Court: Superior County: Los Angeles Judge: Leon S. Kaplan and Howard Schwab Los Angeles County Super. Ct. No. LA009810
The opinion of the court was delivered by: Corrigan, J.
A jury convicted defendant of first degree murder, robbery, and kidnapping for robbery. It found true kidnapping-murder and robbery-murder special circumstances and allegations that defendant personally used a firearm in the commission of the offenses.*fn1
The jury fixed the penalty at death. The trial court granted defendant's motion for a new penalty trial, after which the trial judge recused himself from further proceedings in the case. Upon appeal by the People, the Court of Appeal reversed the trial court's order granting a new penalty trial and reinstated the death penalty. Following reassignment to another trial judge, defendant's automatic application to modify the penalty verdict was denied.*fn2 This appeal is automatic. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Fred Rose worked for a construction business in Lancaster and drove a gray 1983 Oldsmobile Cutlass. On January 23, 1992, around 2:00 p.m., Rose told his office manager he was going to lunch. Rose usually ate lunch at one of the fast-food restaurants on Avenue I in Lancaster and often stopped at Bob's Liquor Store afterward for a candy bar. He normally returned to the office within 30 minutes and always phoned the office manager if he was delayed. Rose did not call and never returned.
At 4:05 p.m. that day, Rose's ATM card was used to withdraw $200 from the Northridge branch of the First Interstate Bank. One minute later, another withdrawal was attempted but rejected. Carolyn LeBlanc, sitting in her car outside the bank, saw defendant approach the ATM, hesitate, walk away briefly, and then return. LeBlanc identified defendant from a photographic lineup.
That evening, residents in the area of Clybourn Avenue and Chandler Boulevard in North Hollywood heard gunshots. Clybourn Avenue intersected Chandler Boulevard at a dead-end. Hedges on Chandler obscured railroad tracks that ran parallel to the street. Between 6:00 and 6:30 p.m., John Kirby and Robert Chandler heard two shots about five seconds apart and walked outside. Linda Ryan heard the two shots between 6:20 and 6:30 p.m. and looked out her window. Kirby said the shots came from the direction of Chandler. He saw a car pull away from the curb and all three witnesses saw the car drive west on Chandler with its lights off. Kirby and Ryan believed the car was silver or gray, and both identified a photograph of Rose's Oldsmobile as similar to the car they saw. Chandler tried unsuccessfully to read the car's license plate. He saw the driver in silhouette, but saw no one else in the car.
Around 8:45 p.m., Richard Hamar was jogging east on the railroad tracks along Chandler. He saw Rose, making gurgling sounds, lying next to the tracks. Hamar thought Rose was drunk and did not stop. Rose was still there when Hamar returned 20 minutes later. When Hamar saw that Rose was lying in a pool of blood, he called 911. Firefighters arrived a short time later, followed by paramedics and police. Rose had a gunshot wound to the head and was airlifted to the hospital. The next day he was taken off life support and pronounced dead.
At 9:30 p.m. on the night of the shooting, defendant used Rose's Chevron credit card to buy gas in North Hollywood. The station, on Moorpark Street, was about two miles from the murder scene and .9 miles from defendant's previous residence on Cahuenga Boulevard. Defendant tried to buy beer and produced identification at the clerk's request. However, he abandoned the purchase when the clerk began to write down his identification information. The clerk later identified defendant from a photographic lineup. The police obtained the Chevron credit card receipt.
Los Angeles Police Detective Jesse Castillo arrived at the location of the shooting around 11:00 p.m., after Rose had been taken to the hospital. Castillo searched for weapons and bullets, but found none. There was no trail of blood from the street, which led Castillo to conclude the victim had been shot at the scene rather than shot elsewhere and dragged to the location. Castillo saw shoe prints near the blood pool where the victim had been lying. He noted their location on a chart at trial. To the east of the blood pool were two shoe prints made by the boots of emergency personnel. There were many other overlapping and trampled shoe prints that Castillo "could not make heads or tails out of" except to identify them as belonging to emergency personnel.*fn3 Castillo saw five shoe prints on the west side of the pool of blood. One print had been made by the jogger.
The various shoe prints were photographed. Criminalist Ronald Raquel compared the depicted impressions to the soles of a pair of size 13 Nike Driving Force shoes taken from defendant. Raquel concluded that certain photographs contained impressions matching the pattern of defendant's shoes. Raquel believed the impressions were made by a shoe sized between 12½ and 13½, but could not be more precise because no photograph depicted an entire heel-to-toe impression. As a result, Raquel testified that although he could not be certain, it was his "educated opinion" that defendant's shoes made the impressions.
A patent and inventions manager for Nike Corporation examined the photographs of the shoe prints from the crime scene. He believed the prints were made by a size 13 shoe, although the size could have ranged from 12½ to 13½. The depicted pattern was used on Nike shoes made between 1988 and 1991.
Detective Castillo testified that the Nike shoe impressions were found at two points west of the body. On direct exam, Castillo described these locations as a "few feet" from the pool of blood. He testified on cross-examination, however, that the Nike impressions were about 15 feet away. A firefighter's shoe print overlapped one of the Nike impressions.*fn4
Dr. William Sherry supervised Rose's autopsy. Rose died from a gunshot wound to the head. The bullet entered the upper right rear of the head and exited through the right forehead. Dr. Sherry opined that the wound was caused by a medium caliber bullet, more likely from a revolver than an automatic. A .38 special is a typical medium caliber bullet.
Defendant's mother, Mary Collins, testified that she and defendant lived in Palmdale. Around 11:00 a.m. on the day of the shooting, she drove defendant to Lancaster, dropping him near Avenue I. In 1986, Mrs. Collins and defendant lived on Cahuenga Boulevard in North Hollywood. Detective Castillo testified that the distance between defendant's former home and the murder scene is 1.2 miles.
Around 11:00 p.m. on the night of the crime, defendant arrived in Bakersfield at the home of Olga and Tony Munoz, where his girlfriend Maria Gutierrez was staying. He spent the night. The next day defendant and Gutierrez bought beer and went to the nearby home of Gutierrez's cousin, Dagoberta Amaya. Other young people began gathering in the backyard during the afternoon. Defendant made several more trips to the market to buy beer, and the drinking continued into the evening. Amaya gave defendant a black hooded jacket to wear.
The events of the evening of January 24, 1992, were related by five witnesses: Amaya, Michael Hernandez, Lorenzo Santana, Sergio Zamora and David Camacho. At the time of trial, nearly two years after the offense, Amaya was 20 years old and on felony probation. Hernandez and Santana were 18 and 16 years old, and incarcerated at the California Youth Authority. Zamora and Camacho were 17 years old and on probation. Hernandez, Zamora, and Santana were Varrio Bakers gang members. Camacho was not a gang member. Amaya was no longer in the gang at the time of trial.
Amaya testified that Rose's Oldsmobile was parked across the street from his house on January 24, 1992. Defendant said he had stolen the car to get to Bakersfield. Defendant showed Amaya a bank card and a Chevron credit card. Amaya recalled the name on the cards as similar to "Fred Jose." Defendant showed a .38-caliber gun to some of the young men who had come to Amaya's house that afternoon. Santana recalled that Amaya retrieved the gun from beneath some boards while defendant stood next to him. Defendant explained that the gun was "messed up." Santana overheard defendant brag to Larry Castro "something about the murder and the gun he had." Santana told police that he also heard defendant tell Castro he "got the guy at a liquor store." Hernandez heard defendant say that the gun "had a murder rap on it."
At some point after the gun was displayed, Santana, Hernandez, Castro and a fourth person called "Veterano" left the gathering in the Oldsmobile to commit a burglary. Hernandez saw Castro with a gun, which he assumed was the .38-caliber shown at Amaya's house. The four returned to Amaya's house afterward.
Later that evening, Amaya was drunk. He obtained defendant's gun but did not recall how. He and his girlfriend argued and Amaya put the gun to his head. Defendant grabbed the gun, emptied the bullets and put them in his pocket.
Sometime thereafter, defendant, Hernandez, Santana, Zamora, Camacho and Richard Smith rode in the Oldsmobile to the neighborhood of the Colonia gang. As they entered the Colonia neighborhood, someone threw bricks at the car. Hernandez then drove to a nearby field where defendant test-fired the .38-caliber gun. Defendant got a nail from the car and placed it under the barrel to make the gun fire. Hernandez drove back to the Colonia area with defendant in the right front passenger seat. Defendant fired at two men, but hit neither. Although he tried to fire several times, the gun discharged only once or twice.
Around 9:00 p.m., Kern County Deputy Sheriff Francis Moore received a dispatch about the Oldsmobile, saw the car and began following it. Hernandez panicked and sped away. Defendant told Hernandez to drive faster. During the chase, defendant threw several items out of the car, including the gun and bullets.
Hernandez crashed into a fence. Camacho heard defendant say he was "going to the county because he had the murder up in L.A." Hernandez and Santana heard defendant say that the car had a "murder rap" on it. Zamora testified that during the police pursuit, defendant said that he had kidnapped a guy, taken him to the bank for money, and then shot him. Zamora also said that defendant claimed he shot the victim in the head, but Zamora could not recall whether defendant made this statement during the police pursuit or at Amaya's house.
Defendant and the other five occupants were arrested. In the Oldsmobile there was a knife on the front floorboard and Rose's wallet was in the glove compartment. The car keys, Rose's ATM card, a live .38-caliber round and an empty shell casing were recovered from the ground beside the right front passenger seat. Moore checked the pursuit route and found a .38-caliber revolver with a broken hammer. A live .38-caliber round was next to the gun. The gun contained two casings that had been fired and two that misfired.
Two live .38-caliber rounds were found in defendant's pants pocket and another live round in his jacket. Defendant had $100 in his wallet. The next day, Amaya found the Chevron credit card in his yard and directed his younger brother to burn it.
Around 5:00 a.m. on January 25, 1992, Detective Castillo met with defendant. The other occupants of the car had been interviewed. Defendant waived his rights under Miranda*fn5 and agreed to speak. He denied having been in the car during the drive-by shooting. He accepted a ride in the car to go to the store and Zamora was the only occupant he recognized. Defendant did not know the car was stolen. He believed the car was pulled over by police because the driver was drunk. Defendant threw his bottle of beer and trash out the window, but denied throwing a gun or bullets. He said the jacket he was wearing did not belong to him. He opened the glove box at one point to get a pen and saw a wallet, which he assumed belonged to the driver. When Castillo accused defendant of murdering a man to get the car and wallet, defendant repeated that he had only been in the car for 10 minutes. In response to questions by Castillo, defendant claimed he had not been to North Hollywood in the past three and a half years and had been in Los Angeles only once. He told Castillo that about 10 years before, he had lived at 4847 Cahuenga Boulevard in North Hollywood.
Detective Castillo interviewed defendant again on Monday, January 27. At that time, Castillo knew that defendant had used Rose's ATM card in Northridge and the Chevron credit card in North Hollywood. Defendant had written the name "Scott Rolse" on the Chevron receipt. Defendant said his earlier statements to Castillo were correct and again denied any involvement in the murder. Asked for handwriting exemplars, defendant wrote his own signature. Castillo then asked defendant to write the name "Scott Rose," purposefully changing the name defendant used on the Chevron receipt. Defendant refused.
Detective Castillo asked defendant to talk to him about the day of the murder. Defendant said his mother dropped him off in Lancaster near Avenue I, and gave him $50. He picked up odd jobs at construction sites and earned $45 more. He got a ride with a "construction guy" to Mojave, hitchhiked to Bakersfield and spent the night with Maria Gutierrez. The Oldsmobile was already in Bakersfield when he arrived. Early the next afternoon he went to the home of Gutierrez's cousin where he drank beer with a group of people until around 7:00 p.m., when they gave him money to go buy more beer. A car drove by and defendant recognized one of the passengers. They gave him a ride, but were chased by the police and crashed into a fence.
Defendant again refused to sign the name "Scott Rose." Castillo then showed defendant an enlarged version of the signed Chevron receipt. Defendant appeared frightened, but insisted it was not his signature. After Castillo told defendant that he had been identified in a photographic lineup and accused him of killing Rose, defendant said, "I'll tell you."
Defendant said he was walking along the Sierra Highway in Lancaster. He was looking inside cars and saw the keys in the Oldsmobile. He "jumped in and took it." The gun was in the car. He looked in the glove compartment and found the gun, wallet and credit cards. Defendant admitted using the ATM card, claiming that it had the personal identification number (PIN) on it. While at the ATM he wore a hard hat that he found in the car because he knew he would be photographed. Defendant said he needed the money for liquor and wanted to go to East Los Angeles. He admitted purchasing gas at the Chevron station.
While he was awaiting trial, jail officials intercepted a letter written by defendant. The letter referred to "ratas" from the Varrio Bakers gang and asked a "Mr. Woody" to "put palabres to the calles to put in check" Hernandez, Zamora, Camacho, Santana and Amaya. Except for Amaya's, the names and addresses of the young men were attached to the letter.
A Los Angeles County sheriff's deputy familiar with gang terminology explained that "ratas" refers to snitches and the phrase "put palabra to the calles" means to put the word out on the street. He testified that "to put in check" means to intimidate someone to keep him from testifying, and could involve a verbal warning, a beating, a stabbing, or killing.
Defendant admitted that he had been convicted of armed robbery, assaults and possession of narcotics and had been to prison.*fn6 He testified that on January 23, 1992, between 10:30 and 11:00 a.m., his mother drove him to Lancaster so he could look for work. He walked along Avenue I, inquiring unsuccessfully at fast-food restaurants. Around 1:30 or 2:00 p.m. he decided to hitchhike home to Palmdale. As he walked out of town on the Sierra Highway, he saw Rose's automobile parked on the side of the road. The keys were inside. Defendant had just gotten out of prison and his "values were not too straight as far as staying clean." He wanted to use the car to go to Los Angeles so he unlocked the car through a slightly open rear window. He drove toward Reseda to see a friend. On the way he bought gas with money that his mother had given him for clothes. At the gas station he searched the car and found a wallet with credit cards and an ATM card in Fred Rose's name. He also found a card with the name of the bank and Rose's PIN. Defendant continued driving toward Reseda. En route he used Rose's ATM card to withdraw $200 and tried unsuccessfully to make a second withdrawal.
Failing to locate his friend in Reseda, defendant decided to surprise Silvia Gomez, whom he had not seen since he went to prison. He drove to East Los Angeles, arriving at the home of Gomez's mother between 5:30 and 6:00 p.m. Gomez's boyfriend Joe Valle and her children were there. Gomez was going to a party so defendant left around 8:00 p.m., intending to drive to Bakersfield.
After stopping at a McDonald's in Hollywood, defendant purchased gas with Rose's Chevron credit card and tried to buy beer but changed his mind when the cashier asked for identification. Arriving in Bakersfield about 11:00 p.m., he stayed with his girlfriend Maria Gutierrez at the home of Tony and Olga Munoz.
Defendant used Rose's ATM card again the next morning. Around noon, he bought beer and drank with Sergio Zamora. He phoned his mother and told her he had hitchhiked to Bakersfield with money he earned from construction work. He bought more beer and went to Dagoberta Amaya's house, where he drank with Amaya, Gutierrez and Zamora. During the afternoon, groups of Amaya's "homeboys" came and went. Defendant twice went to the market for more beer.
Around 6:00 p.m., after his last trip to the market, defendant told Amaya that he had stolen the Oldsmobile in Los Angeles. Bystanders heard him. Larry Castro suggested they go for a "cruise" in the car and said he had a gun. Amaya retrieved Castro's gun from behind some boards and showed it to defendant and others. Someone mentioned that the gun was "messed up." Defendant bought the gun. Castro said he wanted to go "do some stuff," which defendant understood to be a robbery. Defendant let Castro take the gun and the car. Castro and others from the party were gone about an hour and returned with items they had stolen.
Around this time, Amaya argued with his girlfriend and pointed the .38-caliber gun at his own head. Defendant grabbed the weapon, emptied the bullets, and put them in his pocket. Amaya's girlfriend fled. Defendant gave the gun to Hernandez and ran after Amaya's girlfriend, catching up with her several blocks away. As they returned to Amaya's house, a group of juveniles drove up in the Oldsmobile. Defendant got in the car because he wanted to go buy more beer. They drove to a market where they encountered another group of Varrio Bakers members in a blue car. The two groups drank beer together for about 15 minutes before someone suggested they go "box with the Colonia." The two cars drove to the Colonia neighborhood, with the blue car in front. Hernandez drove the Oldsmobile with Zamora and defendant in the front seat.
In the Colonia neighborhood, someone threw bricks at them. The two groups then drove to a nearby field, where Hernandez gave defendant the gun and some bullets. Defendant and a man from the blue car, whom defendant described as a "black cholo," loaded the gun. Defendant test-fired it, placing a nail under the barrel. Defendant gave the gun to the cholo, who wanted to shoot at the Colonia members. Defendant then got in the blue car and the cholo got in the Oldsmobile. Back in the Colonia neighborhood, the cholo fired two shots from the Oldsmobile. Both cars fled, meeting in an alley a few blocks away. Defendant retrieved the gun and the two men switched cars. The police started chasing the Oldsmobile. Hernandez panicked. Defendant told him to keep driving because defendant was on parole and did not want to get caught with a gun. Defendant threw the gun and bullets from the window. He did not tell the others that the car had been involved in a murder. The car crashed into a fence. Defendant heard police yell that the car had been used in a murder in Los Angeles.
Defendant testified that before Detective Castillo recorded the first interview, he told defendant, "[T]he guy got shot and robbed for his car. We think you did it." Castillo asked for information about defendant's girlfriend, Maria Gutierrez, and said that he wanted "to pull her in too." Castillo then turned on the tape recorder and read defendant his rights. Nothing defendant told the police during the first interview was true.
Defendant was re-interviewed two days later. Although he initially intended to tell the truth, he became angry, changed his mind, and lied again during the second interview. He refused to sign the name "Rose" when he gave the handwriting sample because he knew he had signed the Chevron credit card slip.
After the second interview, defendant spoke with various potential witnesses. He called Zamora after Detective Castillo told him the juveniles in Bakersfield had implicated him. Defendant threatened to "mess [Zamora] up" if the juveniles did not tell the truth. Defendant called Gutierrez and warned her to stay away from the police for 10 to 15 days. He contacted Silvia Gomez and told her he might need her as a witness and to tell the truth. He tried to contact Joe Valle several times, but never spoke to him.
Defendant admitted writing the letter from jail introduced by the prosecution. He wrote the letter to his friend Daniel Graciano, who was in prison. He wanted Graciano to "get in touch with anybody from Varrio Baker where he was housed at and have them get in touch with their people on the street to talk to these guys." Defendant wanted someone to tell the juveniles to stop lying.
Defendant's friend Silvia Gomez testified that defendant visited her on January 23, 1992, unexpectedly arriving around 5 or 5:30 p.m. He left shortly before she departed for a party about 8:45 or 9:00 p.m. On cross-examination, Gomez said defendant called her from jail "about three days later," which she agreed was Sunday, and told her the murder for which he had been arrested was supposed to have occurred when he was at her house.
Gomez's boyfriend, Joe Valle, testified that defendant arrived around 6:30 or 7:00 p.m. and stayed for about an hour. When interviewed by defense counsel, Valle thought defendant's visit happened in summer. After talking with Gomez, he remembered the date as January 23, about the time of the Super Bowl. That was the only time Valle met defendant. Before the trial, he spoke by telephone with defendant three or four times.
Ronald Delgado saw defendant at a McDonald's in Hollywood around 8:30 p.m. the evening of the shooting.
Jessie Cepeda's home was the site of a drive-by shooting on January 24, 1992. A gray Buick Regal and a blue Chevy Nova had been parked outside, then drove away and returned about 10 minutes later. A man in the gray car said "Varrio Bakers" and shot toward the door three times. Cepeda's grandson, Jaime Garcia, and his cousin, Gabriel Cabrera, were outside. Ms. Cepeda did not see the face of the shooter, who wore something black on his head. Cabrera yelled the shooter was "Spooky," a Black Hispanic gang member known to commit drive-by shootings in the neighborhood. Ms. Cepeda has never seen "Spooky" and did not know if he fired the shots.
A sheriff's deputy interviewed Garcia and Cabrera. Garcia said two cars pulled up in front of the house. One was blue and the other was brown, spotted with gray primer. A Hispanic man handed the gun to a Black male who leaned out of the blue car and fired shots. Garcia said the shooter was possibly a man he knew as "Spooky."
Detective Castillo investigated defendant's alibi. Silvia Gomez said she noted defendant's visit on a calendar, which she could not find. She said she would contact Castillo if she did so. When Castillo telephoned about an hour after the interview, Gomez told him she needed a lawyer and would not speak to him. Castillo called again, but Gomez refused to talk to him.
Detective Castillo contacted Joe Valle who told him he had nothing to say to the police. A month earlier, Valle had missed a meeting with another officer.
The prosecutor directed Detective Castillo to Gomez's testimony in which she claimed that defendant telephoned her on the Sunday following his visit and told her the murder occurred while he was at her house. Castillo testified he never told defendant the time of the murder. The earliest point at which defendant could have learned of the time of the murder was January 28, when police reports were provided to him at his arraignment.
The distance between the location where Rose's body was found and Silvia Gomez's home was 14.2 miles. It took Detective Castillo 18 minutes to drive the route. Castillo also drove to the McDonald's where defendant said he ate on the night of the murder. There were three highly visible Chevron stations along this route, including one very near the McDonald's.
a. Victim Impact Testimony
Sharon Rose testified that she and Fred Rose had been married for 21 years and had three children. Fred Rose was 42 years old when he was killed. After his death, Mrs. Rose moved out of state to avoid proximity with the crime scenes. She described her husband as a wonderful person who loved his family. She still felt the pain of losing him, and the family continued to receive grief counseling. The children had difficulty in school after their father's murder. The victim's mother and children also testified about the impact of his murder.
Around 9:00 p.m. on April 20, 1986, Fred Joseph was in the parking lot of his market in North Hollywood, walking toward the trash cans. Young men in two cars drove into the lot and jumped out. Fearing attack, Joseph ran inside and called the police. When Joseph later came outside to talk with the police, he saw that a large area near the trash cans had been burned, and a broken glass bottle was on the ground. Joseph believed defendant was among the young men who had been in the lot because three weeks earlier Joseph told defendant to leave the market following complaints that he was harassing customers.
Also on April 20 around 9:00 p.m., Lisa Nevolo was sitting in her car near Joseph's market. She saw defendant and other juveniles arrive and get out of a car. Defendant stood about a foot away from her driver's side window holding a glass bottle with fluid and a rag stuck in the top, which Nevolo described as a Molotov cocktail. He had a tire iron in the other hand. Defendant waited about 15 minutes and then ran out of sight. Nevolo saw a large flash and thought the nearby apartment building was on fire. Defendant ran back past her car, his hands empty. He and another juvenile jumped into a waiting car. Los Angeles Police Sergeant John Mosley responded to the parking lot of Joseph's market. He recovered a glass bottle fragment with a rag inside from the burned area of the parking lot. He opined that the item was a Molotov cocktail and that it had caused the fire.
On June 9, 1988, John Hall was sitting in his pickup truck in Canoga Park. He saw defendant and another man tampering with a van belonging to Hall's friend. When Hall called out to them, they fled. A short time later, Hall heard someone yell and saw defendant and another man running from a nearby convenience store. Hall jumped out of his truck and tried to grab defendant. During the struggle, Hall felt something in his back and realized defendant had a knife. Hall released defendant, who fled. An officer responding to a report of an assault met with Hall and saw that he was bleeding from a laceration on his back. While interviewing Hall, the officer received a radio broadcast of a robbery at the convenience store. The suspect matched Hall's description of his assailant. The officer located defendant hiding in the bushes a block from the store. Hall identified defendant as the person who had assaulted him.
On January 13, 1989, South Gate Police Officer David Dattola responded to a possible gang fight outside the local high school. Defendant was waving his arms and screaming profanities at another man. As Dattola approached, the two separated and started to leave. Dattola, who was wearing a black jacket with the word "police" on it, told defendant to stop and put his hands up. Defendant repeatedly refused and yelled a profanity at the officer. After he was arrested, an open pocket knife was recovered from his pants pocket.
On April 6, 1989, 15-year-old Will Taylor, who is African-American, waited at the bus stop after school. His friend James Richardson had gone into a 7-Eleven store. Defendant, armed with a knife, followed Richardson out of the store. Richardson threw a drink at defendant, who stumbled and fell. Richardson ran toward Taylor. Defendant got up, took his shirt off and said something about "Watts." Defendant walked toward the teens, holding the knife and yelling racial slurs.
Off-duty police officer William Tatum drove by and saw defendant swinging a knife at two younger boys who were backing away. Tatum yelled to defendant to leave the boys alone, but defendant continued swinging the knife. Tatum then pointed his gun out the car window and told defendant to stop, but defendant ignored him. Tatum got out of the car holding his gun and identified himself as a police officer. Defendant fled. Tatum flagged down a motorcycle officer who arrested defendant 10 minutes later and searched him, but found no weapons. A police officer with the gang unit transported defendant to the police station. During booking, defendant taunted the officer that the knife would not be found.
In 1992, while awaiting trial on the murder charge, defendant was housed in the county jail. In May 1992, Armando Gonzales was serving a jail sentence for driving under the influence. Gonzales bought a pair of shoes from another inmate and put them under his bunk in the jail dormitory. Later that evening, defendant, who was in the bunk next to him, told another inmate to take the shoes. Defendant then approached Gonzales and demanded his money. Defendant shoved Gonzales and grabbed the money from his pocket. He warned Gonzales not to say anything or he would "get his butt kicked." The following day Gonzales was moved to another dormitory at his request. He woke from a nap to see defendant in a nearby bed. That night, defendant asked Gonzales why he had changed dormitories and told Gonzales that he would have to start paying defendant "rent." Defendant held a razor blade in his hand, and told Gonzales that he ought to "shank" him, but would not do so if Gonzales paid rent. Gonzales was very afraid. He asked to be moved away from defendant and said he feared for his life. Defendant was moved to administrative segregation.
On April 18, 1993, Los Angeles County Deputy Sheriff Robert Peacock tried to interview defendant about a reported incident. Defendant refused to provide any information. He began yelling into the dormitory that he was being harassed, appearing to want to start a disturbance. Inmates yelled back. Defendant challenged Peacock and said he would show him "who the tough guy is." As Peacock tried to restrain him, defendant turned and kicked Peacock in the shins. Another deputy arrived. Defendant continued screaming to other inmates in the dormitory and kicked at the deputies until they subdued him.
As to defendant's robbery conviction, Sandra Trujillo testified that on December 3, 1988, about 6:30 p.m., she was in her car behind a video store in North Hollywood. Defendant approached, tapped on her car window and made a motion as if he wanted to know the time. He then pointed a gun at Trujillo and told her to get out of the car. After Trujillo complied, defendant told her, "You start running bitch, or I'm going to kill you." Defendant drove away in the car.
Defendant's mother, Mary Collins, testified that defendant was two years old when his father died. At five years old, defendant was diagnosed as borderline hyperkinetic and given Ritalin, but his condition did not improve. Defendant' s first contact with the juvenile justice system occurred after he burglarized an elementary school when he was about 13 years old. His behavior worsened. After a theft incident, defendant was given counseling, but his activities escalated and he became involved in gangs. He committed a residential burglary when he was about 15 years old and there were other "episodes" that year as well. Following the Molotov cocktail incident in April 1986, defendant was referred to the California Youth Authority (CYA; now Division of Juvenile Justice) for a diagnostic report. He turned 16 years old that June. Mrs. Collins wrote to the juvenile court judge and asked him to consider a school in Florida as an alternative placement. Defendant enrolled there, but Mrs. Collins brought him home after only three months because she disagreed with the school's use of antidepressants for treatment.
After his return to California, defendant's mother suspected he was using drugs. Between mid-1987 and early 1988, defendant was confined at Mira Loma Camp, run by the CYA. Returning home, he became involved in gangs. In 1988, he sustained a serious head wound in a gang fight. On the day defendant robbed Sandra Trujillo, he was also arrested for possession of phencyclidine. As a result of these events, he was imprisoned from May 1989 to December 23, 1991.
In 1986, Joe Kraics, a casework specialist for the CYA, prepared a diagnostic report to help the juvenile court determine defendant's placement. The report concluded defendant was an immature 16 year old, involved in gangs and drugs. Defendant had a troubled relationship with his mother who protected him rather than acknowledging his delinquency. He had poor impulse control and fought frequently.
Dr. Susan Fukushima, a psychiatrist with the CYA, also examined defendant in 1986. She concluded he had adolescent conduct disorder, attention deficit disorder, and a mixed personality disorder. Defendant's dependence on his mother and the absence of a male figure in the household hampered his ability to mature and establish a male identity. Gang involvement gave him peer support and male role models. Dr. Fukushima recommended that defendant enter a structured long-term treatment program.
James Park was a prison consultant who had spent 41 years working in corrections, including 31 years with the California prison system. During his career he had made classification decisions on 15,000 inmates. Someone sentenced to life without possibility of parole is assigned to a level four maximum security prison. Park opined, based on prison and county jail records, that defendant could be safely housed in a level four prison. Park testified that most prisoners "begin to mellow out" after the age of 25.
John Iniguez was the acting chief of classification at the California Department of Corrections (now the Department of Corrections and Rehabilitation). He testified that inmates entering the prison system had become younger, more violent and more gang-oriented than in the past, and took longer to settle down. Iniguez opined that, based on defendant's past incarceration history, his violent and predatory behavior would escalate and defendant would be a threat to staff and other inmates.
1. Denial of Motion for Mistrial
Defendant moved for a mistrial after the prosecutor elicited allegedly inadmissible testimony from witness Maria Gutierrez. He asserts the trial court's denial of the motion violated his rights to due process and a fair trial under the federal and state constitutions and unspecified statutory law. (U.S. Const., 5th & 14th Amends; Cal. Const., art. I, §§ 15, 16 & 17.) His claim is without merit.
Defendant had moved in limine that Gutierrez be instructed not to mention defendant's recent incarceration. Defendant and Gutierrez met while he was in prison in Susanville. He was released from that facility on December 23, 1991, a month before Rose's murder. When the prosecutor responded that she did not intend to ask how Gutierrez and defendant met, the court ruled the motion was moot. The court added: "[I]t's understood that there's to be no reference to the subject matter without first obtaining the permission of the court."
During her redirect examination, Gutierrez testified that defendant called her about a week after his arrest and told her to tell police that he had been with her "the whole time" and that Gutierrez had not seen a gun or a credit card. On recross-examination, Gutierrez acknowledged speaking to the police on January 30, 1992, but could not recall if she told them about defendant's phone call. On further redirect examination, Gutierrez testified that she told Detective Castillo that defendant had been trying to call her "ever since he was arrested." Gutierrez could not accept his calls because she lacked the money to pay for them, but on one occasion defendant was able to speak to her.
On further recross-examination, defense counsel established that Gutierrez had accumulated a $1200 phone bill while living at the Munoz residence. Defense counsel asked, "So the subject matter of telephone calls was a little sensitive around the house?" When Gutierrez agreed, defense counsel confirmed with Gutierrez that she had not accepted defendant's calls following his arrest. Defense counsel then asked, "[Y]ou didn't tell the police about the one call you now say happened before meeting with them, is that right?" Gutierrez answered that she told the police about this phone call and that defendant dialed directly on that occasion.
On further redirect, the following colloquy occurred between the prosecutor and Gutierrez:
"Q: [Ms. Gutierrez], this $1200 bill that you ran up, how did you run up a $1200 phone bill?
"A: He would call every night collect and he was in Susanville.
"Q: So now how much would each one of these calls be?
"Q: This was in a period of one month that you built up a $1200 collect phone bill?
"A: No. This was when he was still in Susanville before he got out in December.
"Q: How long a period of time did this $1200 bill encompass?
The prosecutor asked no further questions and the jury was excused for the day. Defense counsel immediately moved for a mistrial "based upon the response of the witness indicating not only that the defendant was in Susanville, but that he was released in December preceding these events." The prosecutor responded that Gutierrez did not say "released" and doubted jurors knew that Susanville was a prison. The prosecutor stated, " I don't know -- I quickly stopped any questioning. I did not realize that was going to be her response and it was certainly not something that I had brought up." She noted that defense counsel had initiated questions about the phone bill.
The trial court stated: "I'm really rather concerned with a series of things that have happened. And I'm not suggesting that they were done with any bad motive, but it is happening enough that I want to avoid it in the future." The court observed that the issue of the phone bill was "predictably sensitive." The prosecutor reiterated that defense counsel raised the issue and asked whether the court expected her to leave it "hanging up in the air." The court responded, "No, I don't expect you to do that. But I would like to be alerted that these phone calls were from Susanville. I certainly had no idea where the phone calls came from. And had I known that I would have called [a sidebar] conference and I would have avoided it." Nevertheless, the court concluded, "I don't see this is so prejudicial that it calls for a mistrial. I will deny the motion." Defense counsel said nothing further on the issue.
The next day the trial court expressed concern that it should have given a limiting instruction regarding Gutierrez's references to Susanville and stated that it would, if requested, strike that portion of the witness's testimony. The court invited defense counsel to propose a limiting instruction. Although defense counsel initially advised he would do so, defense counsel later declined for fear of highlighting the challenged testimony. He explained that, for the same reason, he had not requested a limiting instruction the previous day when he made his motion.
Defendant claims the mistrial should have been granted because the prosecutor committed misconduct by improperly eliciting Gutierrez's testimony. Defendant has forfeited this claim. " '[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' " (People v. Stanley (2006) 39 Cal.4th 913, 952.) When defendant eventually moved for a mistrial at the conclusion of Gutierrez's testimony, he did so only on the basis of "the response of the witness." He did not argue that the prosecutor had improperly elicited the challenged responses. Additionally, defendant rejected the trial court's offer to admonish the jury. In any event, there was no misconduct. The defense chose to pursue the subject of the collect telephone calls and their cost. The prosecutor's redirect was permissible. Gutierrez nonresponsively volunteered that defendant's calls were made "before he got out in December."
The court did not abuse its discretion in denying the motion for a mistrial. "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" (People v. Haskett (1982)30 Cal.3d 841, 854.) A motion for a mistrial should be granted when " ' "a [defendant's] chances of receiving a fair trial have been irreparably damaged." ' " (People v. Ayala (2000) 23 Cal.4th 225, 282.) Here, Gutierrez's volunteered remarks regarding defendant's phone calls were brief and ambiguous. The court did not abuse its discretion in concluding that any prejudicial effect could by cured by an admonition.
Further, we note that as part of defendant's trial strategy, he later established his criminal history and recent incarceration through his own testimony. He claimed he took the victim's car because he had recently been released from prison and his values were poor. Defendant admitted that he threw the gun and ammunition from the car during the police chase and chose to explain that conduct by acknowledging that he was on parole and did not want to get caught with a gun. Defendant asserts that this evidence came in after Gutierrez's testimony and the trial might have proceeded differently but for her remarks. Given the limited nature of those remarks, however, his argument is not persuasive.
Defendant contends the prosecutor committed error under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), during her cross-examination of defendant and in her guilt phase argument. Specifically, defendant complains the prosecutor improperly questioned his failure to inform the police or prosecutor of his alibi before trial.
At trial, defendant presented an alibi defense that he had never mentioned during his several statements to Detective Castillo. According to testimony, Fred Rose was shot between 6:00 and 6:30 p.m. on January 23, 1992. Defendant testified that after using Rose's ATM card on that date, he tried unsuccessfully to locate a friend in Reseda, and then drove to East Los Angeles to visit Silvia Gomez. He arrived at the home of Gomez's mother about 6:00 p.m. and stayed until 8:00 p.m. He then drove through Los Angeles and Hollywood before continuing to Bakersfield.
In his interviews with Detective Castillo, defendant never mentioned his visit with Silvia Gomez. After waiving his Miranda rights, defendant was interviewed twice. Defendant testified that "everything" in his first interview was false and stated, "I would have told them the moon was blue to throw them on a wild goose chase." He told Castillo he got in Rose's car for the first time in Bakersfield and spent no more than 10 minutes in it. Defendant claimed he had not been to North Hollywood for three and a half years.
Defendant admitted that he lied in the second interview as well. He testified he was going to tell the officers the truth, but changed his mind. He stated: "I said the hell with them. Let these bastards do their own homework." He initially told Detective Castillo that his mother dropped him off in Lancaster where he worked at construction sites until about 4:00 p.m. After eating at McDonald's, he got a ride from a construction worker to Mojave and hitchhiked from there to Bakersfield, arriving that night.
After Detective Castillo confronted defendant with the Chevron credit card receipt and said he had been identified in a photographic lineup, defendant gave yet another explanation of events. In this version, defendant, while walking out of Lancaster on the Sierra Highway, saw the Oldsmobile with the keys inside and took it. He found the gun, wallet and credit cards in the car. He stopped at the ATM for money and "wanted to go to East L.A." to "visit some of my homeboys."
Defendant testified that he did not know he had an alibi until he later learned when Rose was shot.
Defendant claims that in certain exchanges during cross-examination, the prosecutor improperly used his post-Miranda silence to impeach his alibi. He points to several exchanges with the prosecutor, including the following colloquy:
"Q: Do you enjoy being in jail?
"Q: Can you give us an explanation why you did not tell Detective Castillo that you were somewhere else [at the time Rose was killed]?
"A: Because he probably would not have believed me at that point in time.
"A: I figured there was no use even ...