Santa Barbara C ounty Super. Ct. Nos. SM 103236; SM 101161 Court: Superior County: Santa Barbara Judge: Rodney S. Melville.
The opinion of the court was delivered by: Moreno, J.
On June 3, 1998, a jury found defendant Tommy Jesse Martinez guilty of the rape, robbery, and murder of Sophia Castro Torres. (Pen. Code, §§ 261, subd. (a)(2), 211, 187.)*fn1 The jury found true the special circumstance allegations of rape and robbery and further determined that defendant personally used a knife, a deadly and dangerous weapon, in committi ng the crimes against Sophia. (§§ 190.2, subd. (a)(17)(A), (C), 12022, subd. (b).)
The jury also found defendant guilty of assaulting three other women. The jury found defendant guilty of assaulting Maria M. with a deadly weapon, assaulting her with the intent to commit rape, kidnapping her for robbery, and kidnapping her with the intent to commit rape and oral copulation. (§§ 245, subd. (a)(1), 220, 261, subds. (a)(2) & (2), 209, subd. (b), former 208, subd. (d).) The jury further determined that defendant personally used a knife, a deadly and dangerous weapon, in committing the crimes against Maria. (§ 12022, subd. (b).) The jury found defendant guilty of assaulting Laura Z. with the intent to commit rape and that he used a knife, a deadly and dangerous weapon. (§§ 220, 261, subd. (a)(2) & (2), 12022, subd. (b).) The jury found defendant guilty of assaulting Sabrina P. with a deadly weapon, assaulting her with the intent to commit rape, and attempting to kidnap her with the intent to commit rape and also found that defendant used a knife, a deadly and dangerous weapon in the offenses. (§§ 245, subd. (a)(1), 220, 261, subd. (a)(2) & (2), 664, former 208, subd. (d), 12022, subd. (b).) The jury found that defendant was not guilty of attempting to kidnap Sabrina for robbery, but was guilty of the lesser offense of attempting to kidnap her. (§§ 664, 207; 664, 209, subd. (b).)
After a penalty trial, on June 23, 1998, the jury returned a verdict of death. The court denied a motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).)
1. The Prosecution's Case
a) The crimes against Sophia Torres
Sophia Torres was born in Mexico in 1961 and moved to Arizona when she was 23 years old. Around 1994, because she had broken up with her longtime boyfriend, Sophia moved to Santa Maria, California, where three of her sisters lived. Approximately eight months later, she moved back to Arizona and learned that her ex-boyfriend had been shot and killed. She returned to Santa Maria in October 1995.
Sophia, who had been a hard-working and outgoing person, was deeply affected by her boyfriend's death and became withdrawn and reclusive. She did not have any boyfriends and was described as a loner who did not use alcohol or drugs. She worked odd jobs and was homeless, living mostly in a shelter, but she remained a very neat and clean person.
At one point, she briefly worked as a bartender at the Tres Amigos bar in the La Joya Plaza, but was let go after two weekends because she was "very meek" and "too inhibited" to be a bartender. While she worked there, she never drank, and, after she was let go, she never came back to the bar as a patron or to socialize.
In the week before her murder, Sophia stayed with a friend of her sisters', Ofelia Francisco. According to Mrs. Francisco, Sophia kept to herself. Sophia's routine was to leave the house around 8:30 or 9:00 a.m. and return around 9:00 or 10:00 p.m.
On the morning of November 15, 1996, Sophia left Mrs. Francisco's home at around 9:00 a.m. She was wearing a long blue jacket over a long black dress and was carrying her purse. As she usually did, Sophia stopped at the local Salvation Army where she sat alone and had lunch.
At some time around 10:30 or 11:00 p.m. that night, *fn2 Sophia was assaulted and killed in a baseball field in Oakley Park, a few blocks south of Mrs. Francisco's home.
At 11:07 p.m., at a pay phone in La Joya Plaza, several blocks south of the park, an anonymous male dialed 911 and reported that "a lady" was being attacked in Oakley Park with baseball bats by "two Black girls" who were "kinda heavy set." When the 911 dispatcher realized the location of the pay phone, she asked the caller why he had called so far away from the scene, but the caller hung up. The call was recorded.
At 11:08 or 11:09 p.m., Santa Maria Police Officer Louis Murillo arrived at Oakley Park in response to the 911 call. Due to the poor lighting conditions, Officer Murillo drove into the park to investigate. Using his patrol car's lights, he noticed a female lying on the ground near the snack bar. There was fresh blood all around her and he called for an ambulance. He checked for vital signs and did not find any.
Because the grass had been wet, fresh bicycle tracks were visible on the grass between the snack bar and a large tree, leading to the street.
Based upon the location of personal items and blood spatter marks found at various places at the park, it appeared Sophia was attacked multiple times as she tried to flee her attacker. At the bleachers on the third base side of the baseball diamond, police found a fingernail file, toothbrush, and pencil that may have come from Sophia's purse.*fn3 On the bleachers, there were also long strands of black hair that could have belonged to Sophia. Behind home plate, in the walkway between the backstop and the snack bar, there was blood spatter on the wall of the snack bar. Blood spatter in the bleachers on the first base side of the diamond indicated that Sophia had run into those bleachers. It appeared that Sophia had run under the bleachers and stopped at one end, as the blood spatter there was consistent with someone standing still and bleeding downward. The area where Sophia's body was found was a section of concrete near the snack bar. She was lying on her back, with her long dress hiked up above her knees. There was a large amount of blood on the ground around the victim and a larger pool of blood a few feet away, indicating that she had lain in that spot for some time and bled. There was a palm print next to this pool of blood.
Sophia's body had multiple bruises with crush-type lacerations consistent with having been hit with a smooth, blunt object like a baseball bat. The ring and little fingers of Sophia's right hand were swollen and bruised, as if her hand had been hit while fending off her attacker. She had a large bruise to her left breast area and over her left hip. The left side of her head was swollen and bruised, as if hit repeatedly by a blunt object. Her nose was broken, with bone fragments protruding through her skin, and the bridge of her nose was indented and had sunk inward due to a large crush-type laceration. Her right ear was bruised, with a small, crush-type laceration. Although her skull was otherwise intact, her brain had swollen to the point of flattening out in some areas, as opposed to having a normal wrinkled appearance. The coroner concluded that Sophia died due to blunt force trauma to the left side of her head, which caused cerebral contusions with acute subarachnoid and subdural hemorrhage.
On the right of Sophia's face, extending from the hairline of the temple to her cheek, was a very deep and sharp-cut laceration measuring three and a half or four inches long, three-quarters of an inch wide, and almost as deep. The wound was consistent with having been inflicted by a knife. She also had relatively minor cuts to her left hand and right elbow and had abrasions to both knees.
Sophia had no bruising, no tearing, and no trauma to her vagina, but the pathologist, Dr. Robert Failing, believed that the lack of such injuries did not rule out the possibility of sexual assault. Sperm was detected on Sophia's dress and on vaginal swabs taken from her. Subsequent DNA analysis of the vaginal swabs identified a match with a blood sample obtained from defendant. The DNA profile recovered from the vaginal swab occurs at an expected frequency of one in 2.2 million persons, or one in 3.75 million Hispanics.
At the time of her death, Sophia did not have any alcohol or drugs in her system.
1) The assault on Maria M.
Two weeks before Sophia's murder, on November 3, 1996, Maria M., then age 16, was walking to work at a nearby discount mall in La Joya Plaza, taking her usual shortcut through an alleyway. As she exited the alley and entered a pedestrian walkway into the mall property, a man she later identified as defendant grabbed her from behind with one arm and held a knife blade against her neck with his other arm. Maria tried to pull away, but defendant held her tighter, grabbed her by her hair, and pulled her about 180 feet back into the alleyway. Defendant untied her shirt and tried to take off her belt and unzip her pants. When Maria asked what he wanted, defendant replied, "I want you. I want to mark your beautiful face."
Maria believed that defendant wanted to rape her. Defendant tried to kiss her and his breath smelled like "[c]hocolate with peanuts, like a Snickers bar." As Maria continued to struggle, a young man appeared in the alley and yelled at defendant. Defendant pushed Maria away from him, but then punched her in the face. Defendant then ran off. The young man came to Maria's aid and called the police. Maria later realized that her pager was missing.
One month later, Maria identified defendant as her attacker when police presented her with a six-person photographic lineup that included a picture of defendant. Maria was 100 percent certain that the photograph was of her attacker.
2) The Assault on Laura Z.
Just over two weeks after Sophia's murder, on December 2, 1996, about 6:15 p.m., Laura Z. was leaving her job at a department store in the Town Center mall in Santa Maria. As she walked toward her truck, which was parked in the mall's parking structure, Laura noticed defendant standing on the side of the ramp, leaning against a wall. After Laura got inside her truck and closed her door, she saw defendant running behind her. Laura reacted by immediately locking her door, just before defendant reached it and tried lifting the truck's door handle. Defendant looked from side to side, as if he was surprised that the door was locked.
Defendant then pointed to his wrist and asked Laura what time it was. She replied, "I don't know." Defendant then looked around again and ran away.
Laura believed defendant's intentions were "bad or evil," and was frightened by the encounter. After she drove home, Laura told her husband about the incident, and he called the police.
A few days later, the police showed Laura a photographic lineup, and she identified defendant's photograph as that of her assailant. On a scale of one to 10, Laura rated her certainty about her identification as a "10."
3) The Assault on Sabrina P.
Two days after the incident with Laura Z., on December 4, 1996, about 9:00 or 9:30 p.m., Sabrina P. was leaving her job at the Town Center mall. Sabrina's mother was supposed to pick her up, so she waited while seated on a bench outside the mall.
Soon after Sabrina sat down, defendant appeared from behind a cement wall of the parking structure and started walking toward her while looking from right to left. Defendant sat down next to Sabrina with his shoulder touching hers, pulled out a small knife, and held it against her right side, saying, "Don't move, don't scream and I won't have to stab you." Defendant told Sabrina to come with him, but she said she was not going anywhere because she had just called her mother, who would be arriving any second. She believed that defendant intended to rape her.
Defendant repeated his demand that Sabrina go with him, but then said, "Get your hand off my knife." Sabrina suddenly realized that she had grabbed the handle of defendant's knife. She refused to let go of the knife, thinking he might stab her if she did. As they stood up and struggled over the knife, Sabrina began to scream, and defendant grabbed her other wrist with his free hand. A motorcyclist passed by, but appeared not to hear Sabrina's screams. During their struggle, defendant said, "Okay, I'll leave. Just give me my knife. Just let go of my knife and I'll leave." After further struggling, defendant let go of the knife and walked away calmly as if nothing had happened. As defendant slowly walked away, he turned around and smirked. Sabrina told him that he would not get away with what he did. She made a point of observing defendant carefully as he walked out of view so she was certain of what he looked like and what he was wearing.
Sabrina, still holding the knife in her hand, then ran to a nearby restaurant and pounded on the door but a woman inside refused to open it. Sabrina pleaded for the woman to let her in; the woman still refused but agreed to call 911. The 911 operator convinced the woman to let Sabrina into the restaurant, where she got on the phone and described defendant.
While Sabrina was on the phone with the 911 operator, Santa Maria Police Officer Jeff Lopez received a call from dispatch regarding a possible attempted kidnapping outside the mall restaurant. The dispatch operator described the suspect as a Hispanic male wearing a black, hooded sweatshirt. After driving through the mall's parking structure, Officer Lopez saw a person matching that description riding a bicycle down an adjacent street. That person was defendant.
Defendant made eye contact with Officer Lopez, but began to pedal faster. Officer Lopez could not maneuver his patrol car over to stop defendant because a traffic island prevented him from crossing the street. Instead, Officer Lopez radioed to other officers, who intercepted defendant and detained him.
Officer Lopez arrived at the scene of defendant's detention, told defendant to identify himself, and asked where he was coming from and where he was going. Defendant admitted he had come from the mall and was going home, but Officer Lopez pointed out that defendant had been headed in the opposite direction from his home address. Defendant then claimed he was going to his cousin's place on Boone Street first, although he was unable to give Officer Lopez a specific address. Officer Lopez pointed out that Boone Street was also in a direction opposite to that in which defendant had been traveling. Defendant claimed he might have gotten lost. Officer Lopez then asked defendant to sit down on the curb.
After the police arrived to meet Sabrina at the mall restaurant, they told her they had already detained someone nearby who matched the description she had provided. Santa Maria Police Officer Al Torres took her to the location where defendant was being detained, and Sabrina identified him "without a doubt or a second guess."
1) Defendant's Statements During his Arrest
After Sabrina identified defendant as her attacker, Officer Lopez placed defendant under arrest. At the restaurant, outside defendant's presence, Sabrina had given the knife to Officer Torres. While the officers transported defendant to the police station, Officer Torres radioed that he had the "item used" in his possession. Although no one had mentioned a knife, defendant asked if an officer had found a knife. Officer Torres replied, "Who said anything about a knife?" Defendant stated that he thought he had heard one of the officers mention finding a knife.
At the police department, Officer Lopez questioned defendant. Defendant claimed he had gone to the mall to meet his cousin, but did not find her and left on his bicycle. Defendant denied meeting or assaulting Sabrina P.
2) Defendant's Statements During the First Recorded Interrogation
The following day, on December 5, 1996, the police began to suspect that defendant was also involved in the assaults against Maria M. and Laura Z., and the murder of Sophia Torres.
Santa Maria Police Detective Gregory Carroll had been assigned to the investigation of Sophia's murder along with his partner, Detective Mike Aguillon. On the morning of December 5, 1996, the detectives thought they might be able to determine whether defendant was involved with Sophia's murder by comparing defendant's voice with the recording of the man who made the 911 call shortly after the murder. Earlier that morning, they had played the 911 recording to defendant's probation officers, who believed the recording matched defendant's voice.*fn4
With a tape recorder running, the detectives introduced themselves to defendant and asked him a few questions about the assault on Sabrina P. the night before. Defendant again denied assaulting Sabrina and repeated his claim that he was at the mall to meet his cousin. The detectives then took a break, excused themselves from the interrogation room, and compared the taped portion of the conversation with the 911 tape.
Believing that defendant's voice matched that of the 911 caller, the detectives returned to the interrogation room and began to question defendant about Sophia's murder.
Defendant initially denied being the 911 caller, but then admitted making the call after Detective Carroll told defendant that both his probation officers had identified the caller's voice as his. Defendant claimed he had gone to meet Sophia at Oakley Park to buy "crank" from her, but, when he arrived, he saw two Black women chasing Sophia through the park and hitting her. He claimed he observed this from the street and that he also saw a man in "a little beat up car" parked on the street. Defendant told the detectives that he did not go into the park, but just kept walking. He said he was wearing a white T-shirt, white pants, and a white baseball cap. He claimed he went home, but then decided Sophia needed help, and so he walked to a pay phone to make the 911 call. He told the detectives that he did not want to identify himself on the 911 call because he was high on crank and did not want to get arrested.
Defendant claimed that when he last saw Sophia, she was being chased from the playground area and into the baseball field. But when Detective Carroll asked defendant why he told the 911 operator that Sophia was being attacked at the snack bar, defendant hesitated and said, "I just wanted somebody to go out there quick." He denied killing or hitting Sophia, but said he would be unable to identify the two Black women.
Defendant initially said he had bought crank from Sophia before, but after Detective Carroll explained that Sophia was a "semi-transient" and that "nothing" indicated that she was a drug dealer, defendant claimed that he had met her for the first time that night and was going to the park to buy crank from her for the first time as well. Defendant said he had met her earlier that night at the Tres Amigos bar at La Joya Plaza. After Detective Carroll pointed out defendant's inconsistent statements about buying crank from Sophia, explained that she could not have been a drug dealer, and explained that it was not possible for defendant to have seen Sophia in the pitch-black park from the street, defendant admitted his story did not make sense.
The detectives encouraged him "to think about it," and ended the interrogation.
3) Search Warrants and Witness Identification
During the course of the day on December 5, 1996, police officers located Maria M. and Laura Z. and, as described above, they each positively identified defendant's picture in the photographic lineups presented to them.
On the same day, Detective Aguillon participated in the execution of a search warrant at defendant's residence. Detective Aguillon searched defendant's bedroom and found a can of Fabulous brand cleaning fluid and a bottle of hydrogen peroxide on his closet floor, but found no white T-shirt, white pants, or white baseball cap.
About 5:00 p.m. that day, Detectives Carroll and Aguillon then executed a second search warrant by taking defendant to a hospital, for a nurse to collect his blood, hair samples, and additional evidence for a sexual assault kit. During the ride to the hospital, the detectives asked defendant to repeat his explanation of what happened on the night of Sophia's murder. Defendant again described how he had gone to the park to buy crank from Sophia, but then saw two Black girls chasing her, one hitting Sophia with her fists and the other holding a bat. Defendant described Sophia's attackers as being about five feet six or five feet seven inches tall and "chunky." Contradicting his previous statement, defendant now said he thought he would be able to identify them.
4) Defendant's Statements During the Second Recorded Interrogation
At 7:00 p.m. on December 5, 1996, Detectives Carroll and Aguillon returned defendant to the police station from the hospital, and began a second recorded interrogation.
In this interrogation, the detectives told defendant that two other women had now identified him as a suspect in two different incidents. Detective Carroll briefly described the incidents reported by Maria M. and Laura Z. The detectives also explained how Maria and Laura had both unequivocally identified defendant after being shown a photographic lineup. Detective Aguillon explained defendant's predicament - that three different women, who did not know each other, all described defendant as their attacker in incidents occurring within a month and a half. The detectives also explained that the small paring knife defendant had used to assault Sabrina P. had a handle that matched a set of knives found at his residence.
Defendant denied involvement in any of the three assaults and claimed the three women must be mistaken or lying.
As to Sophia's murder, defendant again denied hitting her or having any physical contact with her. Defendant claimed he mentioned the snack bar on the 911 call because he had seen the girls chase Sophia towards the snack bar. Contrary to what he had said in the first recorded interview, he now claimed he had not seen them coming from the playground. But when the detectives pointed out that it was not possible for him to have seen Sophia at the snack bar from his location on the street, defendant claimed, for the first time, that he had walked off on an adjacent street and then returned to the edge of the park, and that was when he saw them running towards the snack bar.
The detectives said they did not find defendant's story credible and told him that no witnesses reported seeing any Black females in the area that night. They also told defendant they had spoken with people at the bar where defendant had claimed he met Sophia on the night of her murder and that the detectives had been told that Sophia did not "hang out there." The detectives told defendant that Sophia was penniless, did not sell methamphetamine, and was only near Oakley Park because that was the route she took to walk home. Defendant did not change his story.
5) Defendant's Final Interrogation
The next morning, on December 6, 1996, Detectives Carroll and Aguillon again met with defendant. This interrogation was not recorded.
Defendant repeated his story about two Black females assaulting Sophia. But when the detectives confronted him about the assaults against the other women and asked whether they were lying, defendant admitted, "I did those." He claimed, however, that he had not intended to rape either Maria M. or Sabrina P., but had only intended to rob them. He also explained that he had not tried to remove Maria's pants, but had only tried to go through her pockets. He did not know why he had punched her.
Defendant continued to deny any involvement in the Laura Z. assault.
6) Additional Investigation
Employees at the Tres Amigos bar did not see either defendant or Sophia at the bar on the night of her murder.
At the time of the crimes, Oakley Park, including its baseball field, had no artificial illumination at night. In addition, according to the testimony of astronomer David Kary, on the night of the murder the moon had set at 9:38 p.m., well before Sophia's estimated time of death. Under similar lighting conditions, the prosecutors reenacted defendant's version of how he observed the attack on Sophia inside the park while Kary observed from the street adjacent to the park. Kary testified it was not possible to see persons inside the park from his location on the street, and that, at best, he was only able to see the prosecutors briefly in silhouette.
In addition, Detective Carroll tried to re-enact defendant's claimed route on the night of the crimes by foot and by bicycle. His trip between Oakley Park and defendant's residence took seven and a half minutes by foot and nearly three minutes by bicycle. His trip from defendant's residence to the pay phone defendant used to make the 911 call was four and a half minutes by foot and two minutes by bicycle.
Keith Gorman, a paramedic who arrived at Oakley Park on the night of Sophia's murder, observed a single set of bicycle tracks in the wet grass, which were east of third base outside the dugout and ended on the adjacent street, near the middle of the block.
Defendant's younger brother, Mario Martinez, testified that sometime in November 1996, defendant came home with a pager. Because the pager kept ringing, defendant asked Mario to answer the page. When Mario called the number, a girl answered and said it was her pager. Mario asked her what the pager number was, got the number, told the girl she had paged the wrong number, and then hung up. Defendant told Mario that he stole the pager from a girl at the La Joya Plaza by snatching it from the outside of her pocket as she walked by. Mario kept and used the pager for a few weeks, but later threw it away.
Francisco Javier Lopez testified he witnessed the assault of Maria M. in the alleyway near the La Joya Plaza discount mall on November 3, 1996. While he was parked in his truck, he saw what appeared to be a boyfriend and girlfriend fighting, and the man was trying to stop the girl from entering the mall's walkway entrance. The girl made eye contact with Lopez, and he realized that she needed help. Lopez activated his truck's alarm manually, and the man appeared surprised but reacted by pulling the girl out of Lopez's view and into the alleyway. Carrying a heavy flashlight and his phone, Lopez exited his truck and approached the alley. He saw them struggling halfway down the alleyway, where the man hit the girl and then ran off. Lopez may have yelled at the man to let her go. He called 911, and ran over to help the girl. The police arrived a few minutes later. Lopez could not identify defendant as the assailant.
The prosecution presented evidence indicating that Maria M. deactivated her pager on November 4, 1996, and that the pager would not have functioned after that date. Because her pager was missing after the assault, Maria made one call to her pager the very same day, and a young man called her back. She then immediately called to have her pager disconnected, but the pager company could not disconnect it until the next business day, which was Monday, November 4, 1996.
1) Robbery of an Ice Cream Shop
On April 24, 1992, at the age of 14, defendant robbed a cashier at an ice cream shop. On that date, Alicia Anaya was working at the Delicias de Mexico ice cream shop at La Joya Plaza. Defendant entered the shop and demanded money from Anaya. Before she gave him the money, the shop's phone rang a few times, and each time defendant picked up the phone and hung up. As he left the shop with the money, he told Anaya that she was pretty and tried to reach for her hand, but she blocked him.
A few days later, Anaya was working with her boss when she saw defendant and another boy walking by the shop. Anaya told her boss that defendant was the person who had robbed the shop. Her boss ran outside, but she was only able to grab defendant's companion. Later, the police took Anaya to a house where she positively identified defendant as the person who had robbed the shop. Defendant initially denied committing the robbery, but later admitted it, claiming that a friend of his needed the money.
2) Burglary at a Bread Store
On September 1, 1993, at the age of 15, defendant was detained during an investigation of a burglary at a bread store. Initially, defendant provided the officer with false identifying information. The investigating officer noticed that defendant's right pants pocket was sagging, as if it contained something heavy. The officer conducted a pat search and removed a dagger from defendant's pocket.
3) Robbery of Pepe's Liquors
On February 23, 1994, at the age of 16, defendant and a friend attempted to rob Francisco Chavez at knifepoint. While Chavez was working at Pepe's Liquors, defendant and his friend entered the store. Defendant held a knife and demanded money. Chavez refused and activated his silent alarm, and the store received a phone call seconds later. While defendant and his friend were still in the store, Chavez reported that he was being robbed. Defendant and his friend ran off, but were stopped by a police officer.
The arresting officer did not find a knife, but defendant admitted his involvement. Defendant stated that he did not intend to rob Chavez and that it was a joke.
On April 22, 1995, at the age of 17, defendant encountered his probation officer and a police officer at a community strawberry festival. In a probation search, the officers found an ...