Filed 7/15/14 P. v. Phillips CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B241821

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. VA097962)
         v.

DONALD EUGENE PHILLIPS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. John A.
Torribio, Judge. Modified and affirmed with directions.
         Patricia A. Scott, 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, Steven D. Matthews,
Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General,
for Plaintiff and Respondent.
                                 _________________________________
       Defendant Donald Eugene Phillips appeals from the judgment entered following a
jury trial in which he was convicted of two counts of murder, with weapon-use and
multiple special circumstance findings.
       On April 19, 1987, Easter Sunday, several neighbors of Edna and George Darrow,
an elderly retired couple who lived in Huntington Park, asked police and firefighters to
check on the Darrows, who had not been seen for several days. The police opened the
Darrows’ locked house and found them dead. Defendant, who had been the Darrows’
gardener, was quickly identified as the prime suspect, but was not arrested or charged
until November of 2006, after a different detective reopened the investigation as a “cold
case.” Defendant’s trial did not commence until October of 2011, more than 24 years
after the murders.
       Defendant contends the trial court erred by denying his motion to dismiss the case
due to the lengthy precharging delay. He argues the delay violated due process because it
was unjustified and he suffered actual prejudice through the death of witnesses, faded
memories, changed memories, and lost evidence. After reviewing the entire record and
the merits of each aspect of prejudice defendant claims he suffered, we conclude
defendant failed to show any actual prejudice resulted from the delay. Thus, the trial
court properly denied his motion.
       Defendant contends the trial court abused its discretion and violated due process
by admitting a witness’s hearsay testimony regarding a statement by defendant’s
girlfriend as a declaration against penal interest. We disagree. The girlfriend’s statement
subjected her to criminal liability as an accessory and was sufficiently trustworthy.
       Finally, defendant argues, and the Attorney General concedes, the trial court
incorrectly limited defendant’s presentence conduct credits pursuant to Penal Code
section 2933.1, which was enacted after defendant committed the crimes in this case.
Accordingly, we correct defendant’s presentence credits and direct the trial court to issue
an amended abstract of judgment reflecting the correct credits.




                                             2
                                     BACKGROUND
1.     The crime scene
       All the doors and windows in the Darrows’ house were closed and locked, and
there was no evidence of forced entry. George was found in a bedroom and Edna in the
living room. George had five stab wounds to the head and neck and several defensive
wounds to his hands. Edna had six stab wounds on her back and three on her head,
including two that went through her brain and dented the inside of her skull on the side
opposite the entry wound. A deputy medical examiner testified this would require a
heavy knife with a blade length of at least four and seven-eighths inches (the width of her
skull). She had no defensive wounds and a tissue clutched tightly in one hand, suggesting
she was unaware of the attack. The Darrows had been dead two to five days before police
found them.
       All of the kitchen cleaning products were on the kitchen counter, and the cabinet
below the sink was empty. The “trap” pipe under the kitchen sink appeared to be new. A
criminalist collected the trap pipe as evidence. One of the fingerprints lifted from it
matched defendant.
       Police found two documents in the house that mentioned defendant. One of these
was a receipt for advance payment for cement work.
2.     The Darrows and their relationship with defendant
       The Darrows’ adult daughter Edna Eva Hare testified her mother was 72 years old
and her father was 78 years old when they were killed. When Hare last visited them from
Michigan in August of 1986, there were no cleaning products sitting on the kitchen
counter. These items were instead stored in the cabinet beneath the kitchen sink. In their
prior house, when Hare was growing up and her father worked nights, her mother kept a
“large machete” under her mattress. But Hare had not seen the machete in the “new
house” on Live Oak Street, where her parents died.
       The Darrows kept cash stashed in various places in the house, and Edna almost
always carried a large roll of cash in her pocket. Many of the Darrows’ neighbors had


                                              3
seen Edna carry a large amount of cash in the pocket of the housecoat or muumuu she
wore every day and pay workers with money from that pocket. Edna also had told people
she and George kept a lot of money in their house.
       Defendant did lawn maintenance work in Huntington Park and other cities,
initially as an employee of Ed Nelson. In 1986 defendant purchased his route, some
equipment, and an old truck from Nelson. Defendant’s half brother Jimmy Harris helped
defendant with the work, as did defendant’s wife Christina from 1985 until they separated
at the beginning of 1987. They maintained the Darrows’ yard at their prior residence,
then continued to work for them when the Darrows moved to the house on Live Oak
Street. Christina sometimes talked to Edna while defendant and Jimmy did the yard
work, and on occasion she cleaned the house or did Edna’s hair or nails. Christina
testified the Darrows were extremely nice people, who gave or lent defendant small
amounts of money when he needed it and generally treated defendant and Christina as if
they were the Darrows’ own children.
       In addition to his work truck, defendant had a gray Toyota 4x4 truck with a raised
suspension, roll bar, “fancy wheels,” stripes, and more. He was extremely attached to his
truck and did not let anyone borrow it or drive it. He kept a knife that had a compass on
the end of the handle either between the seats or under the driver’s seat. He told Christina
he carried the knife for protection because he carried cash. When the work truck was not
working, defendant used his 4x4 truck to perform his lawn maintenance work.
       Christina testified defendant once told her the Darrows had a lot of money in their
house and asked her to imagine what she and defendant could do if they had a lot of
money. She became upset and began shaking. Defendant had never said anything like
that about any other client.
       When defendant and Christina separated in 1987, she discovered he had not paid
the rent or utilities for three months. At some later time, closer to 1989, defendant
phoned Christina and requested that if she were contacted by the police, she “back [him]




                                             4
up” by saying he was with her at any time they asked about. She refused. The police did
not speak to Christina until 2007.
       Jimmy Harris testified he once heard Edna tell defendant she kept money in her
house because she did not trust banks and she paid cash for everything. Jimmy was
present when defendant signed a contract to do some cement work for the Darrows. Edna
gave defendant a down payment of several $100 bills that she retrieved from another
room of her house. The next day, defendant told Jimmy the Darrows walked to a
doughnut shop every morning at 6:00 a.m. and suggested he and Jimmy should look for
money in the Darrows’ house while they were gone. Defendant also suggested Jimmy
could distract Edna while defendant searched for the money. Defendant repeatedly
mentioned the idea of stealing the Darrows’ money, but Jimmy always refused to
participate. In 2006, Jimmy told Detective Davis that defendant seemed “obsessed” with
stealing the Darrows’ money. The police did not contact Jimmy until 2006.
       Kenneth Grizzell, defendant’s “brother-in-law” and friend, sometimes worked with
defendant doing landscape work in 1986. Grizzell also helped defendant with cement
work in the Darrows’ backyard around the summer of 1986. Defendant later told Grizzell
the Darrows kept a lot of money under a mattress in the house. Grizzell did not reveal
this to the police in 1987 because he did not want to get involved. He told Detective
Steve Davis about the statement in 2006.
       Both Grizzell and Jimmy Harris testified defendant was very tan and looked
somewhat Hispanic in 1987.
3.     Observations by the Darrows’ neighbors during the week of the murders
a.     The Kriegers
       At least one week before Easter in 1987, Edna told one of her next door neighbors,
Adrieanniea Krieger, that her kitchen sink was plugged and she was going to call the
person who had put in the concrete and ask him to find someone to fix it. Sometime
during the week before Easter, Adrieanniea saw a truck parked across the street from the
Darrows’ house. She identified photographs of defendant’s 4x4 truck as the one she saw.


                                            5
She had never seen that truck in the neighborhood before. At the preliminary hearing in
April of 2008, she testified the truck was parked in the Darrows’ driveway.
       Jerome Krieger saw a truck backed into the Darrows’ driveway when he arrived
home at 3:00 p.m. on Wednesday, April 15, 1987. He identified photographs of
defendant’s 4x4 truck as that truck. Jerome saw three men at the house, including a
slender Hispanic man who stood near the truck. Jerome testified the slender man near the
truck looked like defendant did at the preliminary hearing.1
       Late on the night of April 15, 1987, Adrieanniea heard a succession of sounds
from the Darrows’ property. First, the gate on the Darrows’ driveway rattled twice. Then
the Darrows’ side door opened, then slammed shut. A few seconds later Adrieanniea
heard scuffling sounds, like people wrestling inside the house, then a woman’s scream.
Later someone vomited in the Darrows’ bathroom, then water ran in the kitchen for a long
time. Thereafter, the Darrows’ back door slammed shut. At Adrieanniea’s urging,
Jerome and a friend who was visiting him went outside to see what was going on. They
went to the Darrows’ driveway and up to their back door. Everything was quiet and
appeared to be normal.
       The police interviewed Adrieanniea in 1987 and she described the truck. But no
one showed her any photographs of a truck or any suspects until the preliminary hearing
in 2008. Jerome also talked to the police in 1987 and described the truck and the men he
had seen at the Darrows’ house during the week before Easter. At that time, he said the
truck was “possibly” a white 4x4 and he had seen it in the Darrows’ driveway on
April 14, not April 15, 1987.
b.     The Sanchez family
       Richard and Debra Sanchez were the Darrows’ next door neighbors on the other
side. Both saw Edna nearly every day. About three months before the murders, Richard
began mowing the Darrows’ lawn every week because the person who had previously

       1   Jerome Krieger’s preliminary hearing testimony was admitted at trial.



                                              6
done it had stopped working for them. On April 15, 1987, Richard and Debra saw Edna
in her driveway and also saw a truck parked in front of the Darrows’ house for several
hours. Debra also saw a man with Edna in the driveway. After that, they never saw Edna
alive again. The next day, Thursday, Richard mowed the Darrows’ lawn, but Edna did
not come out to chat as she usually did. Richard knocked on the Darrows’ door on Friday
and Saturday before Easter, but no one answered and all he heard from within was the
dog barking.
       In April of 1987, Richard told the police that he saw only the truck at the Darrows’
house, and did not see any people. He described the truck as a light gray, four-wheel
drive Toyota with a roll bar and light bar. Richard said the truck he saw was similar to
defendant’s truck, but defendant’s truck had additional equipment that he did not recall
seeing on the truck he had seen at the Darrows’ house on April 15, 1987.
       At trial, Richard testified he was familiar with the “handyman” who had previously
mowed the Darrows’ lawn and done cement work for them, and with that man’s truck,
which Richard had seen at the Darrows’ house many times. He identified defendant as
that handyman and testified he had seen defendant at the Darrows’ house on the afternoon
of April 15, 1987. He further testified that the photographs of defendant’s truck depicted
the truck he had seen at the Darrows’ house on many occasions, including the afternoon
of April 15, 1987.
       In 1987, Debra told the police the truck she saw at the Darrows’ house on April 15,
1987, was similar to the former gardener’s truck, but some of the equipment differed.
She also told the police the man she saw with Edna that day was not defendant. Debra
worked with a police artist to construct a composite drawing of the man she saw. She
described the man as “a male Mexican in his 20s with dark hair and skin, a mustache and
black wavy hair covering his neck.”
       At trial, Debra testified that the truck she saw at the Darrows’ house on April 15,
1987, was the truck of the former gardener, and the photographs of defendant’s truck
depicted that truck. Debra was uncertain whether the man depicted in the composite


                                             7
drawing she assisted in creating in 1987 was the former gardener. She testified there was
a second man at the Darrows’ house that day, and she was certain that man was not the
former gardener. Debra testified she had seen the former gardener at the Darrows’ house
earlier in the week before Easter with “a young girl.”
       Richard’s brother-in-law, Victor Rojas, frequently visited Richard and Debra and
had gotten to know the Darrows. He testified that he saw defendant walk out of the
Darrows’ house on April 15, 1987, and up to a modified Toyota truck. In both 1987 and
at trial, he identified the truck as that depicted in photographs of defendant’s truck. The
man was thin, tan, and about 5 feet 8 inches tall. In 2006 Victor selected defendant’s
photograph from a photographic array, and he tentatively identified defendant at trial.
The photographic array included a photograph of defendant from the 1990’s.
       Victor’s son John testified he often visited his aunt, Debra Sanchez, after school
and he also became friendly with the Darrows.2 On April 15, 1987 he saw the truck
depicted in photographs of defendant’s truck parked in front of the Darrows’ house. He
saw Edna talking to a thin, white male in his twenties whom he recognized as the man
who had worked on the Darrows’ cement patio. Victor had seen the man at the Darrows’
house several times. The truck was still parked at the Darrows’ house when John left at
around sundown that day. John spontaneously told the court that defendant looked
nothing like the man he saw that day.
       Jack Salseda, Jr. also spent a lot of time at the home of his aunt, Debra Sanchez,
and also became friendly with Edna. He testified he was often in Edna’s house and,
although most of the house was cluttered, the kitchen was spotless and tidy. He never
saw anything sitting on the kitchen countertops.
4.     Defendant’s first interview with police
       Detectives interviewed defendant on April 21, 1987 and photographed both him
and his truck. Detective Whisenant described defendant’s truck as a “gray Toyota 4-

       2   John Rojas’s preliminary hearing testimony was admitted at trial.


                                              8
wheel drive pickup,” “raised-up,” with “off-road lights, front brush guard, [and] side step
bars.” Defendant said he had not been at the Darrows’ house since August of 1986 when
he and Grizzell did the cement work. He denied knowledge of the murders and denied
lending his truck to anyone.
5.     Defendant’s activities before and soon after the murders
       Sometime in April 1987, defendant began dating 16-year-old Sharlene Heineman,
who lived in San Bernardino with her aunt, Diana Britton. Britton met defendant for the
first time when he arrived at her home with Sharlene on April 13, 1987. The next day,
defendant, Sharlene, Britton, and Britton’s three young sons went to Disneyland together.
Britton testified defendant had no money, so she paid for all of the tickets. She retained
the date-stamped tickets and gave them to detectives in 1987. The following day,
Wednesday, April 15, 1987, defendant asked Britton if he could take Sharlene with him to
pick up money from his gardening customers. Britton agreed, but told defendant to bring
Sharlene back that night because she had school the next morning. Defendant did not
bring Sharlene back until the next afternoon and Britton was upset. On Friday defendant
took Britton, her friend, and Sharlene shopping. He spent about $150 to $250 on Britton,
and he bought a lot of clothes for Sharlene. He had a “good size wad” of $100 bills, and
spent about $400 to $600 total on clothing and hairdressers.
       Defendant’s stepsister, Faustina Harris, testified that just before Easter Sunday in
1987, defendant took her, Sharlene, and a relative of Sharlene on a shopping spree. The
women also had their hair styled. Faustina thought defendant spent $400 to $500, paid in
cash. Before April of 1987, defendant had often taken Faustina on outings and paid her
way, but he had never before taken her on a shopping spree.
       Britton’s sister and Sharlene’s aunt Patricia DeClue, met defendant at Britton’s
house sometime in 1987. DeClue learned they recently had visited an amusement park
and gone shopping. Sharlene and Britton showed DeClue clothing defendant had
purchased for them and defendant showed DeClue things he had gotten for his truck,
including an amplifier and speakers. DeClue asked defendant where the money had come


                                             9
from. Defendant was quiet at first and then said that he had “killed two old people” he
had known from his lawn service business. DeClue did not know about the murders, did
not think it was an honest confession, and just thought defendant was “a little off.” She
was also under the influence of methamphetamine when defendant made the statement.
She did not report defendant’s statement to the police after she found out about the
murders because she was using marijuana and methamphetamine in that period and did
not want any contact with the police. Also, no detectives contacted her until 2006. At
that time, she told Detective Davis about defendant’s statement.
       Sharlene’s mother, Wanda Osteen, testified that sometime in 1987 before
defendant and Sharlene went to New York, defendant arrived at her house and asked her
if she would store a birthday present he had for his father. She agreed, and defendant
retrieved a paper bag from a briefcase in his truck. Inside the bag was a knife with a
compass on it, in a sheath. Osteen kept the knife until detectives visited her sometime in
the 1980’s and asked for it.
       Detectives first interviewed defendant’s father, Ralph Phillips, on April 20, 1987.
Ralph told them that defendant was at his house on Thursday, April 16, and Saturday,
April 18, but not on Friday, April 17, 1987.
       Defendant’s brother, David Phillips, testified that Ed Nelson, a family friend and
the person for whom defendant had worked, called him about one week after the murders
and said detectives were looking for defendant. About six months after the murders,
defendant told David he had been in Palm Springs on his honeymoon with Sharlene at the
time of the murders. Another time defendant told David he had been at the Embassy
Suites at the time of the murders. David was “pretty positive” he did not see defendant
the week of April 12 through April 19, 1987. David was certain that defendant had not
visited him at his workplace that week or any other time. He also denied lending
defendant money or giving defendant money to hold for him. He testified that defendant
had lent him his Toyota truck a couple of times and that defendant always paid for
everyone when they went out together.


                                               10
          Records obtained from the Embassy Suites Hotel in Downey showed that
defendant checked into the hotel after midnight on the morning of April 17, 1987 and
checked out before 11 a.m. the same day. He paid cash for the room. Detective
Whisenant obtained this information from the hotel’s records in 1987. The hotel was 5.92
miles from the Darrows’ house.
6.        Search of Ralph Phillips’ home
          On July 13, 1987, Ralph Phillips consented to a search of his home. Detectives
seized a hunting knife (known at trial as EMK-2), a kitchen knife, and two boxes of
papers, including papers reflecting defendant’s business and a receipt for $980 truck
wheels dated April 23, 1987.
7.        Defendant’s trip to New York
          Defendant’s half-brother William testified defendant unexpectedly arrived at his
home in Germantown, New York, on May 19, 1987, driving the truck depicted in
photographs of defendant’s truck. Defendant and William were not close. They had
different mothers, William was 14 or 15 years older than defendant, and they had not
lived together since defendant was about 3 years old. William arranged for defendant to
stay with a friend. Sharlene arrived on a different date and she also stayed with William’s
friend.
          On June 12, 1987, defendant was involved in an accident in Germantown that
destroyed his gray Toyota 4x4 truck. As a result of this accident, defendant was
convicted of a misdemeanor and sentenced to a jail term.
          While defendant was in jail, Sharlene went to live with the family of a local teen
she had befriended, Serena Saltis. Soon after Sharlene moved in, Serena left for Canada.
When Saltis returned at the end of summer, she learned defendant was a murder suspect
and detectives had come from California to talk to Sharlene. Saltis told Sharlene that
Saltis’s parents were worried and did not want her to go back with defendant. She asked
Sharlene if she had any information about the murders. Sharlene was nervous and
hesitant to speak, but eventually told Serena that defendant came home one evening


                                               11
covered in sweat, with blood on his clothing, carrying a long-sleeved shirt stuffed with
money. The shirt’s sleeves were tied. Defendant had a bloody knife and asked Sharlene
to help him. Although she initially refused, she eventually relented and washed the blood
off the knife. The same knife had been in defendant’s truck at the time of the accident.
After the accident, Sharlene went to the impound lot, removed the knife from the truck,
and stored it in her suitcase. Saltis testified Sharlene became very upset and was crying
as she described what had happened.
       Saltis did not tell anyone what Sharlene had said until years later. No law
enforcement officers contacted Saltis about the murders until 2006 or 2007. At first, she
did not tell them anything, but when she was contacted again by Detective Davis in 2007,
Saltis reported her conversation with Sharlene.
       William testified Sharlene had contacted him after she went to stay with Saltis’s
family and asked him to keep defendant’s possessions. Sharlene had told William
defendant was a suspect in a stabbing murder in Los Angeles. One of the items William
received from Sharlene was a “survival knife” in a sheath.
       Detective Whisenant traveled to Germantown twice in the summer of 1987, the
first time in July with Detective Horton, then again with Detective Lyons in August.
There, they interviewed Sharlene, William, and others associated with defendant. During
the August trip, William gave the detectives defendant’s survival knife and sheath.
Whisenant described the knife as an 11.5 inch, “rather ostentatious . . . Rambo-type knife”
with a 6-inch blade serrated on one side and a compass on the end of the handle. At trial
this knife was commonly referred to as “EMK-4,” its crime-lab designation.
8.     Forensic testing and testimony
       Criminalist and “tool mark” expert Steven Dowell testified the Darrows’ stab
wounds were made by a single-edge knife with a thick dull-edge. Three of the four
knives recovered by police in this case had dull edges that were one-eighth inch thick, and
two of these three—EMK-4 (the knife recovered in Germantown) and EMK-2 (the
survival knife recovered from Ralph Phillips’s home) were consistent with causing the


                                            12
Darrows’ wounds. Of these two, EMK-4 was the most consistent because of the way its
tip bent. Dowell opined only about ten percent of the knives he had examined during his
career would have been capable of inflicting Edna and George’s wounds.
       Blood was found on only one of the knives recovered by police: EMK-4. The
blood was on a washer inside the handle of the knife and there was too little to perform
further testing. Testing in 1987 revealed that there was human blood on the sheath that
had been recovered with EMK-4. After the case was reopened in 2006, testing revealed
the presence of defendant’s DNA on the sheath. No blood or DNA was found on the
knife detectives obtained from Sharlene’s mother (Osteen).
       Exclusion testing was performed in 1987 on blood found inside the Darrows’
house. Neither Edna nor defendant could be excluded as the source of blood on a carpet
sample.
       No “foreign DNA” was found in the victims’ fingernail scrapings. Two cigarette
butts found in the driveway were collected and testing conducted after the case was
reopened established the DNA found upon them was not defendant’s.
9.     Defendant’s police interview in New York and statement to jailer
       On July 8, 1987, while defendant was in custody in Germantown, he told
correctional officer Ralph Graziano that detectives from Los Angeles wanted to interview
him about the murder of his ex-employer. He said that he had nothing to worry about
because he was at Disneyland at the time of the murder.
       Detectives Whisenant and Lyons interviewed defendant in jail in Germantown on
August 12, 1987. Defendant told them he took Sharlene and her family to Disneyland on
Tuesday, April 14, 1987, and he paid for everyone’s admission. On Wednesday, April
15, he and Sharlene visited his brother David at David’s workplace to return some money
that defendant had held for him. They then drove to Ralph Phillips’s house in Pinion
Hills in San Bernardino County, where they spent Wednesday and Thursday nights.
When they returned to Britton’s home on Friday, Britton was angry that Sharlene had
been gone so long. On Friday, April 17, defendant and Sharlene went to see a movie and


                                            13
then spent the night at the Embassy Suites hotel on Firestone Boulevard. On Saturday
morning, defendant took Sharlene and Britton shopping at a San Bernardino mall. Britton
had her hair styled. Defendant and Sharlene spent Saturday night and Easter Sunday at
Britton’s house. Defendant said that the money he spent came from his accumulated
savings, which he hid with his lawn equipment, but he was unable to provide the
detectives with a “reasonable account[] for the money he had spent. ”
      Defendant told the detectives that he quit working as a gardener for Nelson on
March 24, 1987. The last time he was at the Darrows’ house had been in April of 1986
when he put in a cement slab. Defendant said that he had done some plumbing work for
the Darrows sometime before the cement work, but he denied doing any such work in the
kitchen.
10.   Ralph Phillips’s 2006 interview and 2007 conditional examination testimony
      In an interview with Detective Davis on August 22, 2006, Ralph Phillips said
defendant had told him three or four months before the murders that he had done yard
work and fixed a garbage disposal for an elderly couple who had a lot of money they kept
in boxes and flashed around. Defendant said it would be easy to rob them.
      Ralph also told Davis that defendant and Sharlene did not stay at his house around
the time the murders occurred, but he was not sure. Ralph said, “The night I remember
when supposedly that happened, [defendant] was in, made a couple of collect calls to me,
I think he was in Palm Springs.” He later added that defendant called late at night and
said he was stuck there because someone borrowed his truck. Ralph agreed he thought “it
was the night these people were killed.”
      Ralph told Davis defendant had made about $1000 per week in his lawn care
business and would “save some of it up then blow it on this and that and whatever. And
he’d save up again and blow some.” Ralph did not recall defendant ever having a large
amount of money. When the detectives first interviewed Ralph in 1987 defendant had
$500 to $600 in a drawer in the room he used in Ralph’s house. Ralph also said the
knives seized in 1987 were his, not defendant’s.


                                            14
       By the time of trial, Ralph had died. His testimony at a January 2007 conditional
examination was admitted at trial. Ralph testified that sometime around 1984 or 1985
defendant had told him that some “old people” he worked for had “boxes of money and
they’d be easy to rob.” Ralph did not know whether defendant was talking about the
people who were later murdered. After the murders, defendant was “pretty well broke up,
and he said that ‘I don’t know why they had to kill them people. All they had to do was
wait until they was going to the bank or something and take their money.’” Ralph further
testified “after this happened, [defendant] had no heart for doing lawn business.”
Defendant “didn’t work” and he “put [his business] down the tube.”
11.    Defendant’s 2006 police interview
a.     August 2006 interview
       On August 15, 2006 Detectives Davis and Cheryl Comstock reinterviewed
defendant. The interview was recorded and the recording was played at trial.
       Defendant initially claimed not to remember the Darrows by name or from a
photograph of their house, but soon told the detectives he had done yard work and
concrete work for them. The last work he did for them involved spreading concrete in
their backyard. He thought it was more than a year before they were murdered. He later
recalled he had also repaired the “trap drain” for the kitchen sink sometime prior to the
concrete work. When the detectives told defendant all the items that would normally be
kept beneath the kitchen sink had been found on top of the counters when the Darrows’
bodies were found, he said, “Maybe it could’ve been after that I did her pipe. I don’t
remember doing it. I think I did that stuff before the concrete.” He denied doing any
work for the Darrows in April 1987. He also denied he had ever taken Sharlene to the
Darrows’ house.
       Defendant denied involvement in the Darrows’ deaths, knowing who killed them,
and saying he had killed anyone. He admitted he had kept a sheathed “survival knife” in
his truck, but he denied using it to kill the Darrows.




                                             15
       The detectives told defendant that people saw his truck at the Darrows’ house
around the time of the murders. Defendant insisted he was “not around there.” He said
that he took Sharlene and her family to Disneyland and that day or the next day his father
told him some detectives had called and wanted to talk to him. He did not remember
taking anyone shopping, but he recalled staying at an Embassy Suites with Sharlene the
same day they went to Disneyland.
b.     November 2006 interview
       On November 1, 2006, Davis and Comstock reinterviewed defendant. The
interview was recorded but the recording was not played at trial. Instead, portions were
read into the record. Defendant denied both knowing the Darrows kept money in their
house and telling anyone they kept a lot of money in the house and would be easy to rob.
He further denied suggesting Jimmy distract Edna while defendant went in the house to
take money, but admitted he may have said that jokingly.
       Defendant also denied his truck was at the Darrows’ home at the time of the
murders, telling DeClue he killed people, asking Osteen to hold a knife, and taking
Sharlene to any customer’s house. Defendant again said he worked on the Darrows’
kitchen pipes the year before they were killed and added he had also put a “flex hose” in
the bathroom.
       Defendant was arrested at the conclusion of the interview.
12.    Defendant’s trial testimony
       Defendant testified he purchased a lawn route from Ed Nelson in September of
1986, after working the same route for Nelson for two years. He serviced the Darrows’
yards at their old house, then their new house, but he stopped around the time that he did
concrete work in their backyard. The Darrows were nice and treated defendant like their
own son. They paid him in cash when he asked for payment. In 1986, about a year
before the murders, defendant did concrete work in their backyard. After they signed the
contract for the concrete work, Edna went to another room and returned with five $100
bills that she gave defendant as a down payment. About one year before the murders,


                                            16
defendant replaced a pipe somewhere in the Darrows’ house. He thought it was in the
bathroom. He checked the kitchen sink, but did not remember replacing any pipes there.
       Defendant testified when he worked his lawn maintenance route he made about
$4,000 per month, not including handyman work he performed on the side. He often
carried a lot of cash with him, and he kept a knife in his truck for protection. He kept a
lot of cash hidden in a shed at his father’s house.
       In January 1987, defendant left his wife Christina. Around the end of March,
1987, his business declined because he “didn’t care anymore.” He only worked for the
customers who paid in cash, not checks. His income declined to about $2,000 to $2,500
per month. A few weeks before the murders in April 1987, he started seeing Sharlene and
began using drugs with Sharlene’s aunt Patricia.
       When defendant learned that detectives wanted to talk to him about a murder, he
went to the police station to speak with them. He did not know who had been murdered
at the time. His knife was in the truck, which the detectives searched, but they did not
find the knife. Defendant no longer remembered where he went, other than Disneyland,
during the week before Easter in1987, but he testified he was honest with the detectives
about his whereabouts during the week of the murders. Defendant testified that he paid
for everyone when he, Sharlene, Britton, and Britton’s children went to Disneyland.
       Defendant testified he, his sister, and Sharlene went to Palm Springs and stayed
overnight on a weekend around that time. He thought it was the Saturday before Easter
Sunday. He had previously had receipts from that trip, but he had given them to the
detectives. He admitted he had told the detectives, however, that he spent Saturday night
drinking with Britton at her house.
       Defendant testified he wanted to impress Sharlene, and he took her, Britton, and
Faustina shopping. He agreed he had probably spent $400 to $500 for everything he
purchased for everyone. On April 23, 1987, defendant spent about $1,000 on equipment
for his truck. The money he was spending was money he had saved at an earlier time.




                                             17
       In May 1987, defendant went to New York to see his family. He had told his aunt
at an earlier time he would probably visit her, then after being interviewed by the
detectives, he reached his breaking point and decided to go. When he decided to stay
more than a week or two, he paid for Sharlene to fly out to stay with him.
       Defendant testified when he talked to the Germantown jailer, he did not know who
had been killed and thought it was Ed Nelson or Joseph Gadow. He only found out the
victims were his customers when Los Angeles detectives interviewed him in
Germantown, but he still did not know which customers. On cross-examination,
defendant admitted he had learned that the victims were the Darrows when he was
interviewed in April of 1987. He claimed he was mistaken when he told Davis in 2006 he
did not know which of his customers had been murdered, and he thought when detectives
interviewed him in Germantown they were talking about someone else.
       The detectives who interviewed defendant in Germantown told him to come see
them when he returned to Los Angeles, so when he returned in 1987 he promptly went to
talked to them and “took a blood test at L.A. County.” He admitted that nothing in the
discovery obtained from the prosecution reflected that interview.
       Defendant denied killing either of the Darrows or being at their house “the week of
April 19, 1987” or any time in 1987. He further denied he ever “said anything to
Sharlene about any bloody shirt or money.” He denied confessing to Patricia DeClue and
suggested she made up the statement to prevent him from telling the police she possessed
a stolen car. He also denied telling anyone, including his father, that the Darrows kept a
large amount of cash in the house or that it would be easy to steal money from them.
Defendant admitted his truck was very unique, and he never lent it to anyone other than
his brother David.
13.    Verdict and sentencing
       The jury convicted defendant of two counts of first degree murder and found true
several special circumstance allegations: multiple murder, murder in the commission of
robbery or attempted robbery, and murder in the commission of burglary or attempted


                                            18
burglary. The jury further found defendant personally used a deadly or dangerous
weapon in the commission of the murders.
       The court sentenced defendant to life in prison without possibility of parole, plus
two years for the weapon-use enhancements.
                                      DISCUSSION
1.     Denial of defendant’s motion to dismiss for precharging delay
a.     Motion and ruling
(1)    Defendant’s motion
       More than two years before trial, defendant moved to dismiss the charges on the
ground the lengthy delay of nearly 20 years in filing the felony complaint against him was
unjustified and prejudicial, and thus violated his right to due process. The motion cited as
prejudice the death of Sharlene, Detective Horton (one of the original investigators), and
the deputy medical examiner who performed the autopsies on the Darrows; the failure of
recollection of Detectives Whisenant and Lyons (the other two original investigators) and
Ed Nelson; “missing” bank records for defendant; degraded and missing bloodstains and
samples; failure to photograph the open cabinet under the kitchen sink the day the
Darrows’ bodies were found; failure to photograph the pipes under the kitchen sink
before removing the one on which defendant’s fingerprint was found; the absence of
reports regarding whether other, unidentified fingerprints were “run through AFIS for a
match”; the absence of “mention whether any of the doors leading outside the home were
ever processed for prints”; loss or degradation of bone and tissue samples from the
Darrows that were saved for, but not analyzed by, Dowell; and loss of “third party
culpability evidence” pertaining to “19 burglaries in the immediate vicinity of the
Darrows’ residence between January 1987 and April 1987” “with suspect descriptions
similar to this case,” sightings of strangers and homeless people in the neighborhood, and
a murder of a man with a hunting knife “by an adult and two juveniles, all Hispanic,”
about one mile from the Darrows’ house on August 1, 1987, for which the Huntington
Park Police Department’s files were unavailable due to a computer crash.


                                            19
       The motion also noted Sharlene told investigators she had seen a knife covered in
blood shortly after the murders and defendant asked her to bury it, and she told an aunt in
Texas years after the murders she had sat in car outside a house while defendant went in,
when he returned he was “‘white as a sheet’” and said he had stabbed and killed a couple
of people.
(2)    The prosecutor’s opposition
       The prosecutor opposed the motion and explained that, although defendant was the
prime suspect in 1987, “after informal discussions with the Los Angeles County District
Attorney’s Office it was determined that there was insufficient evidence for filing.” The
prosecutor argued the delay was not intentional, was justified, and defendant did not
suffer actual and substantial prejudice. The opposition set forth in chronological order a
summary of the investigation as it stood in 1987, as well as the “new evidence”
developed from June of 2006 through the preliminary hearing in April of 2008.
       In 1987, according to the opposition, the police knew defendant had worked for
the Darrows as gardener and handyman and defendant knew the Darrows kept a lot of
money in the house; the cabinet beneath the kitchen sink was empty and its probable
contents were sitting on the counter; defendant’s fingerprint was found on the sole “bright
shiny spot” of the drain pipe assembly beneath the kitchen sink; defendant’s unique truck
was seen at the Darrows’ house on April 14 or 15, 1987; the man who had worked on the
Darrows’ patio in 1986 was seen at their house on the afternoon of April 15, 1987;
defendant had worked on cement for the Darrows’ patio in 1986; noises were heard at the
Darrows’ house on the night of April 15, 1987 and they were not seen alive again after
that; defendant did not have much money when he went to Disneyland with Sharlene’s
family on April 14, 1987, but he had “a wad of cash” when he returned from Los Angeles
to Britton’s house on the night of April 15, 1987 and thereafter took Sharlene, Diana, and
others on shopping sprees; defendant and Sharlene “suddenly relocated to upstate New
York” within days after he was interviewed by detectives in this case; when a jail officer
in New York told defendant detectives wanted to ask him about a Los Angeles murder,


                                            20
defendant said he had nothing to worry about because he had been at Disneyland at the
time of the crime; when interviewed in New York defendant said he had worked on
plumbing in the Darrows’ bathroom, but did not mention the kitchen; defendant gave “a
detailed timeline of his activities the week of the murder which was substantially
impeached by other witnesses and physical evidence”; defendant, Sharlene, Britton, and
Ralph Phillips “gave inconsistent statements of Defendant’s whereabouts and activities
during the week of the murders”; Ralph Phillips told detectives that just before he went to
New York, defendant said, “‘I’ve got to get out of town before something happens to you
and mom’”; Sandra Underwood told detectives Sharlene showed her and other local
teenagers an “assault knife” and said defendant had used it to stab a Black man; and
Sharlene’s stepsister told detectives defendant “had related the same information to her.”
       New evidence cited in the opposition included a re-interview of Adrieanniea
Krieger in August of 2006 in which she “related for the first time that” Edna had said
“she intended to contact the person who had laid her cement patio and ask them to
arrange for a plumber” to fix her clogged kitchen sink. Also, defendant had said for the
first time in his August 2006 interview he had fixed a pipe in the Darrows’ kitchen.
       Investigators had also interviewed or re-interviewed several people who said
defendant had spoken of the Darrows keeping cash in the house and being easy to rob.
David Phillips was re-interviewed and said Jimmy Harris had told him that around the
time of the murders defendant “had always been trying to work up a scam to steal from
the victims” and had a plan to do so involving Jimmy. David’s wife Brenda Phillips told
investigators Jimmy Harris also told her of defendant’s plans to steal the Darrows’
money. Jimmy Harris was interviewed for the first time and told investigators Edna told
him she kept all of her money in her house, defendant repeatedly urged Jimmy to help
him rob the Darrows, defendant was obsessed with the Darrows’ money and talked about
it all the time to many people. Kenneth Grizzell was re-interviewed and said that around
the time of the murders defendant had told him and others that the Darrows kept lots of
money in their house. Ralph Phillips was re-interviewed and said defendant often had


                                            21
spoken about how much money the Darrows had and how easy it would be to rob them.
And in defendant’s November, 2006 interview, he conceded he might have jokingly
“asked his brother Jimmy to keep the Darrow[]s busy while he looked for their money.”
       Ralph Phillips also had made statements inconsistent with his prior statements and
told investigators for the first time that defendant had fixed the Darrows’ plugged garbage
disposal and had been in Palm Springs when the Darrows were murdered. Patricia
DeClue had been interviewed for the first time, and she told investigators that when she
asked defendant the source of his wealth defendant replied that he had killed two old
people for whom he had performed gardening work. Sharlene’s brother, David
Heineman, had been interviewed for the first time, and he said he helped defendant with
his lawn work in 1987. Defendant once persuaded another of his assistants to steal a
woman’s purse while they were working. Jack Salseda, Sr. was interviewed for the first
time in 2006 and stated he visited the Sanchez house on April 15 or 16, 1987 and saw a
unique truck in the Darrows’ driveway. He identified the truck as that depicted in
photographs of defendant’s truck. He also saw a man at the Darrows’ house that day that
he had previously seen loading lawn equipment into a truck. Jack Salseda, Jr. was also
interviewed for the first time in 2006 and told investigators Edna always carried cash in
the pocket of her blue muumuu and the Darrows’ kitchen was always tidy, with no
supplies left on top of counters.
       In addition, DNA testing revealed the presence of defendant’s blood on the sheath
of the knife recovered from William Phillips in New York, Steven Dowell analyzed the
victims’ wounds and the recovered knives and concluded “all but the wood handled knife
that had been recovered from Ralph Phillips in 1987 were consistent with having inflicted
the injuries to the victims.”
       The prosecutor’s opposition also cited several matters developed after defendant
was arrested and charged. These included Serena Saltis’s 2007 interview in which she
revealed Sharlene’s statement to her about defendant returning home with a shirt stuffed
with money and a bloody knife.


                                            22
       The prosecutor expressed willingness “to stipulate to the admission of . . . all of
Sharleen’s statements that would have been admissible had she been present to testify.”
(3)    Defendant’s reply
       Defendant filed a reply and, a year later, a “Supplemental Motion to Dismiss,” but
neither document contested the prosecutor’s factual assertions regarding the course the
investigation followed.
(4)    The trial court’s ruling
       The trial court delayed ruling upon the motion until after the close of evidence at
trial. During the trial, Davis testified that between 1987 and 2006, neither the Sheriff’s
Department nor the Huntington Park Police Department “was looking for [defendant] for
these charges.”
       When the trial court considered the motion after the close of evidence, it noted
defendant’s “whereabouts had been well known or easily ascertainable throughout the
entire period” from 1987 through 2006, and “there has been no offer of an explanation of
the delay. The only new evidence developed in the ensuing 20 years was the statement
from the young lady [Serena Saltis] regarding the confession that the court allowed in.
[¶] Other than that, all the fingerprints, the car, all of the circumstantial evidence, the
spending of money, on and on and on, was fully aware to the People.” The prosecutor
noted defendant’s “confession” to DeClue and his two 2006 statements were also new
matter. The court agreed.
       The court then stated, “The court, based on 40 years of experience in this field,
finds that there was ample evidence to bring [defendant] to trial in 1987; that the
circumstantial evidence based upon everything that was available, was more than enough
to—for a prosecutor to expect a very good chance of a conviction. So the court find[s]
there’s no real justification for the delay.” The court later stated it found no intentional
delay, and thought the case “just fell through the cracks from everything I can see.”
       The court stated, however, defendant “was fully aware that he was the prime
suspect in a murder of two individuals that were not strangers to him but in fact known to


                                              23
him; that his whereabouts that week was critical; and the court does not find that there’s
any of the presumption of prejudice due to the delay that exists in the other cases.
Specifically, as stated in Doggett [v. United States (1992) 505 U.S. 647 [112 S.Ct. 2686]]
at some point the delay becomes so long that efforts to show specific prejudice become
meaningless because you don’t even know what the prejudice may be. [¶] So the court
does not find that factor to be present and the court believes that is the critical factor in
determining whether or not there’s been a denial of due process. So the court’s
preliminary discussion, before hearing from you, is to deny it on the basis that the
defendant . . . was fully aware and was in a good position as anyone to try to figure out
what happened and where he was and what was going on in his life during that period of
time.”
         Defendant then cited, as additional aspects of prejudice, the inability to compare
the Darrows’ wounds to the knife mentioned by Edna Eva Hare; lost third party
culpability evidence pertaining to “potential plumbers, Anthony Rosales and . . . Lance
Inman,” and Hare’s deceased husband; the changed memories of Richard and Debra
Sanchez and John and Victor Rojas allowing them to “make better identifications” of
defendant’s truck at trial; the loss of records pertaining to defendant’s business; the death
of Wanda Osteen’s husband; the deterioration of health and memory of Jerome Krieger,
Ralph Phillips, and Detective Whisenant; loss of opportunity to find unspecified
“impeachment witnesses that may or may not have been available back in ‘87”; and loss
of unspecified character witnesses for defendant.
         The prosecutor asked whether the court “has made a filing [sic] that the defendant
did not suffer actual prejudice.” The court replied, “That’s correct.” After brief argument
by the prosecutor, the court denied the motion without further comment.
         Defendant contends the court erred by denying his motion.
b.       Law regarding precharging delay and standard of review
         Although statutes of limitations are the primary safeguard against precharging
delay, “due process provides additional protection, safeguarding a criminal defendant’s


                                               24
interest in fair adjudication by preventing unjustified delays that weaken the defense
through the dimming of memories, the death or disappearance of witnesses, and the loss
or destruction of material physical evidence.” (People v. Abel (2012) 53 Cal.4th 891, 908
(Abel).)
       Prejudice from precharging delay is not presumed. (Abel, supra, 53 Cal.4th at
pp. 908–909.) The defendant “must first demonstrate resulting prejudice, such as by
showing the loss of a material witness or other missing evidence, or fading memory
caused by the lapse of time.” (Id. at p. 908.) “If the defendant establishes prejudice, the
prosecution may offer justification for the delay; the court considering a motion to
dismiss then balances the harm to the defendant against the justification for the delay.
[Citation.] But if the defendant fails to meet his or her burden of showing prejudice, there
is no need to determine whether the delay was justified.” (Id. at p. 909.)
       Under California law, either negligent or deliberate delay designed to disadvantage
the defendant may violate due process. (People v. Nelson (2008) 43 Cal.4th 1242, 1255
(Nelson).) Because deliberate delay is completely unjustified, “a relatively weak showing
of prejudice would suffice to tip the scales towards finding a due process violation. If the
delay was merely negligent, a greater showing of prejudice would be required to establish
a due process violation.” (Id. at p. 1256.) “The justification for the delay is strong when
there is ‘investigative delay, nothing else.’” (People v. Cowan (2010) 50 Cal.4th 401, 431
(Cowan).)
       In balancing the justification against the prejudice, the trial court “should not
second-guess the prosecution’s decision regarding whether sufficient evidence exists to
warrant bringing charges.” (Nelson, supra, 43 Cal.4th at p. 1256.) “‘Prosecutors are
under no duty to file charges as soon as probable cause exists but before they are satisfied
they will be able to establish the suspect’s guilt beyond a reasonable doubt . . . .
Investigative delay is fundamentally unlike delay undertaken by the government solely to
gain tactical advantage over an accused because investigative delay is not so one-sided.
A prosecutor abides by elementary standards of fair play and decency by refusing to seek


                                              25
indictments until he or she is completely satisfied the defendant should be prosecuted and
the office of the prosecutor will be able to promptly establish guilt beyond a reasonable
doubt.’” (Ibid.) The trial court must also resist “second-guessing how the state allocates
its resources or how law enforcement agencies could have investigated a given case.”
(Ibid.) “It is not enough for a defendant to argue that if the prosecutorial agencies had
made his or her case a higher priority or had done things a bit differently they would have
solved the case sooner.” (Id. at p. 1257.)
       We review for the trial court’s ruling for abuse of discretion and defer to the trial
court’s underlying factual findings if substantial evidence supports them. (Cowan, supra,
50 Cal.4th at p. 431.)
c.     Defendant failed to demonstrate actual prejudice from the precharging delay
(1)    Deceased witnesses
       Defendant argued at trial and argues on appeal the precharging delay prevented
him from calling several witnesses who had died by the time of his trial or, in some cases,
by the time he was charged. However, he has not shown any likelihood that any of these
witnesses would have provided testimony beneficial to his defense.
       Sharlene, who was with defendant for much, if not all, of the week of the murders,
was interviewed by the police in 1987 and defendant did not seek to introduce those
statements at trial, even though the prosecutor offered to stipulate to admission of her
statements. She also made several statements to various individuals that strongly tended
to implicate defendant in the Darrows’ murder, although the only one of these introduced
at trial was the statement to Serena Saltis. Had she testified at defendant’s trial, she may
have provided him with an alibi, but she might instead have provided the prosecution
with highly incriminating testimony implicating him in the Darrows’ murder. Given her
status (as discussed in the context of defendant’s second issue) as an accessory after the
fact, she may have invoked her privilege against self-incrimination and refused to testify.
If she had done so, the prosecutor almost certainly would have offered her immunity to
testify against defendant. Even if we were to assume she voluntarily testified and


                                             26
provided testimony favorable to defendant, the credibility of that testimony would have
been diminished by her numerous inconsistent statements and the bias inherent in her
relationship with defendant. Defendant therefore has not demonstrated, and indeed
cannot demonstrate, actual prejudice from the loss of Sharlene’s testimony.
       Defendant has not explained what he believes Detective Horton, the deputy
medical examiner who performed the autopsies of the Darrows, or Wanda Osteen’s
husband would have helped him prove and how that would have benefitted his defense.
The relevance of testimony by Osteen’s husband is not explained at all. A different
deputy medical examiner was able to testify about the Darrows’ autopsies by reference to
the documentation and photographs created during the course of the autopsies. Defendant
has not identified any issue the testifying deputy was unable to address or resolve.
Horton was just one of three original investigators, and the other two testified. In
defendant’s motion in the trial court, he argued the prejudice from being unable to
examine Horton pertained to “the fourth knife” that was “identical to two of the knives
taken from [defendant] and his father” and the Sheriff’s Department’s refusal to enter the
DNA from the cigarette butts in a database to look for a match because the prosecutor
said they were not part of the crime scene. The evidence developed at trial established the
fourth knife was the one defendant gave to Wanda Osteen. Thus, there was nothing
beneficial to be had from Horton regarding that knife. The issue regarding the DNA on
the cigarette butts was not one caused by Horton’s unavailability as a witness. Had
Horton still be alive and employed by the Sheriff’s Department, he might also have
refused to check the DNA against the database. Defendant could have asked the trial
court to order the prosecutor to request that the DNA profile be checked against the
database. In any event, identification of such men would not necessarily exonerate
defendant because some of the neighbors testified they saw multiple men at the Darrows’
house on the afternoon of April 15, 1987. Jerome Krieger testified he saw three men and
Debra Sanchez testified and told police she saw two men.




                                             27
       Thus, defendant has not demonstrated actual prejudice resulting from the death of
any of these potential witnesses.
(2)    Faded memories
       Defendant argued at trial and argues on appeal he was prejudiced by the
diminished memories of various witnesses resulting from the precharging delay. Some of
these witnesses had died by the time of trial, but testified at conditional examinations.
       Detective Whisenant testified at a conditional examination, portions of which were
admitted at trial. His memory of the crime scene was limited, but he had reviewed his
notes and reports, the other two detectives’ reports, and the “murder book.” Defendant
had all of that documentation and he has not explained how he believes Whisenant’s
testimony at an earlier time would have benefitted him. Similarly, defendant has not set
forth any theory of how he would have benefitted from Lyons’ testimony at a trial closer
in time to 1987.
       Ralph Phillips was interviewed by the police in 1987 and again in 2006, and he
testified at a conditional examination in January of 2007, during which he testified he was
honest when he talked to detectives in April 1987. Some of Ralph’s early statements to
the police were somewhat beneficial to defendant, others were incriminating, and some
conflicted with defendant’s and Sharlene’s statements about the week of the murders.
Notably, he did not provide defendant with an alibi for April 15, 1987, the day neighbors
and relatives of neighbors saw defendant’s truck at the Darrows’ house and heard noises
and a scream from the house. Although Ralph’s 2006-2007 statements and testimony
were less favorable and more incriminating, defendant has not shown and cannot show
that testimony Ralph might have given at a trial nearer 1987 would have benefitted
defendant, rather than contradicting defendant’s own claims or even incriminating
defendant.
       Jerome Krieger testified at the preliminary hearing, during which he identified the
truck he saw April 15, 1987 as the one depicted in photographs of defendant’s truck and
testified he saw a man near the truck who looked like defendant. Krieger was


                                             28
interviewed by the police in 1987 and defendant had a copy of the report of that
interview. Defendant has not explained why he believes Krieger’s testimony at a trial
nearer 1987 would have been less incriminating or more beneficial.
       Defendant also argues “the decline of Ed Nelson, his former employer . . . due to
Alzheimer’s disease, foreclosed any opportunity to demonstrate what [defendant] was
doing professionally at the time of the murders.” This claim is related to defendant’s
argument that his business and banking records were lost and pertains to the defense
contention that the money he spent during the week preceding Easter was revenue from
his business, not money he stole from the Darrows’ home. However, because defendant
had purchased his lawn route from Nelson and Nelson was no longer defendant’s
employer, it is doubtful Nelson would have had personal knowledge of defendant’s
earnings. Even assuming, for the sake of argument, Nelson had possessed such
knowledge and testified at a trial nearer 1987 that defendant was making a certain amount
of money, this would not establish how much, if any, of his earnings defendant had
available to spend in mid-April, 1987. In this regard, we note Christina testified when she
and defendant separated in January of 1987 she discovered defendant had not paid the
rent or utility bills for three months, Ralph Phillips told the police in 1987 that after
defendant and Christina separated defendant “worked less and less and virtually had no
source of income,” and defendant testified his income declined by about half near the end
of March, 1987 because he “didn’t care anymore” and only worked for customers who
paid in cash.
       Accordingly, defendant has not demonstrated actual prejudice resulting from the
faded memories of any of these witnesses.
(3)    Improved memories
       Defendant contends he was prejudiced by the ability of Richard and Debra
Sanchez and John and Victor Rojas to “make better identifications” of defendant’s truck
at trial. We note, however, Victor Rojas identified the truck he saw at the Darrows’
house on April 15, 1987 as the one in photographs depicting defendant’s truck soon after


                                              29
the murders in 1987. In addition, as far as the record reveals, the descriptions of the truck
given by each neighbor who saw it were not only consistent with defendant’s truck but
also consistent with the other neighbors’ descriptions. Defendant’s truck was heavily
modified and unusual, if not unique. Defendant had copies of police reports of these
witnesses’ statements from 1987 and was able to use these reports to cross-examine the
witnesses about their greater certainty at trial. Witnesses at trial often testify differently
than their statements to the police; the remedies for this phenomenon are cross-
examination, introduction of the witness’s prior inconsistent statement, and, where
identifications are concerned, introduction of testimony by an expert regarding eyewitness
identification. Defendant has not shown and cannot show that the any of these witnesses’
testimony at a trial nearer 1987 would have been less incriminating.
(4)    “Lost evidence”
       Defendant also argued at trial and argues on appeal he was prejudiced by the
precharging delay because certain evidence was lost between 1987 and 2006.
       Defendant argues his “missing” business and bank records impaired his ability to
show he had money he had earned from his business to spend during the week preceding
Easter. However, defendant testified he kept his business records in his father’s shed,
detectives seized papers pertaining to defendant’s business when they searched Ralph
Phillips’ house in the summer of 1987, and defendant testified that to the best of his
knowledge all of his business records were provided to the detectives in 1987. Defendant
has never claimed that the police lost or destroyed these papers or the papers themselves
became unreadable. To the extent the police did not seize all of defendant’s papers,
defendant was on notice in 1987 that he was a suspect in the Darrows’ murder and that
police were inquiring about his sources of income. Accordingly, he had an incentive
immediately after the murders to preserve his business and bank records. (See Cowan,
supra, 50 Cal.4th at p. 432.) In addition, defendant testified his savings were in the form
of cash and were hidden with his lawn equipment and in his father’s house. Bank records
would not reflect these cash stashes. Furthermore, as previously noted, other evidence,


                                              30
including defendant’s own testimony, tended to show he had experienced financial
difficulty in early 1987 and a showing of what he had earned did not mean he had that
money available to spend during the week before Easter.
       Defendant argues he was prejudiced by precharging delay because he no longer
had access to the Toyota 4x4 truck. However, the truck had been wrecked in
Germantown during the summer of 1987. Thus, the precharging delay was not
responsible for the loss of the truck. In addition, detectives photographed the truck when
they interviewed defendant on April 21, 1987. Defendant does not claim the truck’s
appearance had changed between April 15 and April 21, 1987.
       Defendant argues the delay left him unable “to show the witnesses what
[defendant] looked like back in 1987 at the time of the crimes.” However, detectives also
photographed defendant when they interviewed defendant on April 21, 1987. Defendant
does not claim his appearance had changed between April 15 and April 21, 1987.
       Defendant argues the delay resulted in loss of the opportunity to find unspecified
impeachment evidence and unspecified character witnesses. This claim is inherently
speculative. Impeachment evidence may or may not have existed in 1987, and, if it
existed, it may still have existed at the time of trial. Indeed, the delay arguably provided a
greater opportunity for witnesses to make contradictory statements and commit acts of
moral turpitude, if they were so inclined. As for character witnesses for defendant,
defendant has not shown that he had no friends, associates, or family members alive and
available to provide favorable testimony at the time of trial.
       Defendant further argues the precharging delay “foreclosed” “third party
culpability avenues.” In his original motion, he argued several such “avenues” he no
longer asserts on appeal. He now refers only to “plumbers Anthony Rosales and Lance
Inman,” and Hare’s deceased husband. Hare testified she and her husband lived in
Michigan and flew to California when notified by the police that her parents had been
found dead. Before that, they had not visited California since August of 1986. Nothing
in the appellate record indicates defendant had any reason to suspect Hare’s husband was


                                             31
in California, not Michigan, at the time of the murders. The appellate record does not
reflect any information regarding Rosales or Inman or their connection to the Darrows, let
alone any reason to suspect they murdered the Darrows. The other third party culpability
theories addressed in defendant’s motion to dismiss are even more speculative. In order
to be admissible as third party culpability evidence, there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the charged crime, not just
evidence that a third person merely had a motive or opportunity to commit the crime.
(People v. Edelbacher (1989) 47 Cal.3d 983, 1017.) Defendant has not set forth any
reason to believe Hare’s husband, Rosales, or Inman could be linked to the Darrows’
murders. He therefore has not and cannot demonstrate any actual prejudice from the
inability to investigate third party culpability.
       Defendant also argues he was prejudiced because the bloodstains and samples
were degraded or missing. Defendant has not explained how he believes further testing
using the testing methods available nearer 1987 would have benefitted him. His written
motion stated, “Although some of these samples were analyzed in 1987, the science
available at the time was capable only of limited results. Since this time, DNA has been
discovered and testing is available . . . .” Had the blood samples not degraded, both the
prosecution and defense could have performed much more sophisticated testing upon
them. But defendant cannot legitimately claim the inability to perform such testing was
caused by the precharging delay, as opposed to the state of forensic science at the time of
the crimes. Had defendant been charged in 1987 and tried within a reasonable time
thereafter, he would have been limited to “the science available at the time.”
       Defendant similarly argues he was prejudiced by the loss or degradation of bone
and tissue samples from the Darrows that were saved for, but not analyzed by, Dowell.
Defendant’s written motion noted the deputy medical examiner who performed the
autopsies “collected bone samples from George Darrow in four jars.” The motion further
noted, “From Edna Darrow, Steve Dowell himself took ‘sections of both temporal bones
including the knife penetrated areas, a large block of thoracic vertebrae and attached


                                               32
posterior rib regions, including the knife-wounded areas there and a large piece of knife
wounded skin from the back’ for his analysis. . . . Although these samples were taken in
April 1987 and the ‘suspect knife’ was submitted in July 1987, no analysis was done until
November 2006. [¶] Upon visiting Steve Dowell at the Corner’s Forensic Lab, we
discovered that his November 2006 report was done using only the autopsy photos, two
bone fragments, one from each victim, and the autopsy reports. It appears that the other
samples had been lost or destroyed in the intervening 19 years. He stated that if the
samples do still exist, they would have been in formalin for a long time and might not be
helpful.”
       Defendant has not shown that Dowell’s analysis was inaccurate or inadequate. He
could have asked Dowell at trial whether examination of additional bones and the one
tissue sample collected would have been more accurate or revealing, but he did not. In
addition, because it is completely speculative to assume that Dowell’s opinion would
have been different if he had used tissue and bone instead of photographs for his analysis
and comparison, the existence of any actual prejudice to defendant is also completely
speculative.
       Finally, defendant argues he was prejudiced because “the knife which was known
by Edna Hare to have been stored by her mother beneath her bedroom mattress was lost
or unaccounted for.” However, the precharging delay did not cause the “loss” of this
knife. The police did not find it and Hare testified she had never seen the knife in the
house in which the Darrows died. She testified her mother kept that knife under her
mattress when they lived in a different house and George worked nights. When they were
murdered, George was retired and they lived in a different house.
       Accordingly, defendant has not demonstrated actual prejudice resulting from the
“loss” of any of this evidence.
(5)    Nonexistent evidence
       Defendant also argues he was prejudiced because the police failed to photograph
the open cabinet under the kitchen sink the day the Darrows’ bodies were found, failed to


                                            33
photograph the pipes under the kitchen sink before removing the one on which
defendant’s fingerprint was found,3 did not write a report regarding whether other,
unidentified fingerprints were “run through AFIS for a match,” and did not “mention
whether any of the doors leading outside the home were ever processed for prints.” An
arguably imperfect investigation, not precharging delay, caused the nonexistence of these
matters. Had defendant been charged in 1987, there still would have been no such
photographs and, if the doors had not been processed for fingerprints, it would likely have
been fruitless to process them after the police had ended their control over the house.
After he was charged in 2006, defendant could have requested the prosecutor to ask the
police to check unidentified fingerprints against databases. In any event, as stated in
Cowan, supra, 50 Cal.4th at p. 434, “[E]ven if some other suspect’s fingerprints were on
the items, defendant still would have been linked to the murders because his own
fingerprints were found at the crime scene.”
d.     The delay was, at worst, negligent.
       As noted, the trial court concluded the delay was not justified. But its conclusion
this case “just fell through the cracks” constitutes an implicit finding the delay was not an
attempt to gain a tactical advantage over defendant. Nothing in the record suggests the
delay was a tactic. Thus, at worst, the delay was negligent, and a greater showing of
prejudice was required. (Nelson, supra, 43 Cal.4th at p. 1256.)
e.     The trial court properly denied the motion.
       Had defendant been charged in 1987 and tried within a reasonable time thereafter,
the evidence presented by both parties undoubtedly would have been different than that at
the trial in 2011. However, defendant failed to establish that he suffered actual prejudice
from the lengthy delay. The original investigation was sufficiently thorough and

       3  During Whisenant’s conditional examination, the prosecutor introduced at least
one photograph described as showing the cabinet under the kitchen sink, but for the
purpose of addressing the issues on appeal, we accept defendant’s assertion regarding the
failure to photograph as true.


                                             34
memorialized in reports, notwithstanding the omissions cited by defendant. Defendant
was interviewed just two days after the bodies were found and thereby placed on notice at
that time he was a suspect in the murders and needed to account for where he had been
and what he had done in the relevant time frame. To the extent some lines of inquiry or
questioning were unavailable to defendant after 19 years, he has not shown that his
defense would have obtained any benefit from being able to pursue such matters. After
reviewing the entire trial record, we do not find that defendant’s ability to defend against
the prosecution’s case was so impaired that he was denied a fair trial.
         Accordingly, we conclude the trial court did not abuse its discretion by denying
defendant’s motion and defendant’s due process rights were not violated by the lengthy
delay.
2.       Admission of Sharlene’s statement to Serena Saltis
         Before the preliminary hearing, the prosecutor sought to admit Saltis’s testimony
regarding the statement Sharlene made to her in 1987 about defendant coming home with
a bloody knife and a shirt stuffed with cash. Specifically, the prosecutor told the court,
Saltis would testify Sharlene told her defendant arrived home late one night, sweaty,
frantic, and nervous. He had blood on his clothes and was carrying a long-sleeved shirt
tied at the wrists and packed full of money. He told Sharlene she had to help him. She
was scared, but personally washed blood off a knife. She later took the knife to New
York in her suitcase. The prosecutor argued the statement constituted a declaration
against interest, in that it subjected Sharlene to criminal liability as an accessory.
         Defendant opposed admission of this testimony, arguing Sharlene’s statement did
not qualify as a declaration against interest and its admission would violate the
Confrontation Clause. The trial court ruled Sharlene’s statement qualified as a
declaration against interest and did not implicate the Confrontation Clause because it was
not testimonial.
         Saltis testified at the preliminary hearing she spoke privately to Sharlene, saying
Saltis’s parents had told her detectives had come to interview them about a double


                                               35
homicide they believed defendant had been involved in. Sharlene repeatedly said she
could not say anything, then became more upset and nervous and began crying. Saltis
conveyed her parents’ concern for Sharlene’s safety. Sharlene mentioned a knife and
“said that [defendant] had come home one evening to their apartment that they share
together and he was covered with sweat and very upset and wanted her help. That when
he came in he had a long sleeve shirt with the sleeves tied and . . . the shirt was stuffed
full of money and that she personally washed the blood off of the knife in the bathroom
sink.” Sharlene also said defendant had blood on his clothing, she was “very scared,” and
defendant asked her to wash the blood off the knife, saying, “‘You know, you are going
to have to help me here.’” Sharlene further said defendant had told her at the time
another man was involved and an elderly couple were stabbed many, many times and
robbed. Sharlene told Saltis she had brought the knife with her in her suitcase. Sharlene
said the knife had been in defendant’s truck when it was impounded, and she had later
retrieved it from the truck and kept it with her personal property.
       Defendant renewed his objection at trial and added due process as a ground for
exclusion. The trial court again admitted Saltis’s testimony regarding Sharlene’s
statement. Saltis was not asked about, and did not testify to, defendant’s statement that
another man was involved and an elderly couple were stabbed and robbed.
       Defendant contends Sharlene’s statement did not qualify as a declaration against
interest because she lacked the knowledge and intent required to be an accessory and her
statement was untrustworthy because she said defendant came home to an apartment they
were sharing, whereas Sharlene was living with Britton at the time of the murders.
Defendant further argues the improper admission of Sharlene’s statement was so
inflammatory as to violate due process. He does not contend it resulted in any violation
of the Confrontation Clause.
a.     Law regarding declarations against penal interest and standard of review
       “Evidence of a statement by a declarant having sufficient knowledge of the subject
is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness


                                              36
and the statement, when made, . . . so far subjected him to the risk of civil or criminal
liability . . . that a reasonable man in his position would not have made the statement
unless he believed it to be true.” (Evid. Code, § 1230.)
       The proponent of the evidence must also show that the declaration was sufficiently
reliable to warrant admission. (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier),
overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [129
S.Ct. 2527].) “‘The focus of the declaration against interest exception to the hearsay rule
is the basic trustworthiness of the declaration. [Citations.] In determining whether a
statement is truly against interest within the meaning of Evidence Code section 1230, and
hence is sufficiently trustworthy to be admissible, the court may take into account not just
the words but the circumstances under which they were uttered, the possible motivation
of the declarant, and the declarant’s relationship to the defendant.’” (Ibid.) The “most
reliable circumstance is one in which the conversation occurs between friends in a
noncoercive setting that fosters uninhibited disclosures.” (People v. Greenberger (1997)
58 Cal.App.4th 298, 335 (Greenberger).) Conversely, “the least reliable circumstance is
one in which the declarant has been arrested and attempts to improve his situation with
the police by deflecting criminal responsibility onto others.” (Ibid.) “[A]ssessing
trustworthiness ‘“requires the court to apply to the peculiar facts of the individual case a
broad and deep acquaintance with the ways human beings actually conduct themselves in
the circumstances material under the exception.”’” (People v. Duarte (2000) 24 Cal.4th
603, 614 (Duarte).)
       We review the trial court’s decision regarding the admissibility of such a statement
for abuse of discretion. (Geier, supra, 41 Cal.4th at p. 585.)
b.     Law regarding accessory status
       Penal Code section 32 defines an “accessory” to a crime as follows: “Every
person who, after a felony has been committed, harbors, conceals or aids a principal in
such felony, with the intent that said principal may avoid or escape from arrest, trial,
conviction or punishment, having knowledge that said principal has committed such


                                             37
felony or has been charged with such felony or convicted thereof, is an accessory to such
felony.”
       The accessory must know that the principal committed a felony or has been
charged with the commission of one. (People v. Wilson (1993) 17 Cal.App.4th 271, 275
(Wilson).)
c.     Sharlene’s statement was properly admitted as a declaration against her
penal interest.
       Defendant argues Sharlene’s conduct, as described in her statement to Saltis, did
not make her an accessory (and thus was not against her penal interest) because she was
16 years old, “did not want to help” defendant, had no “knowledge of what had taken
place before she saw [defendant] with the bloody knife,” “neither understood what she
was doing, nor had any specific intention to aid and abet [defendant’s] evasion of arrest,”
and acted from “fear and emotion” by “relenting in what he was ordering her to do under
the worst of circumstances.”
(1)    Sharlene’s statement demonstrated the knowledge, intent, and conduct
required to make her an accessory.
       The circumstances described by Sharlene demonstrated she knew at the time she
acted that defendant had committed multiple felonies: defendant arrived home sweaty
and with blood on him, carrying a bloody knife and a shirt stuffed with cash, and told
Sharlene an elderly couple were robbed and stabbed many, many times. This was more
than sufficient to inform anyone, even a 16-year-old, defendant had committed felonies.
Although Saltis’s trial testimony did not include the statement by defendant about robbing
and stabbing an elderly couple, the trial judge had conducted the preliminary hearing and
was aware of the full content of Sharlene’s statement when he ruled. We review the trial
court’s ruling “at the time it was made, . . . not by reference to evidence produced at a
later date.” (People v. Welch (1999) 20 Cal.4th 701, 739.)
       Notwithstanding Sharlene’s initial reluctance to help defendant, she relented and
not only washed the blood off the knife, but thereafter made repeated efforts to conceal


                                             38
that knife. She told Saltis she carried it to New York in her suitcase, retrieved it from
defendant’s truck after it was impounded in New York, and again hid it in her suitcase
before giving it to defendant’s brother. Nothing indicated she performed these acts under
duress. Her conduct thus reflects her intent that defendant avoid arrest, trial, conviction,
and punishment.
       Finally, Sharlene’s admission she destroyed evidence by washing the blood off the
knife and concealed evidence by transporting the knife from California to New York, then
retrieving it from defendant’s impounded truck and hiding it in her suitcase established
the conduct required to make her an accessory. “Concealment of a weapon used by the
principal in the commission of a felony may constitute the actus reus of the offense.”
(Wilson, supra, 17 Cal.App.4th at p. 275.)
       Accordingly, Sharlene’s admissions to Saltis subjected her to criminal liability as
an accessory to the robbery and murder of the Darrows.
(2)    Sharlene’s statement was sufficiently trustworthy.
       Sharlene made her statement to Saltis in the type of setting deemed most reliable:
a “conversation . . . between friends in a noncoercive setting.” (Greenberger, supra, 58
Cal.App.4th at p. 335.) In addition, the surrounding circumstances support the trial
court’s conclusion Sharlene’s statement was trustworthy. Saltis testified Sharlene initially
said she could not say anything, then, as she told Saltis what happened, she became highly
emotional. Nothing in the record suggests Sharlene was attempting to divert criminal
responsibility from herself to defendant, which is the most common context in which a
statement is deemed too untrustworthy to constitute a declaration against penal interest.
(See Duarte, supra, 24 Cal.4th at pp. 611–612.)
       Defendant argues Sharlene’s statement was untrustworthy because Saltis testified
Sharlene referred to defendant returning to an apartment they shared, whereas other
evidence in the record indicates they were not living in an apartment. However, the
nature of the location to which defendant returned was merely a collateral detail and may
have merely been Saltis’s interpretation, years later, of different words used by Sharlene.


                                             39
We cannot conclude this single collateral detail rendered the statement so untrustworthy
as to preclude its admission in light of the surrounding circumstances reflecting
trustworthiness.
       Accordingly, we conclude the trial court did not abuse its discretion by admitting
Saltis’s testimony regarding Sharlene’s statement. Nor did its admission violate due
process. Application of the rules of evidence ordinarily does not violate due process.
(People v. Cunningham (2001) 25 Cal.4th 926, 998.) The admission of evidence may
violate due process if there is no permissible inference a jury may draw from the
evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) The jury could
permissibly infer from Saltis’s testimony regarding Sharlene’s statement that defendant
had committed a violent, blood crime using the knife he asked her to wash, and had
obtained the money in the shirt in the commission of that crime. It could further infer that
the knife known as EMK-4 that detectives collected in New York was the same knife
used by defendant in the crime, then washed, transported to New York, and concealed by
Sharlene. Accordingly, admission of Saltis’s testimony did not violate due process.
3.     The trial court erroneously limited defendant’s presentence credits.
       Defendant contends, and the Attorney General concedes, the trial court incorrectly
limited defendant’s presentence conduct credits pursuant to Penal Code section 2933.1,
which was enacted more than seven years after defendant committed the crimes in this
case. The parties agree defendant should have been awarded 1,004 days of presentence
conduct credits, for a total 3,012 days of presentence credits. Accordingly, we correct the
award of credits and direct the trial court to issue an amended abstract of judgment
reflecting the correct credits, if it has not already done so.




                                               40
                                       DISPOSITION
       Defendant’s presentence credits are corrected to be 3,012 days total, consisting of
2008 days of actual custody and 1004 days conduct credits. The judgment is otherwise
affirmed. The trial court is directed to issue an amended abstract of judgment reflecting
the correct credits, if it has not already done so.
       NOT TO BE PUBLISHED.


                                                      MILLER, J.*
We concur:


       ROTHSCHILD, Acting P. J.


       CHANEY, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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