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Superior Court of Los Angeles County, No. YA035529, James R. Brandlin, Judge. No. S080837.
Richard P. Siref, under appointment bye the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
[326 P.3d 217] [172 Cal.Rptr.3d 611]
A jury convicted defendant Donald Ray Debose, Jr., of the first degree murder and second degree robbery of, and arson causing great bodily injury to, Dannie Kim (Pen. Code, § § 187, subd. (a), 189, 211, 212.5, 451, subd. (a)),  and it found true special circumstance allegations that Kim's murder took place during the commission of arson and robbery (§ 190.2, subd. (a)(17)). The jury convicted defendant of the attempted premeditated
murder and second degree robbery of Vassiliki Dassopoulos. (§ § 187, subd. (a), 211, 664, subd. (a).) It also found true [326 P.3d 218] sentencing enhancement allegations that defendant personally used a firearm in committing the murder, attempted murder, and robberies (§ 1203.06, subd. (a)(1); former § 12022.5, subd. (a)(1)), and personally inflicted great bodily injury during the attempted murder and robberies (former § 12022.7, subd. (a)). As to victim Kim, the jury was unable to reach a verdict on two counts of anal and genital penetration by a foreign object, or on alleged special circumstances that her murder occurred during the commission of rape by instrument and involved the infliction of torture. A mistrial was declared on these counts and special circumstances.
At the penalty phase, the jury returned a verdict of death. The trial court denied defendant's motions for modification of the verdict (§ 190.4, subd. (e)) and for a new trial. For the crimes against Kim, the court sentenced defendant to death for the first degree murder with special circumstances and to 10 years' imprisonment for the gun-use enhancement, one year for the robbery, and nine years for the arson. For the crimes against Dassopoulos, the [172 Cal.Rptr.3d 612] court sentenced defendant to life imprisonment with the possibility of parole for the attempted murder, plus three years for the great bodily injury enhancement and one year eight months for the firearm enhancement, and one year for the second degree robbery, plus three years for the great bodily injury enhancement and one year eight months for the firearm enhancement. The court ordered the sentences for the crimes against Kim and Dassopoulos to run consecutively. 
This appeal is automatic. (§ 1239, subd. (b).) We vacate the arson-murder special-circumstance finding, but otherwise affirm the judgment.
A. The Guilt Phase
During the early morning of December 17, 1997, security cameras at the Hollywood Park Casino in Inglewood, California, recorded the movements
and interactions of defendant and codefendants Carl Higgins and Anthony Flagg. In the video footage shown at trial, the three men appeared to monitor the gambling activities of Dannie Kim. After Kim collected her winnings, the men followed her out of the casino. A few hours later, firefighters called to the scene of a car fire discovered Kim alive, locked in the trunk. She had been shot several times and her body was badly burned. Abrasions and tears found in the genital region suggested she had been sexually assaulted. Kim died five days later from her injuries.
During the early morning of December 23, 1997, Hollywood Park Casino security cameras again recorded defendant, this time with Derrick Grey, as the two men watched the gambling activities of Vassiliki Dassopoulos. After Dassopoulos cashed in her poker chips, they followed her out of the casino. As Dassopoulos pulled into her home garage, defendant attacked and robbed her, shooting her in the head. She survived. Three days later, police arrested defendant at the casino. He had Dassopoulos's credit card on his person. Later testing of a gun found under the front passenger seat of defendant's car confirmed that the gun had been used in the Kim and Dassopoulos shootings.
At trial, defendant presented an alibi defense. Codefendant Higgins challenged the prosecution's eyewitness testimony, while codefendant Flagg presented eyewitness and alibi testimony, as well as expert testimony to rebut the sexual assault evidence.
[326 P.3d 219] 1. The prosecution's case
a. Crimes against Dannie Kim
On December 16, 1997, Kim, who was from Washington State, had been visiting her sister, Miah Richey, in Los Angeles for several days. At 3:00 p.m. that afternoon, they met at the Hollywood Park Casino, a place that Kim, a professional card player, frequented during her visits. Kim drove her Chrysler LeBaron to the casino. About 11:00 p.m., Kim told Richey " to go [172 Cal.Rptr.3d 613] home," saying she would be " right behind her." Richey left the casino and did not see her sister again that night. The next morning, Richey noted Kim had not come home. She did not consider it unusual because Kim would sometimes spend the entire night at the casino, forgetting to call. Richey called Kim on the cell phone Richey had loaned her but did not reach her.
Around 5:00 a.m. on December 17, 1997, Rosemarie Howard was in her home on South Osage Avenue in Inglewood, across the street from Kelso Elementary School, when she heard " a woman talking extremely loudly
outside." About five to 10 minutes after the woman stopped talking, Howard heard approximately five gunshots fired in rapid succession. Fifteen minutes later, an explosion shook her apartment building. Howard ran outside, saw that a car was on fire, and told a neighbor to call 911.
About 5:15 a.m. that morning, Willard Lewis and a prostitute were parked on South Osage Avenue in Lewis's car. Some 20 minutes later, Lewis heard people arguing. He saw two men, whom he identified at trial as defendant and codefendant Higgins, arguing with an Asian woman as the three stood near the end of a car. The woman, who looked " beat up in the face," repeatedly said " no, no, no." Lewis saw defendant grab the woman by the arm and pull her towards him, while Higgins stood behind the woman. Lewis also thought he saw the silhouette of a third person leaning into the car. The argument continued for five to 10 minutes. Lewis did not come to the woman's aid because he was married and should not have been there with a prostitute and therefore did not want to get involved.
As Lewis lay down on his car seat, he heard a door or trunk slam shut, followed by three or four gunshots. When he looked, he saw defendant tuck something into his clothing. Lewis then heard Higgins say, " Come on, Don." Lewis waited a few minutes until he felt it was safe to leave. He then drove around the corner to a telephone, where the prostitute called 911. When Lewis returned 20 minutes later, the car where the shooting had occurred was on fire.
That same morning, Valerie Hutchinson-Gluck, a teacher at Kelso Elementary School, came to work between 6:15 a.m. and 6:30 a.m. and saw a man standing outside a car parked near the school's entrance. He was wearing dark, baggy clothing and leaning into the driver's side window at a 90-degree angle. It struck Hutchinson-Gluck as " peculiar" to see someone there so early in the morning. A short time later, a student told her that a car outside the school was on fire and that a body had been found inside it. Realizing it was the same car she had seen the man leaning into, Hutchinson-Gluck went to speak to a police officer at the scene.
Around 6:30 a.m., Inglewood firefighters at the scene in response to 911 calls saw a parked Chrysler LeBaron on fire. It took about 10 minutes to put out the fire, at which time a semiconscious woman was discovered in the car's trunk. She had third-degree burns on the left side of her body and had been shot in the torso and left arm. The victim had a pulse and was breathing, but paramedics were unable to get a blood pressure reading.
Using the burned car's license plates, Inglewood Police Department Detective Craig Lawler obtained a copy of Kim's driver license, but because of the severity of Kim's injuries, Lawler was unable to positively identify Kim from the photograph on the license. On December 18, Lawler met with Richey to discuss the possibility that the victim might be her sister. Richey then went to the hospital, [172 Cal.Rptr.3d 614] where she confirmed Kim's identity. She was only able to recognize Kim by her fingernails, which Richey had painted a few days before.
Chris McClung, a registered nurse and sexual assault examiner, examined Kim in [326 P.3d 220] the hospital two days after the attack, while Kim was unconscious and in critical condition. In McClung's opinion, there was a strong possibility Kim had been sexually assaulted. Evidence of vaginal penetration included a healing abrasion, possible bruising of the hymen, and redness and swelling of the vaginal canal. McClung conceded, however, that the redness and swelling could also have been caused by renal failure and infection. Based on multiple tears and abrasions, redness, and swelling found in the anal area, McClung expressed the opinion that Kim had also been assaulted rectally.
Los Angeles County Sheriff's Department criminalist Don Johnson testified that the lack of semen found on Kim did not negate the possibility of sexual intercourse. He explained that the likelihood of detecting semen decreases over time, and that hospital personnel had washed Kim's body by the time the sexual assault kit samples were collected. Also, the perpetrator might not have ejaculated, a condom could have been used, the volume of the ejaculation could have been low, or a foreign object could have been used. Semen, furthermore, is less likely to be present in the rectum due to defecation and bacteria.
Dr. Lee Boohacker of the Los Angeles County coroner's office performed Kim's autopsy. He testified that Kim died from multiple gunshot wounds and thermal burns. A total of 50 to 55 percent of her body had second- and third-degree burns. A reddish color at the edge of the burned areas indicated Kim was alive when she was burned. Kim's right leg had to be amputated above the knee because of burn damage. Her clavicle was fractured in multiple places. This injury, which was not associated with any bullet wound, occurred before death but after she left the casino.
Dr. Boohacker also testified that Kim's injuries were consistent with her having been sexually assaulted both vaginally and rectally. He noted five irregular tears at different angles in Kim's anus as having been produced by a large foreign object or by repeated blows from a blunt object. The possibility that these injuries were caused by a rectal thermometer was " extremely remote, almost impossible." He also noted that Kim's vulva and labia majora
were " quite swollen," and that there were two superficial vaginal tears consistent with blunt force.
Los Angeles County Deputy Sheriff Michael Cofield, an arson and bomb expert, examined Kim's car. He testified that the fire was intentionally set by the ignition of gasoline. The fire originated in the right front passenger floorboard area, where the smell of the gasoline was " really strong."
A partially burnt Hollywood Park Casino poker chip found on the floor of Kim's car led detectives to examine the casino's surveillance tapes. The tapes showed that Kim drove her car into the casino's VIP parking lot at 10:56 a.m. on December 16, 1997; that she entered the casino through the VIP entrance; and that she then played poker in the VIP area for several hours. At 2:34 a.m. on December 17, a car carrying defendant, Higgins, and Flagg drove into the casino's parking lot. The three men entered the casino together. Starting around 3:00 a.m., they appeared to focus their attention on Kim; they took turns walking around the VIP area and stopping several times to observe Kim's gambling activities. At 3:50 a.m., as Kim was cashing in poker chips totaling $ 1,900, [172 Cal.Rptr.3d 615] the three men gathered less than 100 feet away from her. When Kim left the casino, so did the men. Kim left the casino parking lot in her car followed by the men in their car.
b. Crimes against Vassiliki Dassopoulos
Around 7:00 p.m. on December 22, 1997, professional card player Dassopoulos went to the Hollywood Park Casino. She had $ 4,000 in cash when she arrived and $ 4,725 when she finished gambling. She left the casino shortly before 5:00 a.m. the next morning and drove to San Bernardino. It was still dark when she arrived at her home.
After entering the garage and opening her car door, Dassopoulos saw something in her peripheral vision, " like a body." A person whom she later identified at trial as defendant grabbed the door and dragged her out of the car. He then drew a gun from his waistband. As the two struggled, defendant [326 P.3d 221] put his left hand and arm across her neck in a chokehold, placed the gun against her head, and shot her. She fell to the floor and passed out. When Dassopoulos regained consciousness, she was bleeding heavily but was able to crawl to the garage door and yell for help.
Paramedics took Dassopoulos by helicopter to the hospital. A bullet had gone into the back of her head behind her right ear and passed through her head to the left side of her cheek behind the left corner of her mouth. As a result of her injuries, Dassopoulos could no longer drink without using a straw and her tongue was paralyzed. She had also lost her right vocal cord. At the time of trial, she could only speak in a low voice and suffered from bouts of dizziness.
Composite videos from casino security cameras showed that at 7:22 p.m. on December 22, Dassopoulos walked into the Hollywood Park Casino through the VIP entrance and proceeded to play poker for several hours. At 4:08 a.m. the next morning, the same car that a few days earlier had followed victim Kim from the casino entered the parking lot. Defendant and Derrick Grey got out of the car and went straight into the VIP area. At that time, Dassopoulos was at a poker table with almost $ 2,000 worth of chips stacked in front of her. Defendant and Grey immediately appeared to focus on Dassopoulos's gambling activities, walking by and stopping to watch her play several times. At 4:40 a.m., Dassopoulos cashed in her chips and then left in her car, followed by defendant and Grey in their car.
c. Defendant's arrest
On December 25, 1997, police officers monitoring the Hollywood Park Casino from the security surveillance room saw defendant walk into the casino. Around 4:00 a.m., the officers arrested defendant in his car in the casino's parking lot. It was the same car that had followed victims Kim and Dassopoulos. At the time of his arrest, defendant had Dassopoulos's Visa card on his person. A .380 Auto semiautomatic pistol was found under the right front passenger seat of the car. Later, the police arrested codefendants Flagg and Higgins.
d. Photographic lineups and ballistics evidence
On January 8, 1998, San Bernardino County Deputy Sheriff Ernie Kopasz showed Dassopoulos a photographic " six-pack" containing defendant's photograph while she was still in the hospital. She did not identify anyone at first--she testified that she was confused by the hairstyles in the photographs because her assailant had worn a " beanie cap." When Kopasz simulated a beanie cap with a piece of paper, Dassopoulos selected defendant's photograph [172 Cal.Rptr.3d 616] as depicting her attacker. She was also shown a photographic six-pack containing Derrick Grey's photograph, but she did not identify him. Dassopoulos did not view a live lineup because she was unable to stand as a result of her injuries.
On July 15, 1998, Willard Lewis was shown a photographic six-pack. He identified defendant as the person he had seen grabbing victim Kim.
Los Angeles County Sheriff firearms examiner Richard Catalani test-fired the pistol found in the car in which defendant was arrested and compared the test-fired bullets with the expended bullet and casing from the Dassopoulos shooting. He concluded that the expended cartridge case could have been fired from the pistol and that the bullet was " positively fired from that ...
pistol, and that pistol only." Catalani also compared the test-fired bullets with the ballistics evidence from the Kim shooting. He determined that the three expended bullets found at the crime scene and the bullet that the coroner removed from Kim's body were fired from the pistol found with defendant and from that pistol only. Of the five expended cartridge casings found at the crime scene, he determined that three were definitely fired from that pistol and two could have been fired from it.
2. Defense case
Defendant presented an alibi defense with respect to the crimes against Kim. Terri Casey, defendant's girlfriend at the time, testified that about 4:30 a.m. on December 17, [326 P.3d 222] 1997 (the day Kim was attacked), she responded to a call on her pager from defendant. At his request, she went to the City of Hawthorne, approximately three miles from Inglewood, to pick him up. When she arrived about 5:00 a.m., defendant was alone. Casey dropped defendant off at his home on 58th Street in Los Angeles at around 5:20 a.m.
Codefendant Higgins presented evidence to impeach the eyewitness testimony of Willard Lewis. Corrections Agent Erskine Richmond testified that on January 27, 1998, he forwarded several documents to Higgins. The documents contained details concerning Kim's murder, such as defendant's and his codefendants' names, the location and time of the incident, and the circumstance that defendants had been seen at the casino when Kim was there. Jail records showed that Higgins shared a jail cell with witness Lewis, who was in jail on charges unrelated to the December 17, 1997 crimes against Kim, from May 4 to May 14, 1998. Inmates were allowed to keep documents in their cells. Lewis denied looking at any papers that Higgins had in the shared jail cell.
On direct examination by the prosecution at trial, Lewis said he did not tell anyone until April 1998 that he had witnessed certain events at the December 1997 crime scene. In April 1998, Lewis was in county jail when he saw Higgins. Lewis became concerned that Higgins had seen him on the night of Kim's shooting. He discussed the matter with the jail chaplain.
Stephen Moss, the volunteer chaplain at the Los Angeles County jail, testified that in June 1998 Lewis told him he had witnessed a murder. Lewis explained that he was with a prostitute across the street from a casino in Inglewood when he saw someone shoot a female in a car. Lewis said he could identify the two men involved and that he had seen one of them in jail. With Lewis's permission, Moss gave the information to a police detective investigating Kim's murder.
On direct examination, Lewis admitted that he was a cocaine user and that he supported his habit by stealing. He described [172 Cal.Rptr.3d 617] himself as a " functional
smoker" who could work while under the influence of drugs. On cross-examination, Lewis admitted that on the morning of December 17, 1997, he was in his parked car on South Osage Avenue smoking cocaine and having oral sex with a prostitute.
Lewis said on direct examination that his decision to talk to the authorities was not related to a third strike case then pending against him for commercial burglary and for petty theft with prior convictions for robbery, theft, and drug possession. The prosecution in that case had told Lewis that it would not consider a plea bargain. On cross-examination, Lewis admitted that he had entered a guilty plea in his case, and that he hoped to receive a more lenient sentence as a result of his testimony. When Lewis entered his guilty plea, the trial court stated that it would dismiss a strike and impose a 10-year prison sentence and that it would consider reducing the sentence if Lewis cooperated and testified truthfully at the trial of defendant and his codefendants.
When questioned by the defense, Lewis admitted that when he told his first attorney that he had witnessed a murder, he did not provide all of the details. At the time he pled guilty in his case, Lewis had a new attorney whom he did not tell about the murder because he assumed the new attorney already had this information. He did ask the new attorney whether he could have his sentence reduced if he testified as a witness to a murder. Lewis testified in defendant's case on April 30, 1999, approximately a month before the last day to modify his sentence under section 1170's subdivision (d). He admitted that he intended to ask the court to reduce his sentence based on his testimony in defendant's case.
Deputy Public Defender Charles Cervantes first represented Lewis in his case. According to Cervantes, when he informed Lewis that he was facing a potential life sentence because of his prior convictions, Lewis became concerned. Cervantes thereafter unsuccessfully tried to find a deputy district attorney or judge who was willing to strike some of Lewis's prior convictions so as to lessen the potential sentence. When Cervantes appeared with Lewis at his arraignment [326 P.3d 223] on May 13, 1998, Lewis seemed " desperate." On May 20th, Lewis called Cervantes saying he had information about a well-known murder and wanted to know if it could benefit Lewis. As Lewis began stating some of the facts, Cervantes realized his office represented one of the three defendants, which required the public defender to declare a conflict.
Testimony was presented that Lewis was a sales agent, and not a " senior associate" as he claimed, at the company where he was working at the time of Kim's murder. A coworker from that company testified that Lewis had worked there for only three months, during which time he would often " disappear for days." Lewis, as far as the coworker knew, did not own a car in December 1997.
Codefendant Flagg presented the testimony of gynecologist Earl Fuller. Dr. Fuller, who had reviewed the forensic evidence from Kim's autopsy, expressed his opinion that Kim had not been sexually assaulted. He noted that Kim's temperature was taken rectally four times and said that insertion of a thermometer can cause injury to the rectum, particularly in someone who has sustained burn damage to the skin. Dr. Fuller attributed Kim's genital injuries to wiping of the area by medical personnel, use of a catheter, and ...