Court: Superior County: Los Angeles Judge: Dewey Lawes Falcone Super. Ct. No. BA109664
The opinion of the court was delivered by: Kennard, J.
A jury convicted defendant Enrique Parra Duenas of the first degree murder of Los Angeles County Sheriff's Deputy Michael Hoenig. (Pen. Code, §§ 187, 189; all further statutory references are to the Penal Code unless otherwise indicated.) The jury found true the special circumstance allegations that defendant committed the murder to avoid a lawful arrest (§ 190.2, subd. (a)(5)), and that he knew or should have known that the victim was a peace officer performing his duties (§ 190.2, subd. (a)(7)). The jury also found that defendant was armed with and personally used a firearm during the offense. (§§ 1203.06, subd. (a)(1)(A), 12022.5, subd. (a).)
At the penalty phase, the jury returned a verdict of death. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. Factual Background A. Guilt Phase 1. Prosecution case
On the evening of October 29, 1997, defendant used methamphetamine at a "dope house" in South Gate, Los Angeles County. At approximately 1:00 the next morning, defendant was in the same city, riding a bicycle south on Long Beach Boulevard. In his waistband, covered by his shirt, defendant had a loaded .45-caliber Colt semiautomatic pistol. At the corner of Long Beach Boulevard and Seminole Avenue, defendant passed Los Angeles County Sheriff's Deputy Michael Hoenig, who was standing outside his patrol car, talking with a prostitute named Nada Watson.
The sheriff's deputies who patrolled South Gate had recently been instructed by their supervisor to interview cyclists, because the suspect in several recent burglaries had left the scene by bicycle. When defendant rode past Deputy Hoenig on a bicycle, the deputy asked him to stop. Defendant held up his middle finger, said, "Fuck you, cop," and continued riding. Deputy Hoenig then got in his patrol car and pursued defendant. Watson, meanwhile, got in a client's car. Watson asked her client to stop the car near the corner of Seminole Avenue and Pescadero Avenue, so she could watch the encounter between Deputy Hoenig and defendant.
Deputy Hoenig pulled his patrol car to the curb in front of defendant, lights flashing. Defendant tried to ride his bicycle around the patrol car but fell off. Watson's client then told Watson to get out of his car, which she did, and the client drove away. At about the same time, Watson heard a gunshot. Defendant had fired the shot from behind the patrol car, on the passenger side; the bullet shattered the right rear window of the car and hit Deputy Hoenig's right hand.
Deputy Hoenig managed to draw his gun and began to exit the patrol car. Defendant walked around the rear of the car, from the passenger side to the driver's side, and as Nada Watson watched, defendant shot Deputy Hoenig three more times. Watson saw defendant stand near the patrol car's rear tire, hold the gun with both hands, and fire at Deputy Hoenig, who was then halfway out of the car; defendant then fired two more shots at Deputy Hoenig. One of the three bullets went through Deputy Hoenig's lower leg, one went through his chest, and one was stopped by his bulletproof vest. The bullet that pierced Deputy Hoenig's chest entered below the throat, went through his aorta, and exited his lower back, causing blood loss that led to unconsciousness within 10 seconds and death within a minute.
Defendant abandoned his bicycle and fled on foot. As he fled, he turned and fired three more shots, but those shots did not hit the patrol car or Deputy Hoenig. Deputy Hoenig's body lay on the street near his patrol car, his right arm extended and his gun, unfired, in his right hand.
The sound of the gunshots awoke three people who lived nearby: Sandra Carranza, Luis Gomez, and Reyes Estrella Quintero. From her bedroom window, Carranza saw a man stumble by a police car near her driveway. She then heard gunshots and saw flashes around the man's upper body, after which the man ran west on Seminole Avenue. Gomez (Carranza's husband) also saw a man stumble in the driveway and then flee. Quintero heard shots and the words "Fucking police," but he did not see the shooter.
Soon after the shooting, a sheriff's deputy and his dog found defendant hiding, unarmed, by a garage in the neighborhood; the dog bit defendant and pulled him from his hiding place.
Sergeant Jack Ewell of the Los Angeles County Sheriff's Department took defendant into custody and asked him to help find the gun to ensure that it would not be used to hurt anyone. Defendant led Sergeant Ewell to a nearby yard. As he did so, defendant said without prompting, "Why don't you just kill me[?] I deserve to die for what I did." Defendant added: "I don't know why I did that. That cop was writing a ticket and I just started shooting him."
Retrieved from the yard to which defendant led Sergeant Ewell was a .45-caliber semiautomatic pistol bearing defendant's fingerprints. Near Deputy Hoenig's patrol car were seven .45-caliber shell casings. Testing later confirmed that the shell casings had been ejected by the gun that was found in the yard near defendant's hiding place.
After finding the gun, officers drove eyewitnesses Watson, Gomez, and Carranza to where defendant was being held, near the place of his arrest. Each witness identified defendant as the man seen next to the patrol car during the shooting, or fleeing the area seconds later. Each witness also identified defendant in court.
Sergeant Ewell transferred custody of defendant to Sergeant Isaac Aguilar, who advised defendant of his constitutional rights to remain silent and to have an attorney present. Defendant expressly waived those rights and agreed to talk to Aguilar and to Detective Martin Rodriguez. Aguilar and Rodriguez then drove defendant to a hospital for treatment of his dog bite and to have a blood sample taken. In the car, Aguilar questioned defendant, and Rodriguez recorded the conversation.
At the hospital, Detective Rodriguez heard defendant tell a doctor, "I think I shot a police officer." After leaving the hospital, Rodriguez and Aguilar took defendant to the homicide headquarters of the Los Angeles County Sheriff's Department and interviewed him further, videotaping the interview.
Defendant told the officers that before the shooting, he had been "tweaking" (using methamphetamine). He last took the drug approximately two to three hours before the shooting. He was carrying a .45-caliber Colt semiautomatic pistol loaded with seven or eight bullets. He had stolen the gun from his uncle and had carried it for three days as protection from gang members.
Defendant said that while he was riding his bicycle on Long Beach Boulevard, he encountered Deputy Hoenig. Defendant ignored Hoenig's request to stop because, defendant explained, he was tweaking and carrying a gun. Defendant's account of what happened next was inconsistent; he told his interviewers that, because of his drug use, he could not remember the events exactly.
According to defendant, Deputy Hoenig tried to run him over or cut him off with the patrol car. Defendant then fell off the bicycle. Defendant claimed that the deputy got out of the patrol car and aimed a gun at him. Defendant repeated many times that the deputy had shot first, and that defendant had returned fire. Once, however, defendant said that he shot first. At trial, the evidence proved without dispute that Deputy Hoenig had never fired a shot.
In his videotaped interview, defendant acknowledged that he had fired seven to nine shots at the deputy. He said that he heard the deputy cry out in pain, but he also said that he had not known whether he hit the deputy. Defendant said that he shot the deputy because he did not want to go to jail for having a gun, he was scared, and he thought he would get away without being caught.
During the interview, defendant seemed alert and aware of what was going on. Detective Rodriguez had experience with users of methamphetamine and thought defendant was under the influence of that drug. Rodriguez stated that the drug can speed up the brain's operation but usually does not distort a user's reasoning. A toxicologist testified that a blood sample taken from defendant three to four hours after the shooting contained methamphetamine.
Over defendant's objection, Dr. Carley Ward (an expert in biomechanics) and her son Parris Ward (who creates computer graphics) described and then showed the jury a four-minute computer animation. Using the animation to illustrate her testimony, Dr. Ward offered these opinions as to how the shooting occurred: Defendant fired the first shot from behind the patrol car on the passenger side, hitting Deputy Hoenig's hand. Defendant then moved around the back of the patrol car to the driver's side and, as Deputy Hoenig put his feet on the ground to step out of the car, fired the second shot into the deputy's leg. Defendant then stepped forward and, standing four to six feet away, fired the third shot into Deputy Hoenig's chest. Finally, defendant fired the fourth shot into Deputy Hoenig's back as the deputy fell to, or lay on, the ground.
Dr. Eugene Carpenter, who performed the autopsy on Deputy Hoenig, testified about Hoenig's fatal chest wound. The bullet had entered at an angle, indicating two possible scenarios: Either defendant fired the shot parallel to the ground and Deputy Hoenig was leaning forward at a 45-degree angle, or defendant fired the shot at a downward angle and Deputy Hoenig was on his knees.
The defense offered no evidence at the guilt phase.
To show victim impact, the prosecution offered testimony of two of Deputy Hoenig's brothers, his parents, his longtime girlfriend, and his former partner in the sheriff's department.
Deputy Hoenig's brother Steven had been very close to him; both had belonged since childhood to the "Odd Fellows," a community-service organization. After the murder, Steven Hoenig suffered recurring nightmares, and he had to take time off from college. Another brother, David Hoenig, testified that he was greatly affected by the death of his brother, who had been his moral compass. Deputy Hoenig's girlfriend of eight years, Debra Hite, testified that Deputy Hoenig had been her best friend.
Deputy Hoenig's mother testified about her concerns when he was assigned to a solo patrol in a dangerous area, and she mentioned her unsuccessful efforts to cope with her son's death by attending the meetings of a survivors' group. Deputy Hoenig's father testified that his family would "never be the same." He said he did not "know of anybody that [his son] talked with that he didn't like, and that didn't like him," and he added that Deputy Hoenig kept stuffed animals in his patrol car to give to children involved in traffic accidents. The latter point was also stated by his former partner in the sheriff's department, Deputy Tressa Gunnels, who additionally mentioned that after Deputy Hoenig's killing, South Gate citizens created an impromptu crime scene memorial and initiated a "Stop the Violence" campaign.
Defendant was born in Mexico in 1974 and moved to California around 1991, when he was about 17 years old. Three of his eight siblings lived in California; the rest of his family lived in Mexico. In California, defendant began using methamphetamine.
The jury heard from four of defendant's siblings, his brother-in-law, an uncle, a cousin, and a friend. Several of them testified that they had never seen defendant act violently, associate with a gang, carry a gun, or get into trouble with the law.
Defendant's eldest brother, Juan Parra, described defendant as good hearted and nonviolent. Defendant's brother Martin Parra, who came from Mexico to testify, said that if defendant was guilty, it was because of drugs. Defendant's sister Blanca Navarro, who had lived with defendant most of her life, described him as a generous child. Later in life, if she scolded him, he "never answered . . . back"; instead, he lowered his head and cried at times. Blanca's husband, Luis Navarro, an independent contractor for a package delivery service, employed defendant from 1991 through 1995 and testified that defendant worked very hard.
Defendant's uncle Eliseo Villa testified that defendant was "very humble" and hard-working, and that defendant "didn't know what he was doing" at the time of the killing "because he was under the influence of drugs." Villa's daughter Maria described defendant as having a good heart. Defendant's close friend Fernando Solano described defendant as "a nice person." In Solano's view, defendant was "really sorry for what he did, even though he might not have shown it . . . yet." Solano said that defendant had wanted to stop using methamphetamine but had not been able to do so.
A. Pretrial and Guilt Phase Issues
1. Excusal of prospective jurors for cause
The trial court excused three prospective jurors for cause, finding that their views on the death penalty would prevent or substantially impair their performance of their duties as jurors. Defendant contends on appeal that these excusals denied him due process of law and a trial by an impartial jury, in violation of the Sixth and Fourteenth Amendments of the federal Constitution, and article I, section 16 of the California Constitution.
"[T]he law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment 'would "prevent or substantially impair the performance of his [or her] duties as a juror" ' in accordance with the court's instructions and the juror's oath. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 741.) When the prospective juror's answers on voir dire are conflicting or equivocal, the trial court's findings as to the prospective juror's state of mind are binding on appellate courts if supported by substantial evidence. (People v. Wilson (2008) 44 Cal.4th 758, 779 (Wilson); see Wainright v. Witt (1985) 469 U.S. 412, 424 (Witt); accord, People v. Lewis (2008) 43 Cal.4th 415, 483 (Lewis) [trial court's determination as to prospective juror's true state of mind is binding].)
a. Prospective Juror No. 4593
Prospective Juror No. 4593's questionnaire reflected ambivalence and doubt about his ability to vote for the death penalty. Asked to describe his "general feelings about the death penalty," he wrote: "Have mix feeling. Not sure can decide guilty or not guilty because it concerns people's life." In response to the question, "Regardless of your views on the death penalty, would you[,] as a juror, be able to vote for the death penalty . . . if you believed, after hearing all the evidence, that [it] was appropriate?," he wrote: "Not sure." When asked, "Do you have any conscientious objections to the death penalty which you believe might impair your ability to be fair and impartial in a [capital] case . . . ?," he circled "YES." As for whether he could "accept the responsibility to decide between death and life without the possibility of parole," he checked "No," adding: "I would constantly ask myself . . . 'did I made the right decision.' "
During voir dire, Prospective Juror No. 4593 gave conflicting, equivocal answers as to whether his feelings about the death penalty would prevent or substantially impair the performance of his duties as a juror. The trial court asked the prospective juror to imagine that the case had reached the penalty phase, and that he was sitting as a juror. The trial court then asked whether Prospective Juror No. 4593 "would not exercise [his] right to the option [of choosing either death or life without the possibility of parole], but rather would not impose death." The prospective juror gave this hesitant answer: "It's hard for me, even though I know he killed someone . . . because my judgment -- I can't put people to death . . . because my vote . . . even though I hear and, yes, I agree he killed this person, and maybe I agree with -- I heard all the evidence, but my conscience ...