Filed 12/9/14 P. v. Lyons CA2/6

                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                     2d Crim. No. B242306
                                                                               (Super. Ct. No. 1296247)
     Plaintiff and Respondent,                                                  (Santa Barbara County)

v.

COREY JOHN LYONS,

     Defendant and Appellant.




                   A jury found Corey John Lyons guilty, as charged, of the first-degree
murders of Daniel Lyons and Barbara Scharton and burglary. (Pen. Code, §§ 187/189,
459.) The jury also found true special allegations that appellant intentionally
committed multiple murders for financial gain by means of lying in wait (id., § 190.2,
subd. (a)(1)(3)(15)) and that he personally used a firearm which proximately caused
Daniel's and Barbara's deaths (id., § 12022.53, subd. (d)). On the murder convictions,
the trial court sentenced appellant to two consecutive terms of life without the
possibility of parole, plus two consecutive 25-year-to-life terms for the firearm
enhancements (id., subds. (b)-(e)). He appeals that judgment and contends the trial
court erred by 1) admitting a videotaped conversation between him and his wife at the
police station; 2) permitting his wife and his sister to testify; 3) admitting evidence of
gunshot residue (GSR) tests unrelated to this incident; and 5) other evidentiary rulings.
We affirm.
                                         FACTS
                                      The Murders
              On May 4, 2009, at about 1:30 a.m., neighbors heard sounds of gunshots
and breaking glass from the direction of Daniel's and Barbara's' house, and called 911.
Police and SWAT officers arrived within minutes and later that morning found
Daniel's and Barbara's bodies inside the house. They were killed by shots fired from a
handgun and shotgun. No spent shell casings were found at the scene. The house was
not ransacked and nothing appeared to have been stolen. Officers went to appellant's
house about 3:00 a.m. that night after receiving information from neighbors that there
was a high level of conflict between appellant and Daniel.
              Upon arrival at appellant's home, one of the officers telephoned the
house and told appellant's wife Mildred that there had been a "ruckus" at Daniel's
house and that they wanted to speak to appellant. Mildred looked for appellant but he
was not at home. She let an officer look in the bedroom but he found only appellant's
cell phone and money clip. Mildred led an officer to a motor home parked across the
street, called for appellant but got no answer. Mildred unlocked the motor home and
she and an officer looked inside. There was no evidence that appellant had been there
recently. Officers inspected appellant's white pickup truck and found his wallet and a
key ring. His BMW motorcycle was missing. Officers parked their patrol cars nearby
to watch appellant's residence and the motor home, but they did not see anyone
coming or going during the night.
              Appellant called his sister Colleen Zitelli around 3:32 a.m. – two hours
after the murders. His call was placed from the offices of Harwin Management –
appellant's occasional employer. Appellant spoke to his sister for about nine and a half
minutes. He told her, "It's over." And talked about his three-year-old daughter and
asked his sister to look after his family and not to call him back. He said, "This is not
a confession." Colleen called him back at 4:07 a.m. but got no answer.


                                            2
              At about 7:00 a.m., detectives arrived at appellant's home and searched
his residence. Around 9:00 a.m., appellant stepped out of the motor home and
detectives arrested him. They handcuffed him, put him in a patrol car and drove him
to the police station where he was dressed in jail clothing. His hands were tested for
GSR and particles of GSR were detected in concentrations that experts would later
testify could only have been produced by discharging a firearm. Appellant was placed
in an interview room.
              When Mildred arrived at the police station, she did not know what had
happened at Daniel's house or that appellant was involved in a shooting there. Officers
interviewed her for about an hour and then escorted her to the room where appellant
was being held. Their conversation was recorded and videotaped.
              Appellant's BMW motorcycle was found at Harwin's the next day. His
helmet, gloves, jacket and fanny pack were found inside Harwin's office with a note
telling the owner the BMW would not start and that he would pick it up the next day.
Harwin is close to appellant's motor home – about a five-minute walk by a route not
visible to the officers parked on the street. GSR particles were found also on
appellant's fanny pack, on one of his gloves and inside his truck.
                                      The Lawsuit
              Appellant was a contractor, Daniel was an insurance lawyer and Barbara,
also an attorney, specialized in construction defect cases. Although, appellant and
Daniel were not close and rarely spent time together, Daniel asked him to bid for a job
to remodel Daniel's and Barbara's house. Appellant at first was reluctant to get
involved in a business deal with Daniel. Mildred was opposed to it because she did
not trust Daniel and Barbara. In spite of that, appellant agreed to manage the project
on a time and materials basis.
              Their agreement for the project required Daniel and Barbara to control
the flow of money and to pay the workers' compensation insurance premiums. They
instructed appellant to pay half of his payroll expense to the employees in cash to keep
the payroll low because the premiums are based on a percentage of a contractor's


                                            3
payroll. If payroll is under-reported, however, the employer is treated as unlicensed
and is not entitled to payment for any work done on the project. Appellant complied
with their instructions and paid the employees and suppliers in cash provided by
Daniel and Barbara.
              Daniel and Barbara moved into the house before completion of the
project and soon began complaining about appellant's work. In October 2008 they
sued appellant, his wife and their company Select Construction to recover damages for
alleged work defects and $1 million that they paid to appellant for the project. This
created significant tension between appellant and Mildred, damaged their marriage and
threatened their financial well being. An attorney suggested that appellant and
Mildred settle the lawsuit. With the help of a court-appointed mediator, they
negotiated an agreement that would require them to pay Daniel and Barbara $100,000
from a new loan on their home; to convey an unimproved property to Daniel and
Barbara; and to execute a five-year note for $150,000 at 10 percent interest. This
would strip appellant and Mildred of all their assets and burden them with two notes
that were likely impossible for them to pay. The date to finalize the agreement with
counsel was May 4, 2009, the day of the murders.
              Prior to the murders, Barbara told her sister she feared that appellant
"might burn the house down in retaliation for the lawsuit." She also told a neighbor to
call the police if he saw appellant around their home.
                            Appellant's Statements to Others
              Months before the murders, appellant told his brothers Patrick and Tom
about how angry he was with Daniel and that he was "going to hire a hit man" to kill
him. Appellant also expressed intense anger and enmity toward Daniel to persons
acquainted with him and Daniel. He asked a roofing contractor if he knew someone
who "would take [Daniel] out." He told another acquaintance, "I just want him dead, I
could just kill him." He told his sister and his brother Tom that he wanted to kill
Daniel and would have already done so if it were not for his two children.



                                            4
                                      DISCUSSION
             Appellant's and Mildred's Conversation at the Police Station
              Appellant contends that he invoked his Fifth Amendment right to remain
silent; that admitting the videotaped conversation between him and his wife violated
that right; and that recording their conversation violated their statutory marital right to
confidentially converse with one another when the circumstances make it reasonable
for them to expect the conversation to be private. We are not persuaded.
              We review the trial court's decision to admit the recorded conversation
between appellant and his wife for an abuse of discretion. The standard of review for
a ruling about whether a party has a reasonable expectation of privacy is whether
substantial evidence supports the finding. (People v. Mickey (1991) 54 Cal.3d 612,
655.)
              A justifiable expectation of privacy does not attach to conversations with
a person in custody except when the communication is with counsel (In re Jordan
(1972) 7 Cal.3d 930, 937-938, fn. 3) or when jail officers act in a way that the suspect
"and his wife [are] lulled into believing that their conversation would be confidential."
(North v. Superior Court (1972) 8 Cal.3d 301, 311 (North); see People v. Loyd (2002)
27 Cal.4th 997, 1010 ["Following the 1994 amendment to section 2600, California law
. . . permits law enforcement officers to monitor and record unprivileged
communications between inmates and their visitors to gather evidence of crime."].)
              In North, the "conversation between [North] and his wife occurred in a
detective's private office under circumstances which strongly indicated that [they]
were lulled into believing their conversation would be confidential. Although the
record does not disclose whether or not [the detective] made any representations to
that effect, his admitted conduct spoke as clearly as words – first by surrendering to
[them his] own private office so that [they] might converse and then by exiting and
shutting the door, leaving them entirely alone. [N]othing in [the detective's] actions
indicated that [North's] conversation would be monitored." (North, supra, 8 Cal.3d
at p. 311.) The court said these facts "resort[ed] to the deliberate creation of a


                                             5
situation in which marital privacy could reasonably be expected to exist" and were "a
sufficient showing by [North] to establish a reasonable expectation of privacy." (Id.,
at pp. 311-312).
               North is factually distinguishable. Here, Mildred spoke with an
investigator inside a comfortable, unlocked interview room before she was escorted to
the locked and sparsely furnished room where appellant was being held. Mildred was
searched and required to turn over her purse before they were left alone. She was not
treated as if she were in custody. It was clear appellant was under arrest since he was
dressed in an orange jail jumpsuit. The spouses did not behave as if they believed
their conversation would be private, e.g., Mildred said, "I know you don't want to
talk," and when she audibly contradicted his claim that he was in the motor home at
3:30 a.m., he "shushed" her. Much of their conversation was deliberately in whispers,
inaudible and not captured by the recording device. Appellant contends their conduct
demonstrates they wished and expected their conversation to be private. The trial
court properly inferred it was also likely that they whispered because they knew
someone might be listening. While the detective did not tell them that their meeting
would be recorded, neither appellant nor Mildred could reasonably assume their
conversation was and would remain private.
               The audible portion of the conversation included nothing that was
specifically incriminating. Nevertheless, the content of the conversation was relevant
because appellant falsely told Mildred that he was asleep in the motor home at 3:00
a.m. when the police arrived at their residence, and shushed her when she said he was
not in the motor home when she checked at about 3:30 a.m. Appellant later falsely
stated he was in the bathroom when Mildred opened the door and called for him and
claimed he did not answer her because it annoyed him when he thought she was
checking up on him. All that was false and could reasonably be inferred to be an
attempt to create a false alibi.
               Evidence Code section 980 codifies the privilege of a spouse "to refuse
to disclose, and to prevent another from disclosing, a communication if he claims the


                                            6
privilege and the communication was made in confidence between him and the other
spouse while they were husband and wife." But a person's communication with his or
her spouse is in confidence only if the parties to the conversation intend nondisclosure
and are entitled reasonably to expect their conversation would be private. (People v.
Mickey, supra, 54 Cal.3d at p. 654; North, supra, 8 Cal.3d at p. 311.) Here, the
circumstances surrounding appellant's and Mildred's interaction with police and their
behavior during their recorded conversation substantially supports the trial court's
conclusion that they did not reasonably expect that their conversation was or would be
private. Admitting the recording of their mostly whispered conversation was not an
unwarranted invasion of their marital privacy. (People v. Santos (1972) 26 Cal.App.3d
396, 402.)
                         Compelling Appellant's Wife to Testify
              Mildred moved to quash the prosecution's subpoena compelling her to
testify at appellant's trial. She argued that Evidence Code section 980 allows her to
refuse to testify in criminal proceedings against her spouse and that the exception to
the marital privilege for a crime committed against a relative (id., § 972, subd. (e)(1))
should not be applied to "a crime that took place at a remote location against a relative
who did not reside in their household." The trial court denied her motion.
              Appellant contends the scope of the classification "relative" is so vast
that the meaning of the word is not readily apparent and thus the court is permitted to
consider extrinsic aids to determine what the Legislature meant. He points out the
Legislature added "parent, relative, or cohabitant" to Evidence Code section 972 in
1986 as part of legislation dealing with domestic violence and abuse. He argues that
this means that "[t]he relationship between [appellant] and the victim[s] must have
some bearing on the marital relationship between [him] and his spouse for the marital
exemption to apply." Appellant's argument is unconvincing.
              "To ascertain the meaning of a statute, we begin with the language in
which the statute is framed. If the statutory language is clear and unambiguous, the
sole function of the court is to enforce the statute according to its terms. [Citations.]


                                             7
'[W]here the principal problem of construction concerns the meaning of words used in
the statute, we must look first to the words themselves [citation] and must interpret
them 'according to the usual, ordinary import of the language employed in framing
them."' [Citations.]" (People v. Siravo (1993) 17 Cal.App.4th 555, 561 (Siravo).)
              In Siravo, the defendant claimed that his wife could not be compelled to
testify at his trial for a sexual assault against a commercial cotenant of his wife. He
argued that 1) the exception to the marital privilege for "cohabitants" did not apply to
the victim because she was a commercial cotenant, not a person with an intimate or
significant "man-woman relationship" with his wife; and 2) because changing the
reporting requirements for elder abuse in the bill meant the Legislature intended
"cohabitants" to refer only to elderly or dependent persons who live in the same
household. (Siravo, supra, 17 Cal.App.4th at pp. 561-562.) In dismissing Siravo's
attempt to append unstated add-ons to the plain language of the statute the court stated,
"It may be deduced from the Legislature's use of the word 'cohabit' (and its variants)
and interpretive judicial decisions that cohabitation refers, simply, to people who live
or dwell together." (Ibid.)
              As applied to this case, appellant concedes the exception found in
Evidence Code section 972, subdivision (e)(1) for relatives has a plain meaning and
that Daniel is a "relative." In the absence of any indication that the Legislature
intended the exception to apply only to relatives living in the same household, the rule
of statutory construction regarding the plain or commonly used meaning of words
contained in the statute is controlling.
                              Appellant's Sister's Testimony
              In January 2011, appellant's sister Colleen Zitelli employed Tara
Haaland-Ford to negotiate the terms of a "use immunity" agreement that enabled
Zitelli to testify about appellant's telephone call to her at 3:32 a.m. on the day of the
murders. Zitelli's testimony was expected to incriminate appellant.
              A few minutes before appellant called Zitelli, he called and spoke to
attorney Steve Balash, who represented him through the arrest and preliminary hearing


                                             8
in July 2009. Appellant claimed that Haaland-Ford was a "legal partner" of Balash
and that their business relationship disqualified her from representing Zitelli.
              Appellant moved to prevent Zitelli from testifying based upon a conflict
of interest. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) After an evidentiary
hearing, the court denied his motion and found that Balash and Haaland-Ford were not
partners. Although they practiced in the same office space, shared certain advertising
strategies and expenses, they had independent practices, did not have access to one
another's files, and never shared any confidential client information. Appellant's
attorney-client relationship with Balash was never compromised.
              In reviewing an order denying a motion to disqualify counsel, we
defer to the trial court's decision, absent an abuse of discretion. We are bound by
the trial court's express or implied factual findings so long as those findings are
supported by substantial evidence. We independently review the court's legal
conclusions. (In re Charlisse C., supra, 45 Cal.4th at p. 159.) Here, appellant was
required to show that Haaland-Ford acquired confidential information from Balash or
that it was reasonable to infer disclosure of confidential information because of the
nature of the business relationship between Balash and Haaland-Ford.
              It was not an abuse of discretion to deny the motion to prevent Zitelli
from testifying. First, the trial court credited the testimony of Haaland-Ford and
Balash that they were not partners and that their practices were separate within the
same suite of offices. They did not share files or filing space and had separate phone
lines, copy machines and bank accounts. Second, there was no evidence that Balash
ever shared any confidential client information about appellant with Haaland-Ford or
that she shared any information about Zitelli with Balash.
                              Evidence of Gunshot Residue
              Appellant contends the trial court erred by allowing criminalist Steven
Dowell to testify about GSR and to offer the opinion that microscopic particles of GSR
found on appellant's person, fanny pack and motorcycle glove were the result of his
use of a firearm and that they were not transferred there by interactions with police


                                             9
officers, police cars or from the environment at the police station. This opinion was
based in part upon Dowell's familiarity with GSR literature and nine studies by law
enforcement agencies in major cities. In 2011, Dowell tested officers, police cars and
furniture at the Santa Barbara City Police Department for GSR levels. The majority of
the 788 samples in all 9 studies contained no particles characteristic of GSR and most
of the samples that did contain such particles had 4 or fewer. Appellant had 20
particles characteristic of GSR on the back of one hand, 1 in his hair, 3 in his truck, 13
on in his fanny pack and 2 in his left motorcycle glove.
               A claim that expert opinion was improperly admitted is reviewed on
appeal for abuse of discretion. (People v. McDowell (2012) 54 Cal.4th 395, 425-426;
People v. Catlin (2001) 26 Cal.4th 81, 131.) A trial court has broad discretion to limit
or exclude expert testimony. (People v. Bui (2001) 86 Cal.App.4th 1187, 1196.) An
expert may base his opinion on "matter . . . whether or not admissible that is of a type
that reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates[.]" (Evid. Code, § 801, subd. (b).) "Expert
opinion testimony is admissible only if it is '[r]elated to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of
fact.'" (People v. Watson (2008) 43 Cal.4th 652, 692.) "'A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates[.]'" (Ibid.)
               The nine studies Dowell referenced to support his opinion that the GSR
particles on appellant's hands came from use of a firearm were not shown to be
unreliable. The court properly allowed Dowell to provide jurors with a frame of
reference to judge the significance of the quantity of GSR particles found on
appellant's person and to test the arguments appellant advanced to diminish the
significance of the presence of GSR on his hands and belongings. The court instructed
the jury that Dowell's test results could not be considered as determinative of the levels



                                             10
of GSR on police officers, in their cars or in the interview rooms at the police station
in 2009 when appellant was arrested.
              Even if the trial court committed error in admitting Dowell's opinion, the
error is harmless. The evidence was not so inflammatory as to implicate constitutional
protections. Instead, the proper standard of review for the erroneous admission of
expert testimony is whether it is reasonably probable appellant would have received a
more favorable result in the absence of the error. (People v. Prieto (2003) 30 Cal.4th
226, 247; People v. Watson (1956) 46 Cal.2d 818, 836.)
              Evidence of appellant's guilt was extensive and convincing. He freely
expressed his hatred of Daniel and Barbara to his family and others and of his wish to
kill Daniel. He made incriminating statements to his sister at 3:32 a.m. – only two
hours after the murders. He acknowledges the GSR particles found on him and his
belongings were strong evidence of his guilt. Even without Dowell's opinion that the
GSR found on appellant and his gear came from guns he fired, other evidence shows it
is exceedingly unlikely GSR would have been present on police officers or their
equipment in sufficient quantities to explain the quantity of GSR on appellant. There
is no reasonable probability appellant would have obtained a more favorable result if
Dowell's opinion had been excluded.
                               Other Evidentiary Rulings
              Other trial court's rulings limited appellant's presentation of evidence
about the merits of Daniel's and Barbara's lawsuit against him and his wife. The court
also circumscribed evidence about neighbors and others who may have disliked Daniel
and/or Barbara. These limits did not abridge appellant's rights to due process and a
fair trial under the Sixth and Fourteenth Amendments.
              Common sense limits on speculation about third-party culpability is not
an arbitrary or disproportionate abridgment of a defendant's right to due process. (See
People v. Abilez (2007) 41 Cal.4th 472, 517; Robinson (2005) 37 Cal.4th 592, 625;
People v. Sandoval (1992) 4 Cal.4th 155, 176 [Although "defense identified two
persons with plausible motives, they had no direct or circumstantial evidence linking


                                           11
them to actual perpetration of the crimes"]; People v. Edelbacher (1989) 47 Cal.3d
983, 1017-1018.)
              "While the Constitution . . . prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are disproportionate to the ends
that they are asserted to promote, well-established rules of evidence permit trial judges
to exclude evidence if its probative value is outweighed by certain other factors such
as unfair prejudice, confusion of the issues, or potential to mislead the jury." (Holmes
v. South Carolina (2006) 547 U.S. 319, 326.)
                                      The Third Trial
              Appellant's first two trials ended in mistrials. The first trial ended when
the court was required to grant a mistrial when appellant's brother Tom unexpectedly
testified that the whole family believed appellant killed Daniel and Barbara. In the
second trial, the court declared a mistrial when the jurors declared that they were
hopelessly deadlocked seven to five in appellant's favor.
              Appellant complains that it was an abuse of the court's discretion to
allow prosecutors to try the case a third time. He contends his constitutional rights to
due process and a fair trial were violated because the prosecution "learned the defense
strategy" during the first two trials and was better able to meet his defenses. We
disagree. Appellant's argument proceeds from the false premise that the People were
somehow responsible for the mistrials. The prosecutor did not deliberately invite the
statement volunteered by appellant's brother and had nothing to do with the jury's
inability to reach a verdict in the second trial.
              There is "'manifest necessity'" to order a retrial when the jury declares it
is unable to reach a verdict. (People v. Batts (2003) 30 Cal.4th 660, 679; Oregon v.
Kennedy (1982) 456 U.S. 667, 672; see also Arizona v. Washington (1978) 434 U.S.
497, 509.) In Batts, the California Supreme Court said a double jeopardy finding may
be warranted when a prosecutor, "believing in view of events that unfold during an
ongoing trial that the defendant is likely to secure an acquittal at that trial in the
absence of misconduct, intentionally and knowingly commits misconduct in order to


                                             12
thwart such an acquittal – and a court, reviewing the circumstances as of the time of
the misconduct, determines that from an objective perspective, the prosecutor's
misconduct in fact deprived the defendant of a reasonable prospect of an acquittal.
[Citations.]" (People v. Batts, supra, 30 Cal.4th at p. 695.) Here, the first mistrial was
declared in response to appellant's motion with a finding of no misconduct. The
second trial was declared upon the jury's deadlock – "long considered the classic basis
for a proper mistrial." (Arizona v. Washington, supra, 434 U.S. at p. 509.)
              We have considered appellant's other arguments and conclude that none
of them warrant further discussion.
                                      DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           BURKE, J.*


We concur:



              GILBERT, P. J.



              PERREN, J.




*(Judge of the Superior Court of San Luis Obispo County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)

                                           13
                                  Brian E. Hill, Judge

                        Superior Court County of Santa Barbara
                         ______________________________


             Tracy J. Dressner, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Louis W. Karlin, Deputy Attorney
General, for Plaintiff and Respondent.
