Orange County Super. Ct. No. 96NF2113 Judge: John J. Ryan
The opinion of the court was delivered by: Kennard, J.
Defendant Gary Galen Brents argued with Kelly Gordon over $100 in proceeds from a methamphetamine sale. Defendant tried to suffocate Gordon, and he choked her. Then he placed Gordon in the trunk of a borrowed car, drove her to a remote location, opened the trunk, poured gasoline on her, closed the trunk, poured gasoline on the outside of the trunk, and lit the gasoline on fire. Gordon burned to death, trapped in the trunk.
Defendant was charged with one count of first degree murder (Pen. Code, § 187, subd. (a)),*fn1 one count of kidnapping (§ 207, subd. (a)), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Alleged were two special circumstances: that defendant committed the murder while engaged in a kidnapping offense (§ 190.2, subd. (a)(17)(B)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It was also alleged that defendant had three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(e), and 1170.12), and also within the meaning of the five-year enhancement statute (§ 667, subd. (a)), and that defendant had served five prior prison terms within the meaning of section 667.5, subdivision (b). Defendant pleaded not guilty to the charged crimes and denied the special circumstance and enhancement allegations. The trial court granted defendant's motion to bifurcate the trial on the prior convictions.
A jury found defendant guilty of the charged crimes, and it found true the kidnapping special circumstance. The jury was unable to reach a verdict on the torture special circumstance; the trial court declared a mistrial on that allegation, and the prosecution later stated on the record that it would not retry the allegation. After defendant waived his right to a jury trial on the prior conviction and prior prison term allegations, the trial court found all the prior conviction allegations true, and it found four of the five prior prison term allegations true.
At the penalty phase, the jury returned a verdict of death. The trial court denied post-verdict motions, including the automatic motion to modify the verdict. The court sentenced defendant to death on the first degree murder conviction. Applying the three strikes law (§§ 667, subds. (b)-(e), and 1170.12), the court imposed a consecutive 25-years-to-life term on the assault conviction; applying the five-year enhancement statute (§ 667, subd. (a)), the court imposed three consecutive five-year enhancements. The court stayed the sentence on the kidnapping conviction and struck the prior prison term enhancements.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the convictions of first degree murder and the other charged felonies, but we reverse the judgment as to the penalty of death and set aside the kidnapping special circumstance finding because the trial court erroneously instructed the jury.
I. Factual Background A. Guilt Phase 1. Prosecution evidence a. Defendant and his associates beat up Kelly Gordon
In October 1995, defendant rented a room at a Travelodge motel in Anaheim and stayed there with Michelle Savidan, Abigail (Abby) Diaz, and murder victim Kelly Gordon. Savidan testified that on October 3d, defendant agreed to give her enough money to buy a quarter-ounce of methamphetamine, which she would then sell at a profit, returning the proceeds to defendant. Defendant gave Savidan the money, and Savidan returned with the methamphetamine. When she returned, Diaz and victim Gordon were with defendant. Gordon worked for defendant as a prostitute. Savidan had expected to sell all the methamphetamine herself, but defendant gave two grams to Gordon to sell.
That night, defendant and Gordon were stopped by City of Buena Park police officers in an area frequented by prostitutes. Police took a thumbprint from Gordon but did not arrest her or defendant.
On October 4th, defendant, Gordon, and Savidan met in defendant's motel room. According to Savidan, she had sold her portion of the methamphetamine, and she gave defendant the money. Gordon, however, did not have the two grams of methamphetamine that defendant had given her (worth about $100), nor did she have the money. Defendant and Gordon argued about the money. Diaz arrived later. Anna Sara Uele and Victoria (Vickie) Myers, who knew defendant, also came to the room, and they brought with them a woman named Jasmine (who died before trial). Uele and Myers testified that Gordon was in the room, crying, when they arrived, and defendant was demanding the money she owed him. Savidan, Diaz, Uele, and Myers all testified about the events that transpired next.
At some point, Savidan told defendant that he should send Gordon away. Savidan offered to wait for Gordon in the parking lot of a nearby motel, beat her up, and tell her not to return. Defendant agreed to this plan, and Savidan left. Gordon then told defendant that she could get the money she owed him, and Uele offered to drive Gordon wherever she needed to go. Gordon, Uele, Myers, and Jasmine all went out to a blue Cadillac that Uele had borrowed from someone in exchange for drugs. Diaz remained behind. Defendant went to get Savidan, and they got into the Cadillac with the other four women. Uele drove a short distance and parked. The women dragged Gordon out of the car, beat her with their fists, and kicked her. Gordon was on the ground, bleeding from her nose and mouth.
Defendant then pulled Savidan aside and expressed an intent to kill Gordon for being a "snitch." Savidan returned to the motel room, where she found Diaz. Savidan told Diaz that they needed to get away from defendant, adding: "We [are] going to either end up dead or in jail."
Meanwhile, defendant, Gordon, Uele, Myers and Jasmine got back into the Cadillac. Defendant put a plastic bag over Gordon's head and tightened it around her neck. Gordon pulled the bag off. Defendant also choked Gordon from behind. Defendant then told Uele to open the trunk, and he put Gordon into the trunk, hit her, choked her, and closed the trunk. Uele and Myers asked defendant what he was doing. Defendant answered: "We got to take her out . . . because she w[ill] tell." Uele, Myers, and Jasmine decided to return to the motel room, and Uele gave the Cadillac keys to defendant. Defendant returned to the motel room briefly, washed blood off his hands, used the bathroom, and then left.
About two hours later, Savidan and Diaz and some other people were standing in front of the Stage Stop Motel, located about a half-mile from the Travelodge. Defendant approached and said: "I took her to the hospital." Defendant then took Savidan away from the group and asked her: "Now, if I took gasoline and I poured it all on the inside of the car and on the outside of the trunk, do you think the fire would reach the inside of the trunk?"
b. Firefighters' discovery of Gordon's body in a burned blue Cadillac
At 10:48 p.m., on October 4, 1995, Los Angeles County firefighters responded to a report of a burning vehicle on Santa Fe Avenue, in an isolated industrial area near Lakewood, approximately 16 miles from defendant's motel room, but only three miles from the address on defendant's driver's license. Firefighter Ken Salmans testified that when he arrived with the other firefighters, they discovered a late-model luxury car, light in color, with the trunk engulfed in flames. After the fire was extinguished, Salmans opened the trunk and saw the dead body of a woman. The body was severely burned, with particularly severe burns from the waist down. Salmans also smelled gasoline vapors. His opinion, based on the severity of the burns and the location of the fire, was that someone had poured gasoline directly on the woman.
Detective Barry Shapiro of the Los Angeles County Sheriff's Department arrived at the scene while the fire in the trunk of the car was still burning. He testified that he was present when the trunk was opened. He identified the car as a light blue Cadillac, and he described the burned body of the woman in the trunk. The burns were particularly severe on the legs. The body, which had the name "Kelly" tattooed over the left shoulder blade, was later identified by thumbprint to be that of Kelly Gordon, the woman stopped with defendant and thumbprinted on the night before the murder.
Sheriff's investigators discovered a blue plastic antifreeze container in the street near the car. The container smelled like gasoline. They also found rags that smelled like gasoline on the front passenger-side floorboard of the car. DNA taken from a cigarette butt found on the driver's seat of the car matched Uele's DNA; only 1 in 3,400 people in the general population would have those same DNA markers.
An arson expert ruled out an accidental cause of the fire and concluded that the fire was caused by igniting gasoline that had been poured inside the trunk, between the legs of the burned woman, and also on the top of the trunk. An autopsy discovered second- and third-degree burns covering 70 to 80 percent of Gordon's body, with particularly bad burns on the legs. It appeared that Gordon had suffered a bloody nose and a blunt force injury to the temple. She had an elevated carbon monoxide level in her blood, and soot was in her larynx, trachea, and lungs. These facts indicated that Gordon was alive when the fire was ignited and that she died from smoke inhalation and burns.
c. Defendant's attempts to influence witnesses
While defendant was in custody, awaiting trial, investigators involved in a narcotics search of a motel room found a manila envelope addressed to Iris Hernandez, Diaz's mother, with defendant's name as the sender. The envelope contained several letters that bore defendant's fingerprints and were signed with defendant's street name, "Dragon." One letter was to Iris Hernandez, asking her to deliver the other letters, which were addressed individually to Diaz, Savidan, Uele, and Myers.
The letters instructed their recipients that, if questioned by police or in court, they should say they could not remember anything. Savidan and Uele were specially instructed: "As for possible alib[i] we all kicked in the room getting hi[gh] all night or most of the night." The letters to Diaz and Myers offered each of them $10,000, and the letters to Savidan and Uele used a series of dollar signs to indicate the offer of a large payment. The letters all stated that their author did not want to go to court for a murder he "didn't do." Each letter ended with "Now burn this letter."
Defendant also tried to influence other witnesses. Sandra Floyd testified that in 1999 she met defendant on a jail bus on the way to court. Defendant showed Floyd pictures of four women, and Floyd recognized Uele among these women. Floyd discussed the matter with a defense investigator and conceded that defendant was probably showing her the pictures because he was accusing them of being "snitches." She also warned Uele that she saw a picture of Uele "testifying against a gentleman." Later, a sheriff's deputy found the four photographs in a search of defendant's cell.
Thereafter, during defendant's trial, Heather Castaneda met defendant on a jail bus on the way to court. Defendant told her that he had been "snitched off" by Uele, who was on the same bus to the court with him and Castaneda, and he indicated that he wanted Uele to be killed. After Castaneda reported this conversation to sheriff's deputies, defendant threatened to arrange the murder of Castaneda's son, and he made similar threats against Castaneda.
Defense investigators testified that Uele had once lived near the place where Kelly Gordon's burned body was found.
B. Penalty Phase 1. Prosecution evidence
Pamela Hack testified that in 1979 defendant tried to snatch her purse as she left a store. When Hack refused to let go of the purse, defendant dragged her over the asphalt surface of the parking lot. Defendant also slapped her. Hack then let go of her purse, and defendant fled. Hack suffered several injuries.
Bradford Miles testified that in 1984 he and defendant were both inmates at the Los Angeles County jail. According to Miles, defendant and another inmate attacked Miles and stole his property. Defendant forcibly sodomized Miles, forced Miles to masturbate him, and tried to force Miles to orally copulate him. Miles testified that an investigator named "Mr. Vacca" interviewed him in his home about this incident, and he denied the incident because the interview took place in front of Miles's girlfriend and friend, who did not know about the incident.
In 1991, defendant asked Lisa Walker to work for him as a prostitute. When she refused, defendant broke her jaw. He also threatened Vanessa Taylor, who witnessed the assault on Walker, scaring her so much that she stabbed him.
Orange County Sheriff's Deputy Gene Hyatt testified that in October 1996, he was assigned to the Orange County men's jail where defendant and Gary Ahquin were inmates. Deputy Hyatt saw defendant assault Ahquin with closed fists, although Ahquin had done nothing to provoke the attack. Ahquin suffered a broken nose. Ahquin told Hyatt that defendant thought Ahquin was a "snitch."
Sheriff's Deputy David Barr testified that in June 1999 he was assigned to the Orange County men's jail where defendant and Andrew Lesky were inmates. Deputy Barr was preparing to put defendant into restraints, but defendant said his left wrist was fractured, so Barr left that wrist uncuffed. Deputy Barr then told defendant to stand behind fellow inmate Lesky. Deputy Barr saw defendant punch Lesky hard, in the back of the head, causing Lesky to fall. Lesky hit his head on the ground, resulting in a cut that required seven stitches. When Deputy Barr later testified about this incident in defendant's presence, defendant pointed his hand at Barr and simulated pulling the trigger of a gun.
The parties stipulated that defendant had suffered nine prior felony convictions. On November 19, 1979, defendant was convicted of attempted grand theft of an automobile. The same day, he was convicted of the robbery of Pamela Hack. On February 23, 1984, defendant was convicted of assault with a deadly weapon. On October 10, 1984, defendant was convicted of the robbery of Bradford Miles. On May 16, 1986, defendant was convicted of possession of heroin. On August 19, 1988, defendant was convicted of possession of cocaine for sale. On June 16, 1989, defendant was convicted of possession of a firearm by a person previously convicted of a felony. On August 30, 1991, defendant was convicted of possession of marijuana in jail. On October 19, 1992, defendant was convicted of possession of a firearm by a person previously convicted of a felony.
Murder victim Kelly Gordon's mother, stepfather, and brother all testified. Gordon's brother stated that he was "crushed inside" because of Gordon's murder and added that he would have given defendant the money that Gordon owed if defendant would have spared her life. Gordon's mother and stepfather said that they are raising Gordon's young son, Joey. Gordon's mother said that Gordon ...