but in all actuality it’s not. They can’t 

charge you wit the gun cuz the gun case is over a year old, . . . they can’t charge you wit 

 

7

The jury was shown a photograph of the tattoos on appellant’s forearms.
11

the murders on the gun cuz they don’t have no body to say you had sumthin to do wit the 

murders so that’s a dead issue. If they ask you who gun was in the room, you say mine 

then you gonna go into a story about how you bought the gun off the streets from 

somebody who dead now. Blah, blah, blah.” Appellant next said that it was Bony Ralph 

who informed on him to the police. Appellant urged his cousin and all his friends to find 

Ralph and to get some handguns. Appellant also said that he was “sick” about 

“WhiteBoi” being dead. He then ordered his cousin to tear up the letter after reading it.

3. Appellant’s Recorded Telephone Calls From Jail 

The prosecution introduced evidence of telephone calls appellant made from jail to 

his friends that were intercepted by the police. In these conversations, appellant 

expressed his concerns about the police finding photographs of him holding handguns. 

He also worried about his fingerprints being found on the handgun. He said he had let his 

guard down and hoped he would not have to fight a homicide charge. In another 

conversation, appellant spoke to an individual at the 13th Street apartment—the residence 

that had been searched by the police. In response to appellant’s question, “Is the house 

fucked up?” a female responded, “Yes, it is. I’m cleaning up your room right now.”

Appellant told the female, “Go sleep in my room.” During this call, appellant also spoke 

with an unidentified man and expressed his concern about the photographs on the camera. 

Appellant also told the man that the police “took my baby mamma keys . . . and went to 

go see if any key fit the door . . . .” The man said that he did not see a marked police car 

outside on the day of the search. Appellant responded, “Nope I didn’t see one. But I 

don’t live there though, blood. That ain’t my house nigga . . . You feel me?” The man 

agrees and says, “They ain’t got nothing.” Appellant reiterates, “[t]hat ain’t my house 

that ain’t my parole address, I don’t live there. You all didn’t see me coming out of 

there.”

In a third telephone conversation with Wilkins “Wick Wack” Owens, appellant 

discussed how to dispose of the .40 caliber handgun. They also talked about the .357 Sig

Sauer handgun. In a later conversation with Anthony Thompson, Thompson informs 

appellant that Wilkins has been going around talking and telling everyone about what 
12

happened. Appellant tells Thompson, “Make sure you niggas put a lid on my cousin, 

man fast. Check that nigga on everything.” 

4. Jailhouse Graffiti About Gray Found in Appellant’s Cells 

Graffiti was found on the walls of three cells where appellant had been housed. It 

said, “Gordo Gray is a snitch. He’s from the Dubbs. He’s rappin and shit.” The graffiti 

was signed by “Spice.” White testified that while he was in custody pending the drug 

charges in August 2011, he was placed in a single cell for “keep-separate” inmates, where 

he noticed the graffiti about Gray on a cell wall. To White, the graffiti was a message 

alerting others that Gray was a snitch and that someone wanted to hurt Gray. Deputy 

Dennis Armstrong of the Alameda County Sheriff’s Department explained that the 

graffiti served as a message board to other inmates to notify them to be aware of a 

particular individual. 

5. Gray Disappears Before Testifying 

Just before the start of appellant’s trial, the district attorney and his investigator 

met with Gray. Gray was cooperative and was served with a subpoena to appear as a 

witness. On the day of his expected testimony, Gray was escorted to the witness waiting 

room. Gray, however, left at the lunch break and did not reappear. Gray failed to appear 

at trial and a bench warrant was issued. 

Repeated efforts to locate Gray were unsuccessful. Gray’s attorney testified that 

Gray had talked to the district attorney’s office and worked out a deal where he would 

testify against appellant. In exchange, Gray would receive probation instead of a state 

prison sentence if he agreed to testify truthfully at appellant’s trial. He pleaded guilty to 

assault with a semiautomatic firearm and being a felon in possession of a firearm. Gray’s 

attorney explained that he had been unable to track down Gray and he had not heard from 

him.

6. The 13th Street Apartment 

Appellant’s cousin, Jason Johnson, testified that in 2008, he and his brother Glen

lived in the lower unit of a house located at 1718 13th Street in Oakland. They each had 

their own room and a third bedroom was unoccupied but sometimes other people stayed 
13

there. Appellant spent several days a week at the 13th Street apartment. Johnson called 

it a “little kick-it spot,” to play video games and hang out with women. However, 

Johnson and his brother Glen were the only ones with keys; Johnson assumed that Glen

let appellant into the apartment.

In September 2008, Johnson spent a lot of his time in Pittsburg with his pregnant 

girlfriend. The only mail Johnson received at the 13th Street apartment was from his 

brother Jarrell Johnson, who was serving time in state prison. Johnson realized appellant 

had been using his name as an alias. Johnson testified that appellant used his name 

without his permission. Johnson did not keep any weapons or ammunition in the 

residence because the terms of his probation prevented him from keeping any weapons.

After he found out that the police had conducted a search of his house in October 2008, 

Johnson went to the house to check on its condition. All his personal belongings were 

still there. He testified that the gun and the camera found inside the house did not belong 

to him. 

Johnson also identified a photograph of appellant wearing the hoodie with the 

skeleton bones. Johnson used to own a similar sweatshirt that he kept at the apartment, 

but he never saw appellant wear it. Johnson explained that there is nothing unique about 

the skeletal hoodies, noting that he has seen other people wearing the same sweatshirts.

7. Defense Witnesses

Appellant’s parole officer met with him in 2008 at an address on Alcatraz Street. 

The parole officer had no knowledge of appellant having any connection to 1718 13th 

Street.

Jarrell Johnson, appellant’s cousin and brother of Jason Johnson and Glen Clark, 

was serving time in Solano State Prison. During the six years that he had been in prison, 

he had never written to appellant. He, however, frequently sent letters to his brother 

Jason at the 13th Street apartment.
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II. MASSIAH

A. Trial Court Ruling 

Appellant contends the trial court erred by admitting the letters Gray gave to the 

police that contained his jailhouse statements. He argues that the statements he made to 

Gray were obtained in violation of his Sixth Amendment right to counsel. (See Massiah

v. United States (1964) 377 U.S. 201, 205-207 (Massiah).) He reasons that Gray acted as 

a government agent deliberately eliciting incriminating statements from him. Appellant 

asserts that this violation of Massiah was prejudicial.

In the trial court, appellant moved to exclude Gray’s testimony as taken in 

violation of Massiah, alleging that Gray was a government agent who deliberately 

elicited incriminating statements from him. After hearing, the trial court ruled that Gray 

was not a government agent because the police did not create a situation likely to provide 

it with incriminating information from appellant. The court noted that the police did not 

find out about Gray until he volunteered information to them. It deemed Gray to have 

acted on his own initiative rather than at the behest of the government. Thus, the trial 

court ruled that Gray’s testimony about what appellant told him was admissible and it 

denied appellant’s motion to exclude that testimony on Massiah grounds.

B. Applicable Law and Standard of Review 

Once an adversarial criminal proceeding has been initiated against an accused, the 

constitutional right to counsel attaches. From that time on, any incriminating statement 

that the government deliberately elicits from the accused in the absence of counsel is 

inadmissible at trial against that defendant. (Massiah, supra, 377 U.S. at pp. 205-207; In 

re Neely (1993) 6 Cal.4th 901, 915; In re Wilson (1992) 3 Cal.4th 945, 950, cert. den. sub 

nom. California v. Wilson (1993) 507 U.S. 1006; see Maine v. Moulton (1985) 474 U.S. 

159, 170; see also U.S. Const., 6th & 14th Amends.) The government actor need not be a 

regular government employee. If an accused’s cellmate acts as a government agent, an 

incriminating statement deliberately elicited from the accused by that jailhouse informant 

is likewise inadmissible. (United States v. Henry (1980) 447 U.S. 264, 269-274 (Henry); 
15

see Kuhlmann v. Wilson (1986) 477 U.S. 436, 458; Maine v. Moulton, supra, 474 U.S. at 

pp. 173-174 [informant surreptitiously recorded accused’s statements].) 

To prove a Sixth Amendment Massiah violation in a case involving a jailhouse 

informant, the defendant must establish that both the government and the informant took 

some action, beyond merely listening, that was designed deliberately to elicit 

incriminating remarks. (Kuhlmann v. Wilson, supra, 477 U.S. at p. 459; In re Neely, 

supra, 6 Cal.4th at p. 915; In re Wilson, supra, 3 Cal.4th at p. 350.) Specifically, the 

evidence must show that the informant (1) acted as a government agent or was under the 

direction of the government pursuant to a preexisting arrangement, with the expectation 

of some resulting benefit or advantage; and (2) deliberately elicited incriminating 

statements. (Kuhlmann v. Wilson, supra, 477 U.S. at p. 459; People v. Fairbank (1997) 

16 Cal.4th 1223, 1247, cert. den. sub nom. Fairbank v. California (1998) 525 U.S. 861 

(Fairbank); In re Neely, supra, 6 Cal.4th at p. 915; see People v. Frye (1998) 18 Cal.4th 

894, 993, cert. den. sub nom. Frye v. California (1999) 526 U.S. 1023, disapproved on 

other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The critical 

inquiry in informant cases is whether the government made a knowing exploitation of an 

opportunity to coax information from a formally charged suspect in the absence of 

counsel. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1240, cert. den. sub nom. Gonzalez 

v. California (1991) 502 U.S. 835, superseded by statute on other grounds in In re Steele

(2004) 32 Cal.4th 682, 691.) If the informant acts on his or her own initiative to 

interrogate an accused, the government may not be said to have deliberately elicited a 

statement from the accused, even if the government had a general policy of encouraging 

inmates to listen and report. (Fairbank, supra, 16 Cal.4th at p. 1247; see In re Neely, 

supra, 6 Cal.4th at p. 915; People v. Gonzalez, supra, 51 Cal.3d at p. 1240; People v. 

Williams (1988) 44 Cal.3d 1127, 1141, cert. den. sub nom. Williams v. California (1988) 

488 U.S. 975.) In other words, where “ ‘[t]he police simply made use of [the 

informant’s] own motivation to inform on defendant . . .’ ” (People v. Martin (2002) 98 

Cal.App.4th 408, 418), courts have declined to find a “ ‘knowing subversion of the 

defendant’s right to counsel . . . .’ [Citation].” (Ibid.)
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A preexisting arrangement between an informant and government agents need not 

be explicit or formal, but may be inferred from evidence that the parties behaved as if 

they had an agreement, based on a course of conduct occurring over a period of time. 

(Fairbank, supra, 16 Cal.4th at p. 1247; In re Neely, supra, 6 Cal.4th at p. 915.) Specific 

direction from government agents or a prior working relationship with such agents can 

establish an implicit agreement. (Fairbank, supra, 16 Cal.4th at p. 1247; see Henry, 

supra, 447 U.S. at pp. 270-273, & fn. 8 [by prearrangement, government paid informant 

if he produced useful information about accused whom government had singled out for 

inquiry]; People v. Gonzalez, supra, 51 Cal.3d at p. 1241.) An agency relationship may 

be established by evidence of government officials directing the informant to focus on a 

particular person or on a specific type of information sought by the government. (In re 

Neely, supra, 6 Cal.4th at p. 915; People v. Martin, supra, 98 Cal.App.4th at p. 420.)

The issue of whether the informant’s testimony may be admitted into evidence is 

“ ‘an essentially factual question, and we review it on a deferential standard.’ ” 

(Fairbank, supra, 16 Cal.4th at pp. 1247-1248, quoting People v. Memro (1995) 11 

Cal.4th 786, 828, cert. den. sub nom. Memro v. California (1996) 519 U.S. 834, overruled 

on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2; see People v. 

Martin, supra, 98 Cal.App.4th at p. 421.) Thus, when the trial court makes a permissible 

interpretation of the evidence before it and necessarily concludes that no agency 

relationship existed, the appellate court will defer to the trial court’s finding in this 

regard. (People v. Martin, supra, 98 Cal.App.4th at pp. 420-421.) 

C. Analysis 

The Massiah principles, as applied here, make clear that Gray was not acting as a 

“[g]overnment agent expressly commissioned to secure evidence.” (Henry, supra, 447 

U.S. at p. 273.) To begin with, the government did not initiate contact with appellant. 

Gray’s assignment to appellant’s cell was purely a matter of happenstance and was not at 

the direction or prompting of the government. Further, once Gray became appellant’s 

cellmate, the government did not instruct Gray to strike up conversations with appellant. 

Rather, at the outset, appellant clearly volunteered information about the facts of his case 
17

and expressed his desire for Gray to deliver “letters” or “paperwork” on appellant’s 

behalf once Gray was released from custody. Gray began collecting this information on 

his own initiative and decided to contact the authorities about it. There is no evidence 

that Gray had a previous history as an informant or had otherwise agreed to cooperate 

with the government in any other contexts. 

By the time Gray first met with the District Attorney on October 14, 2010, he had 

been appellant’s cellmate for several months and appellant had been taking steps to 

secure Gray’s help with delivering “paperwork” with instructions to kill Bony Ralph. 

Gray, acting on his own behest, initiated contact with the government. 

At that initial meeting, Gray discussed how appellant had admitted to committing

charged murders, as well as his involvement in the Ronald Easley murder. Gray 

explained that appellant had asked him to deliver some “paperwork” upon Gray’s release 

from custody. Appellant also asked Gray for his help in killing prosecution witness 

Ralph White. Gray agreed to speak with Berkeley homicide investigators concerning 

statements made to him by appellant. No specific promises or guarantees were made to 

Gray during that interview, but he was advised that he might be allowed to resolve his 

case to a non-prison term in exchange for his cooperation as a witness.

Thereafter, Detective Marble of the Berkeley Police Department conducted two 

interviews of Gray. In these interviews, Gray repeated how appellant described the 

circumstances of the charged murders, as well as his involvement in the Ronald Easley 

murder. 

Specifically, in the first interview, Gray told Detective Marble about appellant’s 

efforts to solicit his assistance in killing witness Ralph White and appellant’s requests that 

Gray deliver paperwork that would not be subject to law enforcement screening, upon 

Gray’s release from custody. Gray also told Detective Marble that appellant liked to brag 

about his criminality and that he boasted about having knowledge about the recent murder 

of Gary Ferguson. Detective Marble made no promises to Gray and neither directed Gray 
18

to question appellant about his case,

8

nor asked Gray to encourage appellant to write 

letters for Gray to carry out of the jail.

In a subsequent interview, on December 15, 2010, Gray reiterated appellant’s 

desire to have Gray smuggle letters out of the jail that included instructions about killing 

witness Ralph White. During this interview, Detective Marble again made no promises 

to Gray and neither directed Gray to question appellant about his case nor encouraged 

Gray to bring up the subject of letters for Gray to smuggle out of the jail when Gray was 

released. 

On the record before us, there is no evidence that Gray deliberately elicited any 

information. Rather, the record shows appellant initiated the conversations with Gray, 

openly discussing the pending charges against him. Appellant’s misguided decision to 

trust his cellmate does not implicate Massiah.

“[T]he primary concern of the Massiah line of decisions is secret interrogation by 

investigatory techniques that are the equivalent of direct police interrogation.” 

(Kuhlmann v. Wilson, supra, 477 U.S. at p. 459.) It is clear that appellant’s incriminating 

statements and his decision to attempt to smuggle letters out of the jail through Gray were 

the result of appellant’s voluntary conduct neither influenced nor coerced by Gray’s 

acting as a “police agent.” It is equally clear that appellant’s incriminatory statements 

and decision to have Gray smuggle letters out of the jail were made well before Gray 

spoke with the authorities. These statements unquestionably preceded Gray’s agreement 

to testify against appellant.

 

8

In his reply brief, appellant makes much of the isolated comment by Detective 

Marble, where he tells Gray to be “careful about . . . questioning” appellant. It does not 

appear that appellant raised this issue below and only raised it for the first time on appeal 

in his reply brief. In any event, this otherwise forfeited claim fails on the merits. Having 

read the entire transcript of Gray’s first interview with Detective Marble, it is clear that 

this solitary remark pertains to appellant’s propensity to brag about other crimes, 

including the Easley and Ferguson murders, and not the charged offenses regarding the 

murders of Davis and Parker.

Furthermore, the remark appears to have been a simple statement of caution in 

response to Gray’s expression of annoyance with appellant rather than an instruction by 

Detective Marble for Gray to use care in constructing substantive questions.
19

The cases upon which appellant relies to establish his claim of Massiah error are 

clearly distinguishable. For example, in In re Neely, supra, 6 Cal.4th at page 917, the 

court found an agency relationship where a deputy sheriff told the informant that he “was 

seeking specific information from [the defendant] as to the whereabouts of the murder 

weapon,” and the deputy “encouraged and instructed [the informant] as to the means by 

which [he] could procure this information from [the defendant].” Conversely, a review 

of Gray’s interviews by Detective Marble on November 9, 2010 and December 15, 2010,

demonstrate that Gray had no “agency relationship” with law enforcement nor was Gray 

ever encouraged to elicit incriminating statements from appellant. Detective Marble 

listened to Gray’s account of appellant’s plan to write letters not in “code” but in plain 

English to be carried out of the jail by Gray when released and hand delivered to 

appellant’s associates. A review of those statements makes it clear that Detective Marble 

merely asked if Gray was prepared to hand over whatever letters were provided by 

appellant. Detective Marble neither encouraged Gray to suggest to appellant what kind 

of information he should include in the letters nor instructed Gray to actively solicit the 

letters.

“There is a distinct difference between passively receiving information provided 

by enterprising inmates and striking deals with inmates—whether based on coercion or 

enticement.” (United States v. York (7th Cir. 1991) 933 F.2d 1343, 1357, overruled on 

other grounds in Wilson v. Williams (7th Cir.1999) 182 F.3d 562, 567.) It is obvious that 

Gray was not an agent when appellant made the fateful decision to trust his cellmate with 

the details of his crimes and plans to solicit the murder of prosecution witness Ralph 

White. “That inmates realize there is a market for information about crime does not 

make such inmate who enters the market a government agent.” (United States v. York, 

supra, 933 F.2d at p. 1357.) Indeed, as the United States Supreme Court explained in 

Maine v. Moulton, supra, 474 U.S. 159, the Sixth Amendment “is not violated 

whenever—by luck or happenstance—the State obtains incriminating statements from the 

accused,” but by “knowing exploitation by the State of an opportunity to confront the 
20

accused without counsel” or “the intentional creation of such an opportunity.” (Id. at 

p. 176.)

Similarly inapposite is Henry, supra, 447 U.S. 264. In Henry, while the defendant 

was in jail, the government recruited and instructed Nichols, another inmate in the same 

cellblock, to keep his ears open for any incriminating statements from Henry, which he 

eventually heard and reported to the government. (Id. at p. 266.) The Court found that 

the government violated Henry’s rights under Massiah by “intentionally creating a 

situation likely to induce Henry to make incriminating statements without the assistance 

of counsel.” (Id. at p. 274.) In so holding, the Court relied on three factors: (1) Nichols 

was acting under specific instructions related to Henry as a paid informant for the 

government; (2) Nichols “was ostensibly no more than a fellow inmate of Henry,” (id. at 

p. 270), which caused Henry to trust him and thus be more likely to make incriminating 

statements, and (3) Henry was in custody and under indictment at the time Nichols spoke 

with him. (Ibid.) 

Unlike Henry, here there was no evidence of a prior agreement with Gray either 

express or implied to obtain information from appellant about his case. Moreover, there 

is no evidence that Gray was purposely assigned to be appellant’s cellmate. Rather, 

Gray’s placement as appellant’s cellmate was the result of fortuity and was not an 

intentional act designed to exploit an opportunity to confront appellant without counsel. 

(Maine v. Moulton, supra, 474 U.S. at p. 176.) Similarly fortuitous was appellant’s 

decision to openly discuss the murders of Parker and Davis with Gray, as was his 

decision to enlist Gray to smuggle “paperwork” with instructions about killing Ralph 

White. It is clear that appellant’s incriminating statements were not made as a result of 

any deliberate elicitation by Gray.

Equally distinguishable is Randolph v. California (9th Cir. 2004) 380 F.3d 1133 

(Randolph). In Randolph, an informant came to the attention of county prosecutors 

“when he gave them a letter asking for leniency and mentioning that he was [the 

defendant’s] cellmate.” (Id. at p. 1139.) Immediately thereafter, the informant met with 

the deputy detective and district attorney “several times to discuss his possible testimony 
21

against [the defendant], as well as a plea deal relating to the crime for which [he] was 

being held.” (Ibid.) The Ninth Circuit held that the informant became a “state agent” 

under Massiah “when he was placed in [the defendant’s] cell after meeting” with the 

district attorney and police. (Id. at p. 1144.) The court, however, explained that “[a]ny 

statements . . . made by [the defendant] before [the informant] met with the prosecution 

team cannot be the basis of a Massiah violation.” (Ibid.)

Randolph dealt with circumstances far different than that of appellant. While it is 

true that Gray sought out the district attorney and police, the case similarities between 

Randolph and appellant end there. Prior to Gray’s contact with the district attorney, 

neither the district attorney nor the police were aware that Gray was housed with 

appellant. (See Henry, supra, 447 U.S. at p. 270 (“[T]he FBI agent was aware that 

Nichols had access to Henry and would be able to engage him in conversations without 

arousing Henry’s suspicion”). “[A] defendant does not make out a [Massiah ] violation 

. . . by showing that an informant . . . voluntarily[] reported his incriminating statements 

to the police.” (Kuhlmann v. Wilson, supra, 477 U.S. at p. 459.) 

While appellant may be correct that an agreement between the informant and state 

is not always necessary to create a “state agent” relationship, some knowledge by the 

state is necessary, lest every prisoner who unilaterally elicits incriminating information 

from a co-inmate be automatically deemed a state agent under Massiah. Gray was not a 

state agent at the time he obtained incriminating information from appellant, under 

Massiah, Henry, and even Randolph. (See Randolph, supra, 380 F.3d at p. 1144 (“Any 

statements . . . made by [the defendant] before [the informant] met with the prosecution 

team cannot be the basis of a Massiah violation”). 

Here, the prosecution’s receipt of the two letters recovered from Gray on 

December 20, 2010, did not stem from any violation of appellant’s right to counsel under 

the Sixth Amendment. More was needed in this case to create the requisite agency 

relationship. Indeed, the letters became part of the evidence against appellant due to 

appellant’s decisions to volunteer information about his case and to trust Gray with the 

job of smuggling letters out of prison. In sum, the government neither “intentionally 
22

created” nor “knowingly exploit[ed]” an opportunity to confront appellant without 

counsel. (Maine v. Moulton, supra, 474 U.S. at pp. 168, 176.) 

II. EVIDENTIARY ISSUES

A. Authentication of the Letters 

Appellant claims the trial court erred in admitting the letters because the 

prosecution failed to authenticate that they were written by him. Authentication of a 

writing is required before it may be received into evidence and before secondary 

evidence of its contents may be received into evidence. (Evid. Code, § 1401.) 

“ ‘Authentication of a writing means (a) the introduction of evidence sufficient to sustain 

a finding that it is the writing that the proponent of the evidence claims it is or (b) the 

establishment of such facts by any other means provided by law.’ (Evid. Code, § 1400.)” 

(People v. Miller (2000) 81 Cal.App.4th 1427, 1445.) “[T]he objection that a document 

has not been authenticated does not go to the truth of the contents of the document, but 

rather to the introduction of evidence sufficient to sustain a finding that it is the writing 

that the proponent claims it to be. [Citations.]” (Interinsurance Exchange v. Velji (1975) 

44 Cal.App.3d 310, 318; City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 412.)

Evidence Code section 1421 states: “A writing may be authenticated by evidence 

that the writing refers to or states matters that are unlikely to be known to anyone other 

than the person who is claimed by the proponent of the evidence to be the author of the 

writing.” (Italics added.) Section 1421 uses the word “author” and not the word 

“writer,” and a document need not be written by an individual in order for that person to 

be the author for purposes of authentication. (People v. Lynn (1984) 159 Cal.App.3d 

715, 736, fn. 10.) “Accordingly, it is not necessary for purposes of authentication of a 

writing that the writing be physically created by the author’s hand.” (Ibid.) Rather, the 

circumstances and contents of the writing itself may serve to authenticate it as being 

authorized by a particular individual. (Ibid.) “The law is clear that the various means of 

authentication as set forth in Evidence Code sections 1410-1421 are not exclusive. 

Circumstantial evidence, content and location are all valid means of authentication 
23

[citations].” (People v. Gibson (2001) 90 Cal.App.4th 371, 383; People v. Olguin (1994) 

31 Cal.App.4th 1355, 1372-1373.)

Authentication requires a party to establish as a preliminary fact the genuineness 

and authenticity of the writing, which can be established by any one of a variety of 

means. (Interinsurance Exchange v. Velji, supra, 44 Cal.App.3d at p. 318.) The 

establishment of such authentication is a preliminary fact within the meaning of Evidence 

Code section 403. (Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65.) The proponent 

of the document has the burden of establishing its authenticity. (Evid. Code, § 403, 

subd. (a)(3).) The preliminary fact of authenticity is first determined by the trial court but 

it is subject to redetermination by the jury. (People v. Fonville (1973) 35 Cal.App.3d 

693, 708-709; Evid. Code, § 403, subds. (a)(3), (c)(1).) We review a ruling that a writing 

has been sufficiently authenticated for abuse of discretion. (People v. Smith (2009) 179 

Cal.App.4th 986, 1001; People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 5–6.)

In People v. Olguin, supra, 31 Cal.App.4th 1355, the police found rap lyrics in a 

defendant’s home. (Id. at p. 1372.) They referred to membership in the Southside F 

Troop Gang; the defendant was a member of this gang. (Id. at pp. 1366, 1372 & fn. 3.) 

One said, “my name is Vamp,” which was the defendant’s moniker. (Id. at p. 1372 & 

fn. 3.) Another said, “I[’]m that rapper they call Franky”; the defendant’s name was 

Francisco. (Ibid.) Finally, they said “I rapp [sic] into the beat” and “just give me the mic 

and I[’]ll rock your world,” which could have been construed as references to diskjockeying; the defendant was a part-time disk jockey. (Ibid.) For these reasons, the 

appellate court upheld a ruling that the lyrics were sufficiently authenticated. (Id. at 

pp. 1372-1373.)

Similarly, in People v. Gibson, supra, 90 Cal.App.4th 371, the police found a 

typewritten manuscript in the defendant’s hotel room and a handwritten note in her home.

(Id. at p. 382.) They referred to the author as “ ‘Sasha,’ ” which was one of the 

defendant’s aliases. (Id. at p. 383.) “Each was written in the first person and each 

described operating a prostitution enterprise”; there was extrinsic evidence that the 

defendant was operating a prostitution enterprise. (Id. at pp. 382-383.) For these 
24

reasons, the appellate court upheld a ruling that the documents were sufficiently 

authenticated. (Ibid.)

Here, much as in Olguin and Gibson, the author of the letters had identifying 

information that matched appellant. The author called himself “Spice,” which was 

defendant’s moniker. The author referenced he was “Cold Gunnaz Finest”—“Cold 

Gunnaz” being the name of appellant’s gang; appellant had the words “Cold Gunnaz” 

tattooed on his forearms. The first letter addressed to “Cash Flow,” included special 

“wordz” for “Blast,” a known associate of appellant named Chris P. The letter included 

references to “[Bony] Ralph” White, as well as a six-page summary of White’s statement 

to the police. In the first letter, the author was also concerned about the lack of efforts to 

retaliate for the attack on “WhiteBoi,” who was another known associate of appellant. 

The second letter was addressed to “Kleet Da Muthafuckin Banga,” which is the alias for 

appellant’s cousin, Jason Johnson. In this letter, the author tells Johnson to say that the 

gun found in the bedroom belonged to him. The author also instructs Johnson that he 

needs to “put it on a lot thicker” than he did at the preliminary hearing. This was 

sufficient to support the trial court’s finding of authentication.

Admittedly, unlike in Olguin and Gibson, the writings were not found in 

appellant’s residence or his cell. While it would be helpful additional evidence, it is not a 

controlling factor. In the instant case, the letters were authenticated pursuant to Evidence 

Code section 1421. Even if no one saw appellant write the letters and they were 

delivered to the police by Gray, instead of being found in appellant’s cell, the letters 

stated matters which were unlikely to have been known or authored by anyone other than 

appellant. 

B. Chain of Custody Regarding the Letters 

Appellant contends that the letters should not have been admitted in evidence 

because there was insufficient evidence of the chain of custody to establish that the letters 

were what they were purported to be. As the People point out on appeal, appellant failed 

to object on this ground below. Appellant concedes as much in his briefs but argues that 

the failure to object constitutes ineffective assistance of counsel.
25

“In order to establish a claim of ineffective assistance of counsel, defendant bears 

the burden of demonstrating, first, that counsel’s performance was deficient because it 

‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional 

norms.’ [Citations.] . . . If a defendant meets the burden of establishing that counsel’s 

performance was deficient, he or she also must show that counsel’s deficiencies resulted 

in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.’ ” (People v. Ledesma

(2006) 39 Cal.4th 641, 745-746.)

Defense counsel’s performance was not deficient. An adequate chain of custody 

was established for admission of the letters, and thus any objection would have been 

futile. “In a chain of custody claim, ‘ “[t]he burden on the party offering the evidence is 

to show to the satisfaction of the trial court that, taking all the circumstances into account 

including the ease or difficulty with which the particular evidence could have been 

altered, it is reasonably certain that there was no alteration. [¶] The requirement of 

reasonable certainty is not met when some vital link in the chain of possession is not 

accounted for, because then it is as likely as not that the evidence analyzed was not the 

evidence originally received. Left to such speculation the court must exclude the 

evidence. [Citations.] Conversely, when it is the barest speculation that there was 

tampering, it is proper to admit the evidence and let what doubt remains go to its weight.”

[Citations.]’ (People v. Diaz [(1992)] 3 Cal.4th [495] at p. 559; see also Mendez, Cal. 

Evidence (1993) § 13.05, p. 237 [‘While a perfect chain of custody is desirable, gaps will 

not result in the exclusion of the evidence, so long as the links offered connect the 

evidence with the case and raise no serious questions of tampering’].) The trial court’s 

exercise of discretion in admitting the evidence is reviewed on appeal for abuse of 

discretion. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448.)” 

(People v. Catlin (2001) 26 Cal.4th 81, 134, cert. den. sub nom. Catlin v. California 

(2002) 535 U.S. 976, overruled on another ground in People v. Nelson (2008) 43 Cal.4th 

1242, 1253-1256.)
26

Appellant has failed to show that any vital link in the chain of custody was 

missing or to produce any credible evidence of tampering. Detective Marble testified that

he waited for Gray in the sergeant’s office at the North County Jail on December 20, 

2010, at 4:30 p.m. Gray was escorted into the office by members of the Sheriff’s 

Department. He was instructed to show his property to Detective Marble. Gray was in 

possession of a garbage bag that contained the personal property he acquired while in jail 

for six months. This included clothing, magazines, and toiletry items. Detective Marble 

searched the bag looking for letters written by appellant that Gray was supposed to 

deliver to appellant’s friends. He found two envelopes. The envelopes contained the two 

letters that were admitted into evidence as Exhibits 43 and 44. Detective Marble testified 

that the letters appeared to be in the same condition as they were when he first observed 

them in Gray’s bag. There is no indication that the letters were tampered with once the 

police took possession of them. Appellant fails to show anything improper happened to 

the evidence. To the extent that appellant argues that Gray may have written the letters 

or altered them, this question goes to authenticity, which, as discussed ante, the trial court 

properly ruled on. Thus, an objection on chain of custody grounds would have been

futile. (People v. Harpool (1984) 155 Cal.App.3d 877, 886 [counsel is not required to 

make futile objections or motions]; People v. Weston (1981) 114 Cal.App.3d 764, 780 

[same]; People v. Jones (1979) 96 Cal.App.3d 820, 827 [same].)

C. Relevance of Gray’s Absence from Trial 

Appellant contends that his constitutional rights to due process and a fair trial were 

violated when the trial court admitted evidence regarding Gray’s plea bargain and his 

disappearance during trial. 

When Gray disappeared from the courthouse, the prosecutor announced his 

intention to call David Kelvin, Gray’s attorney, to testify about the testimony agreement 

and the change of plea, as well as Detectives Revel and Marble regarding the 

consequences of his failure to appear as a witness. Defense counsel agreed that the 

witnesses could testify that Gray had been present at the courthouse in the morning, but 

left without their knowledge and did not return. He objected to the introduction of any 
27

evidence which could create the inference that appellant was somehow responsible for 

Gray’s failure to appear.

The trial court ruled that the prosecutor could not speculate but could “argue that 

he’s not here and the stakes were pretty high . . . . I don’t want them to speculate. I don’t 

want them to speculate. Okay. . . . You can put the facts in front of them. That’s it.” 

Appellant argues that the evidence of Gray’s failure to appear at trial, as well as 

the evidence pertaining to his plea bargain was irrelevant and therefore inadmissible.

(Evid. Code, § 350.) Evidence is admissible only if it is relevant. (Ibid.) All relevant 

evidence is admissible, except as otherwise provided by some statutory or constitutional 

exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) 

Relevant evidence is defined as evidence “having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.”

(Evid. Code, § 210.) The general test of relevance is whether the evidence tends 

logically, naturally, and by reasonable inference to establish material facts such as 

identity, intent, or motive. The trial court retains broad discretion in determining the 

relevance of evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 132, cert. den. sub 

nom. Crittenden v. California (1995) 516 U.S. 849, impliedly overruled on other grounds 

as stated in People v. Baldwin (2002) 189 Cal.App.4th 991, 999-1000.)

In the case before us, the trial court did not abuse its discretion in admitting the 

evidence of Gray’s disappearance and of his plea bargain. As mentioned, appellant 

agreed that the prosecution witnesses could testify that Gray was present at the 

courthouse in the morning but left without their knowledge and did not return. On 

appeal, the People argue that the evidence regarding the plea agreement was relevant to 

show the severe consequences Gray faced for failing to appear at trial. This evidence, 

however, had only marginal relevance.

The jury already knew that graffiti in appellant’s jail cells accused Gray of being a 

“snitch.” Witnesses testified that the graffiti was a message alerting others that Gray was 

a snitch and that someone wanted Gray hurt. The jury also knew that Gray had been 

subpoenaed to testify, was in the courthouse, but disappeared at lunchtime and failed to 
28

reappear. Thus, evidence of the terms of Gray’s plea agreement had little impact on the 

case, especially in light of the overwhelming evidence already presented by the 

prosecution showing appellant’s involvement in the murder of Davis and Parker. 

Accordingly, any error in admitting evidence relating to Gray’s disappearance and the 

terms of his plea bargain was clearly harmless under federal and state standards. 

(Chapman v. California (1967) 386 U.S. 18, 24 [reversal required unless error harmless 

beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reversal 

required if it is reasonably probable jury would have reached a different conclusion had 

evidence been excluded].) 

III. CUMULATIVE ERROR

Finally, appellant contends that the cumulative effect of the purported erroneous 

rulings compels reversal.~(AOB 55)~ As we have determined that the trial court did not 

err in any respect, we need not engage in a cumulative-error review.

IV. PAROLE REVOCATION FINE

Appellant contends that the trial court erred in imposing a parole revocation fine 

pursuant to section 1202.45 because that statute is inapplicable in this case. The People 

agree that the trial court erred in imposing the fine because appellant was sentenced to 

life in prison without the possibility of parole.

We also agree and order the parole revocation fine stricken. Section 1202.45, 

subdivision (a), requires assessment of a parole revocation restitution fine “[i]n every 

case where a person is convicted of a crime and [whose] sentence includes a period of 

parole.” (Italics added.) Because appellant’s sentence included no period of parole, it 

was improper to impose the parole revocation fine. (See People v. Brasure (2008) 42 

Cal.4th 1037, 1075; People v. Battle (2011) 198 Cal.App.4th 50, 63; People v. 

Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)

V. DISPOSITION 

The judgment is modified by striking the section 1202.45 parole revocation fine. 

The trial court is directed to amend the abstract of judgment to reflect this modification 
29

and to forward a certified copy of the amended abstract of judgment to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

HUMES, J.