Court: Superior County: San Bernardino Judge: Michael A. Smith Super. Ct. No. FSB10937
The opinion of the court was delivered by: Cantil-sakauye, C. J.
A jury convicted defendant John Myles and a co-defendant, Tony Tyrone Rogers, of the first degree murder of Fred Malouf (Pen. Code, § 187, subd. (a)),*fn1 and found true the special circumstance allegations that the murder was committed while defendant and Rogers were engaged in the commission of robbery (§ 190.2, subd. (a)(17)(A)).*fn2 The jury also convicted defendant of the second degree robbery of two other victims (§ 211), and unlawful possession of a firearm (former § 12021, subd. (a)(1) (now § 29800, subd. (a)(1); Stats. 2010, ch. 711)).*fn3 In connection with the murder and robbery counts, the jury found true the allegations that defendant personally used a handgun. (§ 12022.5, subd. (a).)
In a separate, subsequent proceeding, the same jury convicted defendant of the first degree murder of Harry "Ricky" Byrd, and found true the special circumstance allegation that defendant had been convicted of more than one murder and the allegation that defendant personally used a handgun in the murder. (§§ 187, subd. (a), 190.2, subd. (a)(3), 12022.5, subd. (a).) After the penalty phase, it returned a verdict of death. Defendant moved for new trial (§ 1181), and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced him to death.*fn4 Defendant's appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
1. Prosecution evidence a. The murder of Harry "Ricky" Byrd*fn5
Juli Inkenbrandt was a methamphetamine user. On April 11, 1996, she borrowed a neighbor's Buick sedan to drive her drug dealer friend, Jshakar Morris, and defendant to the West Side neighborhood in San Bernardino. They told her they needed to "collect some money." Morris sat in the front passenger seat and defendant, whom Inkenbrandt did not know, sat in the backseat behind Morris. Inkenbrandt's one-year-old daughter was in a car seat to the left of defendant in the backseat.
Inkenbrandt drove to an area known as California Gardens. As she headed down Magnolia Avenue, defendant directed her to pull up to a group of young men who were talking in the front yard of a house. Inkenbrandt stopped the car in the middle of the street and defendant yelled out of the left backseat window something to the effect of "You guys know Smoke?" They shrugged their shoulders and said, "No." One member of the group, Harry "Ricky" Byrd (Ricky), suggested to defendant that he "[g]o check on the dark side." The young men then resumed their socializing.
Defendant and Morris directed Inkenbrandt to continue driving. Unbeknownst to defendant and Morris, they passed Ricky's cousin, Gary Lee, who was standing outside talking with Darion "Smoke" Robinson.
After several minutes of driving around, defendant directed Inkenbrandt to return to where the young men were gathered on Magnolia Avenue. Driving in the same direction as at the time of the initial encounter, Inkenbrandt pulled the Buick closer to the group as defendant instructed. Defendant again yelled to them from the left backseat window, this time asking whether they would "give Smoke a message for him." Ricky, who was leaning on the side of a friend's car that was parked between him and the Buick, replied, "Okay. What's the message?" Defendant reached over the baby in the car seat, pointed two guns out the window, and fired twice. The young men dropped to the ground for cover, and the Buick drove off. Ricky suffered a fatal gunshot wound to his upper chest. Another bullet struck the driver's seat headrest in the parked car.
As Inkenbrandt sped away from the scene at defendant's direction, they again passed Gary Lee and Darion Robinson, who were still outside talking. This time, defendant shot at them with what sounded to Lee like a .22-caliber revolver. The two men ducked behind a parked car until the Buick was gone. They then pursued their assailant by car, but lost sight of the Buick as it headed toward Interstate 215. However, Lee thought that he recognized the car and the driver, and he drove to an area where he believed he might find them.
When defendant's group arrived back at Inkenbrandt's apartment complex, defendant and Morris instructed her to park behind the buildings. Defendant then removed the shell casings from inside the vehicle and they left, telling Inkenbrandt to forget what she had seen. Inkenbrandt used the Buick to run some errands. On her return 15 to 20 minutes later she parked in her normal parking spot in front of the buildings. Shortly after her arrival, defendant and Morris ran up to her, asking for a ride to an area where they sold drugs. Inkenbrandt dropped them off as requested, then returned home, again parking in the front of the apartment complex.
At some point when the Buick was parked in front of the apartment complex, Lee and Robinson had driven by and located it. Seeing no one in the Buick, they returned to Magnolia Avenue, where they discovered that Ricky had been fatally shot. After hearing witnesses describe the car involved in that shooting, Lee realized that it was the same car from which shots had been fired at him. When Lee led police officers to where he had spotted the vehicle, it was no longer there. However, police were on the scene moments after Inkenbrandt returned to the apartment complex after dropping off defendant and Morris. A witness from the Magnolia Avenue shooting was sitting in the back of an unmarked police vehicle and he identified the Buick and Inkenbrandt as the driver. When police then contacted Inkenbrandt in her apartment, she told them what had happened from "the beginning to the end." As she explained at trial, she talked with the officers about the incident because she "wasn't going down for a murder I didn't commit that they were stupid enough to do."
Approximately three weeks after the shootings, two other eyewitnesses attended a live lineup and identified defendant as the gunman. They also identified him at trial. Inkenbrandt likewise identified defendant, first by photograph, then at a live lineup, and finally at trial. Although one other eyewitness to the shooting had never been asked to view a photographic array or attend a live lineup, he positively identified defendant at trial.
Investigating officers searching the area where Ricky was shot recovered a live .380-caliber round of ammunition and a spent .380-caliber shell casing. The .380-caliber round bore an "FC" headstamp and the casing had a Winchester headstamp. During the investigation of the shooting, a search of a room at the Phoenix Motel in San Bernardino yielded defendant's fingerprints and clothing, along with eight live .380-caliber rounds of ammunition, one live .22-caliber round, and two expended .22-caliber shell casings. One of the .380-caliber rounds discovered in the motel room had an "FC" headstamp like the live round found at the scene where Ricky was shot. And ballistics testing showed that the bullet that killed Ricky was of the same variety as bullets in the live .380-caliber rounds found at the scene of the shooting and at the Phoenix Motel.
In connection with the subsequent shooting incident at the Pepper Steak Restaurant in nearby Colton, officers searched a vehicle parked in the lot of an apartment building in San Bernardino. They found inside the trunk a Lorcin .380-caliber semiautomatic handgun wrapped in a towel. Although the prosecution's firearms expert could not state conclusively that the bullet that killed Ricky had been fired from the Lorcin, he expressed the view that it could have been. The parties stipulated at trial that, if called to the stand, witnesses would testify that a person they believed to be defendant possessed a Lorcin semiautomatic handgun.
b. Robbery Murder at the Pepper Steak Restaurant
Nine days after Ricky Byrd's murder, defendant, with 17-year-old Tony Tyrone Rogers, used a firearm to commit a robbery that led to another death.
On April 20, 1996, Fred Malouf (hereafter sometimes Fred), his wife Donna Malouf (Donna),*fn6 and Donna's mother went to the Pepper Steak Restaurant in Colton at around 8:00 p.m. for coffee. Donna was an employee of the restaurant and had worked the morning shift that day. Fred was a retired captain in the Colton Police Department.
After the Malouf party sat down in a booth at the back of the restaurant, a waitress named Krystal Anderson walked over to say hello. Donna testified at trial that moments later, defendant came running through the restaurant yelling, "It's a robbery. I'll shoot. Get your money out." He was holding a large semiautomatic gun in his right hand. A mask came across his mouth and nose, and he was wearing a beanie on his head.
Donna further testified that she immediately rose from the booth and started walking toward the kitchen because she knew that a gun was kept there. Before she reached her destination, however, defendant ran up and grabbed her by the hair. He yelled and cursed at her, wanting to know whether she was the manager and where the safe was located, and threatening to "blow [her] head off." Donna told him there was no manager and no safe. According to Donna's testimony, defendant was yelling so hard that his mask slipped below his nose, and she could see all of his face except for his mouth and the top of his head. He then wrapped his hand holding his gun around Donna's throat and dragged her by the hair into the kitchen.
Donna noticed that three other employees and the co-defendant, Tony Rogers, were inside the kitchen. Rogers also was armed with a large semiautomatic gun, and he was wearing a hat but no mask. Defendant directed Rogers to shoot Donna if she moved, then left the kitchen and returned to the dining area. Several minutes later, Donna noticed Fred's face in the window of the kitchen's back door.
Rogers ran toward the back door just as Fred was entering. When Fred attempted to wrest control of Rogers's gun, a shot rang out. Donna saw Fred fall back into the women's restroom. Rogers then stood over Fred and shot him repeatedly. At some point, Fred managed to remove his gun from his ankle holster and shoot Rogers in the upper chest. Rogers screamed, "I've been shot," and ran past Donna to exit the kitchen and flee.
Other restaurant employees and patrons gave varying accounts of the sequence of events prior to the shooting. Krystal Anderson, the waitress who was talking with the Maloufs at the outset of the robbery, testified that defendant dragged Donna by the hair and forced her into a booth, then pushed Anderson toward the cash register near the front of the restaurant by kicking her legs and hitting her. When Anderson had trouble complying with defendant's repeated demands to open the register, he hit her in the stomach with his gun. After she finally managed to open the register, defendant took out the money, which was mostly $5 and $10 bills. Defendant then reached into Anderson's apron and removed her tips. Another witness, Harold Lewis, was seated with his wife and grandson in a booth across from the cash register when defendant came into the restaurant waving his gun and demanding that everyone put their money on the table. According to his testimony, defendant first dragged Donna to the cash register before grabbing the other waitress. After taking the money from the till, defendant came up to Lewis, twisted Lewis's arm behind his back, and pointed the gun behind his ear. He then took the billfold and money that Lewis had placed on the table.
There were some discrepancies in the testimony of the eight witnesses regarding the events in the restaurant before the shooting. But the witnesses testified consistently that after the shots were fired, defendant first ran back to the door leading to the kitchen and then fled through the front door of the restaurant. Three witnesses further testified that they saw defendant point his gun in the kitchen's passthrough window and heard it click, but that the gun did not fire.
Officers responding to a dispatch regarding the robbery found Rogers hunched over on the sidewalk a short distance away. There was a semiautomatic handgun lying next to him. Rogers complained of a shotgun wound to the stomach and officers observed blood in his abdominal area. He was handcuffed and transported to the hospital, where he underwent emergency surgery. Officers took Donna to view Rogers in the hospital, where she identified him as the shooter.
An autopsy showed that Fred was shot five times at close range, suffering gunshot wounds to his face, abdomen, knee, thigh, and wrist. The fatal wound was the gunshot to the abdomen, which caused a small hole in the aorta that led to massive internal hemorrhaging.
Officers investigating the crime scene discovered extensive evidence of gunfire in the kitchen area and restrooms, including 7 nine-millimeter cartridges, an expended bullet, and numerous bullet fragments. Ballistics testing on the nine-millimeter semiautomatic gun found next to Rogers at the time of his arrest showed that all of the cartridges found in the kitchen had been fired from his weapon.
In the early morning hours the day after the shooting, officers contacted Rogers's 22-year-old cousin, Earl Williams, who was allowing Rogers to live with him. Williams told the officers that Rogers associated with three large African-American men, one of whom he identified as J-Dog, the name by which defendant was known. Williams also took the officers to the San Bernardino apartment rented by Lateshia Winkler, where defendant occasionally stayed. Police then brought Williams to the police station to question him about his possible involvement in the crimes. He told officers that around 11:30 a.m. on the day of the shooting, defendant came to his apartment looking for Rogers, saying he needed "to talk to him about some cash flow." Williams told defendant that Rogers was socializing at a nearby apartment and defendant left. When he returned to Williams's apartment with Rogers a short time later, Williams overheard defendant telling Rogers that he had been watching two places for the last two days and "we got to hit them before 8 o'clock." Williams testified at trial that he did not recall most of what he had told the officers during the questioning.
Investigators also interviewed Lateshia Winkler, in whose apartment defendant occasionally stayed. According to Winkler, defendant, Rogers, and another man whom she did not know left her apartment between 6:00 and 6:30 p.m. on the evening of the shooting. Defendant returned around 10:00 p.m. alone, two hours later than the time he said he would be home, and went straight to his bedroom. He appeared to be high. Winkler followed him, asking for an explanation but defendant stated angrily, "Don't start. I've got a lot of shit on my mind." Defendant then left the apartment for about 30 to 45 minutes. Winkler also told officers that in a longer conversation later that same night, defendant stated that "his homeboy got shot in a robbery, either by somebody who worked there or somebody who was staking it out." The next day, while defendant was speaking with his mother by telephone, Winkler overheard defendant asking his mother, "What are they going to do?" and "Did he die?" Later, he told Winkler that his friend had been shot and was at a nearby hospital in police custody. Like Earl Williams, Winkler testified at trial that she did not remember most of what she told police during the interview.
Both Williams and Winkler told police that they previously had seen defendant carry a handgun. According to Winkler, defendant kept two loaded magazines on the headboard in his bedroom and stored the gun in the trunk of Winkler's 1973 Pontiac Firebird, which was parked in a lot close to her apartment. Police searched the trunk of her car and discovered a Lorcin .380-caliber semiautomatic handgun.
During the investigation, several eyewitnesses identified defendant as the masked man who entered the front of the restaurant waving a large firearm and announcing that a robbery was in progress. Donna picked defendant's picture from a photographic lineup, telling police she was "80 percent sure" that the photograph depicted the man who had forced her to go into the kitchen. She also identified defendant in a live lineup conducted about one week after the photographic lineup, and later again at trial.
2. Defense evidence a. Defendant's defense case
Defendant presented no evidence at the Ricky Byrd murder trial.
To cast doubt on the prosecution's evidence regarding the crimes at the Pepper Steak Restaurant, the defense called a number of the investigating officers who had interviewed prosecution witnesses. For example, to undercut the evidence that defendant left Winkler's apartment with Rogers at approximately 6:00 to 6:30 p.m. and returned alone and worried about his "homeboy," the defense elicited from Sergeant Mark Owens discrepancies in Winkler's various accounts of these events. Specifically, Winkler had told the officer that on the night of the crimes, defendant said only that his friend got shot while trying to commit a robbery and that it was not until the following day that defendant mentioned that one of his "homies" either killed somebody or got [himself] killed" by "some gang bangers."
The defense also emphasized the lack of physical evidence linking defendant to the crimes. Sergeant Owens informed the jury that in his search of clothing associated with defendant he never found a ski mask or black cap, gloves, dark running suit, or any other article of clothing described by the eyewitnesses. He confirmed that Winkler told him defendant had about $20 in $1 bills and coins either on the night of the robbery or the day after, and that he knew that only $5 and $10 bills had been taken from the restaurant's cash register. The defense also elicited from Officer Leroy Valadez that Harold Lewis reported to him that there was approximately $500 hidden inside the wallet that defendant took from him.
Testimony by other officers highlighted discrepancies in the eyewitnesses' descriptions of the robber's clothing and firearm. The defense also elicited from the officers that several of the eyewitnesses were unable to provide them with a description of the robber's facial features because his face was covered by a ski mask during the incident.
The defense further challenged the prosecution's identification evidence by presenting testimony by an eyewitness identification expert. Robert Shomer, Ph.D., described the various factors that reduce the accuracy of an identification, including life-threatening, unexpected and traumatic circumstances, age and racial differences between the eyewitness and the perpetrator, the manner in which the identification procedure is conducted, and the precision of the eyewitness's initial description. According to Dr. Shomer, the more stressors present, the more difficult it is to later identify a person. He also explained that the accuracy of an identification is further reduced when any substantial part of a person's face is covered, and that eyes are not a good feature for identifying a person because unlike ears, the mouth, the nose, and the hairline, eyes typically are not that distinctive.
b. Co-defendant Rogers's defense
Rogers offered his own account of events at the Pepper Steak Restaurant. Rogers testified that he left his apartment with G-Dog and someone named Dee to drive to someone else's house. He passed out as they drove around because he had been drinking beer and smoking marijuana. When he awoke, they were in the Pepper Steak Restaurant's parking lot and Dee told him, "Homies went inside." Rogers had to use the restroom. When he opened the door to what he thought was the restroom, a man "came out of nowhere" and shot him in the chest. In response, Rogers removed the gun that was tucked into his pants. When he and the man struggled for his gun, it fired accidentally and then kept firing. He then ran out of the door to get help but passed out on the sidewalk. Rogers denied going into the restaurant to commit a robbery or to "back up" G-Dog.
According to Rogers, defendant was not involved in the robbery.
B. Penalty Phase Evidence
1. Prosecution's case in aggravation
The prosecution presented evidence that defendant committed six other criminal acts involving violence or a threat of violence, three of which occurred in the West Valley Detention Center where defendant was incarcerated while awaiting trial on the capital crimes. Family members of the murder victims testified about how they were affected by their loved ones' deaths.*fn7
a. Robbery at Denny's Restaurant
In October 1992, Mark Repman worked as the manager at the Denny's Restaurant in Victorville. Repman testified that around 11:30 p.m. on October 28, defendant and two other African-American men entered the restaurant armed with pistols and a shotgun. One of the men placed a gun to the back of Repman's head and ordered him to the office. Repman complied with the man's demand to open the safe, handing over about $1,200 in cash. Meanwhile, defendant pointed a shotgun at the restaurant customers and employees and ordered them down on the floor.
Deputy Sheriff Matthew Kitchen testified that he responded to the report of a robbery in progress by stationing his vehicle on the freeway on-ramp near the restaurant. He spotted a car that matched the description of the assailants' vehicle and a high-speed chase ensued. When the suspects' car failed to negotiate a freeway exit and crashed onto an embankment, two of the men jumped out of the vehicle and ran toward the railroad tracks. California Highway Patrol Sergeant Steven Urrea testified that he took defendant into custody along the tracks and found money and a shotgun under a nearby bush. The parties stipulated that defendant was convicted of second degree robbery in connection with this incident. (§ 211.)
b. Shooting of Shawn Boyd
Lieutenant Robert Miller of the Colton Police Department investigated a shooting that had occurred at the home of defendant's mother in February 1996. Miller testified that the victim, Shawn Boyd, told him that he was visiting defendant's mother on the evening of February 23. Around 11:45 p.m., Boyd mentioned in conversation that he was doing well and had a job and new clothes. Defendant became jealous and agitated, telling Boyd to "get into the motherfucking room" and pointing to the master bedroom. When Boyd resisted, defendant threatened to "plug" him. He then shoved Boyd toward the bedroom, pulled out a handgun and shot him in the face. Boyd ran through the bedroom and jumped from the second story through a glass window. The prosecution's firearms expert at the guilt phases, William Matty, testified that the bullet recovered from the scene of that shooting was fired from the Lorcin handgun that was recovered from the trunk of Lateshia Winkler's car during the Pepper Steak Restaurant investigation.
c. Robbery at Thomas Realtors
Thomas Realtors is a San Diego property management company. According to Jacqueline Graff, who worked as a receptionist there in April 1996, most of the tenants' rent payments came into the office on the 3d and 4th of each month. Graff testified that on April 3 around 2:20 p.m., two African-American men entered the office. One of them, whose description matched that of defendant, put a gun to her head and demanded that she open the desk drawer and give him all of the money. Graff explained that the owner had taken the money to the bank. However, she complied with the robber's demands to open all of the drawers and he rifled through them, saying, "Somebody is going to die if I don't get the money." The assailants then turned their attention to Graff's co-worker, Paul Baumhoefner, who had come to the lobby to see what the commotion was about. Baumhoefner testified that the man with the gun held the weapon inches from his face, demanding money and backing him into his private office. Like Graff, Baumhoefner explained that the owner was on his way to the bank, and he opened all of his desk drawers to show that there was no money inside. He also pulled out a wad of money from his pockets, which the gunman grabbed before leaving the office and heading out the front door. Baumhoefner then retrieved the owner's gun from another desk and ran out the door in pursuit. He got into his truck and took off after a red sedan that bystanders had identified as the getaway car. Baumhoefner eventually pulled up behind the car and noted its license plate number, then returned to the office and reported the number to responding officers.
The commotion on the street near the scene of the robbery had attracted Thomas Stone's attention as he was driving by. Stone testified that he saw bystanders pointing at a red car, which he followed as it made its way down various streets and alleys. When the car stopped in an alley, a large African-American man emerged from the passenger side and started shooting at Stone as Stone tried to back up, hitting his vehicle in several places.
The parties stipulated that two days after the incident, police located a sedan with a license plate number matching the one reported by Paul Baumhoefner, and that one of the four latent fingerprints recovered from the vehicle was positively identified as belonging to defendant. The prosecution's firearms expert testified that the .380-caliber casings recovered from the scene of the shooting could have been fired from the Lorcin handgun, and that cartridges found in the alley were the same kind as those recovered from the scene of the Shawn Boyd shooting six weeks earlier.
Defendant was held at the West Valley Detention Center in Rancho Cucamonga while awaiting trial in the case. In December 1996, eight months after his arrest, he had a violent outburst during a "shakedown" search of the unit where he was being housed. Deputy Joseph Perea of the San Bernardino County Sheriff's Department testified that during the shakedown, when the inmates were lined up in front of their cells, defendant mumbled something under his breath as one of the deputies passed by him. Perea and another deputy took defendant to the multipurpose room and asked him to sit down, but defendant did not comply. When Deputy Mark James intervened and attempted to push defendant down into his chair, defendant punched him on the left side of the face, rendering him unconscious. Perea sprayed defendant with pepper spray, but defendant managed to throw a food cart at the officer, hitting him in the right arm. Defendant then ran to a utility room, grabbed a push broom ...