The People v. Vance CA1/2

Filed 10/7/13 P. v. Vance CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A134605 v. ANDREW JAMES VANCE, (Alameda County Super. Ct. No. H43194A) Defendant and Appellant.

In 2010, this court reversed the first-degree murder conviction of Andrew James Vance because of egregious and pervasive prosecutorial misconduct. (People v. Vance (2010) 188 Cal.App.4th 1182 (Vance I).) The only other point we addressed, because it ―may arise on trial‖—and it did—was whether certain of defendant‘s post-arrest custodial statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. We agreed with the trial court that they were not. Defendant was promptly retried, and his statements were again determined to be admissible, on precisely the same terms as in the first trial. The jury found defendant guilty of second-degree murder, and he was sentenced to state prison for the term prescribed by law for that offense. Vance presents two claims of error: (1) the trial court erred in concluding that, notwithstanding finding that some of defendant‘s custodial statements would be excluded as taken in violation of Miranda, the court did not conclude that all of defendant‘s subsequent statements were tainted by that violation; and (2) the trial court abused its discretion when it removed a juror shortly before deliberations commenced. We

1

conclude that neither of these claims establishes the need for a third trial, and therefore affirm. BACKGROUND The parties‘ briefs demonstrate that they have no substantive disagreement about the details of the retrial record, which mirrored that of the original trial. Moreover, neither of the contentions defendant now advances is dependent on the trial record. We therefore adopt what we said in Vance I: ―Except in one particular, the jury was not presented with material conflicts in the evidence, only the strength of the incriminating conclusion to be drawn from the largely undisputed testimony and trial exhibits. “It appears accepted that the victim, Dipak (Deuce) Prasad, died on June 2, 2006. It further seems that it all began with Prasad telling defendant‘s girlfriend, Jennifer Delong, that he, defendant, was sleeping with another woman. Delong confronted defendant with this report, and its source, and left town, much to defendant‘s distress. ―On the afternoon of June 2, defendant confronted Prasad about what he, Prasad, had told Delong. Prasad thought what he told defendant had defused defendant‘s anger. The two thereafter spent several hours getting and consuming methamphetamine, all the while Prasad unaware that defendant was bent on revenge. ―Defendant intended to teach Prasad a lesson with a beating. His friend Kevin West agreed to assist.[1] Defendant and Prasad met up with West, and, with Prasad driving his Lexus, they then went to Ronnie Pedrosa‘s auto shop. Pedrosa, who had been in prison with defendant and West, had also agreed to help with the beating of Prasad. They all ingested some methamphetamine provided by Prasad. Pedrosa had to beg off participating in the beating because he had to take care of a friend‘s children.[2] Before