Court: Superior County: San Diego Judge: J. Morgan Lester Super. Ct. No. CRN22688
The opinion of the court was delivered by: Chin, J.
After defendant La Twon R. Weaver*fn1 waived a jury trial, the court found him guilty of the first degree murder of Michael Broome (Pen. Code, § 187, subd. (a))*fn2 under the special circumstances of robbery and burglary murder (§ 190.2 subd. (a)(17)), of robbery (§ 211), and of burglary (§ 459). It also found defendant personally used a firearm in committing each of the offenses (§ 12022.5, subd. (a)) and personally inflicted great bodily injury in committing the robbery and the burglary (§ 12022.7, subd. (a)). After a penalty trial, the court returned a verdict of death, and it imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
On May 6, 1992, while robbing a jewelry store, a man identified as defendant shot and killed the store's owner, Michael Broome. The only contested issue at trial was whether defendant was the man who committed the crime. Defendant challenged the prosecution evidence and elicited evidence on cross-examination of prosecution witnesses, but he presented no guilt phase witnesses of his own.
Broome owned Shadowridge Jewelers, located in a shopping center in Vista, California. Sometime after 4 p.m. on May 6, 1992, Patricia Arlich, who owned a nearby store, walked into the alley behind her store to smoke a cigarette. She noticed a car drive past the jewelry store and toward her store. She paid attention because the car was driving slowly. As the vehicle passed, she saw that defendant was the passenger and another African-American male was driving. Arlich returned to her store.
Before 5 p.m. that day, Kimberly Decker was driving out of the shopping center parking lot and stopped beside a car in which defendant was the passenger and another African-American man was the driver. Both men were "slouched down in their seats." Decker stopped beside the vehicle so she could look both ways before entering traffic and found herself looking right at defendant. She smiled but he looked at her "like drop dead." Decker said, "see ya," and drove away.
About 30 to 40 minutes after she first saw defendant, Arlich observed him again walking by her in the direction of the jewelry store. Around that time, Stephanie Swihart observed defendant sitting on a bench in front of the jewelry store. Ricky Black arrived at the shopping center shortly before 5 p.m. to leave flowers at a Crown Books store for a woman he had met there. He waited in his car for about 20 minutes to see if she had found the flowers. During this time, he observed defendant walking back and forth in front of Shadowridge Jewelers "looking very nervous, looking around." Lisa Stamm, a sales clerk at Shadowridge Jewelers, also observed defendant sitting in front of the store for a while.
Mary Deighton, another sales clerk at Shadowridge Jewelers, and Stamm each testified about what happened next. Around 5:15 p.m., defendant entered the store, grabbed a customer named Lisa Maples around the neck, and placed a gun to her head. He held the gun in his left hand. Defendant forced Maples to the back of the store behind the counter and said something like, "Don't push any damn buttons. Load up the goods." Deighton raised her hands over her head. Broome walked over and stood in front of Deighton.
Defendant forced Broome, Deighton, and Stamm to the corner of the store where the safe was located and demanded that Broome produce the keys to the safe, saying, "Come on man, I know you've got the keys." Stamm testified that defendant "was waving [the gun] around, but he kept it on [Maple's] head most of the time." Broom had his hands in the air. Deighton testified that Broome told defendant he did not have the keys but that defendant should "take the girl's keys." Broome was "saying, 'Just calm down, we'll give you what you want.' " Then, Stamm testified, defendant pulled the hammer of the gun back until it clicked and pulled the trigger. He shot Broome in the chest from a range of three to four feet. Both Deighton and Stamm testified that Broome had offered no resistance, made no sudden moves, and kept his hands raised.
Broome fell to the floor and began moaning. Deighton heard him say over and over, "Oh, my God. I have been shot. I'm dying. Please help me. It hurts." During this time, defendant continued to hold Maples around the neck and wave the gun back and forth at everyone. Stamm testified that defendant "was still insisting for jewelry, and so we couldn't go to Mike and help him. [Defendant] was still saying, 'Give me everything you have, give me everything.' " Stamm started removing jewelry from the diamond case and throwing it to defendant. Some of the jewelry fell to the floor.
Martin You, who owned a video store next door, heard a loud sound and, thinking a shelf might have fallen in the jewelry store, ran to see if Broome needed help. Through the window, he saw defendant holding a gun on a customer and realized the sound had been a gunshot. In order to distract defendant, You kicked the stopper holding the front door open, causing the door to close. Defendant turned when he heard the sound and saw You. You saw defendant "eye to eye" and got a good look at him before You ran back into his store. Defendant turned, shoved Maples away, and moved toward the front door. Stamm testified that defendant "was trying to grab at the ground, and I wasn't sure if he got anything. He was grabbing at the ground. And then he immediately ran . . . out of the store." Deighton fled out the back door and ran to a nearby flower shop where she called 911. Stamm pushed the store's silent alarm buttons and called 911.
Kari Machado, who had parked her car a few doors from the jewelry store, heard the gunshot. She looked in the direction of the sound and saw defendant run from the jewelry store.
Timothy Waldon, Christopher Church, and Christopher White were on the sidewalk about two stores down from the jewelry store. Waldon heard a loud sound and looked around to see what had caused it. He saw a man run out of the jewelry store and into the parking lot. Waldon and Church followed the man and saw him enter a vehicle. After about 30 seconds, the vehicle pulled away. Waldon and Church observed the number on the vehicle's license plate. Later Church gave that number to White, who wrote it down. It was 1DNC734.
Around 5:15 p.m., just after the crime was committed, Joann Stone, an off-duty deputy sheriff who happened to be driving nearby, observed the vehicle in which defendant had fled the shopping center. It was "going too fast for the traffic." The vehicle swerved around several cars by going into the emergency lane, then veered across three lanes and began tailgating a car in the left lane. The car quickly changed lanes again, cutting off another car, then veered back into the left lane and stopped for a red light in the left turn lane. Deputy Stone pulled in behind the car and followed it as it turned left and then, a short distance later, left again into the Shadowridge Woodbend apartment complex. It parked in space No. 72.
Deputy Stone observed defendant leave the car, walk to apartment No. 113, and appear to be "trying the door." She stopped a short distance away and wrote some notes, including the car's license plate number, 1DNC734. Then she drove back past the apartment just as defendant was leaving. Defendant had changed his clothes. He had entered the apartment wearing a dark jacket and exited wearing a white long-sleeved sweatshirt. Deputy Stone left the apartment complex and drove back toward the shopping center, where she saw emergency vehicles. She spoke to a fellow deputy sheriff and learned that the vehicle she had followed had been involved in a crime. Deputy Stone relayed her observations to the sheriff's dispatcher over the radio.
Jeannine Angelo lived in the Shadowridge Woodbend apartment complex. Around the time of the crime, she heard sirens and stepped outside her apartment. She saw defendant walking down an embankment through some ivy near the laundry room. He stopped near a wall, bent down, and then straightened. After he stood up, defendant noticed Angelo, and they looked at each other for a moment. Angelo smiled at defendant, but defendant "just looked kind of frightened." Defendant turned and walked back up the hill through the ivy. As defendant left, Angelo noticed police officers arriving. She told the officers what she had seen and showed them the spot in the ivy where defendant had bent down. The police found in the ivy three gold bracelets that Deighton and Stamm testified defendant had taken during the robbery.
Around 5:30 p.m., that day, several sheriff's deputies responded to the Shadowridge Woodbend apartment complex. They observed defendant come out of apartment No. 113 carrying a laundry basket containing clothes. Deputy Donald Phelps testified that defendant was wearing a shirt that appeared "fresh," as if he had just put it on.
Michael Broome had stopped breathing by the time paramedics arrived at the jewelry store. He died of a single gunshot wound through his chest from a .44 caliber bullet manufactured by Remington.
Decker, Arlich, Swihart, Black, Deighton, Stamm, Machado, Deputy Stone, and Angelo all selected defendant from a live lineup and positively identified him at trial as the man they had observed that day. Decker, Deighton, Stamm, and Machado had previously selected his photograph from a photographic lineup. Angelo had previously identified defendant when he was sitting in the back seat of a police vehicle shortly after the crime. Waldon "tentatively" identified someone other than defendant at the live lineup as the man he saw run out of the jewelry store. Machado testified she had gotten a good look at the person she observed and was certain it was defendant. At the live lineup, she immediately identified defendant when he walked out, but later she crossed out her choice and chose someone else. As soon as she left the room she realized that her first choice was correct. Then she selected defendant again. When shown a photographic lineup, You pointed to a photograph of defendant and of another man "and stated that he was not sure when asked whether he could identify the person that he had seen inside the jewelry store on May 6, 1992." But he identified defendant from the live lineup, and at trial he was certain defendant was the gunman.
The prosecutor played for the court a videotape recording of the crime taken by the store's security camera, which consists of a series of still photographs. Deighton described what was occurring while the tape was playing. The tape indicated that approximately one minute elapsed from the time defendant entered the store to the time he left.
The parties stipulated that defendant had been residing at apartment No. 113 for over three weeks with his girlfriend, Kelly Tapp, and others. The apartment was leased to Byron Summersville and Jennifer Tapp, Kelly's sister. It was no longer Summersville's primary residence, but he was a frequent overnight visitor. Evidence established that parking space No. 72 was assigned to that apartment.
Deighton, Stamm, and Deputy Stone all identified a black nylon jacket and a shirt or sweatshirt bearing a San Diego State University logo, both found inside apartment No. 113, as similar to the jacket and shirt defendant was wearing when they observed him or, in Deputy Stone's case, when she first observed him before he changed his clothes. Deighton identified a pair of pants bearing the label "Guess," also found in that apartment, as similar to the pants defendant wore. Machado identified the jacket as similar to the jacket defendant wore when she saw him. Aldrich identified the shirt as similar to the shirt defendant wore when she saw him.
The parties stipulated that Summersville owned the car that defendant drove from the crime scene to apartment No. 113, a blue 1982 Oldsmobile with the license plate No. 1DNC734. A gold bracelet taken during the robbery was found between the car's two front seats. A "semi-jacketed cartridge" stamped ".44 Remington Magnum" was found under the car's right front seat. It was similar to the bullet that killed Broome.
Deighton, Machado, Waldon, Decker, Swihart, Black, Deputy Stone, Angelo, and Stamm were shown photographs of Byron Summersville and stated he was not the man they saw the day of the crime. Denise Larson, who lived in apartment No. 114, directly above apartment No. 113, testified that shortly after the robbery, she observed defendant as he was leaving his apartment. She had seen Summersville around apartment No. 113 on several occasions, but he was not the man she encountered the day of the crime.
Gunshot residue was found on the jacket, the sweatshirt, a green and white shirt, and the pair of jeans with the "Guess" label, all of which were found in apartment No. 113, and on the shirt Deputy Phelps observed defendant wearing when he emerged from apartment No. 113. Material taken from defendant's hands at 11:45 p.m. the evening of the crime was also tested for gunshot residue, with negative results. A criminalist testified it would not be surprising if gunshot residue was not found on someone's hands six and a half hours after that person had fired a gun. For example, if that person had washed the hands in the interim, gunshot residue would not be found.
Summersville's fingerprints were found on his car. Defendant's fingerprints were not found on that car or inside the jewelry store. The gun used in the crime was never recovered. Defendant is left-handed; Byron Summersville is right-handed.
Without objection, the prosecution introduced into evidence a certified copy of Michael Broome's autopsy report. Additionally, three members of Broome's family and the three surviving victims of the robbery testified (one by stipulation) about the crime and its impact on the victims. (See pt. II., D., post.)
Without objection, the defense introduced into evidence two reports by psychiatrists and one by a clinical psychologist. The parties stipulated that "Byron Summersville is a violent and vicious person" and, if called to testify, witnesses would testify that he had stabbed a man in the chest and arm without provocation on December 8, 1992, and raped a woman on September 4, 1992. The parties further stipulated that, if called to testify, San Diego Deputy Sheriff John Cherry would testify he knows Summersville to have a reputation for viciousness.
Defendant's mother, Catalina Weaver, testified that defendant was born on July 16, 1968. He had two older brothers and a younger sister. Defendant's parents raised him in Inglewood, and he had a normal childhood. An album was introduced that included photographs of defendant from the time he was an infant. From a young age, defendant sang in the church choir where his father had been the pastor and later played piano and organ for the choir. Defendant was active in school and was good at sports, especially basketball. He received grades of "B's and C's" until high school, when he stopped attending classes. Defendant continued to attend church, however, and remained involved in the choir. Defendant's father was an unpaid pastor. His parents supported the family by running a bookkeeping business. Defendant would help his mother pick up employment records and deliver payroll checks to small businesses.
Defendant had a daughter, Kayla, with Kelly Tapp in 1990. In 1992, Kelly and his daughter moved in with Kelly's sister in Vista. Defendant had been unable to find a job in Inglewood. Byron Summersville told him he could get a job in Vista where Summersville was working, so defendant moved to Vista.
Nancy Simmons testified that she became defendant's friend nine years previously when she was 12 years old. She described defendant as "a very caring person" who loves the church and loves to play music. She never saw defendant act violently.
Benroy Lillie testified that he was the pastor of the Greater Faith Baptist Church in Houston, Texas. Beginning in 1980, defendant sometimes accompanied his father to Houston where his father would preach in Pastor Lillie's church. Pastor Lillie also traveled to Inglewood and preached in defendant's father's church. Pastor Lillie described defendant as "very quiet and very respectable" and was impressed by defendant's "dedication to the worship."
Alex Hubo met defendant when they attended Job Corps several years earlier. Hubo never saw defendant act in a violent manner. Defendant was a good friend who supported Hubo when his mother died and played music at her memorial service. Another friend, Cynthia Moultrie, described defendant "as caring and loving and giving." She never saw him use drugs or alcohol or engage in a violent confrontation.
Steven Lynch met defendant at church when they were children and later played bass guitar with him for the choir. Defendant was a "peaceful person" who "[a]lways cared about his family and his friends." Lynch's mother, Loretta Lynch, worked in the Weaver family's bookkeeping business and was a member of the church choir. She had known defendant for 20 years and described him as "a giving person" who had a close relationship with his daughter. She never saw him act violently.
Mae Bush was a vocational orientation specialist with emphasis on attendance at Hillcrest Continuation High School when she became aware that defendant was not attending high school regularly. She met with defendant and his parents and then met regularly with defendant to encourage him to attend high school. Defendant was quiet. It was clear he came from a Christian home. He did not associate with gang members. Defendant's attendance problems stemmed, in part, from the fact that "academically [he] did not have many of the necessary skills to pass the courses." Bush accepted defendant's invitation to hear him perform with the choir and subsequently became actively involved with the church. She described defendant as "happy," "cheerful," and "kind of playful." She never knew him to be involved with drugs or alcohol. She could not believe it when she learned he had been charged with a crime because she had "never known him to be violent or even aggressive."
Clee Morris was the president of the choir and had known defendant for most of his life. Defendant was a talented musician and never was "real rowdy." Pam Wade was the vice-president of the choir and had known defendant for 10 years. Defendant played piano and organ and attended every rehearsal and service. Wade described him as "an inspiration to anyone that comes in contact with him because he just has that kind of personality." Mearce Morris, a member of the same church who had known defendant for most of his life, described defendant as a "very giving, respectful young man." She never saw him use drugs or alcohol. Defendant's aunt, Corine Smiley, testified that she never saw defendant act violently and described him as "a very calm, nice, respectable guy."
Madeena Jenkins was an employee at the Weaver family's bookkeeping business, was actively involved in the church, and had known defendant most of his life. She helped defendant with his homework and taught him to play the piano. Defendant played piano "by ear" and never learned to read music. She never saw defendant act violently.
Ray Weaver, Sr., defendant's father, was the pastor of the Southern Missionary Baptist Church and managed a bookkeeping service and a body shop. Defendant had trouble reading, but from a young age he showed a talent for studying Scripture, which his father described as a "spiritual gift." Defendant's father nurtured that interest by condoning his missing school to be at the church. He preferred defendant to "be a strong Christian than to be an educated fool."
Alex Love testified that defendant had been his cellmate in the Vista jail for six months. He once found defendant crying, saying , "I feel for the bereaved family."
Analysis of a blood sample withdrawn from defendant just after midnight on the night of the crime revealed a blood alcohol level of .05 percent. An expert in blood-alcohol absorption rates extrapolated that defendant would have had a blood-alcohol level of .17 percent at 6 p.m. that evening.
Dr. Charles Rabiner, a psychiatrist, interviewed defendant twice in the Vista jail and reviewed various records. In the first interview, defendant denied having committed the crime. In the second interview, defendant admitted the crime. He explained that he had been drinking beer with Byron Summersville and Summersville suggested the robbery. They went to a hardware store to purchase supplies, including bullets for Summersville's gun. Summersville gave defendant the gun and told him to enter the store first and Summersville would be right behind him. Defendant was very nervous and wondered whether he should enter the jewelry store, but he did not want Summersville to "think less of him if he backed out." Defendant entered the store, took a hostage, and ordered everyone to lay on the floor. He heard someone enter the door, but was surprised to see it was not Summersville and, at that point, the gun went off. Defendant said he did not know how the gun discharged and did not remember pulling the trigger. Defendant got scared, grabbed some of the jewelry, and ran. Defendant denied intending to hurt anyone and appeared to Dr. Rabiner to be genuinely remorseful.
Dr. Rabiner concluded that defendant did not suffer from "a major mental illness." He had "a mixed personality disorder with dependent and histrionic features," which means he "frequently depended upon others to make up his mind for him . . . [and] had a low sense of self confidence." Dr. Rabiner "doubted that he had the capacity to clearly plan a burglary, obtain a weapon and plan the escape route. . . . [I]t seemed much more likely that he was told what to do by someone else, as he is easily influenced by others." Defendant's verbal IQ was measured at 76, which is borderline retarded.
In rebuttal, Mary Deighton testified that defendant seemed fully coordinated, kept his balance, and did not slur his words during the robbery. Until after he shot Broome, defendant never looked over his shoulder, and no one else ever entered the store. Defendant was facing Broome when he shot him. He "cocked [the gun], and then he pulled the trigger with a pause of maybe, at the most, a second" before he did so.
Deputy Phelps, who observed defendant emerge from apartment No. 113 and spoke with him shortly after the crime, and who had received training regarding persons suspected of driving under the influence of alcohol, testified that defendant gave no indication of being under the influence of alcohol.
II. Discussion A. Jury Trial Waiver
Defendant contends his waiver of a jury trial was invalid because (1) he was not advised of "his right to appeal the denial of the pretrial motions," (2) he was not advised of his "right to participate in the selection of his jury," and (3) he "never made a separate and express . . . ...