Riverside County Super. Ct. No. CR60333 Judge: W. Charles Morgan
The opinion of the court was delivered by: Corrigan, J.
In May 1999, defendant Sonny Enraca was convicted of the first degree murders*fn1 of Ignacio Hernandez and Dedrick Gobert, with a multiple-murder special-circumstance finding.*fn2 Defendant was also convicted of assault with a deadly weapon*fn3 on Jenny Hyon, with a great bodily injury finding.*fn4 Firearm use*fn5 and criminal street gang*fn6 findings were made as to all three counts. Defendant was sentenced to death.*fn7
This appeal is automatic. We affirm the judgment.
I. FACTUAL BACKGROUND A. Guilt Phase 1. Prosecution Evidence
The victims were shot during a gang fight in November 1994. Associates of both defendant and the victims testified for the prosecution. Defendant's companions identified him as the shooter, but the victims' companions were unable to do so. Defendant admitted to both his friends and the police that he shot the victims.
a. Testimony of the Victims' Companions
Late one evening Maile Gilleres and Jenny Hyon accompanied Ignacio Hernandez and Dedrick Gobert to the site of illegal street races. During one race Hernandez's car was cut off by an "Asian"*fn8 driver. Both men got out of their cars and fought. At least 10 other Asians surrounded Hernandez, but when the police arrived, everyone drove away.
Gobert, Hernandez, Hyon, and Gilleres drove to a nearby pizza parlor. When they got out of their cars, the same group of Asians approached them and the two groups cursed at one another. One of the Asians, whom Gilleres described as a Filipino,*fn9 pointed a gun at Hyon. He put the weapon away when a slightly older Asian man said something to him. Gilleres told the older man that she would get her group to leave if he and his friends did the same. He nodded in agreement and the two groups parted.
Gobert got into his car and drove up and down the street for several minutes. A different group of 15 to 35 Asians, dressed in red, started chanting, "Blood, blood, blood." Gilleres assumed they were claiming to be members of the Bloods gang. Gobert parked and approached the group. Making hand signs indicating he was a member of the Crips gang, Gobert said to them, "What's up, cuz?"
A gang expert testified that it would be an insult for a member of a Crips gang to address members of a Bloods gang as "cuz" because the term is used to refer to Crips. He further testified they would have lost credibility in the gang culture if they had failed to avenge such an insult. Therefore, an attack on Gobert carried out under these circumstances would be undertaken for the benefit of defendant's Akraho Boyz Crazzys (ABC) gang.
The Asians immediately charged Gobert, threw him to the ground, and beat him. As Hernandez and Gilleres tried to shield him, gunshots rang out. Gilleres saw an Asian man shooting down at Hernandez. Hyon was struck by a bullet. As a result of a neck wound, she was paralyzed from the chest down.
Gilleres did not identify defendant in a pretrial photo lineup. She testified at trial that he was not the person she saw shoot Hernandez. Instead, the shooter appeared to be the person who had pointed a gun at Hyon in the preceding incident. Hyon was unable to identify her assailant. She testified it was possible the shooter was the person who had earlier pointed a gun at her.
b. Testimony of Defendant's Companions
Among the prosecution witnesses were four of defendant's friends: Lester Maliwat, Roger Boring, Eric Garcia, and John Frick. Along with defendant, they were members of the ABC gang, an affiliate of the Bloods. Before driving to the street races that night, they had met at Boring's home, where defendant was living. According to Boring, defendant was "drinking pretty heavily" and "doing speed."*fn10 Garcia testified that defendant used speed frequently and offered him some that night. According to Maliwat, defendant had a revolver with him.
After the races, the ABC gang members congregated in the parking lot of the pizza parlor. Gobert drove up, approached them, and made hand signs indicating he was a member of the Crips gang. He said, "Fuck you, slobs."*fn11 According to one witness, he shouted, "I'm not afraid to die." The ABC's, including defendant, just laughed at Gobert because he appeared to be intoxicated and was outnumbered 10 or 20 to one. Then Gobert stuck his hand into his waistband. Thinking he was reaching for a gun, Boring, Maliwat, and the other ABC's rushed him, knocked him down, and kicked him. According to Detective Schultz, Lester Maliwat told him defendant was involved in the fight. A passerby also told Schultz that "the shooter" was involved in the fight and had "gotten off the ground right prior to the shooting."
Boring testified that he saw defendant shoot Gobert. When Hernandez tried to shield Gobert with his body, defendant pulled him up and shot him, also. When Jenny Hyon kicked defendant in the back, he turned around and shot her.*fn12
Maliwat testified that he ran away when he heard someone yell, "He has a gun." From his car Maliwat saw defendant shoot a man lying on the ground. He could not see whether the victim was Gobert or Hernandez. Maliwat also saw a girl lying on the ground. As Maliwat began to drive away, defendant jumped in the car. Maliwat asked him why he shot the girl. Defendant said, "Fuck them. They deserved it."*fn13
Eric Garcia saw the fight and heard the shots. Another participant told Garcia that defendant was the shooter. Garcia confronted defendant, demanding to know why he did it. Defendant initially refused to answer, but finally replied, "Maybe they deserved it." Defendant gave Garcia a revolver but reclaimed it a few days later. Defendant then gave the gun to another ABC member, Mike Betts. Defendant later called Garcia from jail and said he had confessed. He said that he would be a man about it and did not want the other ABC's involved.
c. Defendant's Confession
Following his arrest defendant waived his Miranda rights.*fn14 The interrogation ended when defendant subsequently asked for a lawyer. However, during the booking process, defendant waived his rights again and confessed to the booking officer, Detective Spidle. Defendant now contends his second waiver was not knowing and intelligent. The facts relevant to this claim will be set forth below. (Post, pt. II.A.)
Defendant told Spidle the following. After the races, Gobert*fn15 drove up and skidded to a halt in front of the ABC's. After apparently taking something out of his car, Gobert walked up to them. He was "claiming some crip gang" and "talking all sorts of shit." Because they vastly outnumbered Gobert, the ABC's "just started giggling." Gilleres told Gobert, "[K]ick back, that's not them." However, Gobert challenged the gang and lifted up his shirt as if he had a gun. After an ABC gang member shouted, "[H]e's reaching, he's reaching," someone punched Gobert, and they fell to the ground. When the other ABC's rushed Gobert, his companions Ignacio Hernandez, Jenny Hyon, and Maile Gilleres came to his defense. Defendant told Spidle that he tried to "break it up."
Hernandez shielded Gobert's body with his own. Defendant grabbed Hernandez by the hair, pulled his head back, and asked him where he was from. When Hernandez hit his hand, defendant shot him with a .38-caliber revolver. Hernandez moved and defendant shot him again. Defendant claimed that before Hernandez hit him he had planned to shoot in the air to break up the fight. Defendant also claimed he was afraid Hernandez was about to shoot him with the gun that, defendant believed, Gobert was carrying. He admitted, however, that he never saw a gun.
After Gobert cursed at him, defendant also shot Gobert. Defendant claimed he was also afraid Gobert was about to grab a gun, although again he had not seen one.
Jenny Hyon pushed defendant, saying, "[F]uck you asshole, what are you doing." She was about to hit him. Defendant pointed his gun at her and started walking backwards. When Hyon charged him, defendant shot her. He intended to fire in the air, "like right by her or . . . over her head."
Defendant jumped into Lester Maliwat's car. As Maliwat drove back to his house, defendant threw the gun out the window.
When sheriff's deputies arrived at the scene Hernandez and Gobert were dead. Autopsies revealed they were shot from behind and died from their wounds. Hernandez was shot twice. One bullet entered his back and passed through his heart and lungs. The other entered the back of his head, went through his brain, and lodged underneath the skin of his forehead. Abrasions on Hernandez's forehead suggested he was shot facedown on a hard surface that blocked the bullet's exit. Gobert was shot once, in the back of the head. According to eyewitness Alfred Ward, defendant shot Jenny Hyon "from behind" as well. The bullets recovered from Hernandez and Gobert were .38 caliber.
The defense called several eyewitnesses. Daryl Arquero, John Frick, and Cedrick Lopez were or had been members of the ABC gang. According to Arquero, Gobert claimed to be a Crip and said, "Fuck you, slobs." Frick and Lopez heard Gobert say he was not afraid to die. According to Arquero, Gobert lifted his shirt and displayed a shiny object stuck in his pants. Frick and Lopez saw Gobert make a reaching movement, either lifting up his shirt or reaching inside his waistband. Arquero exclaimed, "Oh, shit. I think he's got a gun." The ABC's rushed Gobert. Arquero estimated that Gobert was shot two minutes later.*fn16 All three testified they did not see who the shooter was.
The defense argued that eyewitness descriptions of the shooter's clothing did not match what defendant wore that night. Prosecution witness Lester Maliwat testified that defendant wore dark pants and a light blue shirt. Defense witnesses Marcus Freeman and Alfred Ward testified that the shooter wore a white hooded sweatshirt. However, Freeman said that the shooter put the sweatshirt on immediately before the shootings. Detective Larry Dejarnett, a prosecution rebuttal witness, testified that Ward told him the shooter wore a black hood and later said he was not sure what color the hood was.*fn17
Defendant told Detective Spidle that at the time of the shootings he was "coming down" from two "lines" of "speed" he had taken earlier in the evening. It made him "kind of scared, nervous." Asked how much alcohol he had consumed, defendant told Spidle, "maybe six,"*fn18 but that he was only "buzzed" because "it takes a lot for me to get drunk."
According to Eric Garcia, defendant showed him some speed that night and asked Garcia whether he wanted to use it with him. Garcia declined. He believed that defendant took some speed, but he was not certain.
Roger Boring testified that defendant "was drinking" that night, but that he did not know whether defendant had "a lot" to drink.
Dr. James Rosenberg, a psychiatrist who also specialized in psychopharmacology, testified for the defense. He had not tested or interviewed defendant. According to Dr. Rosenberg, methamphetamine use can cause very severe disturbances in thinking similar to those associated with paranoid psychosis or manic-depressive illness. "[P]robably the most characteristic would be . . . an irrational fear that someone is trying to hurt you." A minor threat may be perceived as a very severe and life-threatening situation. Methamphetamine use is believed to produce these symptoms by releasing "adrenalin-type chemicals." The half-life of methamphetamine is typically 11 hours. However, the effects of methamphetamine intoxication may last much longer, depending on the individual. In Rosenberg's opinion, a hypothetical description based on the facts of this case was consistent with methamphetamine intoxication. While the interactive effect of methamphetamine and alcohol was not well developed in the medical literature, alcohol intoxication would be another factor affecting judgment and impulse control.
B. Penalty Phase 1. Prosecution Evidence
Jenny Hyon testified the bullet that struck her completely severed her spinal cord. As a consequence, she had difficulty breathing, could not tend to her bodily functions, and was confined to a wheelchair. She had no feeling below her chest, except for nearly constant pain in one arm that made sleeping difficult. She worried about who would care for her when her mother and younger sister could no longer do so. "What kills me the most" were the sacrifices her mother had made for her.
Carmen Vera was Ignacio Hernandez's mother. Hernandez was 19 when he was murdered. He was a good boy, and a good student. He was not a gang member, nor did he use drugs. After he died, Vera received notice that he had been accepted to college in a mechanical engineering program. Hernandez's murder deeply grieved Vera and her younger son, Emanuel. Ms. Vera went to a psychiatrist for three years. For two and a half years, unable to bring herself to tell Emanuel of his brother's death, Vera told Emanuel that Hernandez was in New York with her family.
Carolyn Gobert was Dedrick Gobert's mother. He was 19 or 20 when he was murdered. An aspiring actor, Dedrick was in three movies, television shows, and a commercial. Ms. Gobert's whole life was changed by the murder. She was under psychiatric care, her attendance at work suffered, and she withdrew from her friends. Her younger son's performance in school also suffered greatly.
The defense called witnesses who knew defendant during different periods of his life: (1) Defendant's extended family from the Philippines who cared for him until he was eight; (2) relatives who met defendant when he was 14 and moved to California with his mother and stepfather; and (3) the surrogate families defendant joined when he left home.*fn19 Defendant's half sister Lilibeth, who first met him when he was eight, also testified.
Defendant's mother Shirley grew up in the Philippines. When Shirley was 16 she gave birth to Lilibeth, but abandoned her to the care of her sister Pina. A year later, Shirley returned, pregnant with defendant. She consigned him to Pina's care also. Two years later, Shirley returned for Lilibeth, but not defendant.
In addition to defendant, Pina's family included her husband Raymond, their four children, and Raymond's parents "Mamang" and "Tatai." All of them traveled from the Philippines to testify on defendant's behalf. The extended family provided a caring and affectionate home. Although they were not related to him by blood, Mamang and Tatai treated defendant as if he were their eldest grandson.
When defendant was eight, Shirley returned and took him to Guam, where her husband Robert Harris was in the United States military. Defendant was heartbroken at leaving the only family he had ever known.
According to Lilibeth, Shirley and Robert did not treat defendant like their other children. Shirley said that defendant was the product of rape.*fn20 Shirley humiliated defendant by telling others of his bedwetting. She also held him up to ridicule for his tendency to twitch and have convulsions.
Robert was physically and emotionally abusive to Shirley and the children. Lilibeth feared Robert might kill her. He broke several of Shirley's bones, and struck defendant with a belt. The police were often summoned. Shirley and the children once sought refuge in a domestic violence shelter. The children were aware that Shirley and Robert had extramarital affairs.
When defendant was in the seventh grade the family moved from Japan to California. In addition to Lilibeth, Robert's mother, sister, and brother described defendant's family life at that time. Robert remained physically abusive. Defendant cried often, missed his grandmother, and wanted to return to the Philippines. Shirley again abandoned her children, leaving for New York. Lilibeth visited Shirley there, but defendant was not welcome.
While still in his middle teens, defendant left home, finding shelter with the families of ABC gang members. Their mothers became surrogate parents to him. Two of them testified. They loved defendant as a son and he responded in kind, calling them "Mom" or "Mother." He was respectful and helpful. He cooked, did yard work, and cared for the younger children. Defendant assisted at a residential care facility for Alzheimer's patients managed by one of the women.
Dr. Jean F. Nidorf testified as a cultural mental health expert. She based her opinions on interviews with defendant, members of his family, and his friends; police reports; investigative materials prepared by the public defender's office; a videotape and transcript of defendant's confession to Detective Spidle; and other materials.
In Nidorf's opinion, the ABC gang was a surrogate family, replacing the one defendant lost when he was taken from the Philippines. He lived with the families of gang members, ingratiating himself with their mothers. While defendant reported to Nidorf he felt welcomed, he moved frequently to avoid burdening their hospitality.
Within the gang defendant aspired to a role as peacemaker, moral conscience, and wise leader. He needed to feel important. He told Nidorf the gang members "needed me." She concluded he was grandiose about his role.
Defendant related that he had been using speed almost every day. In Nidorf's experience, many Asian and Southeast Asian young people are drawn to speed to overcome anxiety about feeling small and weak.
Nidorf thought defendant appeared to express remorse in his videotaped statement to Detective Spidle. "[H]e felt badly about what he had done. He didn't want people to do that anymore. He didn't want people to gangbang. He wanted them to go to church, and I saw that as remorse." Based on her interviews with defendant, she concluded he "sincerely felt that what he did was wrong and that he regretted it."
II. DISCUSSION A. The Admissibility of Defendant's Confession
As we explain in greater detail below, defendant was advised of his Miranda rights, waived them, and agreed to talk to Detectives Schultz and Horton. He denied responsibility for these crimes, then requested counsel. Interrogation stopped. Defendant later initiated a conversation with the booking officer, Detective Spidle, and confessed to him.
Defendant contends his confession should have been suppressed on the following grounds: (A) Schultz continued to interrogate him after he requested counsel. (B) Schultz should have told him that he could consult with appointed counsel immediately, rather than telling him that counsel would be appointed when he was arraigned. (C) Schultz and Spidle failed to advise him of his rights under the Vienna Convention on Consular Relations (Apr. 24, 1963, 21 U.S.T. 77) and the bilateral consular convention between the United States and the Philippines. Defendant's claims lack merit.
The evidence considered at the suppression hearing consisted of the testimony of Schultz and Spidle and the transcripts of ...