People v. Price (8 Cal. App. 5th 409, 2017)

Opinion

STEWART, J.

—Defendant Kiarra Marie Price, then 20 years old, along with two friends, participated in a robbery of Benjamin Merrill during which one of them needlessly and senselessly shot and killed 22-year-old Merrill. The Contra Costa District Attorney charged Price and her friends, Kendra Fells and Teareney Brown, with murder and robbery, entered into plea agreements with Fells and Brown that resulted in convictions for voluntary manslaughter, robbery and other charges and 15-year sentences for each, and prosecuted Price for murder and robbery. Fells testified with immunity against Price at Price’s trial. The jury convicted Price of robbery and first degree murder and found a robbery-murder special-circumstance allegation to be true, but rejected allegations that Price personally used and discharged a gun and inflicted great bodily injury on Merrill. The court sentenced Price to life without parole as required by the special circumstance statute, Penal Code section 190.2.

Price appeals on several grounds. Her primary argument is that the People, by representing to the court that her codefendants committed voluntary manslaughter and prosecuting Price for murder, adopted versions of both the law and the facts that were irreconcilable and deprived Price of due process. We disagree. Voluntary manslaughter is a lesser included offense of murder and not legally irreconcilable with it. Further, defendant does not establish the prosecution engaged in misconduct in any of its factual contentions regarding Price, which were not necessarily irreconcilable with its contentions regarding Fells and Brown. Assuming these contentions contained inconsistencies, they were justified in light of the evidence available to the prosecution when they were made and in any event any purported error was not prejudicial to Price.

Price asserts several other due process-based grounds for challenging her conviction and the special circumstance determination, including that the prosecutor should not have been permitted to pursue an uncharged conspiracy theory, the instruction on robbery-murder special circumstance was unconstitutionally vague, the instruction on flight as a basis for inferring consciousness of guilt was inconsistent with the Penal Code and unfairly lightened the prosecution’s burden of proof, and the prosecutor unfairly vouched for Fells, its key witness. None of these arguments is persuasive, and neither, therefore, are Price’s related arguments of ineffective assistance and cumulative error. We agree with Price’s challenge to the imposition of a parole revocation fine, an issue which the People concede. For these reasons, we affirm the judgment in all respects other than the parole revocation fine, which we strike.

BACKGROUND

I.

The Charges, Initial Plea Agreements and Preliminary Hearing

In late November 2009, the district attorney filed a complaint charging Price, Brown and Fells with the first degree murder and second degree robbery of Merrill, both with enhancements as to Price only for personal use and discharge of a firearm and causing great bodily injury or death.

Both Fells and Brown made certain statements to investigators, both before and after entering into plea agreements. Fells in particular revealed certain limited facts beforehand. She claimed Price shot Merrill, admitted being present when he was shot, and admitted knowing there was going to be a robbery shortly before it occurred. In connection with her plea agreement she further admitted that the gun was hers, that Price had taken it from a drawer where Fells kept it, and that Fells took the gun back after the robbery and got rid of it to cover up the crime. Initially Fells denied that Brown was involved but later admitted that she was and that Brown and Price robbed Merrill before he was shot.

A preliminary hearing was held as to Price in February and March 2011. At the hearing, the prosecutor and defense counsel for Fells and Brown announced that they had reached agreements whereby these codefendants would plead to lesser offenses, cooperate and testify truthfully against Price and receive immunity for their testimony, and that the People would dismiss the murder charges against them and recommend determinate sentences. Fells’s plea agreement, which had been reached in August 2010, called for reduction of the charges to voluntary manslaughter, robbery and supplying a weapon, and a sentence of 15 years in state prison.

Fells testified at the preliminary hearing pursuant to her plea agreement in a manner consistent with her statements to police. Brown also testified pursuant to a plea agreement, which apparently involved a proposed sentence of eight years. However, her testimony diverged from her previous statements to investigators, the most significant difference being that she testified Fells was the shooter when she previously had said it was Price. Brown claimed she had lied previously because she was afraid of Fells, who was housed in the same jail module as Brown and had attempted to bribe her with “commissary and stuff.”

At the conclusion of the preliminary hearing, the trial court held Price over to answer all charges and enhancement allegations, finding no serious question about the robbery and murder charges. “Whatever version of the evidence one takes, all of these people are shown to have either committed or aided and abetted in the 187.” Regarding the firearm enhancement allegations, the judge found Brown not credible and, disregarding her testimony, concluded there was “sufficient evidence for a strong suspicion as to possession and discharge of the weapon by Ms. Price.” It appears that, based on the failure of Brown to consistently tell the truth, the prosecution revoked her plea agreement.

II.

Price’s Trial

In September 2013, the court granted a motion by Brown, joined by Price, to sever their trials, and proceeded with Price’s trial first. After six and a half days of testimony by more than two dozen witnesses, the People rested. The defense called no witnesses.

A. Kendra Fells’s Testimony

Fells testified that at the time of trial, she was serving a 15-year sentence for voluntary manslaughter, furnishing a firearm and robbery that resulted from the plea agreement. She said she was testifying both because of her plea deal and to do the right thing. She understood her deal would be off if she lied to the jury, including to help the prosecutor, even though she had already served nearly three years in prison and that she would then face murder charges.

Fells testified that in November 2009, she was friends with Price and had known her for years. Both were also friends with Brown and Nickia Darden. Fells was romantically involved with Felicia Edosa, who lived in Pittsburg, California, with her parents and sister. Fells sometimes spent the night with Edosa and shared Edosa’s upstairs bedroom. Fells had recently purchased a revolver because “I got myself into a situation” and ‘“needed to protect myself.” When she was at Edosa’s house she kept the loaded revolver in a drawer in the bedroom. She did not tell Edosa about it. Price had frequently visited Fells at Edosa’s house.

On the evening of November 2, 2009, Fells and Edosa were at Edosa’s house. Sometime after 11:00 p.m., Fells was awakened by Price entering the bedroom. Fells was ‘“really intoxicated,” having been to a funeral that day where she drank and took drugs. She told Price about an altercation she had gotten into, showed Price her revolver, and returned it to the drawer while Price was there. Fells went outside to get a CD from her car that Price requested. She saw Brown in a car she recognized as Nicky Darden’s. Fells gave Price the CD, and about 20 minutes after they had arrived, Price and Brown left in Darden’s car with Brown driving. Fells then went back to bed.

Sometime after 1:00 a.m., Fells woke to again find Price in her bedroom. Price asked Fells to ‘“take a ride with her.” When they went downstairs, Fells saw Price putting Fells’s gun into Price’s jacket. She also saw an iPhone she did not recognize on the living room couch. They left in Darden’s car. Brown drove, and a man Fells did not know was in the backseat asleep. Fells learned later he was Merrill. There was no conversation, and Fells was ‘“tired and intoxicated.” Although she knew Price had her gun, Fells did not suspect something was going on or that there was going to be a robbery. They drove to a park about a mile from Edosa’s house, where everyone, including the awakened Merrill, got out of the car.

Merrill went to some bushes near a sign at the entrance to the park and urinated. Fells, Brown and Price were ‘“standing around” nearby. Merrill started rambling, and Fells could tell he was drunk. He said, ‘“You think you better than me,” talking to ‘“[njobody in particular.” After urinating, Merrill turned around and walked in a direction away from the car. Brown was standing close to him, and Fells heard Brown say, ‘“I got it.” Brown then headed for the car. Fells was standing near the car. She did not see Price, but told her to “come on.” After that, Fells heard Price say: “He got more.” She saw Price next to Merrill, pointing the gun at Merrill’s chest. Fells said, “Come on” and “Let’s go.” Fells understood Price was robbing Merrill. She did not tell Price to stop; she “just told her to come on.” After that, Fells was trying to get in the car, but turned around and saw Price on the ground. She did not see where the gun was pointing but heard two shots, “kind of like all back to back, like fast,” and saw a flash. After that, she did not see Merrill, who was not on top of Price.

After the second shot, Fells, Brown and Price got back in the car. Fells said to Price, “Fool, give me the gun.” Fells did not know then whether Merrill had been shot. She knew the gun had gone off and was angry at Price “[bjecause of the situation that we were all in.” Price gave the gun to Fells. Fells saw a man’s wallet on the armrest in the car. Fells did not know if there was money in the wallet, never got any money, did not see the iPhone in the car and did not get the iPhone. There was no conversation in the car about the wallet or anything else. “[I]t was all kind of like silence. We were all kind of like in shock kind of.” They drove away “pretty fast.” There was no plan. Brown drove Fells back to Edosa’s at her request. Fells was upset by what had happened. Fells, Brown and Price got out of the car and went into the house. They did not talk about what had happened. Edosa was there. Fells did not tell Edosa what had happened.

Fells did not remember talking with Edosa later that night. At some point, Edosa asked her whether she recognized a phone number from which a lot of missed calls had been placed to the phone she and Edosa shared. This was between the first and second time Price came over that night, and later Fells learned the phone had been Merrill’s. In the morning, after the shooting, she received a call from the same number and answered it, anticipating it would be Price. It was Price, who asked if Fells was okay. Fells told Price not to call her anymore from that phone number.

About a week later, Fells saw Price with the iPhone and told her to get rid of it. By then, Fells had read in the newspaper what had happened to Merrill. Before they spoke, Fells and Price had texted each other. Fells texted Price that “she did too much,” meaning that Price had not needed to shoot Merrill. Price texted back that she did what she had to do. Fells testified that she also texted Price that Price had “put me in a hole,” meaning she had spent money on the gun and now had to get rid of it. Fells sold or gave it to someone.

Fells admitted that when police first arrested and interviewed her, she was not entirely truthful. But the police continued to question her. After they persuaded her they had built a case against her, she began to cooperate a little. She told them about Brown and Price but still held some things back because she did not want Edosa involved in the case. She told them Price had shot Merrill. This was before she entered a plea deal.

On cross-examination, Fells admitted she had previously been convicted of grand theft from a person, a crime in which another participant had a gun, and that this same individual helped her get rid of her gun after it was used to kill Merrill. She also admitted she wanted to protect her girlfriend Edosa at all costs if she possibly could, and that while in custody she and Edosa were roommates and talked. Also, at one point while in custody she and Brown were both housed on a module where the walls were thin enough for the inmates to talk to each other. Fells also said she previously had a romantic interest in Brown, and that Brown had Fells’s nickname (Kenny Bo) tattooed across her breast.

Fells also testified that she had lied multiple times when questioned by the police and had not told the full truth until a plea deal had been discussed. She said the police had interviewed her at length, yelled, screamed and cursed at her, threatened her and ignored her requests for an attorney. They told her they had already talked with Brown and Price, that Brown and Price were looking out for themselves and she needed to start looking out for herself, and that Price was going to blame all of this on her. They told her the case was serious, and she could be looking at the death penalty or life without parole. They told her if she did not “tell them what they believed to know” about the case they would “go smash [her] girlfriend’s door in” and arrest her girlfriend. They repeatedly told her they knew Price was the shooter. She said Price was the shooter only after police told her they knew it.

Fells testified that she eventually admitted to police that she had lied in some respects and told them the truth—that the gun was hers, she had owned weapons before, she was a convicted felon and not allowed to possess weapons, and she had bought the gun from some guy off the street. She also admitted, after initially lying about it, that Brown had been a participant as well, rather than Fells and Price alone. It was not until the third interview, after the plea agreement had been discussed and she knew what would be offered to her, that she told police the full truth, including that Price came to her house twice and got the gun out of the drawer, Price asked Fells to ride with her, they went to the park, Merrill was robbed and shot and Fells gave the gun to the man with whom she had previously committed grand theft. She wanted to fulfill the terms of her plea agreement because she did not want to be sitting where Price was sitting, and testified in part to do the right thing. But she acknowledged that she never called police after the shooting, even anonymously, and got rid of the gun and told Price to get rid of the phone after she learned Merrill was dead.

On redirect, Fells testified that before the shooting she had seen Price handling handguns of different kinds on multiple occasions and that weeks before the Merrill killing, Price told Fells that police had confiscated Price’s gun.

B. Felicia Edosa’s Testimony

Edosa testified that pursuant to an agreement with the district attorney, charges against her as an accessory after the fact were dropped and she was given immunity in exchange for her truthful testimony.

Edosa said she had known Fells since early 2009. They began a romantic relationship. Edosa lived with her parents and sister, and in November 2009 Fells was staying with her, sharing her upstairs bedroom. Edosa met Price through Fells. Fells and Price were “[t]wo peas in a pod,” meaning “very close friends,” and had previously lived together in Vallejo.

Edosa met Brown through Price. Brown was romantically involved with Nickia Darden in 2009, and also was in a relationship with Price. Edosa knew Darden from a gospel singing group and told her about Brown’s relationship with Price, but Darden did not want to believe it. Darden let Brown use her parents’ car and gave her money.

On November 2, 2009, at around 11:00 p.m., Price came to Edosa’s house. Edosa was putting out the trash, and Price asked where Fells was. Edosa told her Fells was upstairs sleeping. Price said she needed a CD she left in Fells’s car and went upstairs. Later, she came back down and left. Fells then came down and expressed irritation at having been awakened and asked why Edosa had let Price into the house. Fells put on her shoes, got her keys, went outside and then came back in. A few minutes later, as Edosa was leaving to get dinner, she saw Price in a car with Brown. She recognized the car as Darden’s parents’ car, a dark Hyundai. Brown was behind the wheel, and Price was in the passenger seat.

Later that night, Edosa checked her phone. She noticed more than 20 missed calls made close in time from a number she did not recognize. At about 1:00 a.m., Price knocked on the door. Edosa, who by then was downstairs, opened the door, and Price said, “What’s up? Why you not answering the phone?” Price asked where Fells was, said she “need[ed] to get some of my stuff out of her car” and ran up to the bedroom. Price had a phone in her hand, which she tossed on the couch. It was an iPhone. Edosa picked it up and noticed a text that “said something about somebody standing someone up for a date.” Price came back down alone, and as she was heading out the front door Edosa handed her the iPhone. Fells then came down, put on shoes, grabbed her keys and said she was going outside. Edosa did not see a gun in Fells’s or Price’s hands before they left.

About 15 to 20 minutes later, Edosa heard noise outside her window. She looked out and saw Fells walking back toward the house and Price and Brown near the Dardens’ dark-colored Hyundai. Price was coming from the passenger side, and Brown from the driver’s side. Brown and Price were talking with their voices raised, but Edosa could not hear the conversation. Fells was just walking toward the house. Edosa realized she had locked the door, and went downstairs to let Fells in. When she opened the door, Fells was standing there shaking with tears welled up in her eyes and looked like she had seen a ghost. Fells began to weep as they went upstairs, and continued when they were in bed. She said to Edosa, Price “is not cool.” When Edosa asked “[Wjhat?,” Fells told her there was a “young white guy” in the car with them, they had gotten out of the car, when Fells was going back to the car she heard shots, and the guy did not get back in the car. Fells said Price had shot the gun. Fells did not see anyone get shot, but the guy did not get back in the car with them. She hoped he ran. Edosa testified that Marina Walk Park is about a two-minute drive from Edosa’s house.

Edosa had seen Price with a gun on multiple occasions. Once when they were walking where “there were a lot of guys out,” Price told her not to worry, “I got you,” and showed her a revolver. On the Fourth of July, Price playfully fired a couple of shots in the air from a revolver. Price showed Edosa some of her rifles at her Vallejo home and in her car, and seemed to know how to use guns.

On cross-examination, Edosa testified that Fells never told her the gun used on November 2 belonged to Fells. Edosa eventually learned that from police, who also told her Fells got rid of the gun. Edosa later asked Fells whether this was the first time she had brought a gun into Edosa’s house and whether the gun was still there. Fells denied having brought a gun into Edosa’s house. She told Edosa that on November 2, 2009, she and Price had an altercation about the gun in which Price pointed it at Fells and Fells, after demanding, “[gjive me that gun back,” took it from Price.

Edosa admitted she lied when she first spoke to police. At the time, she knew something serious had happened, someone had died, and Fells had been there when it happened. She did not tell police then what Fells had told her. She denied that Price had been to the house and that Fells had left with Price. She lied because she did not want to put her family in any kind of danger, did not want to have anything to do with it, and was still in shock and disbelief about everything that was coming to the surface.

Edosa was in custody from November or early December 2009 to February 2010, having been arrested after making false statements to the police. Fells and Edosa were cellmates for some of that time. After Edosa retained a lawyer, she gave a statement to police in exchange for her cooperation, and under the agreement she was released from custody.

C. Leonard Wilks

Eeonard Wilks testified that in 2009 he was in a relationship with Brown’s mother, lived with her and Brown, and considered Brown his “stepdaughter.” In early November 2009, he was in his garage with Brown and Brown’s friend, Price. Price had an iPhone that Wilks had not seen her with before, and he asked her where she got it. She responded, “Ah, just a little lick. Just a little lick.” Wilks understood that to mean “you got it from somebody[,j [wjhether you stole it or somebody gave it to you.”

D. James and Jamie Volberding

James and Jamie Volberding, father and son, both testified. In 2009, they lived across the street from Marina View Park. Close to 3:00 a.m. on November 3, 2009, both of them heard two loud gunshots that sounded like they were coming from the park. Jamie poked his head out of their front door and saw a car across the street at the end of the park pulling out. Its engine was loud, and he heard the tires burning rubber. After the car was out of earshot, he heard the sound of moans and phlegmy coughing. Upon investigating, he and his father found a man in his mid-20s to early 30s lying in the park on his side; he was no longer coughing and did not respond to questions. Jamie called 911. James and Jamie did not see a wallet or phone in the area. They remained with the victim until police arrived, which took about five minutes.

E. The Dardens

Nickia Darden, also known as “Nicky,” and her parents, Monica and Ronald Darden, testified. Together, their testimony indicated that in 2009, Nicky knew Edosa from a singing group, met Brown, Price and Fells through Edosa, and had a romantic, albeit not intimate, relationship with Brown. Nicky used her mother’s dark blue Hyundai Sonata to get to her night job in Richmond. Unbeknownst to her parents, she often allowed Brown to borrow the car while she was at work. On November 2, 2009, Brown borrowed the car and then picked Nicky up at the end of her shift at about 3:30 the next morning. Price was asleep in the backseat of the car. Nicky noticed the gas was lower than it had been when Brown took the car.

A few days later, Nicky was at Brown’s house with Price, Brown, Brown’s stepdad, Leonard Wilks, and Brown’s mother. Price was playing with an iPhone. When Wilks asked where she got the phone, Price said, “Just a lick I pulled.” A “lick” means “being robbed or robbing someone.” Not long after that, Brown called Nicky and, Nicky testified, told her, “if the police talked to me, I don’t know anything. The car—I had the car the whole night and I don’t know anything.”

The Dardens had a FasTrak transponder and account for the car, which was the only car for the household. When police contacted Ronald asking about the car’s use and certain crossings on the Bay Bridge, Ronald looked up some things in the FasTrak account. He saw one unfamiliar instance of a bridge crossing into San Francisco on November 3, 2009, at 1:21 a.m. He gave police a printout of three pages from the account.

F. Merrill’s Roommates and Friends

Three of Merrill’s roommates testified. Merrill lived with them in a house in San Francisco and worked as a waiter in a local restaurant, where he made good tips. In 2009, Merrill owned the latest iPhone, which he loved, used a lot, and carried with him. He also had a wallet, which he carried in his pocket. He was friendly and not a violent person, although he sometimes drank to excess and had once been hurt in a fight at a bar.

On the evening of November 2, 2009, Merrill dressed up to go on a date with a woman he had recently met and planned to go with her to North Beach. He was excited about the date, and took at least $100 with him to cover the cost of drinks and dinner. He took his iPhone and left the house on foot. After he left that evening, his roommates never heard from him or saw him again. Two days later, they learned from police that he had been murdered.

G. Testimony About the Police Investigation

Eight current and former Pittsburg police officers testified, including the two homicide inspectors who led the investigation. The forensic pathologist who performed the autopsy on Merrill and a Contra Costa County deputy sheriff who worked at the jail where Price was housed prior to her trial also testified. This testimony established the following facts.

Police were summoned by Jamie Volberding to Marina Walk Park in the early morning hours of November 3, 2009. There they found the lifeless body of a young man, later identified as Merrill, lying in a fetal position, shot through the chest. They found no wallet, cell phone or indicia of the man’s identity, and no gun or (apart from Merrill’s wounds) evidence of gunfire. An autopsy showed Merrill died from a bullet that went through his chest and out his back.

The investigation led to Merrill’s roommates, who gave accounts of Merrill’s activities on the night of his date and of his iPhone. Police obtained phone records for the phone from AT&T, which indicated that prior to the homicide it was in the San Francisco area and then moved eastward into Pittsburg. While moving eastward, it was used to call a number for a phone owned by Edosa more than 20 times. Police observed a red Honda Civic was frequently parked at Edosa’s residence that was registered to Fells.

Police also learned that after Merrill’s body was discovered, the iPhone was active and moved toward the Richmond/Pinole area. In the first days after that, it was not active. It was then taken off AT&T’s service, unlocked at a Payless Wireless, and reactivated with a new phone number via T-Mobile by “Latifa Hairston.” Surveillance video from the T-Mobile store where the phone was reactivated showed that Hairston was in fact Brown. The phone was later in the area of a home owned by Price’s mother and was used to call phones belonging to Price’s mother and Brown.

On November 12, 2009, police traced the phone to the Sun Valley Mall in Concord, where they observed that Price was in possession of the phone and using it continuously. They apprehended Price, Brown and a third woman named Laurie Bardell at the mall and confirmed from the iPhone’s identification number that it was Merrill’s. Despite having possession of it, Price did not claim the phone. Brown claimed the phone was hers, although she had another cell phone.

Police placed Brown and Bardell in the back of a police car and recorded their conversation. They mentioned “Kendra,” Fells’s given name, several times. Bardell asked Brown why she claimed the phone was hers, and Brown said she had “switched” the phone. Later, Bardell told police the iPhone belonged to Price, not to Brown.

Police also searched Price’s and Brown’s residences. At Price’s home, they found a .45-caliber magazine and a nine-millimeter cartridge, but no firearms. At Brown’s residence, they found a receipt from Payless Wireless and an iPhone charger.

Police made images of all the data on the iPhone. The phone contained 21 contacts with corresponding phone numbers, including for “Kenny Bo” and “Tipabanga,” nicknames for Fells and Brown respectively. There was no contact for Price’s given name (Kiarra) or nickname (Kiki). The phone contained more than 500 text messages, including those between Fells and Price that we have discussed. The phone also contained photographs of Brown’s young daughter, Kamayla.

The police investigation led to questioning of Fells, Edosa and the Dardens, the arrest of Fells and the arrest and release of Edosa. Also, on December 1 or 2, 2009, one of the investigators learned a written communication, or “kite,” had been intercepted at the jail that housed Price and Brown. A prisoner indicated she had seen her cellmate, who was Price, writing a letter that appeared to be the kite. Written in jargon and code, it appeared to tell someone what to tell investigators about an alleged murder involving a phone and activities in San Francisco, and what to tell the court and a public defender to reduce the risk of lengthy prison sentences and avoid convictions for premeditated murder.

H. Jury Instructions

The court instructed the jury on premeditated murder and felony-murder theories, including aiding and abetting, and conspiring to commit these offenses. It also instructed on the special circumstance of murder committed in the course of a robbery, robbery, aiding and abetting robbery, attempted robbery, and the special firearm enhancement allegations.

I. The Verdict and Sentencing

After more than three days of deliberations, the jury found Price guilty of first degree murder, found true the special circumstance that the murder was committed while she was participating in the robbery of Merrill, and found not true the special allegations that in the commission of the murder Price intentionally and personally discharged a firearm and that she caused great bodily injury or death to Merrill. The jury also found Price guilty of robbery, but found not true the special allegations that in the commission of the robbery she personally used a firearm, intentionally and personally discharged a firearm, and caused great bodily injury and death to Merrill.

In December 2013, the court sentenced Price to life in prison without the possibility of parole for the first degree murder conviction and to a concurrent five-year term for the robbery conviction, which it stayed under section 654.

III.

Brown’s Second Plea Agreement

After Price was convicted, the People reached another plea agreement with Brown, but one less favorable to her than the one they revoked after her testimony at the preliminary hearing.

DISCUSSION

I.

The People’s Prosecution of Price for First Degree Murder While Agreeing to Fells’s and Brown’s Pleas to Voluntary Manslaughter Did Not Violate Due Process.

Price’s primary argument is that the People’s prosecution of her for murder is both legally and factually irreconcilable with their agreement that Fells and Brown committed voluntary manslaughter, thereby violating Price’s rights to procedural and substantive due process. We disagree.

A. The People ’s Pursuit of Murder Against Price and Voluntary Manslaughter Against Fells and Brown Is Not Legally Irreconcilable.

According to Price, the voluntary manslaughter judgments against Fells and Brown are “legally irreconcilable with a finding [Price] conspired with or aided someone who shot Merrill with malice aforethought, express or implied, as required under any of the theories of murder advocated to [Price’s] jury.” By agreeing to these judgments, Price asserts, the People acknowledged “that [Merrill] was shot either because the shooter held an honest but unreasonable belief in the need to protect herself or another from deadly force, or because the shooter was provoked during a sudden quarrel or by the heat of passion.” This is incorrect.

1. Malice Murder and Voluntary Manslaughter Are Not Legally Irreconcilable.

Section 192 defines “[m]anslaughter” as “the unlawful killing of a human being without malice” and states “[i]t is of three kinds.” Subdivision (a) sets forth one kind: ‘“[v]oluntary—upon a sudden quarrel or heat of passion.” As Price points out, a defendant ‘“is guilty of voluntary manslaughter in ‘limited, explicitly defined circumstances: either when the defendant acts in a ‘“sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in ‘“unreasonable self-defense”—the unreasonable but good faith belief in having to act in self-defense.’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [96 Cal.Rptr.2d 451, 999 P.2d 675] (Blakeley).)

The People take issue with Price’s premise, which they describe as ‘“the assertion that it is impossible under California law to establish manslaughter without establishing provocation or unreasonable self-defense.” They argue that in People v. Rios (2000) 23 Cal.4th 450 [97 Cal.Rptr.2d 512, 2 P.3d 1066] (Rios)—decided within weeks of Blakeley—our Supreme Court rejected this premise. In Rios, the Supreme Court recognized that if murder is charged, a trial court must instruct on the lesser included offense of voluntary manslaughter if there is evidence of provocation or imperfect self-defense, but a court is not required to do so if there is not. (Rios, supra, 23 Cal.4th at p. 463, fn. 10.) However, where voluntary manslaughter only, and not murder, is charged, ‘“the prosecution is not further obligated to prove that the defendant was provoked or acted in an unreasonable effort at self-defense, thereby negating the possibility that the greater inclusive offense of murder was committed.” (Ibid.) The People rely on reasoning in Rios which indicates that facts that would support a conviction for ‘“the greater inclusive offense” of murder necessarily allow conviction of the ‘“lesser” offense of voluntary manslaughter. (Ibid.) In the People’s view there is no inconsistency between charging Fells and Brown with voluntary manslaughter and charging Price with murder, because anyone who commits murder necessarily also commits voluntary manslaughter, whether or not there is evidence of provocation or imperfect self-defense.

The People read too much into Rios, in which there was evidence of provocation and attempted self-defense. The Rios court was not required to address whether in the absence of any indication of such mitigating factors, a charge of voluntary manslaughter would have been appropriate. However, this issue is alluded to in a case relied on by Price, People v. Bryant (2013) 56 Cal.4th 959 [157 Cal.Rptr.3d 522, 301 P.3d 1136] (Bryant), for the proposition that voluntary manslaughter is committed only where there is either provocation or imperfect self-defense. In Bryant, our Supreme Court rejected that there may be voluntary manslaughter where malice is altogether lacking, and held that it requires intent to kill or conscious disregard for life. (Id. at p. 968.) It described ‘“the offenses that constitute voluntary manslaughter—a killing upon a sudden quarrel or heat of passion [citation], a killing in unreasonable self-defense [citation], and, formerly, a killing committed by one with diminished capacity” as ‘“united by the principle that when a defendant acts with an intent to kill or a conscious disregard for life (i.e., the mental state ordinarily sufficient to constitute malice aforethought), other circumstances relating to the defendant’s mental state may preclude the jury from finding that the defendant acted with malice aforethought.” (Id. at pp. 969-970.)

Whether the mitigating factors associated by statute and case law with voluntary manslaughter are necessarily implied in a plea agreement to that offense, as Price suggests, or entirely dispensable and therefore not implicated in such a plea, as the People contend, is not definitively answered by either Rios or Bryant. But these cases and no doubt myriad others provide indirect support for another, perhaps obvious, proposition: prior to trial, the evidence available to the People in a particular case may support both a malice murder theory and a voluntary manslaughter theory. In both Rios and Bryant, a single defendant was charged with malice murder and voluntary manslaughter as alternative theories. In other words, the possibility, particularly given that prior to trial the prosecution is not privy to all the evidence the defense might present, that there may be evidence of provocation or imperfect self-defense does not preclude the prosecutor from charging and trying the defendant on alternative theories of malice murder and voluntary manslaughter. The fact that the People routinely charge both offenses strongly suggests that malice murder and voluntary manslaughter are not inherently legally inconsistent. And indeed, they are not. Voluntary manslaughter is a lesser included offense of murder, both require intent to kill or conscious disregard for human life (Bryant, supra, 56 Cal.4th at pp. 968, 970), and the only difference between them is whether the defendant can prove the mitigating facts of provocation or unreasonable self-defense. As the Rios court observed, ”[t]he possibility that the defendant killed with malice, and thus committed the greater offense of murder, does not prevent a conviction of voluntary manslaughter, a lesser included offense which does not require proof of malice.” (Rios, supra, 23 Cal.4th at p. 463.)

2. Felony Murder and Voluntary Manslaughter Are Not Legally Irreconcilable.

Unlike this case, neither Bryant nor Rios involved felony murder. Felony murder differs from both malice murder and voluntary manslaughter in significant ways. It entails commission of an inherently dangerous felony, requires no proof of intent or conscious disregard of life, and renders irrelevant defenses that mitigate malice such as provocation or self-defense. (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872], overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1197-1201 [91 Cal.Rptr.3d 106, 203 P.3d 425]; People v. Loustaunau (1986) 181 Cal.App.3d 163, 170 [226 Cal.Rptr. 216].) Voluntary manslaughter thus is not a lesser included offense of felony murder. (See Loustaunau, at p. 170 [trial court properly limited instruction on voluntary manslaughter as lesser included offense to murder theories other than felony murder].)

Here, Fells and Brown both pled guilty to robbery and involuntary manslaughter, which Price insists is inconsistent with her prosecution for robbery and murder. We start from the premise that it is legally possible for a person (such as Fells or Brown) to have committed a felony and an intentional homicide without necessarily having committed felony murder because, as the jury was instructed in this case, felony murder requires a homicide that occurs while committing or attempting to commit the felony and there must be a logical connection between the two. (People v. Cavitt (2004) 33 Cal.4th 187, 200-201 [14 Cal.Rptr.3d 281, 91 P.3d 222].) Again, the prosecution may not know prior to trial all of the circumstances surrounding the commission of a felony, such as robbery, and a homicide. Thus, it is not unusual for a jury to be instructed on both theories of felony murder and malice murder (with or without the lesser included offense of voluntary manslaughter) in the same trial. (See, e.g., People v. Friend (2009) 47 Cal.4th 1, 55 [97 Cal.Rptr.3d 1, 211 P.3d 520]; People v. Dillon (1983) 34 Cal.3d 441, 462 [194 Cal.Rptr. 390, 668 P.2d 697]; People v. Morgan (2007) 42 Cal.4th 593, 616-617 [67 Cal.Rptr.3d 753, 170 P.3d 129].)

In short, we conclude the plea agreement to voluntary manslaughter that the People made with Fells and Brown on the one hand and the murder verdict the People pursued against Price on the other are not legally irreconcilable. Therefore, Price must establish inconsistency in the factual bases for the People’s actions as the foundation for her inconsistent judgments claim. We turn our attention now to this issue.

B. The People ’s Prosecution of Price for Murder After Agreeing to Fells ’s Plea to Voluntary Manslaughter Did Not Violate Due Process.

1. Defendant Does Not Establish the People Took Factually Inconsistent Positions with Fells and Price.

Defendant does not establish the People took factually inconsistent positions with Fells and Price. This is because she largely disregards that we must evaluate the factual basis for the People’s conduct based on what they knew when. The evidence available to the People against Fells before their plea agreement was largely circumstantial, and was significantly weaker than the evidence available to the People against Price after their plea agreement with Fells. A closer examination of this evidence indicates the People did not take factually inconsistent positions with Fells and Price.

The People’s plea agreement with Fells, pursuant to which she admitted to voluntary manslaughter, robbery and supplying a weapon for commission of a felony (§ 12022), was entered into about August 2010, before a trial or even preliminary hearing had taken place. By this time, to be sure, the police had thoroughly investigated the case and interviewed numerous witnesses, but defendants were the only eyewitnesses to Merrill’s shooting. Fells and Brown gave statements to police in which they admitted their involvement and said Price was the shooter, but their stories changed over time and they could not be forced to testify against themselves.

There was circumstantial evidence that Price and Brown had travelled in the Dardens’ car to San Francisco and returned to Pittsburg with Merrill, but there was no evidence they had forced him to do so. Similarly, Price had possession of Merrill’s iPhone prior to the homicide, but there was no evidence that she had used force to obtain it in the first instance. There was circumstantial evidence that Merrill was shot at Marina Walk Park, that Brown later unlocked and reactivated his iPhone, and that Price ended up using that phone. But there was no evidence linking the three to Merrill’s missing wallet or cash. In other words, without testimony from Fells and/or Brown, the People’s evidence that they either robbed Merrill and killed him in the course of doing so was entirely circumstantial, and its case against Price was murky.

Moreover, the People’s evidence against Fells in August 2010 suggested Fells would not be without a defense, thereby creating the risk that she would be acquitted of any or all of the offenses with which she was charged. Thus, their agreement with Fells (and their initial agreement with Brown) had two effects: it secured a conviction of Fells for which there appeared to be sufficient evidence and it strengthened the case of robbery and murder, especially felony murder, against Price.

Further, the evidence available to the People in August 2010 was significantly weaker against Fells than against Price. First, it tended to show Price had a more culpable mental state than Fells, with the result that the case against Price for malice murder was stronger. This was indicated in the text messages between Fells and Price shortly after the killing, which strongly implicated Price, and not Fells, as the shooter. Further, Price texted she knew what she was doing and that it needed to be done, tending to show she intended to kill. On the other hand, the text message conversation indicated Fells was angry with Price for shooting Merrill; coupled with Edosa’s statements about Fells’s reaction to what had happened upon her return home, this tended to show Fells was surprised and upset by the shooting, suggesting she did not have an intent to kill.

Second, the evidence indicated that Fells was not present with Brown and Price until moments before the shooting, and certainly not when the two went to San Francisco, got Merrill, first obtained possession of his iPhone and returned to Pittsburg with him in the backseat. This evidence included Edosa’s statements and was corroborated by the repeated unanswered phone calls made from Merrill’s iPhone to the phone Fells shared with Edosa.

Third, unlike Price and Brown, Fells was not found with the iPhone or any other items belonging to Merrill. Price, by contrast, used the iPhone after the homicide and was found in possession of it. She also reported to Brown’s stepfather, Wilks, that she got the phone in “a little lick.”

Fells’s own statements, not surprisingly, were also self-exculpatory. She told police and later testified that she was intoxicated and asleep when Price came and suggested she ‘“take a ride with her,” did not know where they were going or what they were doing, and did not participate in the robbery or receive anything from it.

Given the evidence available to the People in August 2010, Fells could plausibly have denied being part of any conspiracy or having any intent to rob or kill Merrill. And, while she had told police she gleaned that a robbery was afoot when they all got out of the car at the park and assumed she was expected to serve as lookout, she denied talking about any of this with the others beforehand; thus, she could have plausibly denied at trial that she intended to, agreed to or in fact did aid and abet the robbery. Had the jury believed her, she could have been acquitted of both robbery and murder.

Of course, Fells admitted to having been present at the scene. Edosa conceivably might have been persuaded to testify against Fells. And Fells had texted Price and chastised her for doing too much. Some of this evidence conceivably could have been used in a murder trial against Fells. Of course, the gun belonged to Fells, who was aware that Price brought it with them in the car on the drive to the park; but Fells did not tell the police the gun used to shoot Merrill was hers until they had tentatively entered a plea agreement, and without that agreement the People might not even have learned, much less have been able to prove, that the gun belonged to Fells.

Indeed, as the People point out, ‘“it was wholly within the realm of possibility that Fells could claim that no robbery was ever intended, that the four occupants of the car were all on wonderful terms until the last moment, and that, at minimum, a sudden quarrel resulted in a provoked shooting, or in a shooting in unreasonable self-defense.” Had Fells done so, given her denial of involvement in the robbery and the lack of direct evidence tying her to it, it was possible that a jury would have found her guilty at best of voluntary manslaughter. However, such a defense was considerably less likely to assist Price because of the evidence that she robbed Merrill. That made her vulnerable to a conviction for felony murder, for which provocation or imperfect self-defense would not provide any mitigation. By entering the plea agreement with Fells, the People secured a homicide conviction against Fells as well as a robbery conviction. They also obtained Fells’s eyewitness testimony, which corroborated what was otherwise a circumstantial evidence case that Price intended to and did rob and kill Merrill.

There is a tension between Fells’s admission to robbery and supplying a weapon during commission of a felony, on the one hand, and to voluntary manslaughter, on the other. However, it is possible to conceive of a scenario in which these offenses make sense together based on the evidence and risk known to the People in August 2010. If, for example, Fells had provided the gun to Price when she first came to Edosa’s house knowing Price intended to rob someone, and Price had used the gun to rob Merrill of his iPhone, and if there had been no further robbery at the park, Fells could be convicted of robbery and supplying a weapon without being convicted of felony murder. And if Fells then accompanied Price and Brown to the park expecting they would just leave Merrill there and Merrill had then been shot in imperfect self-defense, there could also be voluntary manslaughter. To be sure, this is speculative, but many specifics about what happened were unclear in August 2010. The People could not have known precisely how the events unfolded in the early morning hours of November 3, 2009, without Fells’s cooperation, and could not predict what defenses Fells or the other defendants would present at trial.

We do know the People faced significant challenges in trying Fells for malice murder, and perhaps lesser but still significant challenges in trying her for robbery and felony murder. By pleading her to a lesser count for the homicide and to robbery with the added charge of supplying the weapon, the prosecutor was entering a compromise in which he accepted reduced charges for a defendant against whom his case was weaker for certain punishment of that defendant and testimony that would strengthen his case against Price, the defendant who appeared more culpable.

Price argues that the plea agreements with Fells and Brown constituted an admission by the assistant district attorney that “any malice harbored by Merrill’s shooter was mitigated by circumstances wholly inconsistent and irreconcilable with the crime of murder.” By advocating that Price shot Merrill with malice, she contends, he was representing that circumstances he admitted were present in Fells’s case were not present in Price’s. We disagree for two reasons.

First, Price cites no case holding that a prosecutor who enters a plea agreement is admitting to a specific version of the events relating to the crime, from which he cannot vary in cases against codefendants thereafter. We find no support for this proposition, and conclude that the law supports the opposite conclusion. In People v. Superior Court (Sparks) (2010) 48 Cal.4th 1 [104 Cal.Rptr.3d 764, 224 P.3d 86] (Sparks), our Supreme Court held that the acquittal of one participant in a crime does not collaterally estop the People so as to preclude them from pursuing a verdict against other participants in the same crime. (Id. at p. 5.) The same rule applies where one of multiple coparticipants is convicted of a lesser offense; such a conviction does not bar trial of another participant for the charged offense. (See People v. Rose (1997) 56 Cal.App.4th 990, 992-994 [65 Cal.Rptr.2d 887] [coperpetrator no contest plea to misdemeanor petty theft did not bar prosecution of defendant for felony second degree burglary and felony petty theft].)

Second, the People’s plea agreement with Fells gave them significant additional evidence that they would not have had to use against Fells, but could use against Price. As the court noted in Sparks, “sometimes evidence is available in one case against one defendant that is not available in another case against another defendant.” (Sparks, supra, 48 Cal.4th at p. 11; see also People v. Wilkins (1994) 26 Cal.App.4th 1089, 1095-1096 [31 Cal.Rptr.2d 764] [where aider and abettor’s confession admissible against him but not perpetrator, acquittal of perpetrator did not collaterally estop prosecution from convicting aider and abettor].) Certainly, that is the case here. And Fells’s eyewitness testimony indicating that Price robbed and killed Merrill at the same time in the park strengthened the People’s previously circumstantial case against Price. In short, we conclude the People’s factual basis for their plea agreement with Fells was not factually irreconcilable with their factual contentions against Price, but simply was different.

2. Any Factual Inconsistency in the People ’s Positions with Fells and Price Was Justified by the Different Evidence and Risk at the Time of Fells’s Plea and Price’s Tried.

Even if the People took factually inconsistent positions in Fells’s plea agreement and at Price’s trial, they were justified in doing so.

Price, of course, argues otherwise, relying most heavily on In re Sakarias (2005) 35 Cal.4th 140 [25 Cal.Rptr.3d 265, 106 P.3d 931] {Sakarias), the seminal (and most recent) California Supreme Court exposition of the law governing due process challenges based on inconsistent judgments. There, two habeas corpus petitioners, each convicted of first degree murder and sentenced to death for their joint attack on the same victim, argued their prosecutor used factually inconsistent theories in their separate trials in violation of their due process rights. (Id. at pp. 144-145.) The evidence showed both had participated in the fatal attack, perpetrated with a hatchet and a knife. (Id. at p. 144.) Both complained that the prosecutor “inconsistently and falsely portrayed their respective roles in the attack, attributing to each, in their respective trials, a series of three blows struck to the victim’s head with the blade of the hatchet.” (Id. at pp. 144-145.) By doing so, the prosecutor was able to “establish an aggravating circumstance of the crime ( ... § 190.3) on the basis of which the jury was urged to sentence each defendant to death.” (Id. at p. 160.)

The Sakarias court held that the prosecutor prejudicially violated Sakarias’s due process rights by intentionally and without good faith justification attributing to both defendants acts that could only have been committed by one person, who likely was petitioner Waidla. (Sakarias, supra, 35 Cal.4th at p. 145.) In other words, “[b]y intentionally and in bad faith seeking a conviction or death sentence for two defendants on the basis of culpable acts for which only one could be responsible, the People violate ‘the due process requirement that the government prosecute fairly in a search for truth ....’” {Id. at p. 160.) Sakarias thus did not hold that inconsistent factual contentions by a prosecutor in separate cases against the defendants who participated in a common crime necessarily present a due process problem. (See id. at p. 162.) Rather, the court held only that “the People’s use of irreconcilable theories of guilt or culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for— and, where prejudicial, actually achieves—a false conviction or increased punishment on a false factual basis for one of the accuseds.” (Id. at pp. 159-160, italics added; see id. at pp. 157-159.)

Further, the Sakarias court observed that “a significant change in the available evidence might, under some circumstances, warrant the use of an inconsistent prosecutorial theory in a subsequent trial.” (Sakarias, supra, 35 Cal.4th at p. 162.) The court distinguished between a change in the evidence available and a “deliberate strategic choice” to “manipulat[e]” the evidence, as occurred there, so as to attribute to two defendants, and thereby increase the punishment for both, acts that could only have been committed by one. (Ibid.) It also held that a defendant is entitled to relief only if the inconsistency prejudiced him—at least where the probable truth of the situation can be determined. (Id. at p. 164.) The court thus held Sakarias was entitled to relief but Waidla was not, since the evidence indicated Waidla was the killer. (Id. at pp. 165, 167, fn. 9, 168.)

Sakarias establishes three elements must be present before an inconsistency in a prosecutor’s contentions against persons who jointly commit criminal acts will rise to the level of a due process violation: (1) the prosecution used inconsistent and irreconcilable theories either to convict or obtain a harsher sentence; (2) the inconsistency is not justified by a good faith reason; and (3) the inconsistency achieved a false conviction or increased punishment based on false factual assertions for one of those accused.

Here, Price contends there was misconduct because “the District Attorney had all the evidence to prosecute all three women for whatever offense he believed they committed when he made the deal with Fells.” This is inaccurate in at least two respects: first, as we have discussed, the case was largely circumstantial until the plea agreement with Fells was made, at which point the prosecution had direct evidence in the form of Fells’s testimony; and second, the evidence about what happened the night of the killing was to some extent inchoate.

Price further argues that ‘“[i]f the evidence showed Merrill was killed in a sudden quarrel or in unreasonable self-defense as the prosecutor represented to the court seeking approval of Fells’s plea, then using Fells’s willingness to inculpate appellant for first degree robbery murder was an abuse of executive power.” The People’s conduct, Price claims, ‘“manipulated evidence, coopted the judiciary and vitiated the truth-finding aspect of the trial process, turning it into a costly game of chess.” Again, we disagree. The evidence the prosecutor had at the time of Fells’s plea agreement did not definitively establish only one crime or set of crimes to the exclusion of all others for all defendants. There was evidence that could support criminal charges on multiple theories depending on the defendant, and precisely how that evidence would come in at any trial was not entirely knowable. For example, the evidence indicated that the roles and mental states of the defendants were not necessarily the same. Thus the entry of a plea agreement with Fells on one theory followed by a trial of Price on another theory does not prove ‘“manipulation” or other prosecutorial misconduct.

This case is nothing like Sakarias, in which at the trial of the second defendant the prosecutor withheld evidence he had offered at the trial of the first defendant so as to convince both juries that their defendant and not the other had delivered the fatal blows. Notably, Price does not claim the People withheld evidence from her trial. For example, she does not contend the evidence supported a defense of provocation or self-defense, or that the prosecution believed it did. Indeed, Price made no attempt to assert such a defense theory, and her counsel specifically disavowed self-defense. Nor did she request an instruction on voluntary manslaughter as a lesser included offense of malice murder. As Rios indicates, it was not the People’s burden to assert or prove provocation or self-defense, it was defendant’s, and Price made no attempt to do so.

Nor has Price demonstrated that the People knowingly proffered false evidence at her trial. She implies that Fells’s trial testimony was false or used unfairly because it conflicted with her plea and ‘“unfairly persuaded appellant’s jury of an unreliable verdict in violation of her right to due process.” This is incorrect. As we have discussed, both voluntary manslaughter and murder involve intentional killing or killing in conscious disregard of life. Further, the evidence against Fells at the time of her plea agreement indicated a robbery could have occurred without there being felony murder. As we also have discussed, the People did not by entering into that plea agreement concede Merrill was killed with provocation or in imperfect self-defense or that there was no robbery (or that Fells did not participate); rather, the plea agreement was an acknowledgement that Fells might convincingly assert such defenses on her own behalf.

Given the absence of inconsistency and of prosecutorial misconduct, we reject Price’s claim of prosecutorial misconduct related to the People’s plea agreement with Fells.

C. The People ’s Prosecution of Price for Murder and Agreement to Brown’s Voluntary Manslaughter Plea Did Not Violate Due Process.

We turn now to Brown’s second plea agreement, which was made after Price’s trial. Even then, the People’s case against Brown, for different reasons than Fells, was less strong than the case against Price and not necessarily inconsistent. There was no evidence indicating Brown was the shooter or connecting her to the gun used to kill Merrill. And nothing indicated Brown was aware either that Fells owned a gun or that Price had brought one to the park. The absence of evidence showing Brown was aware of the gun made it less likely she could be convicted of malice murder (including aiding and abetting or conspiracy to murder). Further, unlike Price, whose text messages to Fells provided grounds for inferring intent to kill, the People’s case against Brown on the felony-murder special circumstance was less compelling.

On the other hand, the felony-murder case against Brown was fairly strong. Besides Fells’s