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People v. Banks

Supreme Court of California

August 14, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
KELVYN RONDELL BANKS, Defendant and Appellant

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Superior Court of Los Angeles County, No. BA109260, Charles E. Horan, Judge.

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SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY A jury convicted defendant of multiple offenses, including two counts of first degree murder (Pen. Code, § 187), one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664), forcible rape, and attempted second degree robbery. The jury found true various special circumstances allegations, including multiple murder, robbery murder, and burglary murder. The jury also found the attempted murder was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death. (Superior Court of Los Angeles County, No. BA109260, Charles E. Horan, Judge.)

A jury convicted defendant of multiple offenses, including two counts of first degree murder (Pen. Code, § 187), one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664), forcible rape, and attempted second degree robbery. The jury found true various special circumstances allegations, including multiple murder, robbery murder, and burglary murder. The jury also found the attempted murder was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death. (Superior Court of Los Angeles County, No. BA109260, Charles E. Horan, Judge.)

The Supreme Court ordered defendant's conviction for willful, deliberate, and premeditated attempted murder reduced to attempted murder and conditionally imposed a lower term sentence on that count, but permitted the prosecution to seek resentencing should it wish to do so. In all other respects, the court affirmed the judgment. With regard to guilt phase issues, the court held substantial evidence supported the trial court's determination that the prosecutor's strikes of three black prospective jurors were motivated by the answers on their juror questionnaires indicating ambivalence about the death penalty. Defendant was improperly convicted of willful, deliberate, and premeditated attempted murder because the jury was not properly instructed on the meaning of the terms "willful," "deliberate," and "premeditated," and the court could not be certain beyond a reasonable doubt that the jury would have found defendant guilty of attempted willful, deliberate, and premeditated murder had it been properly instructed. There was sufficient evidence to sustain the finding that defendant harbored the specific intent to steal from the second murder victim. The trial court properly allowed an officer's testimony recounting the attempted murder victim's statements to him about the event to be introduced under the spontaneous declaration exception to the hearsay rule because there was significant evidence the victim was still emotionally distraught throughout her two hour conversation with the officer. Any Crawford error in the admission of a prosecution witness's testimony about the DNA sample taken from the attempted murder victim was harmless in light of the fact that the witness testified about her own independent scientific conclusions. None of the trial court's remarks, in isolation or in the aggregate, demonstrated bias on the part of the judge or denied defendant his right to a fair trial.

With regard to penalty phase issues, the court held that the exclusion of defendant from his entire penalty phase trial after he had previously been expressly warned that misconduct could result in his exclusion did not violate his right to be present because defendant had engaged in egregious conduct, which included spitting on the judge and throwing a bag of excrement and urine in court. Although the trial court erred by prohibiting defendant from presenting evidence of institutional failure, the error was harmless because defendant made no offer of proof that any of the witnesses would testify that had he received the recommended testing and treatment, he might have turned out to be a less violent adult. The trial court properly overruled defendant's objections to testimony elicited by the prosecution from a defense expert witness that defendant would remain dangerous for years to come because defendant had opened the door to the future dangerousness testimony. Although testimony about defendant's nonviolent childhood criminal acts should not have been admitted, the error was harmless, given that the evidence that defendant had previously committed an array of violent crimes from a young age was voluminous. The trial court's voir dire comments to prospective jurors did not misrepresent the jury's penalty phase duties. The court found no indication of judicial bias in the trial court's questioning of the prospective alternate jurors.

Stephen M. Lathrop, 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, Sharlene A. Honnaka and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LIU, J.

Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§ § 187, subd. (a), 664), one count of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)), one count of first degree residential robbery (§ 211), one count of first degree residential burglary (§ 459), and one count of attempted second degree robbery (§ 211). The jury also found true the special circumstances allegations of multiple murder, robbery murder, and burglary murder (§ 190.2, subd. (a)(3), (17)(A) & (G)); the allegations that defendant personally used a firearm in the commission of each offense (former § 12022.5, subd. (a)); and the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)). Defendant was acquitted of a third murder count related to the killing of Michael Haney in a separate incident.

The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death in 1999. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), sentenced defendant on the noncapital counts and enhancements, and imposed a sentence of death.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) As explained below, the conviction on count 2 of willful, deliberate, and premeditated attempted murder must be reduced to attempted murder. In all other respects, we affirm the judgment.

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I. FACTS

A. Guilt Phase

1. Prosecution Evidence

(a) Crimes Against Charles Coleman and Latasha W.

Latasha W.

Latasha W. testified that during the early morning hours of July 1, 1996, defendant raped her, shot her, and murdered Charles Coleman.

At 2:00 a.m., her friend Charles Coleman, a paraplegic confined to a wheelchair but able to drive, was driving her in his car to his house on Halldale Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began taking shopping bags from the car to the house. As she was returning to the car, Latasha W. saw defendant and another man approach Coleman's car from an alley around the corner of the street. Coleman appeared to know defendant and the other man. At Coleman's request, defendant pulled Coleman and his wheelchair up the three or four steps that led to the house.

Once inside the house, defendant stood directly behind Coleman and pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but the weapon did not discharge. Defendant pulled the trigger a third time, firing a single bullet into the back of Coleman's head. The impact caused Coleman to fall to the floor from his wheelchair.

Defendant grabbed Latasha W.'s arm and forced her into Coleman's bedroom where he demanded the location of Coleman's money and drugs. Latasha W. responded that she did not know where Coleman stored his drugs, but that he kept his money in a hole inside his mattress. Defendant instructed Latasha W. to kneel in the corner of the bedroom; he then threw the mattress on top of her. From underneath the mattress, Latasha W. could hear the two men rummaging through the bedroom.

Defendant eventually removed the mattress. He then led Latasha W. by the arm to the laundry room, where he unbuckled his pants while holding his gun in his right hand. Defendant then ordered Latasha W. to get on her knees and, after placing the gun on top of the washing machine, forced her to orally copulate him. He then ripped her shorts, forced her onto her hands and knees, and raped her. After ordering Latasha W. to lie down on her back, defendant raped her a second time.

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Defendant then took Latasha W. into the kitchen, where the second man was standing with a third man. Defendant kept Latasha W. in the kitchen while the other two men rummaged through the house. Defendant and his accomplices referred to one another as " Blood," a term Latasha W. believed had gang significance. Although Latasha W. did not know if Coleman was a gang member at the time of his death, she was aware that he used to be affiliated with the Black Stone gang, a Bloods gang affiliate.

Latasha W. was led into the living room and forced to lie facedown on the floor. Using a telephone cord, the second man tied Latasha W.'s hands and legs. The men then searched the house for five to seven minutes until Latasha W. heard one of the men say they had found what they were looking for. The two accomplices exited the house, but defendant remained inside. Defendant shot Coleman again, striking him in the head. From a distance of approximately six feet, defendant shot at Latasha W. The bullet struck her ear as she lay facedown on the floor in the living room. Latasha W. remained motionless until she heard the three men drive away in Coleman's car. After waiting several minutes, Latasha W. ran outside the house to seek help.

At trial, Latasha W. identified defendant as the person who shot Coleman and sexually assaulted and shot her.

Los Angeles Police Officer Martin Martinez

Los Angeles Police Officer Martin Martinez testified that around 3:00 a.m. on the morning of July 1, 1996, Latasha W. flagged him down in his patrol car on Slauson Avenue. Latasha W. told Officer Martinez that her friend had just been shot and that she had been raped and shot. She described the shooter as an African-American male who was approximately 27 years old, five feet nine inches tall, 180 pounds, and bald. She reported that the shooter was wearing a black jacket, a white T-shirt, and black or dark-colored shoes. The gun he was carrying was made of stainless steel.

Madeline Marini

Madeline Marini testified that on July 1, 1996, she performed a sexual assault examination on Latasha W. at California Hospital. Marini collected oral, vaginal, and rectal swab specimens from Latasha W. and drew a blood sample. Latasha W. had physical injuries that were indicative of sexual assault, including redness, abrasions, and small broken vessels in the vagina. Latasha W. described the rape suspect as five feet nine inches tall, 170 pounds, bald, and wearing black clothes.

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Los Angeles Police Detective Sal LaBarbera

Los Angeles Police Detective Sal LaBarbera testified that on July 1, 1996, about 3:30 a.m., he was notified of a homicide at 5835 South Halldale Avenue. LaBarbera responded to the crime scene with his partner, Officer Christopher Barling.

LaBarbera further testified that on August 7, 1996, he presented Latasha W. with a six-pack photographic array. As he was removing the six-pack from his binder and before he could place the photo array on the table, Latasha W. " blurted out that she already sees him, the person that she identified." Latasha W. then selected defendant's photograph and identified him as her and Coleman's assailant.

Deputy Medical Examiner Pedro Ortiz

Deputy medical examiner Pedro Ortiz testified that he conducted an autopsy on Coleman's body on July 3, 1996. Coleman had been shot twice. One bullet entered the back of his head, passed through the back of his skull, and exited through the center of his head. Soot deposits and evidence of gunpowder on the entrance wound suggested that this wound was made at close range. A second bullet entered the left side of his head above the left earlobe and exited through the right temple. This second wound was sustained from a distance of more than two feet.

Criminalist Michael Mastrocovo

Michael Mastrocovo, a criminalist employed by the Los Angeles Police Department, testified that he was responsible for analyzing sexual assault evidence for criminal court cases. He testified that he analyzed the items in Latasha W.'s rape kit and found sperm on all three vaginal slides, the vaginal aspirate, and the rectal swab and slide. Sperm was also detected in a stain on the crotch area of Latasha W.'s underwear. On April 30, 1997, Mastrocovo sent the vaginal swab samples from Latasha W.'s rape kit, along with blood samples drawn from Latasha W. and defendant, to Cellmark Diagnostics (Cellmark) for DNA analysis.

Dr. Robin Cotton

Dr. Robin Cotton, the director of Cellmark, testified that Cellmark conducted a DNA analysis of the vaginal swabs and blood samples submitted by Mastrocovo. The DNA from the sperm fraction of the swabs was compared to the DNA from defendant's blood sample; the DNA matched at all nine loci tested, meaning that defendant could not be excluded as the donor of the

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sperm sample. Latasha W. could not be excluded as a match with the DNA in the nonsperm fraction, which is consistent with the swab having been taken from her. Dr. Cotton testified that the combination of allele types common in the sperm sample and defendant's blood sample would occur in about one in 17 million people in the African-American population.

Stipulation

The parties stipulated that a tattoo on defendant's left arm reads " HPB," which stands for Harvard Park Bloods or Harvard Park Brims. The Harvard Park Brims are a Bloods gang affiliate operating in an area of Los Angeles roughly bounded by Slauson Avenue, Vermont Avenue, Gage Avenue, and Western Avenue. The word " Blood" is a term commonly used between members of Bloods gangs.

(b) Crimes Against Charles Foster

Sandra Johnson and Yvonne McGill

Sandra Johnson and Yvonne McGill testified that on July 26, 1996, around 12:30 a.m., Johnson drove McGill and Charles Foster to the Home Savings Bank located on Vermont Avenue in Los Angeles. Johnson and McGill waited in the car while Foster went to the automated teller machine (ATM). McGill was watching Foster, who was fumbling around with some items, possibly looking for his ATM card.

From her side view mirror, Johnson saw a hooded man wearing a red bandana over his face approach the passenger side of the car. Because the man's eyes were not concealed, Johnson could tell he was African-American and had brown eyes. McGill turned to look out the passenger side window and saw the man standing with a handgun pointed directly at her. She looked into his eyes and started screaming. Johnson started her car and drove away while the masked man looked at Foster standing about 12 feet away by the ATM. After driving a short distance, they heard two gunshots.

Johnson and McGill stopped a nearby police vehicle and reported that someone had shot their friend at the ATM. The police car responded to the bank followed by Johnson and McGill. When they arrived, Foster was dead, lying facedown in front of the ATM.

On August 27, 1996, McGill was shown a photographic six-pack and selected a photograph of defendant as having " eyes [that] look like the guy with the gun." McGill testified at trial that defendant appeared to be the person whose eyes matched those of the man who killed Foster.

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Detective Frank Weber

Detective Frank Weber testified that he responded to a crime scene at the Home Savings Bank on July 26, 1996, with his partner, Detective Paul Wright. Detective Weber recovered two firearm casings within five to 10 feet of Foster's body. A Sizzler discount card was in the receipt slot of the ATM, which had sustained damage from a bullet strike. Two expended bullets were recovered: one inside the ATM and the other in an alley west of Vermont Avenue. An empty deposit envelope was clenched in Foster's right hand beneath his body.

Detective Weber further testified that on July 29, 1996, he took statements from both Johnson and McGill. Johnson described the person who approached her car as an African-American male approximately five feet eight inches tall. He was wearing a red hoodie with a red scarf. McGill stated that the gunman had a red sweater wrapped around his head and was wearing a large black jacket. He was African-American and approximately five feet nine inches tall.

Dr. Eugene Carpenter, Jr.

Dr. Eugene Carpenter, Jr., a medical examiner working for the Department of Coroner of Los Angeles County, testified that he performed an autopsy on Foster's body. Dr. Carpenter concluded that Foster had sustained two fatal gunshot wounds. The first bullet entered his right hand and exited the base of his right thumb; it then created a second entrance wound at his throat and exited near his neck on his left shoulder. The second bullet struck the back of Foster's head and exited through his forehead.

Patricia Manzanares

Patricia Manzanares testified that she lived in a ground floor apartment adjacent to the Home Savings Bank parking lot. On the night of the Foster shooting, Manzanares saw two men pass by her window. One man stayed in front of the window in an alley while the other man, whom Manzanares later identified as defendant, walked toward the bank. Defendant was wearing a mask. Defendant approached Foster, who was using the ATM, and shot him. Defendant then returned to the alley near Manzanares's apartment window and removed his mask. Manzanares was able to see his face. Defendant laughingly told the other man, who had stayed by the window, " Oh shit" and " Goddamn." The men left the area in a large green Cadillac with a white top.

Manzanares called the police. She described the shooter as an African-American male, 25 to 26 years old, about five feet six or seven inches tall,

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and about 190 pounds. He had a short " Afro" haircut, a chubby face, and some whiskers around his upper lip and chin. He was wearing a black-and-white checkered shirt, a heavy black jacket, black baggy jeans, and a red mask that extended below his collar.

On August 7, 1996, Manzanares was shown a single photographic six-pack and selected defendant's photograph as depicting the man who shot Foster. She identified defendant's photograph from the same six-pack again on August 21, 1996, and again before the grand jury on August 27, 1996. On February 18, 1997, Manzanares identified defendant as the gunman in a live lineup. Manzanares testified at trial that defendant was the person she saw shoot Foster.

Los Angeles Police Officer Marcelo Raffi

Los Angeles Police Officer Marcelo Raffi testified that on July 31, 1996, around 12:30 a.m., he and his partner were patrolling the area of Harvard Park near Vermont Avenue in a marked patrol car. Defendant was among a group of people walking southbound on Vermont Avenue. Defendant began running when he saw the police and was detained after a brief pursuit. Before he was stopped, Officer Raffi saw defendant drop an object on a pile of wood. Officer Raffi recovered a loaded blue steel nine-millimeter semiautomatic handgun from the place defendant had dropped the object.

Officer Raffi arrested defendant. The report of defendant's arrest indicated that defendant was five feet 10 inches tall and weighed 225 pounds. His booking photograph depicted him wearing a black or blue denim jacket that fell somewhere between his thighs and knees.

Detectives Paul Wright and Frank Weber

Detectives Paul Wright and Frank Weber testified that on August 21, 1996, they executed a search warrant at defendant's residence at 1446 West 58th Place in Los Angeles, located about 50 yards from Coleman's house and about one-half mile from the bank where Foster was murdered. They recovered an extra-large black jacket on the floor inside a bedroom closet. Officer Raffi identified the jacket as the same one defendant had been wearing on July 31, 1996, and Manzanares identified the jacket as the one worn by the man who shot Charles Foster. The police also recovered four red T-shirts and a pair of black jeans, two ammunition boxes containing live nine-millimeter bullets, and an empty ammunition box.

Stipulations

The parties entered several stipulations regarding the ballistics evidence. The nine-millimeter handgun Officer Raffi recovered was operable. The

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handgun fired both of the Speer cartridge casings and both of the bullets recovered from the Foster and Haney crime scenes. The handgun contained nine-millimeter rounds manufactured by CCI, Norenco, Federal, and Speer. The Speer cartridge casing in the handgun and the Speer cartridge casings from the Foster crime scene bore the same headstamp and shared the same caliber, brand, type, and material composition. One box of ammunition recovered from defendant's residence was for Speer nine-millimeter ammunition; the Speer materials from the handgun and the Foster crime scene were commonly packaged in that type of box. The empty ammunition box recovered from defendant's residence was for CCI ammunition, and the CCI cartridges found in the handgun were of the type commonly packaged in that type of box.

2. Defense Evidence

Defendant did not testify on his own behalf. However, he presented testimony from Los Angeles Police Officer Donna Shoates and Detective Sal LaBarbera.

Officer Shoates and her partner transported Latasha W. to California Hospital for the sexual assault examination on July 1, 1996. Officer Shoates testified that Latasha W. described the man who had attacked her as an African-American male who was bald, five feet nine inches tall, and about 175 pounds; he was wearing a large black jacket, a white T-shirt, and black pants. Latasha W. told Officer Shoates that the man who attacked her did not ejaculate and that Coleman was a gang member and known drug dealer.

Detective LaBarbera testified that on July 12, 1996, he showed Latasha W. a binder with over 100 photographs of Six Deuce Brims and Harvard Park Bloods gang members. Defendant's photograph was not included in that binder. Latasha W. identified the photograph in position No. 11, stating that the person depicted in that photograph " looked like" the person who attacked and shot her. On a copy of the page, Latasha W. circled the photograph in position No. 11, initialed and dated it, and wrote " looks like him." The man Latasha W. identified was in custody at the time of the incident.

Detective LaBarbera acknowledged that his report indicated defendant weighed 210 pounds, whereas Officer Raffi's report indicated defendant weighed 225 pounds. On cross-examination, Detective LaBarbera testified that despite writing in his report that the gunman was " clean shaven, possible stubble," Latasha W. actually described the gunman who raped her as having a mustache and a small goatee.

The defense also cross-examined various witnesses called by the prosecution, including Dr. Robin Cotton, Yvonne McGill, and Patricia Manzanares.

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Dr. Cotton testified on cross-examination that the Cellmark database used to compute the probability of a specific set of genes occurring in a member of the African-American population contained a sample of 100 African-Americans living across the United States; that the database did not account for interracial or mixed-race ethnic groups; that the database included only samples from Caucasians, African-Americans, and Hispanics (not Asians or Native Americans); and that the true frequency of the combination of genes occurring in a given population could be 10 times greater or 10 times less than the estimated frequency. Dr. Cotton further testified that the Cellmark analysts who performed the DNA testing prepared two reports, one on June 2,1997, and one on June 30, 1997. In preparing the first report, Cellmark tested five loci and found that the DNA from the sperm sample and the DNA from defendant's blood sample was identical at each locus tested. The probability that a member of the African-American population would have the same combination of alleles found in both the sperm sample and blood sample at each of the five loci would be one in 8,000. In preparing the second report, Cellmark tested an additional four loci and again found a perfect match between the sperm sample and defendant's blood sample. The probability that a member of the African-American population would have the same combination of alleles found at each of the nine loci tested would be one in 17 million.

Yvonne McGill acknowledged on cross-examination that " most of [defendant's] face was covered" when she saw him; that she had stated during her grand jury testimony that she had only gotten a " glimpse" of the gunman; and that she had told Officer Weber that the gunman had a dark complexion, whereas she would describe defendant as " [l]ight skinned."

Patricia Manzanares acknowledged on cross-examination that the jacket worn by the gunman is common among African-American men in her neighborhood. She also acknowledged that she had previously described the gunman as five feet seven inches tall and wearing a black-and-white checkered shirt and a heavy black-and-white jacket.

B. First Penalty Phase

During the first penalty phase trial, the prosecution presented the testimony of Eddie Candelaria, Armando Quintana, Lashan Thomas, Sandra Hess, Thomas Butler, Richard Bee, Joseph Elloie, Henry Nandino, Bridget R., Sandra Vinning, Chandra Vinning, and Roberto Perovich. The defense presented the testimony of Linda Allen, Barbara Sparks Mitchell, Brian Keith Mitchell, Carole Sparks, Louis Weisberg, Iraj Mansoori, Michael E. Gold, and Nancy Kaser-Boyd.

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After a period of deliberation, the court concluded that the jury was unable to reach a unanimous verdict and declared a mistrial. The jury's vote at the time of the declaration of a mistrial was 11 to one in favor of a death sentence.

C. Penalty Phase Retrial

1. Prosecution Evidence

(a) Prior Violent Criminal Activity

Lashan Thomas and Luz Hernandez

Lashan Thomas testified that on January 23, 1988, at 8:00 p.m., she and defendant were walking down the street behind Luz Hernandez. Defendant, holding a pipe in his hand, said, " 'Watch me rob her.' " Defendant approached Hernandez and demanded her money and her purse. When Hernandez refused, defendant struck her across the back of the head with the pipe. She fell to the ground, and defendant took about $ 20 from her. Thomas and defendant fled but were later apprehended.

Hernandez and her husband were unavailable at the time of the penalty phase trial, but their testimony from the juvenile proceeding held on February 24, 1988, was read to the jury. Hernandez testified that the blow to her head resulted in a hematoma that was swollen for five days. She was three months pregnant when she was struck and miscarried about five days later. Hernandez's husband testified that he saw defendant and Thomas running from Hernandez after she screamed.

Sandra Hess

Defendant was a student in Sandra Hess's literacy class at the Barry J. Niedorf Juvenile Hall. Hess testified that on March 31, 1988, defendant approached her desk without permission and challenged her refusal to give him a " good gram," an acknowledgment of a student's good behavior. While Hess was in the process of removing defendant from the classroom for refusing to return to his seat, defendant put Hess in a " choke hold," rendering her unable to breathe or talk. As defendant moved Hess across the room in the chokehold, he yelled at another student, " 'Come on. You said you'd help me. We'll get her.' " When the other student instead reached for the emergency telephone, defendant stated, " 'Don't pick up the phone. Don't do that.' " As soon as the other student picked up the phone, defendant sat on the chair beside Hess's desk and smiled. As a result of the assault, Hess sustained a bruised larynx; her throat was sore for six weeks, and she had to speak in a whisper for a week.

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Richard Bee

On August 5, 1989, defendant was in the custody of the California Youth Authority (CYA) at Humboldt Hall. Sergeant Richard Bee testified defendant refused to be quiet and go to sleep, so he informed defendant he would be placed in a detention room until the morning. Defendant became argumentative and aggressive. Bee then sprayed defendant with Mace, and as he did so, defendant swung and struck Bee in the chin and chest. Bee sustained a sore jaw and a bruised chest.

Bridget R.

Bridget R. testified that she dated defendant for about three months, during which time they lived together with Bridget R.'s sister and three-year-old daughter. On February 21, 1994, defendant accused Bridget R. of cheating on him and became very violent. He struck Bridget R.'s face with his fists multiple times; forced Bridget R. to orally copulate him; hit her on the top of her head with hair clippers, causing her to bleed from her forehead; choked her to the point of unconsciousness three times; and raped her in front of her daughter. At the time of the attack, defendant was aware that Bridget R. was pregnant with his child or possibly his twins. The attack caused a miscarriage.

Defendant eventually tied Bridget R. up with a telephone cord. He then left the house to buy a new telephone cord and took Bridget R.'s daughter with him, telling Bridget R.: " 'I'm taking your little girl in case you get loose.' " Bridget R. freed herself, ran upstairs to a neighbor's residence, and asked the neighbor to call the police. When defendant returned, Bridget R. pretended that she had just gotten loose.

When the police arrived, Bridget R. told the police what had happened. Defendant subsequently called Bridget R. from jail and apologized for causing the miscarriage. However, he also threatened to kill Bridget R.'s family members if she testified against him.

Deputy Roberto Perovich

Los Angeles County Sherriff's Deputy Roberto Perovich testified that on December 10, 1996, around 11:00 p.m., he was patrolling the disciplinary cells at East Facility when he heard screaming from one of the cells. Upon responding to the cell with another deputy, Deputy Perovich observed that inmate Sevedo Sanchez was screaming and had redness and swelling on the left side of his face. Defendant was the only other occupant of the cell. Deputy Perovich observed a Bible in the cell toilet.

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Deputy Arthur Penate

Los Angeles County Sheriff's Deputy Arthur Penate testified that on January 31, 1999, he was conducting a security check of the seventh floor of the Twin Towers jail facility. The seventh floor housed two types of prisoners in single cells: mentally ill inmates and extremely violent inmates. Deputy Penate understood that defendant fell into the latter category. Deputy Penate opened a small slot in the cell door to give defendant his food. As he received the tray, defendant bent down and threw a carton containing feces and urine at Deputy Penate. Defendant aimed at Deputy Penate's face but struck him in the torso. In the days following the incident, defendant laughingly told Deputy Penate, " 'See. See. I told you I was going to get you.' " Defendant also wrote, " Penate is a bitch" and " Fuck off" on the interior walls of his cell, along with various gang-related comments.

Deputy Penate further testified that a few days before the incident, defendant accused Deputy Penate of " disrespecting" him when Deputy Penate told another inmate that defendant was a troublemaker. On a separate occasion about two weeks before the incident, defendant complained that his food was late. When Deputy Penate told him to be patient, he replied: " 'No. No. No. No. No. Let me tell you who I am and how it is. [¶ ] Let me tell you who I am and what I am capable of doing. [¶ ] ... [¶ ] You know who I am? [¶ ] You better ask your deputy friends and ask who I am.' "

Finally, Deputy Penate testified that defendant " continuously manipulates and tries to control other deputies" and that defendant would often condition his compliance with orders from prison staff on receiving special items such as extra clothing or blankets.

(b) Circumstances of the Crimes

Crimes Against Coleman and Latasha W.

The prosecution presented substantially the same evidence in the penalty retrial that was presented at the guilt phase of the trial, including the testimony of Detective Sal LaBarbera, Latasha W., and Dr. Pedro Ortiz. The parties stipulated to the substance of the DNA evidence testimony provided by Madeline Marini, Michael Mastrocovo, and Dr. Robin Cotton.

Gang Expert Testimony

Los Angeles Police Detective Christopher Barling testified as an expert on the Harvard Park Brims gang, also known as the Six Deuce Brims gang. The Harvard Park Brims gang was an African-American Bloods gang affiliate that

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was associated with the color red. It was not uncommon for members of the Harvard Park Brims gang to refer to themselves as " Blood." The Coleman and Foster crime scenes were within the territory of the Harvard Park Brims gang. Defendant had the letters H.P.B., short for Harvard Park Brims, tattooed on his left arm.

Crimes Against Foster

The prosecution presented substantially the same evidence in the penalty retrial that was presented at the guilt phase, including the testimony of Detective Frank Weber, Yvonne McGill, Patricia Manzanares, and Officer Marcelo Raffi.

The parties also stipulated to the following facts: (1) the gun recovered by Officer Raffi was the murder weapon in the Foster shooting; (2) the recovered gun contained six live rounds, including two CCI brand rounds and one Speer brand round; (3) the Speer round in the recovered gun and the Speer cartridge casings recovered from the Foster crime scene were the same types of rounds that were found in the ammunition box recovered from defendant's residence; (4) police executed a search warrant at defendant's residence and recovered four red T-shirts, an empty nine-millimeter Luger ammunition box, and a jacket; (5) Dr. Steve Scholtz performed an autopsy on Foster and determined the cause of death was gunshot wounds to the head; and (6) a blood screening revealed cocaine metabolite in Foster's system.

(c) Victim Impact Testimony--Chandra Vinning

Coleman was survived by his elder sister, Chandra Vinning (Chandra), his mother, Sandra Vinning (Sandra), and his daughter. Because Sandra suffered from a medical disability that made it difficult for her to write, Chandra wrote a letter that summarized Sandra's feelings about losing her son. Chandra testified that Coleman had been a great help to Sandra, ensuring that she went to her numerous doctor's appointments by driving her or giving her cab fare. Sandra's health had deteriorated since Coleman's death.

Chandra further testified that Coleman's daughter was " the joy of his life." She identified a photograph depicting Coleman with his daughter, who was then four years old. On the night of his murder, Coleman had taken his daughter to an amusement park.

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2. Defense Case

(a) Defendant's Mental Health

Dr. Louis W. Weisberg

Dr. Louis W. Weisberg, a board-certified psychiatrist, testified that he evaluated defendant at the CYA in 1988. Although Dr. Weisberg had no independent recollection of the evaluation, he had written a report about it. The report indicated that defendant had made the following statements with respect to his attack on Sandra Hess: (1) " he felt very frightened of what he had done because Hess was older" ; (2) " he was afraid that he might really hurt someone" ; and (3) " [h]e feels frightened about his behavior." The report also indicated that defendant's mother had a history of alcohol and drug abuse.

Dr. Weisberg diagnosed defendant with severe conduct disorder " [u]ndifferentiated" type. Conduct disorder is characterized by disruptive conduct, a disregard for law and authority, and an avoidance of consequences. Conduct disorder also refers to a pattern of antisocial behavior in persons under the age of 18. In adults, antisocial personality disorder is characterized by an unstable employment history, frequent arrests due to unlawful behavior, aggressiveness, impulsiveness, a tendency to lie, and an absence of remorse. Dr. Weisberg also diagnosed defendant with intermittent explosive disorder, a disorder characterized by outbursts of violent or aggressive behavior. He noted that defendant had reported a history of blackouts associated with violence.

In his report, Dr. Weisberg recommended that defendant be evaluated to rule out organic brain disorder and a seizure disorder. Defendant required " an intensive treatment program."

Dr. Michael Gold

Dr. Michael Gold, a medical doctor practicing as a neurologist, testified that he performed a neurologic examination on defendant for purposes of the penalty phase trial. The examination included an interview with defendant and a general physical examination. It also included the following diagnostic tests to evaluate defendant's brain characteristics and function: (1) a brain wave or electroencephalogram (EEG) test; (2) a magnetic resonance imaging (MRI) brain scan; and (3) a single photon emission computed tomography (SPECT) scan, a nuclear imaging test that employs glucose injected with radioactive material to measure brain activity.

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The physical examination revealed that defendant's general physical health was normal. The neurologic test, however, suggested that defendant perceived less sensation on the left side of his body. The left side of defendant's body also demonstrated different reflexes than the right side. The results of these tests indicated to Dr. Gold that something was affecting the right side of defendant's brain.

Defendant's EEG test and MRI scans were normal. The SPECT scan, however, revealed an abnormality: a decrease in the utilization of the radioactively laced glucose in the temporal lobes.

Based on the " complimentary [ sic ]" results of defendant's physical exam and the SPECT scan, Dr. Gold diagnosed defendant with malfunction or abnormal function of both of his temporal lobes. The left temporal lobe is responsible for understanding, reading, speaking, and writing language, and the right temporal lobe is responsible for behavior, impulse control, and emotions.

Dr. Carl Osborne

Dr. Carl Osborne, a forensic psychologist, testified that he was engaged by the defense in 1998 to interview and diagnose defendant. Dr. Osborne spent about 18 hours with defendant over eight visits. He reviewed extensive records pertaining to defendant, including previous psychological and psychiatric reports, records from the State Department of Social Services and Child Protective Services, interviews with defendant's family members, and some of defendant's own writings. Dr. Osborne also performed three psychological tests on defendant: (1) the Wechsler Adult Intelligence Scale Third Edition, an IQ test comprised of 14 separate subtests measuring different areas of functioning; (2) the Validity Indicator Profile, a test designed to measure whether the test taker is malingering; and (3) the Wechsler Memory Scale, a test used to assess the test taker's memory.

Defendant was cooperative during the interviews and testing. Defendant scored a 94 on the Wechsler Adult Intelligence Scale, indicating normal intelligence. However, Dr. Osborne found that defendant seemed to have significant difficulty with three tasks that comprise " working memory," which is the ability to store information in one's brain and manipulate that information on a short-term basis. Defendant appeared eager to do the best he could on the Validity Indicator Profile test, but the results of that test suggested that defendant was not paying close attention to what he was doing.

Dr. Osborne concluded that defendant suffered from several severe and chronic mental illnesses. He diagnosed defendant as suffering from intermittent explosive disorder. Individuals suffering from this disorder experience

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periods during which tensions or emotions build up until they " explode" in the form of aggressive or violent behavior. An explosive episode is followed by a period of quiescence, during which the pressure builds anew. Dr. Osborne also opined that defendant probably suffers from substance dependence.

According to Dr. Osborne, defendant's test results were consistent with Dr. Gold's theory of underlying brain damage. In particular, a diagnosis of intermittent explosive disorder would be consistent with temporal lobe damage because the temporal lobe affects impulse control and intermittent explosive disorder is an impulse control disorder. Similarly, a problem with working memory would be consistent with Dr. Gold's diagnosis of temporal lobe damage.

Dr. Osborne opined that defendant's behavior throughout his life was influenced by the following factors: (1) his mother was a drug addict who neglected him; (2) his early life was very chaotic; (3) his mother took him away from his aunt's home where he was happy; (4) his father was absent from his life and very violent toward his mother; (5) he suffered extreme intrauterine trauma caused by a car accident that occurred when his mother was pregnant; and (6) he had deficient working memory, which is consistent with brain damage and an impaired ability to reason.

Dr. Osborne testified that medications exist that could control defendant's behavior, but that these medications must be taken on a very regular basis over a long period of time to be effective. On cross-examination, Dr. Osborne stated that defendant will likely remain as violent as he has ever been but that his violent behavior might remit as he aged.

Dr. Iraj Mansoori

Dr. Iraj Mansoori, a psychologist with a Ph.D. in clinical psychology, testified that in 1991 he counseled defendant for approximately 12 to 15 hours over the course of six months while defendant was a ward at the CYA. Dr. Mansoori got along well with the defendant.

On May 14, 1991, Dr. Mansoori wrote a parole evaluation report on defendant. Defendant was found not suitable for parole. In response to being informed by Dr. Mansoori that he would not be paroled, defendant stated simply, " That's okay." Dr. Mansoori interpreted defendant's response as indicating a preference for the CYA over what defendant was offered at home.

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(b) Defendant's Childhood

Mary Goldie

Mary Goldie testified that on January 21, 1977, she was a detective with the Pasadena Police Department assigned to the juvenile section. On that day, a woman by the name of Mrs. Berkins came in with defendant, who was three years old at the time. Berkins was not a relative, and no relative could be located. Goldie took defendant into protective custody and transported him to a shelter care home arranged through McClaron Hall, a facility for abused and neglected children.

Juanita Terry

Juanita Terry testified that in 1978 she was working as a protective services employee in the " Metro Office" of the Los Angeles County Department of Public Social Services. Terry was assigned to defendant's case on March 31, 1978. By that time, defendant had been placed with his aunt, Barbara Mitchell. He had been removed from his mother's care because she was mentally unstable, had been beating him, and had not provided him consistent care and supervision.

Terry's notes indicated that on several occasions, defendant's mother had attempted to remove him from nursery school or had interfered with his care in Mitchell's home. In October 1978, defendant's mother regained custody of defendant against Terry's recommendation.

Ms. Emery

The parties stipulated to the testimony that would have been provided by a certain Ms. Emery, who was defendant's and his mother's neighbor in 1978. Emery would have testified that during January and February of 1978, she witnessed defendant's mother speaking to people who were not there and " scream[ing] and yell[ing] and act[ing] strange." Emery also witnessed defendant's mother striking him. As a result of these observations, Emery called the department of public social services.

(c) Defendant's Family

Linda Allen

Linda Allen is defendant's maternal aunt; defendant's mother, Carole Sparks, is her older sister. Allen testified that Sparks was a heavy drug user

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and stripper. Sparks discovered she was three months pregnant with defendant after she was hit by an automobile while exiting a nightclub. She sustained serious injuries and was in a full body cast for a " long time." Allen took care of Sparks while she was injured, and Sparks told her that she did not want to keep the baby. While pregnant, Sparks took prescribed medication and illegal drugs. She gave birth to defendant while her pelvis and legs were still in casts.

Allen testified that defendant's father, Melvyn Banks (Melvyn), was very abusive. Melvyn burned Sparks with cigarettes and beat her with golf clubs. Allen recalled one time when she went in an ambulance with Sparks after finding Sparks on the floor of her apartment with burns to her chest. Allen could not remember whether this incident occurred before or after defendant was born because there were so many similar incidents. Melvyn died two or three years before defendant's trial.

Sparks attempted suicide many times. Once she drank Drano. Allen could not recall if that incident occurred before or after defendant's birth.

After she got married in 1975, Allen did not see defendant for a long period of time. Allen renewed contact with defendant in 1978 when he was three or four years old and living with Allen's and Sparks's sister, Barbara Mitchell. When defendant was returned to his mother's custody, Allen again lost contact with him. Sparks prohibited Allen from having contact with defendant and, at one point, attempted to attack Allen and threatened to kill her and burn down her house because she thought Allen had picked up defendant from a foster home where he was living. Although defendant was affectionate towards Sparks, Sparks never reciprocated his affection.

Allen saw defendant at a grocery store when he was six or seven years old. Defendant was trying to make money for his mother by taking customers' grocery bags to their cars. Allen prepaid a grocery store to provide defendant food because he complained that he was hungry. She did not give defendant money directly because he would give it to his mother.

During the period when defendant was not in custody from November 30, 1993, through February 21, 1994, Allen saw defendant frequently at family gatherings. She was " setting him up on programs, taking him [to job] interviews, getting his I.D. and birth certificate" in an attempt to help him become a better person. Defendant was always respectful in Allen's presence and never exhibited any violence towards her or others.

Allen loved defendant and wanted him to live.

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Barbara Mitchell

Barbara Mitchell is defendant's maternal aunt; Carole Sparks is her younger sister. Mitchell testified that she took care of Sparks after Sparks was injured in a car accident. Sparks took prescribed pain medication while she was pregnant with defendant but, to Mitchell's knowledge, did not take any illegal drugs.

At some point after defendant was born, Sparks and defendant went to live with defendant's father, Melvyn. Melvyn beat Sparks, choked her, pushed her down stairs, slammed car doors on her, and pulled her hair. Mitchell sporadically cared for defendant during this time.

When defendant was two years old, Sparks dropped him off at the daycare attended by Mitchell's children with a note pinned to his jacket stating, " Take him. I don't want him." Mitchell took defendant and obtained legal custody of him. Defendant lived with Mitchell for about three years, during which time Mitchell cared for defendant as her own. Defendant was an affectionate child. Mitchell believed that defendant loved Sparks, but that he was afraid of Sparks at the same time. Sparks would tell defendant: " 'You're a man child. [¶ ] You have to fend for yourself.' "

Mitchell testified that Sparks was a drug addict who had used PCP, marijuana, and cocaine. She swallowed Drano one time. Mitchell believed Sparks was crazy.

Sparks eventually told Mitchell she wanted to take defendant back because she was getting child assistance money from the county, and the county had discovered that defendant was not living with Sparks. After a hearing, a court returned custody of defendant to Sparks.

Mitchell had no further contact with defendant until he was about nine years old. At that time, defendant was living in a halfway house because he had been " bad." Mitchell visited him there, and defendant cried during her visits. Defendant was moved from one foster home to another.

Mitchell had never seen defendant act in a violent manner. She loved defendant and ...


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