Court: Superior County: Los Angeles Judge: Jack W. Morgan Super. Ct. No. TA 100812
The opinion of the court was delivered by: Chin, J.
A jury convicted defendant David James Livingston of the first degree murders of Roderico Armando Paz and Remigio Perez Malinao under the special circumstances of multiple murder and lying in wait, of three counts of premeditated attempted murder, and of possession of a firearm by a felon. As to the murder and attempted murder counts, the jury found true firearm and criminal-street-gang-enhancement allegations. As to the attempted murder counts, the jury also found true that defendant personally inflicted great bodily injury. (Pen. Code, §§ 186.22, subd. (b)(1), 187, 190.2, subd. (a)(3), 190.2, former subd. (a)(15), 664, 12021, subd. (a)(1), 12022.53, subds. (b), (c), 12022.7, subd. (a).)*fn1
After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict. (§ 190.4.) It sentenced defendant to death on the murder counts. Additionally, it sentenced him to state prison on the other counts but stayed that sentence under section 654. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. The Facts A. Guilt Phase
The murder and attempted murder charges arose out of two separate incidents. On October 8, 1998, defendant shot Emmanuel Nunley, a rival gang member.*fn2 For this incident, defendant was convicted of one count of attempted murder. On January 3, 1999, defendant shot and killed two security guards, Paz and Malinao, and shot and attempted to kill two other security guards, Saul Conner and Rodolfo Bombarda. For this incident, defendant was convicted of two counts of first degree murder with special circumstances and the remaining two counts of attempted murder.
1. Prosecution Evidence a. October 8, 1998
In the evening of October 8, 1998, three men, Damien Perry, Antwone Hebrard, and Markius Walker, were driving on Compton Boulevard in Compton. Perry was the driver. Hebrard and Walker were members of a street gang called the "Lueders Park" or "Piru" gang, which was a "Bloods gang." Perry testified that Bloods and "Crips" gangs do not get along; there were "fights and shooting" between them.
At some point, Compton police officers stopped the car Perry was driving near Bullis Road. Perry also noticed a nearby green Cadillac with a "CPT" sticker in the back window. Because Perry had no driver's license, the police impounded the car he was driving. The police refused to give the three who had been in that car a ride, and they had to walk out of the area.
While the three were walking, they encountered Emmanuel Nunley, another Lueders Park gang member, who was near an apartment building on Bullis. The Cadillac Perry had seen earlier passed by, turned around, and approached the group. Three people were in that car: the driver, one person in the front passenger seat, and one person in the back seat. Defendant, who is White, was in the front passenger seat. The other two in the car were African-American. Defendant began shooting at Nunley, hitting him in the left leg. By this time, Perry, Hebrard, and Walker had walked away and were a substantial distance from Nunley. Perry heard about seven to eight shots.
Perry testified that "all of us" were wearing red -- the color of the Bloods -- that night.*fn3
After the shooting, the Cadillac entered the New Wilmington Arms, a nearby apartment complex. Five security guards were on duty at the complex -- Charles Chavers, Roderico Armando Paz, Rodolfo Bombarda, Saul Conner, and Juan Arreola. Chavers testified that around 11:30 p.m. that evening, the Cadillac, which was familiar to him, approached the guard gate. Three people were in the car; defendant was in the front passenger seat. Chavers pushed a button to let the car enter the apartment complex, and it drove through. Soon after the shooting, within about 10 minutes of the Cadillac entering the complex, Compton police officers arrived at the guard gate asking about the car. Chavers showed the police where the Cadillac had been parked near one of the apartment buildings. The police impounded the Cadillac that evening but did not arrest anyone. The failure to arrest anyone made Chavers feel threatened, because he had pointed the car out to the police. He promptly quit his job and left the site, never to return.
The police found two expended shell casings from an automatic rifle near the site of the shooting. Shortly after the shooting, the police transported the three uninjured witnesses to the Cadillac inside the apartment complex. The three identified the Cadillac as the car involved in the shooting. At trial, Perry said he could identify the car by the sticker in the back and a dent on the passenger side.
Defendant, nicknamed "Goldie," owned the Cadillac involved in the shooting and was often seen driving it. Chavers, the security guard, testified that he had seen defendant many times. Defendant did not live in the apartment complex, but he was there often and often drove the Cadillac past the guard gate. It was unusual for defendant to have been in the Cadillac's front passenger seat the evening of the shooting. He was usually the driver.
Walter Arcia, another security guard at the apartment complex who knew defendant as a regular driver of the Cadillac, testified that the day after the shooting, while he was on patrol in the complex, defendant, driving the Cadillac, "cut [him] off." Defendant said to Arcia, "Where's the fucking cripple?" Arcia believed defendant was referring to Chavers, who had helped the police impound the car. Chavers suffered from cerebral palsy and walked with a noticeable limp. Arcia relayed defendant's statement to Chavers, who perceived it as a threat.
Perry positively identified defendant as the gunman in court and had previously selected his photograph from a lineup. At trial, Hebrard denied having seen either the shooter or defendant that evening. He had previously selected defendant's photograph from a lineup as that of the person who had "shot at us," but he claimed at trial that he had done so only because the police had told him which photograph to select. The officer who showed Hebrard the photographic lineup denied that he had told Hebrard which photograph to select. Nunley testified at trial that he did not see who shot him. Previously, Nunley had selected the photograph of a Hispanic-appearing person, not defendant, as looking "like the driver without the gold ponytail."
Chavers identified defendant at trial as the one in the Cadillac's front passenger seat that evening and had previously selected his photograph from a lineup. He also identified a photograph of the person who drove the Cadillac that evening from a lineup and, at trial, identified Freddie Sanders as the person in the back seat.*fn4 Chavers testified that Sanders and the driver lived in the apartment complex. Bombarda, one of the other security guards on duty, also observed the Cadillac, which he knew to be defendant's car, come past the guard gate that evening.
Markius Walker was unavailable to testify at trial. (He had died in an unrelated homicide, a fact the jury did not learn.) Over defense objection, a videotape of a police interview with Walker was played to the jury. Walker told the police he saw the Cadillac, then heard more than seven shots coming from it. He described the shooter as having a tattoo and wearing his hair in a ponytail, and he identified defendant's photograph from a lineup as that of the shooter. He also identified the Cadillac as the car involved in the shooting, and had done so the evening of the shooting.
Walter Arcia was on duty as a security guard at the New Wilmington Arms the evening of January 2, 1999. Around 8:40 p.m., he observed defendant drive the green Cadillac through the guard gate followed by another vehicle. Both cars had their headlights off, even though it was dark that January night. Neither car had a license plate. The cars drove towards the back. The cars were quiet and there was no beer drinking, which was unusual for defendant, who usually played loud music and drank beer when he drove through the gate. Defendant's car entered and left by the gate about six to seven times that evening. It seemed unusual to Arcia seeing the cars "going slowly in and out." When Arcia's shift ended at 11:00 p.m., he left.
Fourteen-year-old Michelle Lopez and her mother, Maribel, lived at the New Wilmington Arms near the guard shack. The evening of January 2-3, 1999, Michelle was visiting a friend in an upstairs apartment. Around 11:15 p.m., while watching television, she heard "loud screaming outside." She looked out the window and saw defendant's Cadillac, which she had often seen defendant drive. Defendant, whom she had seen often and knew as Goldie, and two Black males whom Michelle did not know, were arguing with a security guard. The driver's door of the Cadillac was open. Defendant was sitting in the passenger seat of the Cadillac and the Black males were standing outside. One of the Black males cursed the guard, saying things like, " 'We're going to get you. We'll get you later.' " The other Black male said something like, " 'Come on, let's go.' " Then he said to someone in the Cadillac, " 'We'll do it later.' " When they finished arguing, they left. Michelle testified the guard did not say anything. She recognized the guard but did not know his name. He was one of those killed later.
Maribel Lopez also heard the arguing. She heard several voices, and heard a "lot of bad words," including, " 'Motherfucker, I'm going to get you.' " She also heard someone say, " 'No. No, man. Not right now.' " Then the argument stopped.
Rodolfo Bombarda, one of the New Wilmington Arms security guards, also knew defendant by sight as a frequent visitor to the apartment complex. He estimated he had seen defendant about 30 times before the night of January 2-3, 1999. That night, he was on duty during the 11:00 p.m.-7:00 a.m. shift. Also on duty were Roderico Paz, Remigio Malinao, and Saul Conner. Between around 11:30 p.m. and 12:20 a.m., Bombarda and Malinao walked around the apartment complex.
Around 5 a.m. that morning, all four security guards were in the security guard shack. Conner and Paz were reading the newspaper and Bombarda and Malinao were conversing. Suddenly, Bombarda heard a voice say, "Motherfucker." He looked up and saw defendant standing in the doorway holding an assault rifle. Defendant started shooting into the shack. Bombarda heard about 15 shots from a semiautomatic weapon. Bombarda was shot six times. He was wearing a bulletproof vest. Three of the shots went into the vest; the other three hit Bombarda's right hip, right knee, and right foot. Bombarda was able to fire back one shot from his firearm, a .45-caliber handgun.
Michelle and Maribel Lopez heard the shots. Maribel called the guard shack and Bombarda asked her to get help. She dialed 911. Maribel looked outside and saw two Black men, one of whom she identified as Freddie Sanders, whom she had seen often at the New Wilmington Arms. The two men were standing, and then they ran away from the guard shack. She did not see defendant that morning.
Kimberly Grant, a resident of the New Wilmington Arms, testified that she and her boyfriend had driven through the front gate that same morning. She observed defendant, whom she had seen many times, park his green Cadillac in front of the car she was in. Freddie Sanders and a girl were also in the car. Grant observed defendant's car enter and leave the complex two or three times. Grant entered her home. About 10 to 20 minutes later, she heard a noise from the front gate that sounded like "click, click." She walked towards the gate and observed what she believed to be a dead man. She saw defendant stand near the shack door and then flee. She also saw Sanders flee in a different direction.
Paz and Malinao were killed. Malinao was shot seven times. Two of the bullets hit the bulletproof vest he was wearing; the other five penetrated different parts of his body. Paz was fatally hit by a single bullet through his mouth and neck. Conner was blinded by a single gunshot to the face.*fn5
Bombarda and Grant both selected defendant's photograph from a lineup and identified him at trial. When interviewed at the hospital after the shooting, Bombarda told the police he had seen the perpetrator often, and that he was the same person who had driven by in October and the police were looking for. Bombarda also gave a description of the perpetrator that matched defendant, including a description of his tattoos.
Among the items of evidence collected from the scene of the shooting were about 16 expended nine-millimeter cartridge casings. A firearms examiner testified that with two possible exceptions, all of the casings were fired from the same gun. Due to their condition, he could not tell whether the remaining two casings had been fired from that gun. The nine-millimeter casings bore stamps indicating they were manufactured by Federal Cartridge, a brand of bullet. Numerous bullets and bullet fragments were also found, all of which, with one exception, came from the same gun. The exception was a .45-caliber bullet which was found together with a .45-caliber cartridge casing (presumably the shot that Bombarda managed to fire).
On January 5, 1999, defendant telephoned a friend, Rebecca Radovich, and told her he needed a place to stay. He came to her home in Lancaster, driving a stolen Lexus. He stayed overnight, left for a while, then returned to her home, where he was arrested on January 9, 1999. When arrested, he was wearing a bulletproof vest. Inside a leather jacket belonging to him was a loaded nine-millimeter Beretta semi-automatic pistol and three ammunition clips.
Shantae Johnson, defendant's girlfriend, testified that during the evening of January 2-3, she and defendant went to a club in Los Angeles, arriving sometime after 11:00 p.m., and remained there until around 3:30 to 4:00 a.m. They returned in defendant's car to her home near the New Wilmington Arms apartment complex. The two went inside her home. She "immediately started getting undressed for bed. [She] went to bed, and he was getting undressed for bed." She fell asleep "immediately." She last saw defendant sitting on the bed taking his shoes off. She awoke around 8:00 a.m. Defendant was in bed with her at the time, but she did not know whether he had been there the entire time because she was sleeping.
On January 6, 1999, the police searched Shantae Johnson's home pursuant to a search warrant. In the garage, they found a firearm magazine with a capacity of 31 rounds containing 10 rounds of nine-millimeter ammunition manufactured by Federal Cartridge.
The parties stipulated that the Park Village Crips is a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Detective Ray Richardson, an expert on criminal street gangs, testified that gangs such as the Park Village Crips are groups "who have come together for a common goal normally to terrorize the public" by criminal behavior, "such as rapes, robberies, murder, drugs . . . those type of activities." He also testified that the Crips and Bloods gangs do not get along with each other. Defendant was a member of the Park Village Crips, its only known White member. He bore numerous tattoos attesting to his membership in the gang. Freddie Sanders and the man who drove the Cadillac at the time of the October 8, 1998, shooting were also members of the gang. The New Wilmington Arms apartment complex was covered with Park Village Crips graffiti.
The parties stipulated that defendant had been a convicted felon on January 3, 1999.
Defendant's mother, Judy Gary, testified that he is left-handed, although she had never seen him fire a gun. (The apparent reason for this testimony was that Bombarda had testified that he believed defendant's "left hand was holding the rifle stock, and his right hand was on the trigger.")
Vera Johnson, the mother of defendant's girlfriend Shantae Johnson, testified that in January 1999, she lived with Shantae and other family members. Sometime during the night of January 2, defendant and Shantae left the house. They returned home around 4:00 a.m., the morning of January 3. Vera heard them enter Shantae's bedroom, which was downstairs from her own. Vera woke up around 7:00 a.m. At that time, Shantae and defendant were in bed together. Vera did not hear anyone leave the house in the interim and was confident she would have heard it if someone had done so. She never mentioned this to the police, even when they came to her house on January 6 to execute the search warrant.
Defendant testified. He said he was a member of the Park Village Crips, is called "Goldie," has two felony convictions, and owned the Cadillac involved in this case.
On October 8, 1998, he drove the Cadillac during the daytime, but he parked it around 6:00 p.m. A "girlfriend" drove him in her car to her home outside Compton. The girlfriend's name was Rachel; he could not remember her last name. The next day, around noon, Rachel brought him back to Compton, and he discovered that his car was gone. He was told that the police had taken it. He testified he did not blame the security guards for the towing of his car and denied threatening a guard. He did not give anyone permission to drive his car the night of October 8-9 and was not involved in the October 8 shooting.
On January 2, 1999, defendant was "in and out" of the New Wilmington Arms all day until about 9:00 to 9:30 p.m. He was not involved in an argument at the guard shack. Around midnight, he went to a club with Shantae Johnson. They returned to Shantae's home, where they went to sleep and woke up the next morning. He was having car trouble, so he drove a Lexus, which belonged to an acquaintance, Darlene Toa. He had obtained the car key from Toa and assumed the car was stolen. During this time, he heard about the shooting of the security guards. He said he was afraid of the police because in 1994, police had shot him in the back while he was handcuffed. He owned a bulletproof vest because he had had an "under-the-table type job . . . like a driver-security for exotic dancers." He was arrested at Rebecca Radovich's home. He was wearing the bulletproof vest when arrested because he was afraid the police would try to kill him.
Defendant testified that he had nothing to do with the shooting of the security guards. He also denied having seen the handgun found in his jacket. He said that Toa had put it in the jacket when she was wearing it.
On rebuttal, Detective Richardson testified that on October 21, 1998, defendant had told him he had been with Shantae Johnson at her home on October 8. Defendant testified on surrebuttal that ...