Court: Superior County: Riverside Judge: Christian F. Thierbach Super. Ct. No. CR-67398
The opinion of the court was delivered by: Chin, J.
Defendant Philian Eugene Lee was convicted of first degree murder with personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, 12022.5, subd. (a).)*fn1 The jury found as a special circumstance that the murder was committed during the commission of an attempted rape. (§ 190.2, subd. (a)(17)(C).) After a penalty trial, the jury returned a verdict of death. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)), and imposed the death sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
On the evening of February 21, 1996, 18-year-old Devin Bates was with three friends when he received a call from Jarrod Gordon, a 17-year-old friend from school. After the call, the four young men drove to Jarrod's house in a car belonging to one of Devin's friends.*fn2 At the time, Jarrod was unable to walk due to a recent gunshot wound to his back. He wore a plastic full-body brace on his torso, had braces on his legs, and used a wheelchair.
When the group of five left Jarrod's house, Devin drove Jarrod in Jarrod's car with the wheelchair in the trunk, and Devin's friends followed behind. At Jarrod's suggestion, they drove to defendant's house in Moreno Valley, arriving between 10:00 and 11:00 p.m. Jarrod described defendant as a good friend. Devin had not met defendant before, and defendant introduced himself to Devin as "Point Blank."
After about an hour, the six young men left defendant's house.*fn3 Devin drove Jarrod's car, with Jarrod in the front and defendant in the back. The others again followed in their car until that car was involved in an accident. After he stopped to confirm no one had been injured, Devin left his three friends to deal with the accident and drove, at Jarrod's direction, to the nearby home of a girl named "Mele."*fn4 Jarrod testified Mele had paged him earlier in the evening.
While waiting for Mele to come outside, Jarrod told defendant and Devin he had been sexually intimate with Mele two days earlier. He mentioned he wore two condoms because he had heard a rumor that she was infected with the virus that causes AIDS. Jarrod then handed out condoms. Devin took one, and defendant took one or more.
It was after midnight when Mele came outside wearing sweatpants, sneakers, and a Pendleton-style jacket. She greeted the young men, accepted an invitation to hang out with them, and sat behind the driver's seat. Devin had been acquainted with Mele since elementary school, and it appeared to Devin that defendant also knew her.
After they drove around for a while, defendant suggested going to a lookout off Pigeon Pass Road. While there, Jarrod fired defendant's handgun into the air several times and saw defendant reload it. They then continued driving until they reached a grocery store in Moreno Valley where Jarrod bought a large bottle of rum. Devin did not drink because he was driving, but the others all drank from the bottle.
With no specific destination in mind, they reached San Bernardino. When they turned to head back to Moreno Valley, Mele took over driving. From the backseat where he was seated, Devin could see Jarrod "leaning toward" Mele and could see the two kissing when the car was stopped. When they reached Moreno Valley, they stopped at a gas station. While Mele was in the restroom, Jarrod told the others he had been "finger-banging" her while they drove. Defendant responded, "Man, that's nothing. I also done that."
Once Mele returned, Mele and defendant discussed another lookout area off Cactus Avenue, and Mele and Devin took turns driving there. When they arrived, Devin parked near a water tower. By that time, Mele's speech was slurred. Mele, Jarrod, and defendant continued to drink. The four discussed the rumor Jarrod had mentioned. Mele denied having the virus that causes AIDS and said the rumor was started by jealous girls. Defendant fired his handgun once or twice into the air. Mele and either Jarrod or defendant vomited outside the car, so Devin moved it about 20 yards down the road. As time passed, Mele exhibited more signs of intoxication. According to Devin, she became "incoherent, out of it completely. Not passed out, but not aware of her surroundings." While outside the car, Mele fell and called to Devin for help. He helped her up and led her to the backseat, where she lay on her back with her legs and feet hanging out of the driver's side rear door.
Jarrod moved into the driver's seat, and Devin sat next to him. Devin then noticed defendant standing near Mele's legs, fondling her breasts while Mele was "if not completely out of it, very close to."*fn5 Defendant next removed Mele's shoes and pants and threw them into the front passenger area while, according to Jarrod, Mele was "[p]ushing [defendant] away." Jarrod added that defendant did not "stop taking off her clothes when Mele was pushing him away." Devin heard a package being opened and heard defendant say he was "about to get it, get some." Defendant said something about having a "gym hat" or "Jimmy hat" on, which Devin and Jarrod understood to mean a condom. After defendant unzipped his pants, lowered them, and got on top of Mele, he moved his hips up and down. Devin testified that, after about three minutes, Mele "snapped out of it and forced [defendant] off of her." According to Jarrod, while defendant was on top of Mele, "[s]he was like telling him to get off," saying "stuff like, 'get off,' 'no.' "
Jarrod testified that, after Mele pushed defendant, defendant "didn't get right off," and Devin ultimately agreed that defendant did not get off of Mele "directly," but remained on top of her for "a while." According to Devin, while defendant was still on top of Mele, she said they were mistaking her for a " 'toss-up whore,' " and defendant said something like " 'you know what we came up on the hill for.' " Devin told a detective that Mele said "somethin' about, 'I'll give it away when I wanna give it away.' " Devin testified that while defendant was still on top of Mele, she seemed almost to be in "a fit of rage, as if she was disgusted by what was going on." While defendant stayed on top of her, Mele continued to both verbally and physically indicate she wanted him to get off of her. Once defendant did so, Mele sat up in the backseat, "primping herself" as if she were "a mess" and talking loudly while "[v]ery angry and upset." Devin testified that, based on what he saw and heard during the encounter between defendant and Mele at the Cactus Avenue lookout, he had "no doubt" that defendant had attempted to have sex with Mele.
Saying he was going to "straighten [Mele] out," defendant got out of the car, walked to the side where Mele was sitting, and pulled her by the arm. Mele resisted, but she was pulled from the car and then stumbled, falling to her knees while defendant held her by her forearms. Defendant pulled Mele by her arms to the rear of the car. Devin and Jarrod could see the two standing there and could hear them talking but could not hear what they were saying at first. Mele made some hand or head gestures, and defendant then raised his voice and said something like, " 'Is that it?,' " " 'Is that how it's gonna be?,' " or " 'It's like that, huh.' " Defendant then wrapped his left arm around Mele's neck and held her facing him in the crook of his arm, drew his handgun from his back pocket, put the gun against Mele's forehead, and fired. Mele fell motionless to the ground. Defendant then "straddled her face" with his feet on either side, held the gun about six inches from her face, and fired six or seven more times without pausing.
Defendant raced back to the car and got inside. When Devin asked why he had shot Mele, defendant simply said, "Drive." Jarrod drove to the first intersection, where Devin took over. Jarrod asked defendant if he was sure Mele was dead. He also asked, "So, is that why they call you Point Blank?" Defendant, who appeared calm, did not respond to either question. Instead, he started singing, "almost like verses of rap music, like making gestures towards what he had just done" or "giving himself praise." Defendant sang about how he " 'had to do what he had to do because he didn't get his nut off,' " which Devin took to mean defendant did not have an orgasm. Defendant also said, " 'They're never gonna really have to make a rap about my name being Point Blank.' " He seemed "proud, almost gloating." Jarrod testified defendant sang, " 'I didn't want to shoot you, didn't want to kill you, bitch, but you wouldn't give me any pussy.' " According to Jarrod, defendant said he shot Mele "because she wouldn't have sex with him," "because she wouldn't give it up."*fn6
As they drove from the lookout, defendant threw Mele's clothes out the window, and Jarrod threw out the rum though the bottle was one-third full. At defendant's insistence, Devin and Jarrod each swore "on [his] mother" that he would not tell what had happened. Defendant said he would trade the gun for marijuana and that he wanted to pin the murder on someone else.
Devin arrived home at approximately 5:00 a.m. Crying and upset, he told his parents what had happened. Devin was on juvenile probation at the time. After showering and changing clothes, he and his parents went to the probation office where Devin reported what he had witnessed. Devin then was taken to the Moreno Valley Police Department where he was interviewed at length. At some point that day, Devin showed detectives where Jarrod and Mele lived. With Devin's permission, the police searched his bedroom, where they collected the clothes he had worn the night before. A sealed Trojan condom was found in his pants pocket.
In the meantime, defendant had driven Jarrod home. Before they went to sleep, defendant told Jarrod he was certain Mele was dead because " '[i]f the first bullet didn't get her, the second one did, if the second one didn't get her, then the third one did.' " He said that, as he shot Mele, he saw "pieces of her face coming off." Jarrod's great aunt woke the two at 7:00 a.m. and drove defendant home. Defendant removed his pants and went to sleep. On her own initiative, defendant's girlfriend washed the pants. She testified she and defendant never used condoms.
That morning, a jogger found Mele's body clad in a T-shirt, a Pendleton-style jacket, underpants, and socks. Six empty .22-caliber shell casings were found near her body. Another five empty casings were found about 30 yards away, and two puddles of what appeared to be vomit were seen near the five casings. A criminalist testified that, in his opinion, all of the casings had been ejected from the same .22-caliber Beretta semi-automatic handgun. No gun was found at the scene, and the murder weapon was never found. According to witnesses, defendant had kept a .22-caliber handgun in his room.
That evening, the police interviewed Jarrod and searched his car. They found latent fingerprints matching defendant's prints on the trunk lid, the passenger-side rear panel, and the outside of the passenger-side rear door frame.
Police searched defendant's home the following day while defendant was not there. In the dryer, they found defendant's pants and a sealed Trojan condom. Defendant turned himself in a few hours after the search.
The forensic pathologist who examined Mele's body observed seven separate bullet wounds to her forehead, cheeks, lips, and chin. The bullets had perforated her skull and jaw and had fractured several teeth. The forehead wound was a contact wound. Most of the others had been inflicted from a short distance away, probably within two feet. Three of the wounds were fatal; the rest were survivable but could have been fatal if left unattended; all could have been caused by a small-caliber handgun, such as a .22, fired at close range. The pathologist noted that Mele had two crescent-shaped bruises facing each other on her upper left arm, each about four centimeters in length and two centimeters in width. The pathologist believed they were caused by "a significant degree of force." There was a smaller bruise on Mele's lower left arm, possibly caused by someone grabbing and pulling her, and another bruise on her right knee. All of the bruises had been sustained while Mele was alive, at any time between right before her death and 48 hours before death. The pathologist observed no physical evidence of a sexual assault and no trauma to Mele's breast or genital areas. A blood sample was taken and evidence was gathered for a sexual assault kit.
The toxicologist who examined the blood sample taken from Mele's body, and determined it contained .14 percent alcohol at the time of her death, testified one would need a blood-alcohol level of over .20 to be rendered unconscious or unable to be readily aroused.
The defense also presented evidence of the crimes of moral turpitude that Devin and Jarrod had committed. One of Jarrod's prior felonies involved sexual assault.
The prosecution presented evidence of four incidents in which defendant engaged in violent conduct, three of which occurred while he was a juvenile.
In February 1992, defendant, then age 14, refused to obey a school resource officer's order to leave the Moreno Valley High School campus. Defendant struggled when the officer grabbed him by the arm. The officer wrestled defendant to the ground and handcuffed him with the assistance of two other school officials. During the struggle, defendant's arm hit an official in the eye.
In October 1992, defendant and another teenager stopped two younger boys who were riding bicycles. They demanded the boys get off their bicycles and then rode off on them. One of the younger boys saw a knife handle tucked in the waistband of defendant's companion.
In January 1993, at defendant's instigation, he and two younger boys robbed a pizza deliveryman. They ordered pizzas by telephone. When the pizzas arrived, the group repeatedly struck the deliveryman with sticks. They knocked the man to the ground, grabbed the pizzas, and ran off. The deliveryman was able to return to his workplace but collapsed once there. His injuries required medical treatment.
In July 1995, defendant was either the driver or passenger of a car that was driven rapidly into a yard where people were having a barbecue. The guests, including teenagers and young children, were forced to scatter to avoid being hit. The car ran into a fence and drove off. The trial court took judicial notice that defendant pleaded guilty to misdemeanor assault with a deadly weapon in January 1996 in connection with this incident.
The prosecution also presented evidence of the impact of Mele's death on her family. Family members described her loyalty to their family, her memorial service, what holidays were like without her, and what they missed about her.
The defense presented the following evidence through testimony from defendant's father, Edward, his older brother, Lenier, Lenier's girlfriend, defendant's girlfriend, a teacher, and mental health professionals.
Defendant's mother, Jimmie, drank alcohol and took prescription drugs, including valium, while pregnant with defendant.*fn7 Defendant was born in 1977 with the umbilical cord wrapped around his neck. The cord temporarily stopped the flow of oxygen to his brain. When defendant was a child, he suffered two serious head injuries, once when he fell from a moving car and once when another boy hit him in the head with a golf club. Defendant was a slow learner with behavior problems, and Edward spanked him in a futile attempt to curb his aggressive behavior.
Edward worked nights, both parents regularly drank alcohol, and Jimmie used drugs. The couple got into fights that defendant tried to stop by crying or jumping between them. Defendant's parents separated in 1985 and soon divorced. Jimmie had primary custody of their sons until 1987. In that year, she left the two boys in Edward's custody one day and did not return. They lived with their grandmother for over a year and then joined their father. By that time, Edward had moved to Moreno Valley and had remarried. Defendant resented the new wife's rules, and Edward would "whoop" him when he broke them. Every week Edward took the boys to see Jimmie. By that time, she had been diagnosed with diabetes and, as a result, eventually lost both of her legs.
When defendant was age 14, a psychiatrist diagnosed him with attention deficit disorder (ADD), conduct disorder, and learning disabilities. The psychiatrist testified that ADD can be caused by fetal distress caused by an inability to breathe during delivery, as well as by head injuries or prenatal exposure to alcohol and drugs. She prescribed a stimulant that initially calmed defendant but then made him feel jumpy. She ordered him to continue the medication, but her records reflect no further visits from him.
During the 1992-1993 school year, defendant was placed in a special education program for students facing expulsion. He performed at more than two years below his grade level, but he cooperated with school personnel, and if he took his medication he could complete his assignments.
In May 1993, following an arrest, defendant was placed in a residential treatment program. While there, defendant was referred to a psychiatrist who concluded he displayed symptoms of ADD and hyperactivity. Defendant responded well to the prescribed medication, showed leadership skills, and stayed in the program for nine months. A social worker recommended an emancipation program because he felt Jimmie and Edward lacked the necessary parental skills to deal with defendant. Defendant and Edward decided against it, and defendant lived with Edward again. Defendant stopped taking the medication in January 1994.
After leaving the program, defendant began drinking alcohol and using marijuana. Edward "whooped" him, but defendant did not change his behavior. During a fight in 1994, defendant slapped Edward's face and then ran away. He did not return, but instead lived on the streets for a number of months.
When defendant returned home, he lived with Edward, Lenier, and Lenier's girlfriend. Defendant lovingly cared for his brother's son, and he loves his own son, who was born in June 1996. Lenier and his girlfriend testified defendant had matured since his arrest. Lenier said defendant had gained strength and wisdom, and he helped Lenier deal with Jimmie's death. Edward said he would be devastated if defendant were sentenced to death.
Dr. Cecil Whiting, an expert in clinical psychology, administered neuropsychological tests to defendant. He concluded defendant suffers from brain damage in three separate areas; that such damage can cause problems with learning, sequential processing, following instructions, and controlling anger; and that alcohol consumption exacerbates the effects of the damage. He noted defendant's brain damage could have been caused by head injuries and by prenatal drug or alcohol exposure. Dr. Whiting opined that conduct disorder was not ...