Super. Ct. No. 118686B Court: Superior County: Alameda Judge: Alfred A. Delucchi
The opinion of the court was delivered by: Kennard, J.
A jury convicted defendant Keith Tyson Thomas of the first degree murder of Francia Young (Pen. Code, § 187, subd. (a)),*fn1 of kidnapping her for the purpose of robbery (§ 209, subd. (b)), of robbing her (§ 211), of forcibly raping her (§ 261, subd. (a)(2)), and of forcibly sodomizing her (§ 286, subd. (d)). As to each of these offenses, the jury found true sentence enhancement allegations that a principal was armed with a firearm (§§ 12022, subd. (a) & 12022.3, subd. (a)), and, as to the rape and sodomy charges, that defendant acted in concert with an accomplice, Henry Glover, Jr. (§§ 264.1, subd. (a) & 286, subd. (d)(1)), and that defendant kidnapped Young for the purpose of committing these sexual offenses (§ 667.8, subd. (a)). In conjunction with the murder verdict, the jury found true four special circumstance allegations: that the murder of Francia Young was committed during her kidnapping for the purpose of robbery (§ 190.2, subd. (a)(17)(ii)), robbery (§ 190.2, subd. (a)(17)(i)), rape (§ 190.2, subd. (a)(17)(iii)), and unlawful sodomy (§ 190.2, subd. (a)(17)(iv)). The jury found defendant did not personally use a firearm in committing these offenses against Young.
The jury also convicted defendant of robbing Sebrena Flennaugh (§ 211), assaulting two peace officers with an assault weapon (§ 245, subd. (d)(3)), and being a felon in possession of a firearm (§ 12021, subd. (a)). The jury found true the allegations that a principal was armed with a firearm during the Flennaugh robbery and the assaults on the police officers.
The jury returned a verdict of death for the murder of Young. The trial court denied defendant's motion to modify the verdict (§ 190.4, subd. (e)), sentenced defendant to death, imposed a concurrent sentence of life with the possibility of parole for the kidnapping of Young, and stayed imposition of sentence on the remaining counts.*fn2 This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. FactUAL BACKGROUND A. Guilt Phase
a. Crimes against Francia Young
In 1992, Francia Young, a 25-year-old African-American woman, lived with her mother in Oakland, California. Young worked in San Francisco as a computer analyst. She typically commuted to work by driving her car, a black Ford Mustang, to the MacArthur Bay Area Rapid Transit (BART) station, parking there, and taking the train to work. On December 8, 1992, Young left for work around 7 a.m. She was wearing a long raincoat and had with her a multicolored umbrella she had borrowed from her mother. Young usually returned home around 5:30 in the evening, but she did not come back that night.
About 6:00 p.m. on December 8, 1992, William Dials had just left the MacArthur BART station and was walking down an adjoining street when he heard a woman scream from the other side of the street. Dials looked in the direction of the scream and saw two African-American men and an African-American woman standing near a dark colored Mustang. The man on the driver side of the vehicle, who appeared to be heavier than the man on the passenger side, got into the car with the woman. The man on the passenger side stood outside the car with his hands on the roof, looking around. After a few moments, the heavier man and the woman got out of the car and went toward the trunk; the woman then got into the trunk and the man closed the lid. The two men got into the car and, after waiting a minute or two, drove away. Dials returned to the BART station and reported what he had seen to BART officials and later to the Oakland Police Department. At trial, Dials testified that the heavier of the two men resembled Henry Glover, Jr., in body shape, while the thinner man resembled defendant in build.
Beginning at 8:04 p.m., three successful withdrawals of $100 each from Young's bank account were made through an automated teller machine (ATM) in Oakland. A fourth attempt to withdraw money from an ATM was unsuccessful because the maximum daily withdrawal limit had been reached.
At 8:30 that night, California Highway Patrol Officer Matthew Trezesniewski found Young's black Ford Mustang blocking the two right-hand lanes of eastbound Highway 580 near the Fruitvale exit. The abandoned car was damaged from striking a guardrail.
At 10:50 that night, two people tried to access Young's bank account through an ATM. The attempts were unsuccessful because the maximum daily withdrawal limit had been reached. A surveillance photograph taken during these attempts showed an individual resembling defendant standing and holding an umbrella while another person attempted the withdrawal.
The next morning, December 9, 1992, Officer Ronald Andersen of the East Bay Regional Parks Department responded to a report of a dead body near a hiking trail in George Miller Regional Park in Point Richmond. There Andersen found a pile of woman's clothing approximately 25 feet from the trailhead, and Young's body approximately 250 feet farther up the trail. Her body was lying facedown, clothed only in a blazer. Her arms were tied behind her back with a scarf and her ankles were tied together with a pair of pantyhose, which had also been tied to a tree branch. A recently discarded condom wrapper was found several yards from the body.
Pathologist Charles Kikes performed the autopsy. Young had been killed by a single gunshot to her head. The gun had been fired into the back of her head while the muzzle of the weapon was in contact with her skin. The bullet passed through her brain and came out near her right jaw. Vaginal and anal swabs collected from the body by the pathologist indicated the presence of spermatozoa. Doctor Edward Blake performed genetic testing on the swabs with the polymerase chain reaction (PCR) typing process. The PCR results on both of the samples eliminated Henry Glover, Jr., as a possible donor, but not defendant. As to the vaginal sperm sample, Dr. Blake calculated the frequency of that genetic profile in the general population as less than 1 in 100,000 persons. Because of the more limited amount of genetic material in the anal swab, the frequency of the genetic profile that Dr. Blake obtained from that sample was 1 in 400.
b. Crimes against Sebrena Flennaugh
On the night of December 20, 1992, Sebrena Flennaugh, then eight or nine months pregnant, was in her apartment in Hayward, California, cooking dinner and talking on the telephone when she heard a knock on her door. A person outside asked if someone unknown to her lived in the apartment, and she replied, "No." As she ended her telephone conversation, she heard someone begin kicking the door to the apartment. She dialed 911 on the telephone as the door's hinges gave way. Two men, whom she later identified as defendant and Henry Glover, Jr., entered the apartment; Glover pointed a rifle that looked like an AK-47 assault rifle at Flennaugh. As defendant grabbed the telephone from Flennaugh and disconnected the call, Glover began rummaging through Flennaugh's belongings. Defendant remained by the door as Glover went to other areas of the apartment, and he and defendant put various items into a duffle bag they had brought with them. Eventually Glover demanded to know where Flennaugh kept her money, and defendant hit her in the back of her head. After she told them there was money in her coat pocket, Glover took the money and, demanding more, punched Flennaugh in the face, bloodying her nose and knocking her to the floor.
At that point, two officers from the Hayward Police Department arrived in response to the disconnected 911 call and knocked on the door. After they announced their presence, Glover ran to the apartment's balcony while defendant remained inside. The officers, hearing the door to the balcony open, ran outside and saw Glover peeking over the edge of the balcony wall and pointing a rifle at them. Glover fired a shot that struck a wall within a foot of where the officers were standing. They fired back at Glover, but he jumped down from the balcony and, continuing to shoot at the officers, escaped.
Meanwhile, defendant remained in the apartment and told Flennaugh not to tell the police he was involved in the robbery. When the two police officers returned to Flennaugh's apartment, defendant told them he was on a social visit to Flennaugh and like her was a victim of the attempted robbery. He said he did not know the robber. Flennaugh, who was visibly shaken and had trouble speaking, did not contradict defendant's story, and the police eventually let defendant leave. Flennaugh did not tell the police that defendant was one of the two robbers until a detective came back the next day to talk to her about the incident.
c. Investigation and defendant's confessions
Based on Flennaugh's description of the robber and other information, Detective Frank Daley of the Hayward Police Department surmised that the suspect with the gun was Henry Glover, Jr., and further determined that Glover was staying in a motel in Oakland. On December 23, 1992, Daley questioned Glover at the motel and ultimately arrested him for the Flennaugh robbery. Later that day, homicide investigator Sergeant David Kozicki of the Oakland Police Department and Sergeant Larry Kiefer of the East Bay Regional Parks Department, who were investigating the Francia Young killing and suspected Glover was a participant in those crimes, searched Glover's motel room. They discovered, however, that all of the personal items in the room had been taken to the home of Glover's family members. After arriving at the family members' home, the officers seized an umbrella that Young's mother identified at trial as the one that she had lent to Young on the morning of the killing, and had the same pattern as the umbrella defendant was holding in the ATM photograph taken on the night of Young's murder. Glover's girlfriend, Camille Green, testified that defendant gave her the umbrella as a Christmas present in December of 1992.
After the Young killing, the police released to the media the ATM photograph showing one person (defendant) standing with an umbrella while another person was using Young's ATM card. At 1:20 a.m. on December 24, 1992, defendant turned himself in at the Oakland Police Department. Defendant told the desk officer that he was wanted for a murder connected to a BART station, he had seen his picture in the newspaper, and "just wanted to get this out of the way." Defendant, who by then was a suspected accomplice in the Flennaugh attempted robbery, was turned over to the Hayward Police Department.
On December 26, 1992, Sergeants Kozicki and Kiefer interviewed defendant in Hayward regarding the Francia Young crimes. After being advised of and waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), defendant gave three inconsistent stories regarding his involvement. First, he said that he was at a friend's house one night when Glover arrived around 10:15 and asked if defendant knew how to use an ATM card, as Glover wanted to withdraw money to post bail for Glover's sister. Defendant went with Glover, who was driving a black Mustang, to an ATM, where they withdrew $300. A couple of hours later, defendant and Glover drove the same car to another ATM to withdraw money, but this time they were unsuccessful.
After a break in the questioning, defendant gave a second version of the events. This time he told the officers that Glover had proposed robbing a grocery store, but first needed to obtain a car. Glover had seen a black Mustang parked at a BART station and suggested they wait for the owner and then steal the car. After identifying the car, Glover told defendant to retrieve a rifle Glover had hidden nearby. When defendant returned to the car, Glover was closing the trunk on someone inside. Defendant told the officers he suggested to Glover that they just let the person go and keep the car. Instead, they drove to Richmond. After parking the car, Glover got out and removed a woman from the trunk. Defendant stayed in the car listening to the radio, but after approximately 10 minutes, he got out to see what was happening. Defendant said he walked about 20 yards up a hill, where he saw the woman tied up with only a light-colored shirt on. Defendant said he was shocked and walked back down the hill to the car. About three minutes later Glover returned with the gun and they drove away. After withdrawing money from the ATM, they were driving on Highway 580 when the car spun out of control and hit a wall. They abandoned the car and met up later at Glover's motel room. Defendant told the officers he and Glover unsuccessfully attempted to use the woman's bank card and credit cards to withdraw more money later that night. Defendant denied having sexual intercourse with the woman, and said he did not know whether Glover had.
After a few minutes of additional police questioning, defendant admitted having had sexual intercourse with the woman. This time he told them that when he went 10 to 15 yards up the hill, he saw Glover having sex with the woman. Defendant then had sex with her and ejaculated. Glover then walked the victim farther up the hill. Defendant denied involvement in killing the woman, saying he did not know of her death until he heard a news report about the crimes two days later.
Thereafter, the officers conducted a tape-recorded interview in which defendant summarized what he previously had told them. At trial, the jury heard the tape-recording.
Also during the interview conducted by Sergeants Kozicki and Kiefer, defendant admitted he had participated in robbing Sebrena Flennaugh. Glover had asked defendant to "watch his back" while Glover retaliated against someone who had "ripped him off."
At the guilt phase of defendant's capital trial, defendant rested without presenting any evidence. In closing argument to the jury, defense counsel essentially conceded defendant's guilt of most of the offenses, explicitly contesting only the sodomy charge and the personal use of a firearm and special circumstance allegations.
B. Penalty Phase 1. Prosecution case
At the penalty phase pertaining to Young's murder, the prosecution presented evidence of five unadjudicated criminal incidents involving defendant as well as his 1991 felony conviction for the transportation and sale of narcotics.
The first unadjudicated incident occurred on June 20, 1988, when a police officer found the then 14-year-old defendant, who was standing on a street corner in an area known for drug dealing, in possession of a loaded .25-caliber pistol.
The second and third incidents, one on October 19, 1989, and one on February 11, 1992, involved defendant's striking his girlfriend, Cathy Brown, in the face.
The fourth incident occurred on July 28, 1992, when defendant was in a group of six or seven youths who confronted Timothy McNulty and two of his friends. The two groups were passing on a sidewalk when someone in defendant's group tried to remove something from McNulty's pocket. When McNulty confronted the person, someone else in defendant's group punched McNulty in the face, knocking him to the ground. When McNulty tried to get back up, defendant pushed him back down. The two groups then separated.
The fifth incident occurred on December 11, 1992 (three days after the murder of Francia Young). That day, Richard Warren's silver Dodge Colt car was stolen from the MacArthur BART station sometime before 6:00 p.m. At about 8:00 that evening, Constance Silvey-White had just parked her car at her home in Berkeley, and was walking down her driveway toward the street to retrieve her garbage cans when two men came out from behind a bush. One of them told her to be quiet and not to do anything. When she tried to get away from the man, he went after her and punched her in the face, causing her nose to bleed. Silvey-White saw the other man, whom she identified at trial as defendant, go to her car and release the trunk lid. The first man ordered Silvey-White to get into the trunk of the car, but she continued to struggle against him. Responding to her screams for help, a neighbor came outside, and the two men left. The neighbor testified that the men got into a silver Dodge Colt and drove away.
The prosecution also presented victim impact evidence. Mary Young, who was murder victim Francia Young's mother, and family friend Ely Gassoway described Francia as a kind person who helped others. She was very active in her church, where she sang in the choir and served as a financial secretary, a Sunday school teacher, and an usher. Mary and Francia were very close and the murder was devastating for Mary, who had difficulty sleeping for several months and eventually had to be hospitalized for a week, followed by grief counseling. Gassoway testified that Francia was like a daughter to him and her murder and her absence from his life was very painful to him.
At the penalty phase, defendant called as a witness Berkeley Police Officer Pete Gomez to attempt to impeach Constance Silvey-White's identification of defendant as the second participant in the driveway attack on her. Officer Gomez testified that when he questioned Silvey-White shortly after the incident she was very upset. Although she was able to give Gomez some details regarding the appearance of the man who struck her, she could not provide similar details regarding the second man (defendant). According to Officer Gomez's written report, Silvey-White told him she could not see the second man very well. Initially, Silvey-White said that the two men were not trying to force her into the trunk of her car, but the next day she told Officer Gomez that they were trying to get her into the trunk.
Defendant also presented the testimony of several witnesses concerning his abusive and destructive family history. Three Alameda County social workers testified to certain aspects of defendant's childhood and relationship with his mother, Veronica Johnson. The social workers learned that as a child Johnson had been sexually and physically abused. When Johnson was 16 years old, she ran away after the aunt who was taking care of her beat her with an umbrella. Shortly thereafter, Johnson met defendant's father, Keith Tyson Thomas, Sr.; she became pregnant by him at age 17 and gave birth to defendant. When defendant was a mere toddler, Johnson would beat him for misbehavior. She told the social workers that beginning at the age of two defendant had been sexually active with other children in the neighborhood and with an adult roommate. When he was seven years old, defendant told a social worker that he did not recall those several incidents, but he mentioned other sexual activities. The social worker described the apartment in which Johnson and defendant were living as "extremely cramped" and unkempt. Johnson used the bedroom for herself, while defendant slept on a couch in the living room.
When defendant was seven years old, he was placed in a facility for neglected and abused children. Defendant eventually was returned to his mother's care, but when social workers learned she continued to beat him for disobedience, the police were notified and defendant was removed.
Defendant's paternal grandmother, Pauline Thomas, testified that when defendant was seven or eight years old and living in a foster home, he would stay with her during weekends. At first, defendant was very quiet and seemed afraid, although he seemed to be happy living in his foster home. Thomas testified that at one point defendant told her he wished he were dead. At some point defendant began living with Thomas full time, and did so for several months. Defendant had a friend in the neighborhood, he behaved, and became more relaxed. After defendant's mother took defendant back, Thomas did not see him for several years until defendant started living with his father in Sacramento. Because Thomas's mother also lived in Sacramento, Thomas would occasionally see defendant at her mother's home. Thomas remembered that defendant often took care of his father's girlfriend's disabled son. After defendant moved back to Oakland when he was approximately 14 years old, Thomas would see him only occasionally; she suspected that he was not heeding her advice to attend school and avoid involvement with undesirable people and activities. Thomas described defendant as basically a "good kid."
Defendant's father testified he had been largely absent from defendant's life because of the father's criminal activities, which included drug dealing and drug use, pandering, and violence. He had "quite a few" felony convictions, and spent time in prison as well as jail. Defendant was about 12 years old when, at his mother's request, he started living with his father in Sacramento. Also living there were the father's girlfriend, Joyce Smith, and several other people. All the adults in the house were drug and alcohol abusers.
Joyce Smith testified to the chaotic living conditions at her house when defendant lived there, together with a mentally disturbed friend of Smith's, Smith's drug-dealing mother, and a man who drank heavily. Defendant presented no discipline problems at the house; he was very respectful and generally got along well with other children in the neighborhood and at school. Smith's son James was severely disabled from spina bifida and hydrocephalus. Defendant would change James's diapers, give him his medications and play with him. James could not speak, but would smile and laugh when defendant arrived home from school, and would cry when defendant left. Smith and defendant's father often had violent fights, and they eventually separated.
Psychologist Ranald Bruce testified that based on the information provided to him, he would characterize defendant's upbringing as a "confluence of abuse and rejection and abandonment," which likely would have resulted in defendant's "enter[ing] early adulthood with severely compromised psychological functioning." Children who, like defendant, experience deficient parenting, abuse, and rejection often have "unstable emotions, very low self-esteem, a tendency to have very bad mood swings, a lack of direction in life, [and] an inability sometimes to determine what's real and what's not real." Based on reports of defendant's sexual conduct with other children at a very early age, defendant, according to Bruce, may have been seeking attention and affection. In Bruce's opinion, a person with a background like defendant's would have "serious compromises in their ability to function appropriately," and "as the person goes through their life, the backlog of lack of success, of hopelessness, builds up and builds up and builds up. They become like a ticking time bomb. Sooner or later you're going to have something happen."
II. Pretrial Issues A. Removal of the Public Defender's Office as Defendant's Counsel
Defendant contends that the trial court violated his constitutional and statutory rights to counsel when it terminated the public defender's office's representation of him. We disagree.
Defendant and Henry Glover, Jr., were jointly charged. The trial court eventually granted Glover's severance motion.*fn3 Before the severance, Glover moved to have the Alameda County Public Defender's Office removed as counsel for defendant. Glover asserted that the office had a conflict of interest because its attorneys had represented Glover in juvenile delinquency matters, and that in this case defendant was likely to take a position adverse to Glover's regarding their relative culpability. The public defender's office opposed Glover's motion. Initially, the trial court denied Glover's motion, finding that the deputy public defenders representing defendant had not obtained any confidential information regarding Glover's juvenile matters, and would not do so in the future. The court, however, later reconsidered its ruling and granted the motion, based on the view that the public defender's office as a whole owed Glover a continuing duty of loyalty that would be violated by any member of the office representing defendant in this case. The court then appointed Attorneys Alfons Wagner and William Cole to represent him.
As we will explain, defendant has not established a violation of his constitutional rights. Regarding defendant's claim that the trial court abused its discretion under statutory law by discharging the entire public defender's office, the court's ruling predated our decision in In re Charlisse C. (2008) 45 Cal.4th 145, in which we acknowledged appropriate limitations on the "vicarious disqualification rule" as applied to public law offices. As we explained, in deciding whether an entire public law office must be discharged from representing a client due to a conflict of interest that actually affects only some of its attorneys, "California courts have generally declined to apply an automatic and inflexible rule of vicarious disqualification in the context of public law offices. Instead, in this context, courts have looked to whether the public law office has adequately protected, and will continue to adequately protect, the former client's confidences through timely, appropriate, and effective screening measures and/or structural safeguards." (Id. at p. 162.) Even assuming -- without deciding -- that in light of Charlisse C. the trial court in this case abused its discretion, we conclude any such abuse of discretion was harmless under the applicable standard.
The trial court's ruling removing the public defender's office as defendant's attorneys did not violate either his federal or his state constitutional right to counsel. A defendant who requires appointed counsel does not have a constitutional right to a counsel of choice. (People v. Noriega (2010) 48 Cal.4th 517, 522 (Noriega).) In addition, the "replacement of one appointed attorney with another does not violate a defendant's constitutional right to effective assistance of counsel unless replacement counsel's representation" was ineffective. (Ibid.) Defendant has made no effort to show that replacement counsel's performance was deficient. Here, the trial court removed the public defender's office because of a potential conflict of interest. A "trial court does not violate a defendant's right to counsel ...