Court San Joaquin County, No. SP076824A Thomas Teaford Judge
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
R. Snedeker, under appointment by the Supreme Court, for
Defendant and Appellant.
D. Harris, Attorney General, Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Stephanie Mitchell, Sean
M. McCoy and Peter H. Smith, Deputy Attorneys General, for
Plaintiff and Respondent.
February 2001, a San Joaquin County jury found defendant
Louis Rangel Zaragoza guilty of the 1999 first degree murder
of David Gaines and the robbery of William Gaines. (Pen.
Code, §§ 187, 189.) The jury found true the
robbery-murder and lying-in-wait special circumstances -
making defendant eligible for the death penalty (§
190.2, subd. (a)(15), (17)(A)) - and also concluded that
defendant personally used a handgun and caused a death in the
commission of the murder and robbery. (Former §§
12022.5, subd. (a), 12022.53, subd. (d).) Following the
penalty phase trial, the jury returned a verdict of death.
This appeal is automatic. (§ 1239,
subd. (b).) We reverse the death judgment because of error in
the death-qualification of the jury, but otherwise affirm.
judgment of death under review rests on the jury's
finding that defendant murdered David Gaines in the
commission of a robbery and while lying in wait. The
prosecution's theory was that defendant and his brother,
David Zaragoza, together committed the robbery murder and
that defendant was the shooter. The brothers were originally
charged in a single information. After David Zaragoza was
found incompetent to stand trial, defendant was tried alone.
The Prosecution's Case
murder victim was 36-year-old David Gaines. He worked with
his father, William Gaines, 87, at Gaines Liquors in
Stockton. On Friday, June 11, 1999, David Gaines arrived for
work in the afternoon, as usual. William Gaines returned to
the store around 7:00 p.m., bringing food his wife Mary had
prepared. Mary usually packed a meal and salad for her son on
Friday nights because there was no time for him to go out for
a sandwich. The salad was in a fluted Pyrex glass bowl with a
closing the store at 11:00 p.m., David and William Gaines
drove in separate cars back to their home, located at 1122
Cameron Way, in an unincorporated area of Stockton. David
Gaines parked his car in the garage; William parked his in
front of the house. When William Gaines got out of the car,
he was holding a brown paper bag in one hand and his keys in
the other. On rare occasions, William Gaines would bring home
the day's receipts, but the paper bag on this day
contained only the Pyrex bowl. As soon as William Gaines shut
the car door, a man punched him in the chin and shoulder.
With his other hand, the man grabbed the bag containing the
Pyrex bowl. William Gaines briefly fell to one knee. When he
got back up, he called out "David" to his son. The
assailant, later identified by William Gaines as David
Zaragoza, took off running in an eastbound direction.
Gaines rushed outside with a canister of Mace and said,
"Hey." David Zaragoza was already 10 to 30 feet
down the street, with his back to William Gaines. Suddenly,
William Gaines heard gunshots, so he ducked behind his
vehicle. He did not see any muzzle flash coming from the
fleeing David Zaragoza before he lost sight of his assailant.
Seconds later, when the gunfire had ceased, William found his
son on the driveway in a pool of blood.
David Zaragoza and another man were running down the street.
The men were 50 to 100 feet away, one trailing about 10 feet
behind the other. William Gaines entered the house to tell
his wife what had happened and to call 911. The 911 call came
in at 11:16 p.m.
Maurer, who lived across the street and a little to the east
of the Gaines residence, testified that she looked outside
her bedroom, the room closest to the Gaines residence, after
hearing gunfire. She saw two young men, medium build and
"not too tall, " heading east. The men were running
fast and only a few feet apart. The one in back was wearing
white. Maurer had told neighbor David French at the scene
that she saw two young people running down the street after
the shots were fired, and French in turn relayed that
information to 911. Cindy Grafius, who lived east of the
Gaines family home on Cameron Way, heard four loud
"pops" and then saw a person run by her driveway.
She did not recall seeing anything in this person's
hands. By the time she walked outside her home, she looked
west and then east but did not see anyone.
Gaines was not breathing and had no pulse when the paramedics
arrived. He suffered four gunshot wounds: one each to his
head and wrist, and two to his chest. The presence of soot
indicated that these must have been contact wounds, except
for the wound to the head, where the muzzle would have been
no more than 18 inches away. The three bullets that could be
recovered were so damaged as to preclude the conclusion that
they were fired by any particular gun, but the criminalist
was able to determine that they all could have been fired by
the same gun.
prosecution theorized that the first shot, a defensive wound,
hit David Gaines's wrist and caused his watch to shatter
and spread pieces over a large area. The remaining shots,
which were fatal, spun David Gaines around. Based on the
trajectory of the bullets, the northwesterly direction of the
blood spatter, and the recovery of a spent bullet in the
next-door neighbor's yard to the east, the prosecution
argued that David Gaines must have been facing south, away
from the fleeing David Zaragoza but toward his killer, at the
time he was shot. According to the prosecution, this was the
only explanation for the downward trajectory of the bullets
that entered David Gaines, who was taller than defendant or
his brother and was on a driveway that sloped up from the
street toward the house.
that night, William Gaines scooped up some papers from the
ground near his car door. He assumed they must have fallen
out of his shirt pocket when he was accosted. The next
morning, after looking at the papers, he realized they were
not his and called the San Joaquin County Sheriff's
Department. The papers included a number of items that bore
David Zaragoza's name or fingerprints, including a
Medi-Cal identification card, a transit card, and a San
Joaquin County Medical Facility interoffice memo.
at the crime scene, the sheriff's department had already
recovered a torn book-and-release form and another piece of
paper with the words "Mr. Zar" on it. Further
research revealed that the form belonged to David Zaragoza.
The next morning, June 12, 1999, Detective Jerry Alejandre
went to the board and care home where David Zaragoza resided;
David was not home. Alejandre interviewed the caretakers and
was shown photographs of David Zaragoza and his family,
including a single photo of defendant. When Detective
Alejandre returned to the board and care home in the
afternoon, the photo of defendant was missing from the
statement to police on June 12, 1999, David Zaragoza denied
being with defendant on the previous evening. A clinical
psychologist who examined David in January 2000 diagnosed him
as suffering from chronic paranoid schizophrenia,
polysubstance abuse (in remission because of his
incarceration), and severe personality disorder with
paranoid, antisocial, and schizotypal features. David had
borderline intellectual functioning, a verbal IQ of 61, a
second grade reading level, and a global assessment of
functioning score indicating severe impairment and psychosis.
13, 1999, Detective Bruce Wuest went to 429 South Airport
Way, where defendant lived with his sister, Nina Koker, and
her disabled husband, John Koker, to search for evidence. In
the garbage bin outside the Koker residence, Wuest found a
fluted Pyrex glass bowl, which had been wrapped in a plastic
bag from Grocery Outlet and placed in a white kitchen-size
garbage bag. There was oil inside the bowl, which was
consistent with its having contained a salad. Mary Gaines
identified the bowl as the one she had used to pack dinner
for her son on the day he died. Wuest also found a small
white bag containing a receipt from a Jack in the Box on
Pacific Avenue, which was less than a mile from the Gaines
residence, and an empty pack of Marlboro 100 Lights. The Jack
in the Box receipt was dated June 12, 1999, at 12:03 a.m. The
garbage bin was otherwise empty, as the garbage had been
picked up on Friday, June 11.
days later, Wuest returned to the Koker residence and looked
in the garbage bin again. This time, he found the blue lid to
the fluted Pyrex bowl. The lid had been placed in a coffee
can that was used for cigarette butts. Wuest recalled seeing
the coffee can inside the house during his earlier visit.
Mary Gaines identified the lid as hers.
Pyrex products were found inside the Koker residence. Yolanda
Tahod, defendant's mother, confirmed that neither she nor
her daughter owned any
Pyrex bowls of the type found in the garbage at the Koker
residence. Koker claimed that she sometimes would put plastic
containers of dog food in the refrigerator, forget about
them, and then throw them away when she was cleaning up. She
did not know whether she had thrown any bowls away between
that Friday, when the garbage was picked up, and that Sunday,
when the police found the Pyrex bowl in the garbage can. Nor
did she know how the blue lid to the Pyrex bowl came to be in
the coffee can.
Sunday, June 13, 1999, defendant voluntarily went to the
sheriff's department for a videotaped interview. The jury
viewed excerpts from that interview, as well as excerpts from
defendant's interview the next day following his arrest.
During the first interview, defendant admitted that he had
been with his brother on Friday night, but denied any
involvement in the robbery or murder. According to defendant,
David Zaragoza had called on Friday to ask whether he could
spend the night at the Koker residence. Defendant secured
permission from his sister and called his brother back to
tell him that he would be picked up after their mother
dropped off the car. (Koker, however, testified that she had
not given permission for David to sleep over that
night.) Defendant picked up David around 9:30 p.m. in front
of the board and care home. David, who (according to
defendant) often dresses "weird, " was wearing a
white tuxedo vest and gray or blue pajama-style pants from
the Stockton State Hospital. Defendant complained that
his hands were numb and tingling from his work as a welder,
and asked David to rub some ointment on his hands and feet.
After David did so, defendant fell asleep. When defendant
woke up between 11:00 p.m. and 11:30 p.m., David was gone.
Defendant estimated that he must have fallen asleep between
10:00 p.m. and 10:30 p.m. David called the next morning to
explain that he had decided to leave the previous night
because he was hearing voices. Defendant said he left for
work on Saturday morning around 4:45 a.m., but was told when
he arrived that there was no work for him.
defendant was arrested and reinterviewed on June 14, 1999, he
told police that David Zaragoza wanted to spend Friday night
at the Koker residence, that defendant picked David up and
brought him to the house between 9:45 p.m. and 10:00 p.m.,
that David was wearing a white vest and tennis shoes, that
defendant asked David to massage a sports cream into his
aching feet, that defendant fell asleep around 10:30 p.m.,
and that defendant woke up around 11:30 p.m. or 11:45 p.m. to
find that David was gone. The following afternoon, David
called defendant to explain that he had left because he was
hearing voices and could not get any medication until Monday.
When defendant asked David about his two visits with the
David said, "I got nothing to worry about, because I
ain't did nothing." Defendant admitted that he was
the person who empties the trash at the Koker residence, but
said he had no knowledge about the bowl that was found in the
garbage can outside the house. He did point out, though, that
his sister "throws a lot of bowls away." He also
denied going to Jack in the Box that night. He added that his
sister eats a "lot" of fast food.
and his mother, Yolanda Tahod, told police that David
Zaragoza did not drive and that they had never known him to
drive. Stella Lee Tahod, defendant's sister-in-law,
believed that she had seen David drive in 1985 or 1986;
David, however, had been in prison for all but four months in
1985 and all but two months in 1986. Eddie Tahod,
defendant's half brother, recalled that David had driven
as a teenager, 20 to 25 years earlier. Yolanda Tahod
testified at trial that David had driven a car before, but
not since 1975. Yolanda Tahod also testified that she
regularly let defendant use her car, a beige Honda, to drive
back and forth to work and that she returned the car to
defendant around 7:00 p.m. on the night of the murder.
Gaines, grandson of William Gaines and nephew of David
Gaines, testified that defendant came into the liquor store
in the early afternoon on the day before the murders to buy a
beer. Defendant pointed to a "funny" ball behind
the counter and asked what it was. Billy Gaines told
defendant it was a camera. Defendant asked whether it worked
and, before leaving, said "Cool, pretty neat."
Defendant's timesheet, however, showed that he was at
work in Tracy until 4:32 p.m. that day.
Banning, who worked evening shifts at the liquor store,
testified that he had seen defendant there on occasion. He,
like Billy Gaines, did not remember ever seeing David
Stokes, who lived down the street from the Gaines family,
testified that William Gaines came home from closing the
store each night at the same time. On Monday, June 7, 1999,
four days before the murder, Stokes was walking his dog when
he saw a male, possibly Latino, with a stocky build, between
five feet six inches and five feet eight inches tall, get out
of a green minivan and walk towards the Gaines residence.
When William Gaines drove up to the house, however, the man
hid behind a tree. As Stokes and the man walked on opposite
sides of Cameron Way in the same direction, Stokes saw what
appeared to be some sort of coating on the man's face,
which gave the man a "scary" look. Stokes was not
sure whether the man had facial hair. (Defendant had a very
full mustache at the time.)
Monckton, who lived on Cameron Way near the Gaines family,
testified that he was watering his lawn around noon on
Saturday, June 12,1999,
the day after the murder, and saw defendant driving a car -
an older white or cream Honda, like the car defendant
typically drove - that seemed to be out of place in the
neighborhood. Defendant drove by slowly.
effort to challenge defendant's claim that his sister,
Nina Koker, must have visited Jack in the Box just after
midnight on Saturday, June 12, 1999, the prosecution offered
evidence that Koker and the man who became her fiancé,
Raymond Padilla, visited Padilla's cousin, Marcus Anthony
Ellsworth II, on June 11 for dinner at his home. Ellsworth
testified that Koker realized at the end of the night that
she had locked her keys in her car and had to call a
locksmith, who took 30 to 45 minutes to arrive. Ellsworth
estimated that Koker left between 1:00 a.m. and 2:00 a.m.
on the other hand, denied having anything to eat that night
until she stopped at the Jack in the Box on her way home.
Koker agreed that she and Padilla had gone to Ellsworth's
house that evening for a barbecue, but claimed that there was
no food because Ellsworth's parents had gone to Reno for
their daughter's graduation. Koker said the three of them
watched television all evening instead. She did not realize
she had locked her keys in the car until it was time to
leave. She was able to retrieve her keys 10 or 15 minutes
before midnight, went to Jack in the Box, and got home around
12:25 a.m. Koker said she got up for work less than three
could not recall whether they ate anything at Ellsworth's
home. He said Koker left around midnight, between five and 20
minutes after the locksmith retrieved her keys from the
bookkeeper at Cecil's Security Systems testified that
Koker's request for assistance with a locked car was
received at 11:51 p.m., that a locksmith arrived at 11:59
p.m., and that the work was completed at 12:08 a.m. - five
minutes after the time stamped on the Jack in the Box
receipt. The Jack in the Box on Pacific Avenue was about a
quarter-mile from Ellsworth's house.
The Defense Case
Alejandre testified that William Gaines did not claim when
interviewed at the scene to have observed two people running
away after shots were fired. In fact, Gaines told Alejandre
that he did not see anyone other than the man who assaulted
Deputy Sheriff Daniel Anema spoke to Carol Maurer around
12:30 a.m. on June 12, 1999, Maurer was very shaken up and
did not give her name. Anema found it difficult to get
information out of her. Maurer said she heard four shots and
then saw two White males running down the street. A
defense investigator, Wilson Stewart, talked with Maurer in
May 2000. Maurer told Stewart that she heard the shots and
then saw two "Mexican boys" fleeing. Stewart also
talked with Howard Stokes, who said that David Zaragoza's
photograph was "consistent" with the person he had
seen on June 7, 1999, who did not have a mustache like the
one depicted in defendant's newspaper
Duque, defendant's former girlfriend, testified that
defendant called her three times between 6:24 a.m. and 10:42
a.m. on Saturday, June 12, 1999. In the early morning of June
14, 1999, defendant called to say that he believed he was
going to be arrested.
Allen, a caretaker at the group home where David Zaragoza
lived, testified that David was absent from the home during
the evening of the murder but returned sometime during the 10
o'clock news. Allen stated that the weekend curfew at the
group home was between 10:00 p.m. and 11:00 p.m. Ernie
Williams, who was David's roommate at the group home,
told Detective Wuest that David came home near the end of the
Late Night with David Letterman show, which began at
Kjonaas, a senior psychiatric technician for the San Joaquin
County Mental Health Department, testified that David
Zaragoza came to the clinic in the morning of June 13, 1999.
He claimed that he was sick and needed to be admitted for
treatment. Although David strained to defecate in his pants
and then smeared feces on his shirt, Kjonaas did not have a
basis to commit him at that time.
Zaragoza's mother testified that David had a temper and
that what he said sometimes did not make any sense.
defense commissioned an animated recreation depicting its
version of the events surrounding the murder and showed it to
the jury. The depiction assumed that David Zaragoza knew how
to drive, that David Zaragoza took the car from the Koker
residence without permission, that he returned to the group
home between 10:00 p.m. and 10:30 p.m., that he drove from
there to the Gaines residence, that a number of identifying
papers spilled out of his pocket when he pulled out a gun and
shot David Gaines, that he placed the
bag containing the Pyrex bowl into the garbage can at the
Koker residence around 11:30 p.m., and that he left the car
there and walked back to the group home, which was over two
miles away. The animation did not explain how the bag
containing the bowl was placed in a Grocery Outlet bag or how
the lid got into the Koker residence. The information
underlying the animation came from defense counsel, not from
transcripts of the trial or statements made by defendant.
Koker told police that she smoked Marlboro Lights, which was
the brand of the empty pack that police found in the Jack in
the Box bag. When defendant was interviewed by police on June
14, 1999, he was smoking Camel cigarettes.
Kent Edward Rogerson, who evaluated David Zaragoza in 2000
and found him incompetent to stand trial, testified that
David was intellectually disabled, had reduced activity in
the parts of the brain associated with executive functioning,
and was very easily led. Rogerson opined that David's
illness was "variable" and that he was capable of
goal-directed behavior as well as great violence.
prosecution presented evidence of defendant's prior
crimes as well as testimony from David Gaines's family
about David's life and the effect of his murder.
September 21, 1975, defendant, then 15, and Daryl Thomas, 19,
planned to rob a liquor store in Stockton. Upon arriving at
the store, defendant recognized the clerk and decided not to
commit the robbery. After a bite to eat, defendant and Thomas
robbed a cab driver, Benny Wooliver. Thomas shot the driver
behind the right ear and killed him. They took $50 and fled
from the cab, which had jumped the curb and hit a tree and a
and Thomas were picked up in a van driven by their friend
Gilbert Renteria, who was with three male occupants. This
larger group decided to rob a 7-Eleven store in north
Stockton. One of the van occupants, Marcus Duron, took the
money from the cash register. Before leaving the store,
defendant fired twice, hitting the store clerk, Dale Sym,
once in the small of his back. The other bullet passed
through Sym's shirt and hit a slushie machine. Renteria
and Duron got back to the van first and drove off at
high speed. Police stopped the van shortly thereafter and
arrested the occupants. Defendant, who had been left behind,
stole a bicycle and rode home. The van's occupants
implicated him in the robbery, and he surrendered to police
three days later.
admitted to first degree murder as an aider and abettor, was
committed to the California Youth Authority, and was released
five years later. During Thomas's trial for
Wooliver's murder, defendant testified that he had shot
the victim and that Thomas was not even in the cab at the
time. Thomas was nonetheless convicted of first degree
December 24, 1980, defendant was stopped while driving and
was found in possession of stolen property. In addition,
a.22-caliber pistol was found underneath the car's right
rear seat, and a shortened rifle with a "banana