California Court of Appeals, First District, Fourth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Contra Costa County Superior Court No. 51006220. Hon. Lewis A. Davis Trial Judge
[Copyrighted Material Omitted]
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Robert Gardner of first degree murder (Pen. Code,  § 187), torture (§ 206), first degree burglary (§§ 459, 460, subd. (a)), and grand theft (§ 487). The trial court further found true the allegations that defendant had served two prior prison terms (Veh. Code, § 10851; Pen. Code, § 667.5). The trial court sentenced defendant to 29 years to life for the first degree murder count, a consecutive 16-month term for the burglary count, and a consecutive eight-month term for the grand theft count. Additionally, the court imposed a life term for the torture count, but stayed punishment under section 654.
On appeal, defendant claims Faretta error and a prejudicial delay in arraignment require reversal. He further argues that his eight-month sentence
for grand theft must be stayed pursuant to section 654; the Attorney General concedes this error. Finding no reversible error, we affirm the judgment. A limited remand is required, however, to correct the conceded sentencing error.
I. EVIDENCE AT TRIAL
A. Residential Burglary, Gun Theft, and Murder
Jimmy Bean, Jr., testified that in November 2009 he suspected his son, Eric Bean, was taking drugs. On December 17, 2009, Bean discovered that someone had broken in to his gun safe and had taken three shotguns and a Ruger pistol. Bean’s gun safe had been pried open. The responding police officer noted that the front and back doors of Bean’s residence showed no signs of forced entry. The officer also observed tool marks on a gun safe and took latent print samples from the front of the safe.
Four days later, on the morning of December 21, 2009, Eric Bean’s body was discovered by a bicyclist along McEwen Road in Contra Costa County. His body was in rigor mortis, indicating that he had been dead for several hours. It appeared that Eric had been tied and beaten; his wrists, ankles, and neck bore ligature marks and there were many lacerations, abrasions, and contusions about his face and head. His T-shirt was blood stained, though no blood was found on the ground, suggesting that Eric had been murdered at another location. It was later determined that Eric had been murdered at 100 Carolina Drive in Benicia, the known residence of defendant’s confederate Timothy Delosreyes, Jr. (“Big Tim”).
B. Forensic Evidence
Crime lab analyst Catherine Currier testified that she observed a “large cut” on Eric’s head, a wound on the chin, and bruises to the right elbow and foot. Currier observed ligature marks to the victim’s wrists and ankles. Currier observed a shoe print on the victim’s left buttock. Currier opined that the victim died at another location due to the lack of blood pooling, spatter, or shoe prints around the body. On March 9, 2010, Currier tested defendant’s white pickup truck for blood evidence. An area under the bed liner and the frame under the tailgate tested positive for blood. Currier found yellow rope in the truck bed.
Crime lab analyst Richard Bowden found 0.02 micrograms per milliliter of amphetamine and 0.07 micrograms per milliliter of methamphetamine in Eric’s blood.
Criminalist Donald Finley found three blue fibers on Eric’s boxers, a yellow fiber on the body’s right leg, and various fibers on an outer T-shirt.
Pathologist Arnold Josselson found numerous abrasions on the body’s right ankle, right shoulder, penis, right elbow, lower right abdominal wall, right thigh, left forearm, upper abdomen, left hip, right ear, both cheeks, forehead, nose, and upper lip. There were bruises on the feet, right back, upper left arm, right knee, left hip, eyelids, nose, left knee, and left shoulder. There were lacerations to the left eyebrow, on the chin, right ear, lower lip, and on the right corner of the mouth. There was a ligature abrasion across the lower neck, several smaller ligature impressions on the front of the neck, and ligature marks on the left ankle and each wrist. One tooth was chipped. There was hemorrhaging on the surface of the brain, blood inside the brain, on the left side of the neck, on the soft tissue of the voice box and the larynx, and on the soft tissue overlying the spinal column in the neck. Josselson opined that Eric died from strangulation and from blunt force injury to the head. Josselson noted that Eric had blood in his stomach and airway.
Criminalist Alex Taflya examined the residence at 100 Carolina Drive in Benicia. The northeast bedroom showed signs of sloppy application of wall paint. Two stains on the north wall were presumptively positive for blood.
Latent print analyst Stephanie Souza examined the latent prints taken from the gun safe and found that one print was from defendant’s right thumb and another from defendant’s right middle finger. Eric’s left thumb made two latent prints on the safe.
Criminalist Kim Willey examined blood samples taken from the northeast bedroom of 100 Carolina Drive. The DNA profile of that blood sample matched Eric’s DNA profile.
C. Defendant’s Statements to Police
1. December 30, 2009
Deputy Sheriff Michael Meth first questioned defendant on December 30, 2009. Defendant said that on December 20 and December 21, he was working at a construction project in San Francisco. Defendant said he was in San Francisco with “Little Tim” Delosreyes (Timothy Delosreyes III, also called “Timmy”). When told that his cell phone records did not corroborate his presence in San Francisco, defendant had no explanation. Defendant denied knowing about Eric’s whereabouts or death. Defendant said that Big Tim and Little Tim Delosreyes were his longtime friends. Defendant last saw Eric during the week of December 14, 2009.
2. March 6, 2010
Sheriff’s Sergeant Garrett Schiro testified that on March 6, 2010, he obtained arrest warrants for defendant, Big ...