Riverside County Super. Ct. No. CR 57524. Judge: Robert J. McIntyre.
The opinion of the court was delivered by: Corrigan, J.
Defendant Michael Lamar Bramit was sentenced to death after a jury convicted him of first degree murder and found that he personally used a firearm in the commission of the crime. The jury also found true the special circumstance that the murder occurred in the course of a robbery.*fn1 This appeal is automatic. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant does not contest the facts pointing to his guilt, nor did he do so below.*fn2 Several witnesses saw him murder Jose Fierros. Their testimony was corroborated by his extra-judicial statements, the admissibility of which he did not challenge. Therefore, the facts establishing defendant's guilt are stated briefly.
Around midnight on June 14, 1994, victim Fierros parked at a minimart in Banning, where two prostitutes separately propositioned him. However, after Fierros drove each of them away from the parking lot, he said he had no money and returned to the minimart with them.
Another prostitute, Rebecca Johnson, then got into Fierros's car. As they drove away, defendant and Anthony Miller, both of whom Johnson knew from previous drug transactions, ran toward the car and yelled at her. When Fierros stopped, defendant and Miller got into the backseat. Defendant put a gun to Fierros's head, saying, "If you move, I'll blow your fucking head off." As Miller rifled through Fierros's pockets, defendant hit Fierros in the head with the gun. Fierros struggled as defendant and Miller continued to beat him. Finally, Miller told defendant, "Man, shoot this fool. He ain't got no money." Whereupon defendant shot Fierros and left him to die in the street. Defendant fled on foot, while Miller and Johnson escaped in Fierros's car. Later, defendant asked Johnson to retrieve Fierros's radio from the stolen vehicle.
Two other witnesses saw the shooting and heard Fierros beg for his life as defendant demanded his money. An autopsy established that Fierros died from a gunshot wound to his chest, and had been badly beaten on the head.
After waiving his Miranda*fn3 rights orally and in writing, defendant made a series of increasingly inculpatory statements to the police, which were audiotaped. Initially, he denied any involvement, saying that he was not even at the scene. Later, he said that Miller asked for his gun, but when refused, Miller drove away with Fierros and Johnson. Finally, defendant admitted he shot Fierros, but claimed he "meant to hit him, but not kill him." The shooting had been necessary, he asserted, because Fierros was resisting them with "superhuman strength," while defendant could fight with only one arm because of old gunshot wounds.
Defendant also claimed that he had been angry at his mother and had vented his displeasure on Fierros. His mother was a crack cocaine addict whom he had been trying to reform, so that she could "be there" for him and his siblings. That day he had caught her using drugs again. Shooting Fierros was defendant's way of "dealing with family problems." He had not intended to kill Fierros, but Fierros "was in the wrong place at the wrong time when my homeboy was taking care of his business." During a recess, defense counsel, noting that the audiotapes of defendant's statements were being played for the jury, stated that he wished the record to clearly reflect that he was not objecting to their admission, either on voluntariness grounds or "possible Miranda violations." The court inquired, "You believe tactically that it benefited your client?" Defense counsel responded, "Yes." The court and counsel were apparently referring to the fact that defendant's extra-judicial statements permitted counsel to attempt to mitigate his guilt without subjecting him to cross-examination.
Defendant did not present evidence in the guilt phase.
a. Victim Impact Testimony
Evangelina Lozoya lived with Fierros for seven years before his murder. He was the father of her daughter Eva, and filled a paternal role for her other five children. His death affected the entire family. Eva Lozoya, age 10, testified the death made her "feel bad." Fierros was the only person that William Lozoya, age 14, knew as a father, and they enjoyed a good relationship. William testified the family was "no longer happy without him." Corine Lozoya, age 16, described Fierros as a "good father."
The victim's father and two of his brothers also testified to the impact of his death. Fierros was born in Morelito, Mexico, and was one of seven siblings. The impoverished family lived in a one-room house, worked in the fields, and supplemented their income by making sombreros. Fierros was very good to his family. He came to the United States to earn money to pay for his mother's medical bills. The entire family mourned his death. His father felt "that the sky and the earth closed upon me."
b. Evidence of Defendant's Other Crimes
In 1988, when defendant was 12 years old, he admitted to a deputy sheriff that he and another boy had placed two BB pistols in another student's locker. In 1991, defendant tried to punch another student. Instead, he hit a campus supervisor who was trying to separate the youngsters. Also in 1991, defendant and another teenager demanded a pizza that Gerardo Laura was delivering. When Laura refused, the boys said, "What if we hit you?" Frightened, Laura handed over the pizza.
ii. Assault on His Mother
Kathryn Cole was called by the prosecution as an adverse witness. Before trial she told a district attorney's investigator that in 1993 she had seen defendant argue with his mother and strike her in the mouth. At trial Ms. Cole, who considered defendant a son, admitted making the statement, but maintained defendant's blow was accidental.
After Fierros's murder, defendant remained at large for 10 months. During this time he committed eight bank robberies and tried to commit a ninth.
iii. Robbery of Riverside National Bank
Defendant pleaded guilty to the August 19, 1994 robbery of a Riverside National Bank branch. Defendant pointed a pistol at teller Tina Paul and screamed that he would kill her unless she gave him her money. Paul pleaded that she had no money in her cash drawer, but defendant continued to scream that he would "blow her fucking head off." Teller Patricia Calvert recognized Paul's plight and gave defendant $5,187 from her drawer. Paul and Calvert identified defendant. Robert G. Chapman, a special agent with the Federal Bureau of Investigation, testified that defendant admitted the robbery, but denied using a gun.
Ms. Paul testified to the lasting impact this experience had upon her. "After it happened, I was afraid to be home alone. Noises that I heard, people just playing in the street or whatever made me remember." She continued: "I can't hear loud notices [sic]. Sometimes like my sister will be downstairs and if she makes a loud noise it makes me jump, because I don't know what's happening."
A customer, Virginia Rodriguez, also testified to the lasting impact of the incident. Mrs. Rodriguez was in the bank with four of her children. Her husband was parked outside with their other two children. The two robbers were black men, who pointed guns at everyone. Mrs. Rodriguez tried to leave, but one of the robbers stopped her. Mrs. Rodriguez and her children, ranging in age from nine to 16, were very frightened. She became even more concerned after the robbers fled because she could not initially find her husband and feared that he had been taken hostage. It just affected me a lot because people who are black, I don t have as much confidence in them. Sometimes I see black people near me and I move away from them because I think it s bad.
iv. The First Bank of America Robbery
Defendant also pleaded guilty to the September 9, 1994, robbery of a Bank of America branch in Corona. He threatened to shoot teller Edson Lalone unless he filled a manila envelope with large-denomination bills. He kept his right hand in his pocket, and Lalone assumed he had a gun. Defendant and a female companion ran from the bank with $8,100. According to Agent Chapman, defendant admitted robbing a bank in Corona with Latrina Howard. Howard confirmed that she had been with defendant during the robbery.
Mr. Lalone saw a psychologist after the robbery, and was afraid that defendant would "come back after me."
v. Attempted Robbery of Riverside National Bank
Defendant pleaded guilty to the attempted robbery of a second branch of the Riverside National Bank, again accompanied by Latrina Howard. When defendant told teller Elena Satalan he was robbing her, she explained that she did not have her cash box because she had been working at the drive-up window. Defendant said, "I have a big fucking gun and I'll blow your fucking head off." The standoff continued for several minutes before defendant and Howard fled.
Ms. Satalan was scared "[e]ven now." She still worked at the bank, but found it frightening to do so.
vi. Robbery of the Chino Valley Bank
On January 9, 1995, defendant robbed the Chino Valley Bank. Defendant asked teller Rita Lambert to change a $50 bill. When Lambert opened her cash drawer, defendant lifted his shirt, displaying a gun in his waistband, and demanded all of her money. He fled with $2,950. Lambert and another teller identified defendant.
Ms. Lambert had worked at the bank for six years, but no longer did so. She had been present during other robberies, but said this one "hit too close to home." She added: "I didn't realize it until now, and I hate that I feel this way, but I get very uptight and nervous when I see somebody [who] is young and black."
vii. The Second Bank of America Robbery
On January 17, 1995, defendant robbed another Bank of America branch. Saying he had a gun, defendant pushed a brown paper bag at teller Jenny Franco and demanded large-denomination bills. He took $3,720. Franco identified defendant in a photographic lineup and during the penalty phase.
According to Ms. Franco, the robbery "changed my life." On the one hand, it made her "more grateful for each day 'cause you never know what someone can do to you." On the other hand, she suffered from "paranoia" whenever customers approached her window. She felt compelled to continue working at the bank until she completed her schooling.
viii. Robbery of City Bank
On February 16, 1995, defendant took $1,671 from City Bank, saying to the teller: "This is a robbery. Hurry up or else I'm going to kill you." The teller identified defendant, who also admitted the robbery to Agent Chapman.
ix. Robbery of Rancho Bank
On February 22, 1995, defendant robbed a Rancho Bank branch. Teller Melissa Duke saw defendant at Lisa Johnson's window. He kept looking around the bank as Johnson emptied her excess cash drawer. Duke set off the alarm shortly before defendant took $5,920. Defendant was identified by Duke, and admitted the robbery to Agent Chapman.
x. Robbery of Union Federal Bank
Two bank employees tentatively identified defendant as the robber of a Union Federal Bank branch on March 13, 1995. The robber asked teller Sheva Abidian to change a $20 bill, but then demanded all her large-denomination currency. Abidian gave him $1,607. Branch financial manager Stuart Sprenger saw the robber leave the bank. Asked whether defendant was the robber, Abidian testified that he "could be," and Sprenger said he "believed" so.
xi. Robbery of Sanwa Bank
On April 7, 1995, defendant robbed a Sanwa Bank branch. After asking teller Anthony Deku to change a $20 bill, he took out a sack and demanded that Deku fill it with cash. When Deku hesitated, defendant, who had his left hand in his pants pocket, said, "you better fill it up, Brother, or I'll shoot you." Defendant left with $2,711. Deku failed to identify defendant in court. However, two other tellers identified defendant before and during this trial. Moreover, defendant admitted the robbery to Agent Chapman.
Latrina Howard, defendant's girlfriend and accomplice in two of the bank robberies, testified pursuant to a plea bargain. Defendant often hit Howard and pulled a gun on her approximately 20 times. During an argument over what to watch on television, defendant pointed a pistol at Howard's brother. On another occasion, Howard had to talk defendant ...