Filed 9/6/22 P. v. Nance CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075270
v. (Super.Ct.No. FSB1102845)
GERALD NANCE et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr. Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant, Gerald Nance.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant, Lori Whipple.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sedival, Andrew
1 Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendants and appellants Gerald Nance and Lori Whipple were convicted of
special circumstance murder and sentenced to life without the possibility of parole. On
appeal, they contend that the trial court erred in not giving certain jury instructions,
excluding certain evidence, and imposing improper sentences. We agree with Nance and
Whipple that the trial court erred at sentencing, but its errors do not require us to vacate 1 the life sentence. We otherwise find no errors in the trial court’s actions and affirm.
I. BACKGROUND
Lafe Humble had moved to Rialto from Kentucky to be closer to family. He
worked part-time for his sister and drove a red truck with out-of-state license plates.
On June 15, 2011, Humble’s sister paid Humble $300 in hundred-dollar bills for
work he had done that day. Humble did not have a bank account, so he added the $300 to
the $1,800 cash he already had in his wallet.
That night, he went to drink at El Toro Bar and Grill. He eventually asked the
bartender to call him a cab while also expressing concern about leaving his truck in the
parking lot overnight. Defendant Whipple, who had been working in the bar section that
night, agreed to drive Humble home in his truck.
Whipple drove Humble in his truck to a gas station. Footage from the gas station
showed that defendant Nance followed Humble’s truck in a blue car. After purchasing
1 Undesignated statutory references are to the Penal Code.
2 gas and making another stop at a convenience store, they made their way to Robin
Peterson’s house, where Whipple lived.
Peterson did not like Whipple bringing strangers to the house. Whipple whispered
to Peterson: “I’m sorry I brought this guy to your house. He has got a lot of money.
We’re thinking about robbing him.” Humble purchased methamphetamine from Peterson
and did some lines with Nance and Whipple before Humble, Nance, and Whipple left the
house.
Whipple then drove Humble’s truck down an emergency access road leading to a
ravine. Nance parked his car nearby and walked down the emergency access road. He
ran back to his car a few minutes later, then walked down the emergency access road
again, where he stayed for approximately 22 minutes. During those 22 minutes, Nance’s
phone accidentally dialed Peterson’s number. Peterson heard Humble “screaming for his
life” and repeatedly saying, “Please don’t hit me anymore. Please just don’t hit me
anymore.” Nance then ran back to his car, drove down the emergency access road, then
drove back up a few minutes later and left the scene with Whipple. Approximately an
hour later, surveillance footage showed Nance and Whipple, in changed clothes,
purchasing a gasoline container and lighters. Footage from near the ravine showed that
Nance and Whipple returned to the ravine soon before smoke began to rise from the area.
A few days later, Peterson read an article about the killing of a Kentucky man.
When Peterson asked Whipple about it, Whipple told her that it was a robbery gone bad.
3 Nance and Whipple contended at trial that Nance killed Humble in self-defense
after Humble attempted to rape Whipple. Whipple took the stand at trial and testified, for
example, that Humble kept touching her while at Peterson’s house; that Nance lost sight
of Humble’s truck; that Humble subsequently took over the steering wheel while she was
driving and trying to fight him off, causing the truck to go down the emergency access
road toward the ravine; that Nance appeared and fought Humble when he was trying to
force himself on Whipple, and that she was walking up the ravine when she saw Nance
come up behind her covered in blood. Whipple also denied ever telling Peterson that she
and Nance were thinking of robbing him or that it was a robbery gone bad.
Nance and Whipple were charged with first degree murder (§ 187, subd. (a), count
1) and arson of property (§ 451, subd. (d), count 2). The information also alleged that
Nance and Whipple committed the murder while engaged in the commission of or
attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). Following a joint trial 2 where Whipple testified but Nance did not, the jury found both guilty on both counts.
The trial court sentenced both Nance and Whipple to eight months followed by life
without the possibility of parole.
II. DISCUSSION
Nance and Whipple (hereinafter defendants) raise a number of issues in their
briefs, some jointly and some individually.
2 The jury found that Whipple was a major participant in the robbery or attempted robbery and that she acted with reckless indifference to human life.
4 First, defendants contend that the trial court abused its discretion in excluding
evidence of what they call Humble’s “near-term crude sexual appetite” (capitalization
removed). Second, Nance contends that the trial court failed to instruct the jury on
evidence of an uncharged conspiracy. Third, Nance contends that the trial court failed to
instruct the jury on accomplice testimony. Fourth, Nance alleges cumulative error
warrants reversal even if no single error warrants reversal. And fifth, defendants contend
that the trial court erred in various ways at sentencing. As we explain, only the last
contention has merit.
A. Exclusion of Evidence
Before and during trial, defendants sought to introduce three categories of
evidence to bolster their claim that Humble had attempted to rape Whipple. The first was
a handwritten note, entitled “Escorts to Call,” that was found in Humble’s home and that
contained the names and phone numbers of six women. The second was testimony from
a bartender who told police that on the night of the murder Humble “told her he inserted
money in the vagina of female strippers.” The third was testimony from a waitress that
same night that Humble talked about “getting a hooker.”
In each case, defendants contended that the evidence was relevant to show
Humble’s desire to commit unconsented sexual acts. The handwritten note, defendants
contended, showed “a certain sexual aggressiveness or willingness to partake in
potentially illegal sexual activity” as well as “a willingness to perform rape and other
sexual assault.” The bartender’s testimony was similarly intended to “prove [Humble’s]
5 state of mind,” and the waitress’s testimony went toward Humble’s “readiness to commit
unwanted sexual acts.”
In response, the People contended that the handwritten note did not “indicate[] any
type of sexual aggressiveness whatsoever.” They also argued that the bartender’s
testimony was “too far attenuated,” in that the jury would have to “extrapolate or 3 attenuate out that [Humble] attempted a 261[ ] within 12 hours” of making the statement.
As to the waitress’s testimony, the People reiterated its argument: “that someone may be
at a bar drinking, looking to have sex with someone or talking even about hiring someone
to have sex with, this kind of far attenuated statement of hiring a hooker does not indicate
a readiness to do evil, a readiness or ability to attempt rape later on that night.”
In each case, the trial court excluded the evidence pursuant to Evidence Code
section 352. For the handwritten note, the trial court stated that “the probative value does
not outweigh any confusion which might result in this case.” For the bartender’s
testimony, the trial court stated that “the prejudice outweighs any probative value.” And
for the waitress’s testimony, the trial court stated again that “the prejudice outweighs any
probative value,” this time adding that any desire or attempt to hire prostitutes on
Humble’s part “would be a consensual-type action versus the defense assertion that a
rape was involved here, which is non-consensual.”
“Evidence Code section 352 permits a trial court, in its discretion, to exclude
evidence if its probative value is substantially outweighed by the probability that its
3 This is presumably a reference to section 261, which defines rape.
6 admission will necessitate undue consumption of time or create the substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury. The court’s ruling is
reviewed for abuse of discretion.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
75.)
Defendants contend that the exclusion of this evidence was an abuse of discretion,
repeating their argument made in trial court that the evidence showed a willingness to
commit unwanted sexual acts. We disagree. To rely on the evidence, the jury would
have had to conclude, from evidence that Humble interacted with (or sought to interact
with) prostitutes, that he attempted to rape Whipple. Broadly speaking, it would have
required finding a desire to violate Whipple’s legal consent from acts that indicated no
such violation. Even though, as defendants note, such evidence could have indicated
Humble’s willingness to break the law for sex, that is not the same as willingness to
commit rape, and it was well within the trial court’s discretion to find that the evidence
required reasoning that was too attenuated such that any probative value would have
created undue prejudice or confused the issues.
B. Jury Instructions on Coconspirator Statements
The trial court allowed the People to enter into evidence two statements Whipple
made to Peterson: the first was her statement, before the murder, that she and Nance
were going to rob Humble; the second was her statement, after the murder, that it was a
robbery gone bad. The trial court reasoned that both were statements against interest.
(See Evid. Code, § 1230; People v. Cudjo (1993) 6 Cal.4th 585, 607 [statement against
7 interest may be admissible where it is “sufficiently reliable to warrant admission despite
its hearsay character”].)
On appeal, Nance contends that the inclusion of those statements obligated the
trial court to instruct the jury on CALCRIM Nos. 416 (Evidence of Uncharged
Conspiracy) and 418 (Coconspirator’s Statements). We disagree.
CALCRIM No. 416 begins by stating: “The People have presented evidence of a
conspiracy. A member of a conspiracy is criminally responsible for the acts or statement
of any other member of the conspiracy done to help accomplish the goal of the
conspiracy.” It then lists the elements necessary for the jury to find that a defendant was
a member of a conspiracy. CALCRIM No. 418 generally provides that a coconspirator’s
statements may not be admitted against a defendant unless certain preliminary facts have
been shown, such as that the coconspirator made the statement to further the conspiracy’s
goals. (See Evid. Code, § 1223.) Nance contends that because the statements were
admitted as the statements of a coconspirator, the trial court had a duty to instruct on
CALCRIM Nos. 416 and 418 on its own motion, and that its failure to do so resulted in
prejudicial error.
Contrary to what Nance contends, the statements were not admitted as
coconspirator statements, but as statements against interest. Nance does not contend that
the trial court erred in admitting the statements as statements against interest but rather
argues that the trial court was obligated to instruct on CALCRIM Nos. 416 and 418 “to
the extent” the statements were also admissible as coconspirator statements.
8 Nance is mistaken. The trial court was under no obligation to instruct on
coconspirator statements for the simple reason that membership in a conspiracy was not
at issue in the case. The People, for example, did not attempt to establish Nance’s
vicarious criminal liability due to his membership in a conspiracy. (See People v. Valdez
(2012) 55 Cal.4th 82, 150 [“‘an uncharged conspiracy may properly be used to prove
criminal liability for acts of a coconspirator’”].) Rather, the People contended that Nance
was criminally liable as the direct perpetrator of both the murder and the arson. No error
arises when a jury is not instructed on something that is not relevant to the issues it is
asked to decide. Accordingly, the trial court did not need to instruct on CALCRIM Nos.
416 and 418.
C. Jury Instructions on Accomplice Testimony
Nance next contends that the trial court failed to sua sponte instruct the jury on
CALCRIM No. 334, regarding accomplice testimony. CALCRIM No. 334 “precludes a
defendant’s conviction based on the testimony of an accomplice unless that testimony is
corroborated by independent evidence.” (People v. Martinez (2019) 34 Cal.App.5th 721,
729.) This is in part because “an accomplice may try to shift blame to the defendant in an
effort to minimize his or her own culpability.” (People v. Tobias (2001) 25 Cal.4th 327,
331.) According to Nance, the instruction would have prevented the jury from finding
him guilty of murder, which was based on a felony murder theory premised on the
robbery, as well as finding the robbery special circumstance allegation true, because, as
9 he contends, nothing other than Whipple’s testimony showed that the murder occurred
during a robbery.
Here, although a single statement from Whipple’s trial testimony suggested that
Nance planned to commit a robbery, any resulting error from the trial court’s failure to
instruct on CALCRIM No. 334 would have been harmless because it was sufficiently
corroborated by other evidence in the record.
While on the stand, Whipple repeatedly testified that Nance threatened to rob
Humble of the drugs he had purchased if he did not stop touching Whipple. (Whipple
also testified that she did not think that Nance meant the statement, which he made to
Humble, to be taken seriously.) During closing arguments, the People stated that the
property at issue in the robbery was money; no mention was made of the drugs Humble
had purchased. Thus, none of these statements made by Whipple at trial were offered to
prove that the murder occurred during a robbery.
Whipple did tell Peterson prior to the murder that “[w]e’re thinking about robbing
him.” However, neither this statement nor Whipple’s later statement (that it was a
robbery gone bad) qualified as “testimony” within the meaning of section 1111, on which
CALCRIM No. 334 is based. (See People v. Martinez, supra, 34 Cal.App.5th at p. 729.)
“The usual problem with accomplice testimony—that it is consciously self-interested and
calculated—is not present in an out-of-court statement that is itself sufficiently reliable to
be allowed in evidence.” (People v. Sully (1991) 53 Cal.3d 1195, 1230.) As discussed
10 above, these statements were allowed in evidence as statements against interest, so it
created no issue regarding accomplice testimony.
There is, however, one brief statement that was not directly made at trial and that
would have counted as testimony within the meaning of section 1111. At trial, Whipple
testified that, following the killing, two detectives approached her while she was
working, so she went with them to a police station for questioning. In response to a
question at trial about whether she remembered telling a detective at that time that it was
Nance’s idea to rob Humble, she said yes. (It was soon after this question that Whipple
testified that Nance only meant to rob Humble of the drugs he had bought if he did not
stop touching Whipple.)
The statement from Whipple that it was Nance’s idea to rob Humble was not
originally made at trial, yet it would have qualified as “testimony” because it was made
under suspect circumstances. “‘[T]estimony’ within the meaning of Penal Code section
1111 includes all oral statements made by an accomplice . . . under oath in a court
proceeding and all out-of-court statements of accomplices . . . used as substantive
evidence of guilt which are made under suspect circumstances. The most obvious
suspect circumstances occur when the accomplice has been arrested or is questioned by
the police. These circumstances are most likely to induce self-serving motives and hence
untrustworthy and unreliable evidence.” (People v. Jeffery (1995) 37 Cal.App.4th 209,
218.) Here, the fact that the statement was made under suspect circumstances is
11 confirmed by Whipple’s own admission at trial that she “chose not to tell [the detectives]
the entire truth” during that interview.
However, any failure by the trial court to instruct the jury on CALCRIM No. 334
based on this single statement was harmless. “A trial court’s failure to instruct on
accomplice liability under section 1111 is harmless if there is ‘sufficient corroborating
evidence in the record.’ [Citation.] To corroborate the testimony of an accomplice, the
prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect
the defendant with the crime charged’ without aid or assistance from the accomplice’s
testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the
defendant and thus relates to some act or fact that is an element of the crime. [Citations.]
‘“[T]he corroborative evidence may be slight and entitled to little consideration when
standing alone.”’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.)
Keeping in mind that Whipple’s statements to Peterson do not amount to
testimony from an accomplice, but rather out-of-court hearsay statements admissible as
statements against interest, we find that Whipple’s testimony—that is, her statement to
detectives that Nance wanted to rob Humble—was sufficiently corroborated by
independent evidence. Put another way, the evidence of Nance intending and committing
a robbery did not consist solely of Whipple’s statements to detectives following the
murder, statements made under suspect circumstances. Such evidence also consisted of
statements Whipple made to Peterson, which were made in a more trustworthy
environment. (See People v. Frierson (1991) 53 Cal.3d 730, 745 [“The focus of the
12 declaration against interest exception to the hearsay rule is the basic trustworthiness of
the declaration”].)
As a result, any error in not instructing the jury on CALCRIM No. 334 would 4 have been harmless on this record.
D. Sentencing Errors
Defendants claim that the trial court made two errors at sentencing: first, that the
trial court imposed both 25 years to life and life without the possibility of parole for the
murder, and second, that the abstract of judgment erroneously reflects a $10,000 parole
revocation fine, which was not orally imposed at sentencing and which does not apply
when the sentence does not include a period of parole. (See People v. Oganesyan (1999)
70 Cal.App.4th 1178, 1185.)
The record contains a number of ambiguities and outright errors. When
sentencing Whipple, the trial court correctly stated that a murder charge without a special
circumstance finding has a term of 25 years to life, but it imposed only a determinate
term of eight months (for the arson) followed by life without the possibility of parole.
When sentencing Nance, however, the trial court made statements that might be
interpreted as ambiguous, even if it is clear enough from the context that Nance and
Whipple would be receiving identical sentences. The transcript shows the following:
4 Because this is the only error we find regarding Nance’s conviction, there is no additional error to accumulate, and Nance’s claim of cumulative error fails.
13 “[Court:] So your sentence is as follows, sir: A determinate term in state prison
of eight years with an indeterminate—
“[Nance’s Counsel]: I’m sorry, your Honor, eight months.
“[Court]: Thank you, Counsel. Eight months, one-third the middle term of two
years. [¶] Consecutive will be the Count 1, indeterminate term of 25 years to life. With
the special finding pursuant to Penal Code section 192(a)(17), that is life without
possibility of parole.”
Defendants’ abstracts of judgment both contain errors, both with regard to the
sentence and the parole revocation fine. Both defendants’ abstracts of judgment impose
the parole revocation fine under section 1202.45, despite the fact that such fines were not
orally imposed at sentencing. Additionally, Nance’s abstract of judgment indicates a
sentence of life without the possibility of parole for the murder and 25 years to life for
the murder, while Whipple’s abstract of judgment indicates only 25 years to life (i.e.,
with the possibility of parole) for the murder.
Defendants’ sentencing minute orders reflect similar errors: Nance’s minute order
states a sentence of “8 months followed by an indeterminate term of 25 years to life
without the possibility of Parole”, while Whipple’s minute order states “8 MONTHS
followed by an indeterminate term of 25 years to life.” Both state that a parole
revocation fine was imposed.
14 “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.)
The proper sentence for count 1 for both defendants is life without the possibility
of parole, nothing more and nothing less. We order that the abstracts of judgment and
sentencing minute orders be corrected to reflect that proper sentence, without the parole
revocation fine under section 1202.45 that was not imposed by oral pronouncement.
III. DISPOSITION
The judgments of conviction are affirmed. The clerk of the superior court is
directed to issue an amended abstract of judgment and sentencing minute order for each
defendant and to forward them to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.