Court: Superior County: Los Angeles Judge: Tomson T. Ong Super. Ct. No. NA039436
The opinion of the court was delivered by: Werdegar, J.
Defendant Kevin Darnell Pearson was convicted and sentenced to death for the 1998 first degree murder of Penny Sigler, also known as Penny Keptra. The jury found the murder was committed during the course of robbery, kidnapping, rape, and sexual penetration by foreign object, and that it involved the infliction of torture. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), (18).)*fn1 In addition, defendant was convicted and sentenced to state prison for robbery, forcible rape, sexual penetration by foreign object, forcible rape and sexual penetration by foreign object while acting in concert, kidnapping for purposes of rape, and torture. (§§ 206, 209, subd. (b)(1), 211, 261, subd. (a)(2), 264.1, 289, subd. (a)(1).) On this automatic appeal (§ 1239, subd. (b)), we affirm the convictions of first degree murder and the other charged felonies, but reverse the judgment as to the penalty of death due to the trial court's improper excusal of a prospective juror because of her views on capital punishment.
The evidence showed defendant and two other men, Jamelle Armstrong and Warren Hardy, killed the victim, a stranger to them, during a brutal robbery and sexual assault. The crimes took place late on the night of December 29, 1998, by a freeway embankment in Long Beach.
Between 11:00 p.m. and midnight on December 29, 1998, the victim, Penny Sigler, left her Long Beach home to go to the store. She had $6 worth of food stamps given to her by her roommate. Her nude body was found the next day on the freeway embankment of northbound Interstate 405, near the intersection of Wardlow Road and Long Beach Boulevard. The body was 10 to 15 feet from the bottom of the embankment, separated from the surface streets by a drainage ditch and, above the ditch, a nylon mesh fence supported by wooden stakes. One of the stakes was broken, a tennis shoe lay on the embankment, and there was blood on the fence and in the drainage area.
The victim's injuries were extensive. The medical examiner counted 114 injuries, including around 25 fractures, all of which appeared to have been inflicted before death. Blunt force trauma to the head and neck was a component of her death, but the medical examiner also found signs of asphyxiation. Sigler had sustained multiple blunt force injuries to her head, face and neck, including abrasions and bruising on her neck, bruising around both eyes, an exposed fractured left cheekbone, a laceration of the forehead exposing the skull bone, a wounded left cheek, a partially torn-off right ear, internal bruising and bleeding in the muscles of the neck, and broken neck bones. She also had blunt force injuries on her back, chest, abdomen, arm and thigh. Some of the wounds could have been inflicted with a piece of wooden stake.
Sigler also suffered bruising, abrasions and lacerations in and around her genitalia, perineum and anus. A small splinter of wood was found in her vagina. Her genital injuries could have been caused by penetration with a wooden stake but not by penetration with a human penis.
On the night of December 29, defendant was at his friend Monty Gmur's house in Long Beach. He left around 10:00 p.m. with Warren Hardy and Jamelle Armstrong. According to Gmur, the men were drunk and boisterous when they left his house, though they were walking without difficulty.
The next day, defendant told Gmur he and the men he was with had killed "a white woman" after they left Gmur's home. After seeing a news report about Sigler's murder, Gmur asked defendant for more information. Defendant told Gmur the men had gone to the Wardlow Metro station, where they momentarily became separated. On hearing a commotion across the way, defendant went to see what was happening, found Hardy "stomping" on a woman, and tried to get him to stop. The victim had said she did not have any money; when they found her food stamps, Hardy became angry and beat her with a stick. Defendant told Gmur he helped Hardy and Armstrong move the victim from the street, over a fence to the freeway embankment, but attributed all the violence committed to Hardy. A few days later, Gmur contacted the police and told them what defendant had told him.
Long Beach Police Detective Bryan McMahon interviewed defendant on January 6, 1999. After initially denying all involvement, defendant said that he, Hardy and Armstrong, together with a man named Chris, had left Gmur's house late on the night of December 29 after drinking together. Chris soon left the group, and the remaining three took a Metro train to the Wardlow station. As they walked toward Long Beach Boulevard, Hardy lagging behind, defendant heard a woman screaming for help and turned to find Hardy punching her. The woman momentarily escaped Hardy, running to a nearby fence. The victim either climbed and fell over the fence or was lifted over it; Hardy then jumped the fence and dragged her into a drainage ditch area. Defendant and Armstrong followed to find Hardy sitting on the woman's chest, gesturing to his crotch and demanding she orally copulate him. When defendant told Hardy that was disgusting and he could get AIDS from the blood on the victim's face, Hardy got up, zipped his pants, and resumed beating the victim with a stick, as he had been doing (while also stomping on her) earlier. Hardy and Armstrong then repeatedly jabbed the stick into the victim's vagina.
When Hardy and Armstrong stopped, defendant suggested they move the woman's body. Wrapping shirts around her, the three carried her farther up the freeway embankment. They then collected her clothing in a bag and carried the bag and stick to a bus stop on Long Beach Boulevard, where Armstrong threw the stick into a field. The three then rode the bus to Los Angeles, leaving the clothing in a trash can at a transfer point. They went to Hardy's girlfriend's house, where they stayed until the next day, when defendant and Hardy returned to Long Beach for some clothing; there was blood on the clothes they had worn during the killing.
On January 7, 1999, police arrested Hardy and Armstrong and searched their residences. Later that day, after receiving information from Hardy and Armstrong, Detective McMahon reinterviewed defendant. Without telling defendant what Hardy and Armstrong had said, McMahon informed defendant it was not entirely consistent with what defendant had told him. "More [had] happened out there" than defendant had admitted, and defendant "needed to tell the truth and take responsibility" for his own actions. Defendant nodded affirmatively and gave a significantly more incriminating version of events.
As the three men were walking to Long Beach Boulevard from the Wardlow station, defendant said, they were shouting "Happy New Year" and "Merry Christmas." They heard a woman yell back, "Yeah, Merry Christmas. Happy New Year." The men crossed the street and talked with the woman. At some point Hardy asked the woman where her money was; she said she didn't have any, but defendant started looking through her jacket pockets. When she tried to get away, defendant and Armstrong wrestled her to the ground and started pulling her clothes off and going through them, looking for valuables. Once she was naked, Hardy said, "We have to finish the job," and he and Armstrong began stomping on the victim's head and upper body. Defendant and Armstrong then threw the victim over the fence onto the freeway embankment, the three men jumped the fence, and Armstrong dragged her farther off the road.
Defendant, according to his January 7 statement, then unzipped his pants and raped the victim for a minute or less, while she struggled and Armstrong held one of her legs. When he quit, Hardy approached and began beating the victim with a stick or stake on her head and neck. Hardy and Armstrong again stomped on her, and defendant also did so, kicking or stomping on her upper body five or six times. Finally, Hardy and Armstrong vaginally penetrated the victim with the stick. The remainder of defendant's January 7 statement accorded with his earlier account: the three moved the victim's body up the embankment, collected clothing from the scene, and took the bus to Los Angeles, discarding the stick and clothing as previously described. The next day, Hardy spent food stamps they had taken from the victim at a Mexican market near his girlfriend's apartment.
In letters defendant wrote and sent after he was arrested, he said he did not kill the victim but kicked her in the head several times, and the victim was raped but he did not remember by whom.
The serial numbers of two food stamps that originated at a check cashing agency in Long Beach and were exchanged at Lorena's Market in Los Angeles matched those on a food stamp booklet cover found at the crime scene. DNA matching Hardy's was found in saliva on the victim's body. DNA matching that of Sigler, the victim, was found on boots and pants defendant had left at Hardy's girlfriend's house, items of clothing similar to those Gmur had seen defendant wearing on the night of December 29. Shoe prints at the crime scene were similar to the sole pattern of the boots.
Defendant testified in his own defense. In December 1998, he was living on the second floor of his mother's house; Gmur lived next door. On December 29, defendant drank a six-pack of Olde English 800 malt liquor before going to Gmur's house around 4:00 p.m. At Gmur's house, defendant, with others, smoked marijuana and drank beer and a mixture of alcoholic beverages they called "gasoline." By 9:00 p.m., defendant was drunk and high. The group, which included Hardy and Armstrong, drank some more, then finally left Gmur's house.
As defendant, Hardy and Armstrong walked along Wardlow Road toward Long Beach Boulevard, where they planned to catch a bus to Los Angeles, defendant heard a cry of pain from across the street. He saw Hardy with a woman. Holding the woman's jacket lapel, Hardy asked if she had any money, and when she said no, he accused her of lying, started looking through her pockets, and took the jacket off her to search it. Armstrong held the victim to prevent her from leaving or resisting. Though defendant told his friends to leave the woman alone, they both began to hit her face and head with their fists. Eventually Hardy and Armstrong forced the victim to the ground and started kicking her. Defendant continued to tell them to leave her alone.
Hardy and Armstrong threw the victim over a fence, then climbed over, as did defendant. Bleeding and in pain, the victim asked for help in a voice "like a gurgle." Armstrong dragged her to the drainage ditch area, then kicked her in the head and neck while Hardy kicked her chest. Armstrong and Hardy stripped the victim of her clothes, then beat and kicked her further. When defendant again told them to stop and started toward the fence, Hardy gave him a threatening look, asked where he was going, and said, "We have to finish the job." Armstrong found a stick and started beating the victim with it while Hardy continued to kick her. Eventually Armstrong used the stick to penetrate the victim vaginally; Hardy then grabbed the stick from Armstrong and did the same, while Armstrong kicked the victim.
When Hardy and Armstrong stopped their assault, defendant could tell the victim was dead because she did not seem to be breathing and the "water-type sound coming out of her throat" had stopped. Hardy said they had to "clean up." Defendant and Armstrong wrapped shirts around the victim so as not to touch her, then carried her up the embankment. They gathered her clothing and put it into a bag Hardy had. The three men then went to the bus stop on Long Beach Boulevard, Armstrong threw the stick into a field, and they boarded a bus. Hardy got into an altercation with a man on the bus, and when the driver threatened to call the police, defendant promised to keep Hardy calm. They threw the bag of clothing into a trash can in Los Angeles.
Defendant testified he had given Detective McMahon untrue versions of the events because he was scared and the detective kept calling him a liar. He told a different story in the January 7 interview because he thought if he told the detectives what they wanted to hear he would be released sooner. A detective told him Armstrong had said defendant raped the victim, so he repeated that false story to the detectives. During the killing, defendant did nothing to stop Armstrong and Hardy from attacking the victim because he was afraid if he did so, they would turn on him and attack him.
For the prosecution, Janisha Williams testified that defendant, along with Williams and about 25 of their friends, was a member of the Capone Thug Soldiers, a gang,*fn2 and that initiation into this group required fighting two of the members for a few minutes. Once, several members of Capone Thug Soldiers, including the witness and defendant, beat up a person "for the fun of it." On other occasions, Williams saw defendant hit people with sticks or knock riders off their bicycles, in one case injuring the rider.
Monty Gmur testified that while defendant, Hardy and Armstrong were at his house on December 29, 1998, with a young man named Chris, they asked if they could use his back room to initiate Chris into their gang. When Gmur refused, the four left, returning about 15 minutes later. Gmur then heard Hardy on the telephone tell someone named Capone that "Chris is cool. We're going to call him Playboy."
Teddy Keptra, Penny Sigler's son, testified to the impact of her murder on him. Fifteen years old at the time of her death, he subsequently dropped out of high school and had difficulty holding a job. He missed his mother and thought of her constantly.
For the defense, Colette Burnett, defendant's mother, testified defendant's first stepfather, with whom he had had a good relationship, died in 1986, when defendant was nine years old. Burnett had a breakdown in 1989; she was hospitalized and unable to care for her children for several months, during which time defendant stayed with relatives and in foster care. In late 1989, she began living with a man named Saleem, whom she married in 1991. Saleem physically abused Burnett, despite defendant's efforts to stop him. Burnett herself sometimes hit defendant with a belt, broomstick or mop handle.
Defendant's younger brother testified Capone Thug Soldiers was a rap group, not a street gang, and consisted of only five or six people, including himself and defendant. He also testified Saleem hit their mother on many occasions, and she had beaten her sons regularly.
A former neighbor testified defendant used to baby-sit for her grandchildren, who lived with her. On one occasion, she saw Saleem try to hit defendant and his brothers with a two-by-four.
Psychiatrist Jack Rothberg interviewed defendant, administered psychological testing, and reviewed investigatory and trial materials relating to the case, including police reports and transcripts of defendant's police interviews and trial testimony as well as statements to police by Hardy and Armstrong. Defendant had described his family history, including his abusive stepfather, and told Rothberg of a conflict with Armstrong and Hardy that occurred sometime before the killing of Sigler. Defendant had accused Armstrong of stealing; in response, Armstrong, Hardy and "one of their gang friends" threatened defendant with a gun and told him to shut up about it. From his examination of defendant and review of materials, Rothberg concluded that during the attack on Sigler defendant was frightened of Hardy and Armstrong, "was shocked as the events unfolded and was really paralyzed to do anything about it . . . as if he was on a fast moving train he just couldn't stop or get off of." On cross-examination, Rothberg said he was aware that Armstrong and Hardy had told the police defendant raped the victim; he nonetheless believed defendant's denial of having done so.
The parties stipulated defendant had no prior criminal convictions.
I. Denial of Suppression Motion
Defendant unsuccessfully moved to suppress his confession to the police, arguing in part that he should have been readvised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 at the time of his second interview with Long Beach Police Detective McMahon, which took place on January 7, 1999. On appeal, defendant repeats his claim that Detective McMahon's failure to repeat, on January 7, the Miranda advisements given defendant before his first interview on January 6 rendered statements made in the second interview inadmissible.
At a hearing on the motion to suppress, Detective McMahon testified he first interviewed defendant on the afternoon of January 6, 1999, starting around 1:00 p.m. and ending around 6:45 p.m. McMahon advised defendant of his Miranda rights by reading aloud from a written form placed on the table between them, which defendant then signed, indicating he understood his rights and wished to speak with the detective. McMahon first interviewed defendant about the Sigler murder without a tape recorder, then tape-recorded defendant's statement.
After giving his first statement, defendant remained in the interview room until 4:00 or 5:00 a.m. the next morning, when he was booked into the jail, except for a period of a couple of hours during which he accompanied officers to the crime scene and other locations. While defendant was in the interview room, Detective McMahon and others, who were preparing to arrest Armstrong and Hardy and search their residences, came in occasionally to consult defendant on facts relevant to those preparations. On January 7, defendant remained in the jail until about 3:30 p.m. ...