Super. Ct. No. KA005658 County: Los Angeles Judge: Robert M. Martinez
The opinion of the court was delivered by: Cantil-sakauye, C. J.
In July 1990, defendant Paul Sodoa Watkins shot and killed Raymond Shield. A jury convicted defendant of the first degree murder of Shield (Pen. Code, § 187, subd. (a)), and found true the special circumstance allegation that defendant did so while in the commission of an attempted robbery. (Pen. Code, § 190.2, subd. (a)(17)(A).)*fn1 The jury further found defendant guilty of second degree attempted robbery of Shield (§§ 211, 213, subd. (a)(2)), and it found defendant guilty of three other second degree robberies of four other victims.*fn2 After a separate penalty phase trial, the jury fixed the penalty for defendant at death.*fn3 The trial court denied defendant's motions for a new trial and to modify the verdict, and then imposed sentence -- prison terms for the robberies, and death for the murder. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
At approximately 3:30 a.m., on July 17, 1990, defendant, then 21 years of age, and his younger cousin, Lucien Martin, then 18 years of age (see ante, fn. 3), approached Anthony Orosco and his friend Juan Gallegos, who were seated in the cab of Orosco's black Nissan pickup truck, parked at a market in Home Gardens, Riverside County. The truck was a 1990 model, approximately four months old. Defendant ordered the two men out of the truck and struck Orosco on the face with a black nine-millimeter semiautomatic pistol. Defendant aimed the nine-millimeter pistol at Orosco and said, "get the hell out of here"; Orosco left his keys in the ignition and ran away. At the same time, Martin approached Gallegos and took his wallet and a distinctive gold necklace chain with an engraved star. Martin drove away in the truck, with defendant in the truck's bed, headed in the direction of the "91 Freeway," which was slightly more than one block way.
Approximately 90 minutes later -- just before 5:00 a.m. -- Martin and defendant drove the truck to the Greyhound bus station in Claremont, Los Angeles County. They stopped and asked Jihad Muhammed, who was standing alone, where he was going. When Muhammed replied that he was traveling to Wisconsin en route to New York, defendant said, "Then you must have some money." Thereafter, defendant displayed his nine-millimeter pistol and told Muhammed, "Give it up, throw it in the truck." After Muhammed did so and responded, "I don't know why you all do this to brothers," defendant replied, "Fuck a brother," and drove off with Martin. They escaped with only about $10 or $12 from Muhammed.
Within minutes -- shortly after 5:00 a.m. -- defendant and Martin drove to the covered vehicle entrance driveway of the West Covina Holiday Inn in Los Angeles County. Shortly before defendant and Martin arrived, 62-year-old Raymond Shield had driven his wife, daughter, and two grandchildren to that same location to take a shuttle bus to the Los Angeles International Airport, from where they planned to embark on a family vacation. As Shield unloaded the family's luggage onto the sidewalk, defendant and Martin arrived and parked just beyond and adjacent to the Shield family car, on the other side of the hotel's covered entrance driveway. Defendant and Martin got out of the stolen truck and opened its hood.
Shield walked a few steps over to the front of the truck and stood there with defendant and Martin. The raised hood partly obscured the view of members of the Shield family; they could see only Mr. Shield, standing there with his hands in his pockets, looking into the engine area. After approximately one minute, he hurried away from the truck's passenger side, back toward his family's car. During this same time, defendant and Martin closed the truck hood and quickly got back into the truck -- Martin in the driver's seat, and defendant in the passenger seat, with that door still open. Shield took approximately five long, brisk strides away from the truck with his hands still in his pockets. Defendant fired a single shot from his nine-millimeter pistol. The bullet passed through Mr. Shield's right forearm, just below the elbow, and then, above his right hip, through his abdomen, puncturing his bladder. He fell facedown and quickly died from loss of blood. The stolen truck sped away, "squealing" and "screeching its tires." The expended bullet was found by emergency responders beneath Mr. Shield's underwear, resting on his body; the bullet casing was found a few feet away.
Less than four hours later (just before 9:00 a.m.), defendant entered Steve's Market in Gardena, Los Angeles County. Kyung Sun Lee, the proprietor, was behind the cash register. Defendant asked for a pack of regular Camel cigarettes. When advised that the price was $1.95, defendant replied that he had only $1, and that he would leave and return with more money. Lee watched through a store window as defendant went to the truck, which was parked in front of the store, and spoke with Martin, who put a magazine into a gun. The two then entered the store; Martin stood near the entrance and pointed the gun at the cash register. Defendant opened the register, removed money, and took the pack of cigarettes. Meanwhile, Lee, who had armed himself with his own handgun, fired from behind the store's deli counter -- at which point defendant and Martin fled in opposite directions, leaving the truck behind. Lee called the police.
Shortly thereafter, as Jeffrey Kamuela Lewis and his father stood outside their machine shop near Steve's Market, defendant and Martin walked down the street, straining for breath "as if they had been running," and "looking around" in different directions "very suspiciously." Defendant approached Lewis's father and asked, "Remember me? I filled out an application last week." After Lewis's father replied that he did not recall, defendant asked to use a restroom. When Lewis's father declined, defendant asked, "What is your problem?" During this time, Martin stood by, acting like a "lookout man" -- surveying the scene back and forth.
At that point, Gardena Police Department Detective Gerald Hudgeons, who had received a radio report of a robbery at Steve's Market, drove by in a marked patrol car, and he noticed Martin, who fit the description of one of the two suspects. When Lewis's father waved and called to the officer, defendant and Martin ran down a nearby alley. Thereafter, at approximately 9:00 a.m., David Morgan Boone, who was appraising a residence near Steve's Market, found, in an alley behind the residence, a firearm, later identified as defendant's nine-millimeter pistol, inside a hole in a brick wall. Soon thereafter police officers arrived and Boone gave them the weapon, which was missing its magazine, but had one live bullet in the chamber of the pistol.
Meanwhile, other police officers responded to Steve's Market, where they found the truck parked outside and a nine-millimeter's "banana style" magazine clip, loaded with numerous live rounds, on the floor of the store. One officer noticed Martin "low crawling" (that is, "kneel[ing] down with his hands tucked under his shins and just walking") alongside a brick wall in a nearby alley, and then saw him jump into a residential backyard. Within two hours, after conducting a door-to-door search assisted by a police dog, police officers found Martin and defendant, each attempting to hide behind bushes in separate residential yards. When booked into jail, Martin had the gold necklace chain with the engraved star belonging to Juan Gallegos, and defendant, who falsely identified himself as "Jeffrey Scott," possessed a pack of Camel regular cigarettes. On the day following defendant's arrest, he admitted his real name, and when Detective David Melnyk told defendant that he was investigating an apparent robbery and murder at West Covina Holiday Inn, defendant replied by asking whether any property had been taken at that scene.
Subsequently, defendant's and Martin's fingerprints were found in many places on the stolen truck, and palm prints under the truck's hood matched defendant's. Currency totaling $59 was found on the floor of the truck. Distinctive acceleration skid marks left at the Holiday Inn scene matched the truck's tires, and the truck was found to be running well, with no mechanical problem. The expended bullet found under Raymond Shield's clothing and resting on his body, the bullet casing found a few feet away, and the magazine clip found at Steve's Market, all were matched to defendant's nine-millimeter pistol. Further testing revealed that the gun had a "heavy" trigger pull -- 17.5 pounds (compared with the average nine-millimeter pistol's trigger pull of four-to-nine pounds) -- making it at least twice as difficult to pull the trigger compared with most such firearms. Finally, all four crime scenes were located close to freeway ramps, and could easily have been reached by a pickup truck within the times of the various incidents.
Defendant testified. He admitted the three robberies, but denied attempting to rob Shield and claimed that the shooting was accidental. He explained that he and Martin were cousins who had known each other all their lives, and that on July 16, 1990, they had driven their mothers' cars, along with Martin's mother, from defendant's home in Moreno Valley in Riverside County, to Los Angeles, so that Martin's mother's car could be serviced. The three spent the day, sometimes separately, in and around Compton. Later that evening, before the three drove back to Moreno Valley in defendant's mother's car, Martin showed defendant a nine-millimeter pistol that defendant had not previously seen. Defendant testified that he commented to Martin that it was a "proper" gun -- and that "We could jack some people with this gun." Defendant explained that he assumed the pistol was loaded "because it had a magazine in it." After defendant put the weapon in the trunk of his mother's car, they drove to pick up Martin's mother in Compton at approximately midnight, and then drove back to defendant's mother's house in Ontario. Defendant explained that he and Martin spoke "[a]bout robbing some people," and then drove, in defendant's mother's car, to the market in Home Gardens, where they saw "two Mexican guys in a truck." According to defendant, he produced the pistol and "asked [them] to give me the truck." Defendant testified that he jumped into the truck bed while Martin drove them back to defendant's mother's car, which they returned to her home in Ontario. At that point, defendant explained, they "got on the freeway [heading toward Los Angeles] and just went like looking for somebody to rob."
At the bus station in Claremont, they saw a "Black guy standing there" alone. Defendant testified that he said, "let's rob this fool." According to defendant, after they robbed Muhammed, Martin drove them back to the freeway, again heading toward Los Angeles, where they "wound up at the Holiday Inn," with Martin driving and defendant in the passenger seat, and decided to "try this place."
Defendant testified that they noticed a parked car, and a family unloading luggage, but that he did not intend to rob them because he was looking for a solitary victim, and the area was "kind of [too] well lit." He explained that he assumed the family would soon leave the scene, at which point he and Martin would wait for another victim to happen by, whom they would rob. He asserted, "I mean, I am not going to rob no kid, you know." He recounted that they parked "on the other side of the driveway," near the family's car, and then they decided to get out and lift the truck's hood, so as not to appear suspicious. Defendant explained that because he noticed that Shield was looking at him, he waved "hi" to him -- again, so that they would not appear suspicious -- at which point Shield approached them, asking if they needed help. According to defendant, he assumed that the people unloading luggage would enter the hotel, and he told Shield that he needed no help and tried to "be rude to him" to encourage him to depart into the hotel "so we could find somebody . . . by themselves." Defendant asserted that Shield "got kind of offended" and then hurriedly retreated. Defendant testified that he did not demand or ask for money, and that he did not pull his gun from his waistband, but instead kept it concealed by his shirt. He testified that he is left-handed, and that he had inserted the gun into his waistband with his left hand, with the handle pointed to his left side.
Defendant explained that because of Shield's reaction to the refusal of his assistance, and Shield's rapid departure from the truck, "it was obvious that he knew something wasn't right about us," and hence defendant assumed that Shield planned to call the police. Defendant told Martin that they should leave, and he slammed the hood shut and hurried to the passenger door while Martin got into the driver's seat. According to defendant, he wanted to depart before Shield entered the hotel. Defendant testified that he opened the passenger door and positioned his left foot onto the floorboard but was unable to sit down with the gun stuffed into the front of his pants, and so he removed the gun with his right hand while balancing himself with his left hand on the seat. He asserted that he next thrust his right hand, then holding the firearm, outside the open passenger window and brought his right leg into the vehicle as he pulled the door closed with the back of his right hand -- at which point the gun fired accidentally. Defendant explained that he was surprised by this, because he "didn't . . . pull the trigger" -- and although he saw Shield fall, he could not believe that he had shot him. Defendant recounted Martin sped them away and asked defendant, "What . . . you doing?" and that he responded, "I didn't do it on purpose." Defendant expressed to the jury sorrow for the killing, and asserted that he "never meant to hurt nobody that night" -- he intended only to "scare them and make some money."
Defendant testified that after the Holiday Inn incident, he and Martin initially decided to return to Gardena to give the weapon back to its owner, but then concluded that because they had not been successful with their prior robberies, they were "back where we started from" -- and so they decided to rob Steve's Market. According to defendant, his plan was to "case" the store, and if it was "all right," they would rob it together, this time with Martin acting as gunman.
Finally, defendant admitted that he had suffered two prior felony convictions for "grand theft person."
C. Prosecution rebuttal evidence
Pamela Joyce Coryell, Raymond Shield's daughter, testified that the passenger door of the truck was open at the time her father fell to the ground. She recounted that the door closed after the shot was fired, after the truck began pulling away from the scene, and that she saw no gun or muzzle flash.
D. Prosecution penalty phase evidence
Jeneane Shield, who had been married to the victim for 39 years, testified that she and her husband had four children and five grandchildren. Mrs. Shield explained that they had planned a trip to Hawaii; she and her daughter Pamela would go first with two of the grandchildren. Her husband, Raymond, an engineer and consultant for several companies, planned to go to work after dropping his family off at the hotel's airport shuttle, and then join the family on vacation a week later.
After Jeneane Shield heard the gunshot and saw her husband fall, she ran to him. As he lay on the ground, he told her, "I've been shot" -- and then he said, "I'm dead" -- his last words. Mrs. Shield recounted the arrival of paramedics, their attempt to aid her husband, and the drive to the hospital.
The prosecution presented evidence of two other acts of violence by defendant when housed prior to trial. The acts occurred in the county jail facility. In early June 1991, defendant was a major participant in a dorm fight. Los Angeles County Sheriff's Deputy Ricky Hampton testified that he saw defendant and other Black inmates fighting a group of Hispanic inmates. Hampton recounted that defendant struck other inmates with his fists, kicked them when they fell to the ground, and struck an inmate in the head with a 55-gallon coffeepot. According to Hampton, defendant was one of the last two inmates to stop fighting. In late June 1991, defendant, along with four other inmates, attacked Russell Cross, after Cross sat on the bunk of a Black inmate.*fn4
E. Defense penalty phase evidence
A childhood friend of both defendant's and Martin's, Marsha Hightower, testified that defendant was quiet, shy, and "got along" with his family. She related to the jury that defendant had "a lot of good in [him]," and she pleaded for his life.
Defendant's half sister and senior by 10 years, Renita Watkins, who had lived with defendant until he was 13 years of age, described him as quiet, shy and fearful -- someone who would not fight, but instead would run away. She pleaded for his life, explaining that the killing must have been accidental because defendant had been raised properly, and had a "beautiful personality."
Edward Miller, defendant's maternal uncle, testified that he had known defendant since birth. He explained that the family was close, and that defendant was a normal child who was respectful of his elders. Still, defendant's childhood environment was "somewhat dysfunctional"; his father regularly beat his mother, leading to their divorce. Thereafter the family moved to a new home and school in South Central Los Angeles which, Miller recounted, was at one point a nice residential neighborhood, but subsequently became infested with drugs and drug dealers. According to Miller, defendant's mother was a good parent, and showed him love and affection when growing up. He pleaded for defendant's life, and could not believe that defendant was a "coldblooded murderer," because that would not be consistent with defendant's character as Miller knew it.
Betty Watkins, defendant's mother, testified that she worked as an executive secretary and originally sent defendant to parochial school because she was not "satisfied with the public school system." She explained that defendant sometimes witnessed his father beating her, and that after the divorce, when defendant was eight or nine years of age, she worked two jobs in order to support her two children; she eventually managed to purchase a house, but the neighborhood thereafter "became progressively worse" -- "all the little cute kids grew up to be gang members." At that point, Mrs. Watkins related, defendant began to fall under the gangs' influence; at the same time, she testified, she could no longer afford parochial school, and so was forced to enroll defendant in a public school, where he did not adjust well, and was frightened by the gangs.
Defendant's mother testified that her sister, Dorothy, was murdered in 1981 or 1982, that her other sister, Barbara, died of liver disease in 1984, and that defendant's paternal grandmother, the matriarch of the family and a stabilizing influence on the children, died in late 1984 or early 1985, by which time Mrs. Watkins found it increasingly difficult to moderate the neighborhood's bad influence on defendant. Thereafter, she explained, defendant's sister Kimberly -- who was 13 months older than he -- was wounded, and five others were killed, in a driveby shooting while defendant was with her and a group of 10 other children and young adults. According to defendant's mother, this driveby shooting incident altered defendant's "whole personality," he became "more withdrawn" and began to "play hooky from school." For a short period the family attended counseling for victims of violent crimes, but that ceased when public funding ended, and Mrs. Watkins could not afford to pay privately for sessions. The family eventually moved from Los Angeles to Moreno Valley because she believed it to be "far enough away from the gangs and the bad influence," but nevertheless defendant "started to act out" and "get into some trouble." Mrs. Watkins further testified that she was "devastated" by her son's offenses, and that she commiserated with the Shield family, but she pleaded for her son's life, explaining that in her view he did not lack "a conscience."
Finally, Queenetta Green, who was defendant's algebra teacher, testified that immediately after defendant's transfer from parochial to public school, he was studious, obedient, enthusiastic, and protective of his sister Kimberly. Green explained that after Kimberly became a victim of the driveby shooting, however, defendant turned sullen, defiant, and disobedient. She too pleaded that the jury spare defendant's life.
F. Additional prosecution penalty phase evidence
After presentation of the defense evidence outlined above, the prosecution introduced additional evidence in aggravation concerning an incident that occurred at the "main lockup" of the Pomona courthouse jail holding facility in mid-March 1992 -- on the first day of the penalty phase trial in this case. Defendant, who was at the time shackled with leg irons, and two other Black inmates kicked and punched another Black inmate. After the victim fell to the ground and lay in a fetal position, Sheriff's Deputy Ted Mossbarger saw defendant kick him in the back of the head, and continue to do so after being ordered to stop. Thereafter, when Sheriff's Deputy Eugene Lindsay escorted defendant from the scene, defendant explained, "the reason this happened is that [the victim] raped my home boy's girlfriend."
II. JURY SELECTION ISSUES
A. Failure to provide sequestered death
Defendant moved for sequestration of the prospective jurors during the death qualification voir dire process. The trial court denied the motion and informed counsel that it would conduct voir dire of prospective jurors in open court. Defendant claims that the resulting death qualification process violated his state and federal constitutional rights to due process, equal protection, trial by an impartial jury, effective assistance of counsel, and a reliable death verdict, as well as his right under Code of Civil Procedure section 223, to individual juror voir dire when group voir dire is not "practicable."
We repeatedly have rejected defendant's argument that the California or federal Constitution mandates individual sequestration of all prospective jurors during the death qualification process. (People v. Thomas (2012) 53 Cal.4th 771, 789 (Thomas), and cases cited.)
Our decision in Hovey v. Superior Court (1980) 28 Cal.3d 1 declared, pursuant to our supervisory authority over California criminal procedure, that sequestered voir dire should be conducted in capital cases in order to promote candor and reduce the possibility that prospective jurors might be influenced by the questions to and responses by other prospective jurors. (Id., at pp. 80-81.) Code of Civil Procedure section 223, adopted in 1990 as part of Proposition 115, abrogated this aspect of our decision in Hovey. The statute provides in pertinent part: "Voir dire . . . shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases." Defendant asserts that the trial court failed to exercise its discretion, or at least abused its discretion, by denying his motion for sequestered voir dire and by instead proceeding in open court under section 223.
Although counsel for defendant objected generally to the court's ruling, asserting that prospective jurors "should not have to answer those questions in front of the rest of the jury," counsel offered no particular reason suggesting that open court voir dire would not be practicable in this case. Each prospective juror completed a 27-page questionnaire, and copies were made for the court and the parties. After the court questioned the jurors who were seated in the jury box, the attorneys were given opportunities to question them further, and did so. Subsequently, during the continued nonsequestered voir dire, the court made it clear that counsel retained the opportunity to request in camera questioning in appropriate circumstances. Apparently, however, no such request was made. Under these circumstances, we have no basis on which to conclude that the trial court failed to exercise, or abused, its discretion when it implicitly found that open court voir dire was "practicable" and denied the motion for individual sequestered voir dire. (See People v. Lewis (2008) 43 Cal.4th 415, 493-494 (Lewis); People v. Waidla (2000) 22 Cal.4th 690, 713-714.)
Defendant insists that open court voir dire might have caused some of the prospective jurors, and sitting jurors, to become tainted by the voir dire process. He focuses first on Prospective Jurors C.H., A.M., and M.B., all of whom indicated strong support for the death penalty in their respective responses in their written questionnaires. As defendant observes, after being informed that service on the jury required that all must keep an open mind and follow the law, regardless of personal beliefs, each prospective juror later affirmed an ability to do just that. Ultimately, after defendant's "for cause" challenges to these prospective jurors were denied, defendant exercised peremptory challenges to remove all three prospective jurors. He now asserts that the open court voir dire process served to "educate" all three prospective jurors concerning how to tailor their responses, or even conceal their true views, in order to avoid a successful "for cause" challenge. The People assert that "it is just as likely that the written responses were ill-conceived or badly written reflections of the true beliefs that surfaced on voir dire." We agree with the People that defendant's objection is unduly speculative.
Defendant also focuses on three jurors who ultimately sat on his case, S.T., A.Y., and H.C. He asserts they became tainted and biased against him because they were "exposed" during nonsequestered oral voir dire to the strong pro-death-penalty opinions of various other prospective jurors. Again we agree with the People: Even assuming that such exposure amounts to cognizable injury -- a very doubtful proposition -- because defendant failed to challenge any of the three jurors, or even exercise an available peremptory challenge, he did not preserve this claim for appellate review.
B. Excusal of a juror for cause
Defendant asserts the trial court improperly excused a prospective juror, J.A., for cause based on her opposition to the death penalty.
A juror may be challenged for cause based on his or her views concerning capital punishment only if those views would prevent or substantially impair the performance of the juror's duties as defined by the court's instructions and the juror's oath. (Thomas, supra, 53 Cal.4th at p. 790; People v. Stewart (2004) 33 Cal.4th 425, 440-441 (Stewart), citing Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) As we recently explained, "[e]ven if the prospective juror has not expressed his or her views with absolute clarity, the juror may be excused if 'the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.' [Citation.] If, after reasonable examination, the prospective juror has given conflicting or equivocal answers, and the trial court has had the opportunity to observe the juror's demeanor, we accept the court's determination of the juror's state of mind." (Thomas, supra, at p. 790; see People v. Pearson (2012) 53 Cal.4th 306, 327-328, and cases cited.)
The instructions to the questionnaire given to all prospective jurors directed: "If you do not understand a question, please place a large question mark (?) in the space provided for an answer." Prospective Juror J.A. responded to relatively few questions in the 27-page juror questionnaire.*fn5 She responded to almost none of the questions concerning the death penalty. For example, she left question marks, or no response, concerning the following questions: "Would you please tell us how you feel about the death penalty?"; "Does the death penalty help society?"; "What kind of murders come to mind when you think of the death penalty and someone 'deserving it'?"; "Are there any murders that do not deserve the death penalty?"; "Do you feel that life in prison without the possibility of parole is a severe punishment?" The single death-penalty-related question that she answered ...