[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Superior Court of Los Angeles County, No. BA181702, Lance A. Ito, Judge.
Ronald F. Turner, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Cantil-Sakauye, C. J., with Baxter, Werdegar, Chin, Corrigan, Liu, JJ., and Yegan, J.,[*], concurring.
[336 P.3d 1227] [179 Cal.Rptr.3d 649]
CANTIL-SAKAUYE, C. J.
A jury convicted defendant Marcus Dorwin Adams of the 1994 first degree murders of Dayland Hicks, Lamar Armstrong, and Trevon Boyd (Pen. Code, § 187),  the attempted murder of Luis Hernandez (§ § 187, subd. (a), 664), and carjacking (§ 215, subd. (a)). The jury found
true the allegation that defendant discharged a firearm at an occupied motor vehicle causing great bodily injury and death within the meaning of section 12022, subdivision (b)(1), with respect to the three murder counts. The jury also found true the alleged multiple-murder special circumstance. (§ 190.2, subd. (a)(3).) With respect to the attempted murder, the jury found true the allegation that defendant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a). The jury returned a verdict of death for the three first degree murders.
[336 P.3d 1228] The trial court denied defendant's motion to reduce the penalty and his motion for a new penalty phase trial and sentenced defendant to death. The court also imposed, but stayed, a determinate sentence of nine years in prison for defendant's attempted murder conviction and an indeterminate term of life with the possibility of parole for his conviction of carjacking. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
[179 Cal.Rptr.3d 650] I. Facts
A. Guilt phase evidence
In early September 1994, defendant, a member of the Six Deuce Brim Bloods gang, walked up to the car in which three members of the Rollin' 60s Crips gang were sitting. He shot and killed all three men at close range. Not quite a month later, defendant shot a security guard patrolling the parking lot of a credit union. He fled the scene with his two companions. In a nearby neighborhood, they carjacked a woman's car.
At trial, regarding the first three shootings, defendant challenged the credibility of the witnesses who identified him as the shooter. Regarding the later incidents, defendant claimed one of his companions was the shooter and had pulled the woman out of her car.
1. The September 7, 1994 homicides
On the afternoon of September 7, 1994, Lewis Dyer was standing with Zenia Meeks, a drug addict, on Western Avenue at 47th Street in Los Angeles, across the street from Ford's Liquor store. The area was known as a Crips gang neighborhood and Dyer was a member of the 46th Street Neighborhood Crips gang. Dyer and Meeks saw Dayland Hicks, Lamar Armstrong, and Trevon Boyd, members of the Rollin' 60s Crips gang, drive up in a Cadillac and park in front of the liquor store. The two Crips gangs were friendly. Dyer and Meeks walked over to the Cadillac, and Dyer began to speak with Hicks. Dyer and Hicks went into the liquor store. After Hicks bought a beer, they returned to the Cadillac. Hicks got into the driver's seat.
Boyd was sitting in the front passenger seat, and Armstrong was sitting in the backseat. Dyer leaned on the passenger side of the car and continued to speak with the three men. According to Meeks, she stood near the hood of the car, waiting for the men to finish their conversation.
Dyer and Meeks both noticed a young man walking toward them. Dyer recognized the man as defendant, whom he knew to be a Bloods gang member with the gang moniker of " Little Sonny." Dyer and defendant knew each other when they were both held in the same California Youth Authority (CYA) juvenile facility. Although defendant belonged to a Bloods gang, he was not wearing colors associated with the Bloods gangs, but colors that blended into the Crips neighborhood. During this time in 1994 a gang war was underway between the Bloods and the Crips. The 46th Street Neighborhood Crips gang, along with the Rollin' 60s Crips gang, were enemies of the Six Deuce Brim Bloods gang--defendant's gang. Defendant pulled out a gun and shot at Dyer. Dyer ducked, crawled to the front of the car, then stood up and ran down the street while defendant fired a number of shots into the Cadillac at close range. Meeks stood still.
Hicks suffered a fatal gunshot wound to his head at the right temple area and a nonfatal gunshot wound to his upper right arm. The wounds were consistent with Hicks having raised his arm up in a defensive position at the side of his head. Boyd suffered gunshot wounds to his chest, the ring finger of his left hand, and his right forearm. One of the bullets that entered his chest fatally damaged his liver and heart. Armstrong was also shot in the arm and chest. The bullet that entered his chest fatally damaged his liver, heart, and left lung. When defendant finished shooting, he walked back toward an alley, got into a red four-door car, and drove down 47th Street.
Hicks died in the Cadillac. Boyd exited the Cadillac and ran into Ford's Liquor store. Meeks followed Boyd into the store and saw that he had been shot. She ran back across the street to a pay phone, [179 Cal.Rptr.3d 651] dialed 911, and reported the shootings. Lisa Mallard, who was in the liquor store with the owner, an employee, and another individual, tried to calm Boyd. Mallard told him that the paramedics were coming, but Boyd passed [336 P.3d 1229] out and died. Armstrong exited the Cadillac, but collapsed near the corner of 47th and Western. Armstrong and Boyd were transported to area hospitals. Armstrong died at the hospital.
When Dyer returned to the scene, he saw Hicks's body still in the driver's seat, with blood everywhere. He saw the police and paramedics arrive, but he did not talk to them. Dyer felt that he should not say anything because a gang member would be labeled a " snitch" if he spoke to the police about a gang-related crime, even if the crime was committed by a rival gang against
the member's own gang. Dyer feared that if he told the police what he knew about the shooting, others would try to harm him. He did not want to get involved. Instead, Dyer went to a nearby pay phone and called Hicks's uncle, Gregory Shoaf. He told Shoaf that Hicks had been shot and that defendant was the shooter.
On the day of the homicides, police officers took Meeks to the police station for an interview. Meeks did not give Dyer's name to the police because she wanted to protect him. And although Meeks had recognized defendant as the shooter, she did not identify him to the police because she was frightened and did not want to get involved. Instead, she told the police that she was unable to identify the shooter, claiming she was high and on psychiatric medication. Police spoke with Meeks several times and showed her a set of photographs of possible suspects. Meeks did not identify anyone because of concerns about her own and her family's safety. At trial, she explained that a member of her family had received a telephone call that Meeks understood as a warning to keep quiet.
A week after the shootings, the police contacted Dyer, but he gave them no information. He claimed that he was inside the liquor store when the shots were fired. The next day, after receiving information from Shoaf that Dyer was a witness to the shooting, the police asked Dyer to come into the police station. When Dyer arrived, Shoaf, Shoaf's sister, and Boyd's mother were there. Dyer was initially reluctant to talk to the police, but changed his mind after the family members convinced him he should tell the police what he knew about the killing of his friends. Dyer told the police what happened and gave a written statement. He identified defendant as the shooter in a photographic lineup.
Defendant was taken into custody early in October 1994 and interviewed as a suspect regarding various gang murders. Defendant told the interviewing detectives that he knew about the killings on Western Avenue. He sad the shooter put on a blue shirt to make the victims think he was a Crips gang member. He walked up to their car and " dumped on them," using a nine-millimeter handgun and fled in a red car. Defendant, however, denied being present, denied committing the shootings, and refused to disclose the name of the perpetrator. He stated that the shooter knew the Crips gang member who witnessed the shooting because they had been in jail together, but defendant denied knowing the witness himself. Defendant told the detectives that his family fell apart after Rollin' 60s gang members killed his brother. He blamed the 60s for what happened to his family. Defendant told the detectives that he was not admitting the murders, but if he had done them, the reason would be the killing of his brother.
[179 Cal.Rptr.3d 652] Dyer was subsequently arrested on a parole violation and taken to county jail. Defendant was in the same jail at that time. When Dyer was asked to view a live lineup that included defendant, Dyer did not identify defendant as the shooter because he was afraid of what could happen to him in jail if he was labeled a snitch. Sometime later, Dyer was brought to an office where defendant was waiting. Defendant told Dyer not to say anything and showed him a copy of the statement Dyer had made to police identifying defendant as the shooter. Defendant told Dyer that the sheriff's deputy who escorted him to the office was defendant's cousin and that defendant could have Dyer moved to a safe facility as long as Dyer did not identify him. Defendant told Dyer that he had given him " a pass," meaning he could have killed him when he shot the others but chose not to. Dyer assured defendant that he had not picked him out of the lineup and [336 P.3d 1230] that he did not intend to " tell on [him]." At trial, Dyer testified that he had decided not to testify or cooperate with the police even before this conversation. Dyer testified that he was concerned that if his statement to police " [got] around the jail" he could be hurt or killed. He said that he received threats before and after the lineup.
When a defense investigator subsequently came to interview him at the CYA facility where Dyer was transferred, Dyer lied and said that he had been in the liquor store at the time of the shootings. He told the investigator that he did not see anything and claimed the victims' families pressured him into making his statement to the police. Meeks continued to be uncooperative with the police. In 1995, the case against defendant was dismissed and he was released.
In 1998, investigators from the Santa Barbara County District Attorney's Office contacted Dyer, who had been released from custody a couple of years earlier. The investigators asked about the 1994 murders. Because Dyer was trying to reform his life, he decided to cooperate with them and to testify against defendant. He told the investigators about being threatened and about his jailhouse conversation with defendant. When Dyer was contacted by Los Angeles police detectives and asked to attend a live lineup in 1999, Dyer identified defendant as the shooter of his three friends. Dyer also identified defendant as the shooter at defendant's preliminary hearing and again at trial.
Kipchoge Johnson testified at defendant's trial that until 2000 he belonged to the Van Ness Gangsters, a Brim Bloods gang that was " best friends" with defendant's gang, the Six Deuce Brim Bloods gang. Johnson testified that he decided to tell the police what he knew about this shooting because he had become " disgusted" with the gang lifestyle and had become friends with the brother of one of the three victims.
Johnson recalled being with defendant in 1994 when defendant received an upsetting phone call. Defendant told Johnson that one of defendant's
" homies" had just been killed by a Crips gang member. A few days later defendant came in with a newspaper article. He said, " This is what I did for the homies" and threw the newspaper on the floor. Everybody ran to look at it. Johnson saw that it was an article about the killings of the three Rollin' 60s gang members. Some of the older gang members who were present asked defendant what had happened. Defendant replied that he " ran up on them" and with five shots " domed," meaning shot in the head, all three of the men who were inside a parked Cadillac. He had made sure they were Crips gang members by " throwing" their neighborhood sign at them and having them throw the sign back to him. [179 Cal.Rptr.3d 653] Johnson testified that using only five shots and shooting a person in the head would garner more status for a gang member. He also testified that a gang member would not take credit for a killing that he did not commit because if he did, he would be disciplined and kicked out of the neighborhood. According to Johnson, if defendant bragged about killing someone, he must have done it. Johnson believed it fair to say that defendant hated the Rollin' 60s gang.
A few months after the killings, Johnson met defendant on the county jail bus while going to court. Johnson asked defendant who had identified him as the shooter and defendant replied it was the person to whom he had given a " pass" and allowed to run away based on their prior custody together in CYA. Defendant said that he should have killed him too. Johnson subsequently heard defendant tell some Crips gang members that he was going to " beat this," get out of jail, and kill some more of their members.
Christopher Fennelle was a member of the Six Deuce Brim Bloods gang until 1995. He knew defendant for a number of years as a member of the same gang. Fennelle testified that sometime in 1995 defendant came to Fennelle's home because he wanted to buy a gun. As they were talking, defendant brought up the subject of the three Rollin' 60s Crips who were killed the previous year. Defendant told Fennelle that he had seen the Cadillac parked with three Crips inside and one standing outside. As defendant walked up to the car, the man by the passenger door saw him and took off running. Defendant said he fired shots at the fleeing man and then shot everyone in the car.
[336 P.3d 1231] Special precautions were taken to protect both Johnson and Fennelle while they were testifying during the trial. And they were both promised that whenever they were released from prison they would be provided with witness relocation services.
In 2001, Meeks was in a drug rehabilitation program and had become a Christian. She decided to cooperate with authorities regarding the 1994 shooting. She subsequently identified defendant in a photo lineup as the shooter.
2. The October 3, 1994 attempted murder and carjacking
On October 3, 1994, Luis Hernandez was working as a security guard patrolling a parking lot for several Santa Monica businesses, including the Telephone Employees Credit Union. About 10:30 a.m., a car approached Hernandez. There were three African-American men in the car. The front passenger asked Hernandez if he knew the location of Santa Monica College. As Hernandez pointed to the left, the man said, " Don't move," reached into the glove compartment of the car, and pulled out a handgun. Hernandez turned and ran toward the entrance to the credit union. He heard several shots behind him. He was hit and fell down, but got up again and continued running. He was shot again as he reached the credit union door and collapsed after he entered the building. He was taken to the hospital where he had surgery and remained for a week. He was out of work for two months.
Jasmine Green was inside the credit union that morning, and looked up when she heard gunshots. She observed a yellow Cadillac parked outside and as she watched, a man stepped from the passenger side of the car and shot at Hernandez, the security guard. Hernandez ran past the window and into the credit union, collapsing in front of her. Green then saw the shooter get back in the car and the car drive away. She got a good look at the shooter. She believed he used a nine-millimeter [179 Cal.Rptr.3d 654] gun, and described all three men in the car as African-American.
About 11:15 a.m. on the same day, Socorro Navarro drove to the Santa Monica home of her friend, Linda Nicastro, to give her a ride to work. Navarro stopped in front of her friend's home on Oak Street, which is about six blocks away from the Telephone Employees Credit Union. Navarro honked her horn and Nicastro came out of the house. Before Nicastro could get to Navarro's car, a yellow car with two African-American men in the front seat suddenly came from the opposite direction and stopped next to Navarro. The driver got out and approached Navarro. He produced a gun and said, " Bitch, get out of the car." Frightened, Navarro complied. She walked over to Nicastro. They grabbed hands and walked toward the apartment building without looking back toward the car. Navarro heard the sound of cars speeding away. She turned and saw her car and the yellow car drive away in the same direction.
Jerry Flannery lived across the street from Nicastro. Around 11:15 a.m. that morning, he had just parked his car and was walking across the street when he heard another car approaching at a high rate of speed. He heard it slam on its brakes and saw it pull up next to Navarro's car. He saw three people inside the car. Flannery testified that the driver, an African-American male in his late 20s, got out and walked up to Navarro, yelling at her to get out of her
car. Flannery started toward Navarro to help her, but the man raised a gun, which Flannery recognized as a nine-millimeter semiautomatic. When the man pointed it at Flannery, Flannery dove behind the parked cars, then crawled to the front of one of the cars and peeked around the corner. Flannery saw the man yank Navarro's car door open, grab Navarro by the hair, and drag her out of the car. Flannery turned and went to nearby apartment buildings, knocking on three or four doors in an attempt to get someone to call the police. Flannery returned to the street in time to see the two cars drive away. Flannery got back into his car and tried to follow them in order to obtain a license plate number, but was unable to find the cars.
In 1999, Santa Monica Police Sergeant Gary Steiner was assigned to reinvestigate the 1994 credit union shooting and subsequent carjacking. He interviewed defendant [336 P.3d 1232] after he heard that defendant had information regarding the case. Defendant told Steiner that he wanted to get his former friend Chauncey Bowen, who was the brother of Fennelle, in trouble because Bowen had tried to kill defendant and defendant's girlfriend. Defendant described the shooting of Hernandez at the credit union and the subsequent carjacking of Navarro, but claimed that he had acted only as a lookout and that Bowen was both the shooter at the credit union and the man who dragged Navarro out of her car. Defendant told Steiner that he later bought the gun that Bowen had used and it was that gun he had with him when he was arrested back in October 1994.
Forensic examination in 1995 of the shell casings and bullet fragments recovered in connection with the shooting of Hernandez determined that the shell casings were fired from one gun and that the bullets were also fired from one gun. But without the benefit of analyzing the gun itself, it could not be determined that the casings and bullets were fired from the same gun. After defendant's interview statements in 1999, the shell casings and bullet fragments were reanalyzed, along with the gun seized when defendant was arrested in 1994. It was then determined that the shell casings and bullet fragments had been fired from that gun. That gun was [179 Cal.Rptr.3d 655] not the weapon used in the 1994 killings of Hicks, Boyd, and Armstrong.
In 1999, credit union customer Green was shown a photographic lineup of possible suspects in the credit union shooting. She identified defendant's picture as being that of the shooter. She also identified defendant as the shooter in a subsequent live lineup and later at trial.
B. Penalty phase evidence
1. Evidence submitted in aggravation under factor (b) of section 190.3
In the penalty phase, the prosecution presented evidence of defendant's history of numerous criminal activities involving the use or attempted use of force, violence or threat. (§ 190.3, factor (b).)
a. Carjackings committed as a juvenile
The prosecution presented evidence of two carjackings committed by defendant when he was 17 years old.
According to Alice Rox, on January 21, 1988, she parked her car on her way to a swap meet in Los Angeles. When she got out of her car, a male, whom she later identified as defendant, pointed a gun at her and demanded the keys to her car. She tossed the keys to him, and defendant took her car. The car was recovered a few days later.
Dwain Edwards testified that on February 4, 1988, he drove his car to a gas station. Edwards was about to fill his car when a male, whom Edwards later identified as defendant, pointed a machine gun at him and demanded his keys. Edwards complied and ran approximately 50 feet away. When he turned around, he saw defendant leaving in his car. Defendant was taken into custody later that day on the campus of a local high school, and police seized a machine gun that a witness claimed to have seen defendant hide. The weapon held a 50-round clip, which contained 40 rounds when it was examined. Defendant admitted committing both the January 21 and February 4 carjackings. Edwards's car was recovered several days later.
b. September 1994 robbery of Pacific Marine Credit Union
On the morning of September 27, 1994--three weeks after the triple homicide of Hicks, Boyd, and Armstrong and six days before the attempted murder of Hernandez and the carjacking of Navarro--Melissa Lopez was working as the head teller and assistant manager at the Pacific Marine Credit Union in Oceanside. Lopez testified that at approximately 11:30 a.m., the glass double doors of the credit union flew open and three or four African-American men ran inside. They were carrying semiautomatic weapons, which they pointed at the tellers. Two of the men hurdled the first two teller counters and ordered everyone to the ground. Lopez was ordered to get up when she identified herself as the person who was in charge of the credit union that morning. One man, later determined to be defendant, led her to the
vault at [336 P.3d 1233] gunpoint and demanded she open it. Lopez fumbled with the keys. Defendant put his gun next to her temple and said he would shoot her if she did not hurry. After she opened the vault, defendant took the currency and placed it in a bag. Lopez could hear another man on the other side of the credit union ordering tellers to open their drawers. The men left the credit union, and someone called 911. After the robbery, the credit union manager performed an audit and determined that $ 161,589.23 had been taken. Lopez identified defendant at trial as the man who had forced her back to the vault, held a gun at her head, and took the currency.
Michael Loughran worked for a company whose office was inside the credit union. [179 Cal.Rptr.3d 656] He testified that he heard the commotion in the credit union that morning. He looked around his door and saw an African-American man, whom Loughran identified in court as defendant, pointing a gun at him. Defendant told Loughran to come into the bank and lie down by the tellers. Loughran complied, and heard sounds from the vault area. Then defendant, holding a big bag, jumped over the counter and landed next to Loughran. Defendant put his knee on Loughran's chest and asked if he had any money. Loughran reached into his top pocket, where he usually kept his cash, but pulled out his business cards by mistake. Defendant hit Loughran in the head with his gun and said, " Give me all your money, white boy." He pointed the gun at Loughran's face. Loughran remembered his money was in a different pocket. He handed defendant two $ 100 bills. Defendant took Loughran's pager, stood up, and walked out of the credit union. Loughran identified defendant at trial as the man who pointed the gun at him and took his money and pager.
According to Bloods gang member Kipchoge Johnson, defendant bragged about the robbery of the credit union. Johnson explained that defendant did not have a job; defendant's job was being a gangster. Johnson said that defendant would rob banks and kill people, go to prison, get out and do the same thing over again.
Santa Monica Detective Steiner interviewed defendant in 1999. According to Steiner, defendant said that he and Chauncey Bowen had robbed the credit union in Oceanside in September 1994. According to defendant, they stole almost $ 200,000. Defendant described his role in the robbery to Steiner.
Melissa Lopez testified regarding the impact the robbery had on her life. According to Lopez, she had worked at the Pacific Marine Credit Union for three and a half years at the time of the robbery. She loved working there and felt she had a strong future. After the robbery, she immediately started looking for a different job. She completely changed her field of work. She required six months of posttraumatic stress syndrome therapy, seeing a
therapist twice a week. She suffered nightmares for a long time after the robbery. At the time of trial in 2003, she was still frightened of doors opening quickly and of people who looked " suspicious." She did not trust people and avoided public areas after dark. Defendant's face was forever ingrained in her head and she " freaked out" whenever she saw someone who resembled defendant.
c. October 1995 shooting of George Minor
One night in October 1995--two weeks after defendant had been released from custody--George Minor, a drug dealer and gang member, was standing in the front yard of his home speaking with some neighbors. According to Minor, defendant and two other African-American men approached him. One of the men asked for an individual named " Ray Ray." Minor said Ray Ray was not there. Defendant, who was holding a gun, then moved the two other men aside and stepped up to Minor, saying, " You Ray Ray." Defendant announced he was " East Coast," a rival gang, and he and one of the other men began shooting at Minor. Minor was hit in the arm and the leg before he ran behind a car parked in the driveway. Both shooters fired multiple additional shots at the car and the house. When the gunfire ceased, the men scattered.
Minor testified that he ran into his house, and someone called 911. Although a number [336 P.3d 1234] of bullets went through the walls of the house, Minor's sisters and nieces who were inside were not injured. Minor [179 Cal.Rptr.3d 657] was taken to the hospital, where he stayed for several weeks. At the hospital, Minor selected defendant's picture from a photographic lineup as one of the shooters. He also identified ...