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People v. Case

Supreme Court of California

May 31, 2018

THE PEOPLE, Plaintiff and Respondent,
CHARLES EDWARD CASE, Defendant and Appellant

          Sacramento County Super. Ct. No. 93F05175 Jack Sapunor Judge

          Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Maria Morga and Robin Kallman, Deputy State Public Defender, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Jennevee H. De Guzman and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.

          Kruger, J.

         Defendant Charles Edward Case was sentenced to death for murdering two people during the commission of a robbery. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We conclude the restitution fine must be reduced by the amount defendant was ordered to pay in direct victim restitution, but we affirm the judgment in all other respects.

         I. Statement of the Case

         Defendant was charged by criminal complaint with robbery and with the first degree murders of Val Lorraine Manuel and Gary Duane Tudor (Pen. Code, §§ 187, subd. (a), 211) with the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and murder during the commission of a robbery (id., § 190.2, subd. (a)(17)(A)). The complaint alleged that defendant personally used a firearm in committing the murders. (Id., § 12022.5, subd. (a).) Following a preliminary hearing, defendant was held to answer on all charges and allegations and an information was filed. The information later was amended to add an allegation that defendant personally used a firearm in committing the robbery. (Ibid.)

         A jury convicted defendant of all charges and found all allegations true. After the penalty phase, defendant was sentenced to death on the murder counts and to a consecutive term of three years in prison on the robbery count as well as two five-year enhancements for personally using a firearm during the commission of the murders. The court stayed a four-year enhancement for personally using a firearm during the commission of the robbery. The court imposed a restitution fine of $10, 000 and ordered direct victim restitution in the amount of $4, 000.

         II. Statement of Facts

         A. Guilt Phase

         1.The Prosecution's Case-in-Chief

         In June 1993, defendant was living with Jerri Baker, with whom he also worked at McKenry's Drapery Service in Sacramento. On June 20, the day of the robbery and murders, defendant left their house at about 3:00 or 4:00 in the afternoon. He was wearing a shirt Baker had bought for him and drove Baker's car, a Ford Probe. He said he was going to play pool.

         Defendant picked up Susan Burlingame, an acquaintance with whom he had formerly had a romantic relationship, around 4:00 p.m. He took her to a bar and card room called The Office, where they shot pool. Burlingame lived with her daughter and son-in-law, Stacey and Greg Billingsley, both of whom also worked at McKenry's. Burlingame told defendant she had heard he had reunited with Jerri Baker and she did not want to come between them. Defendant and Burlingame left The Office. At her request, defendant dropped Burlingame off at a fast-food establishment near her daughter's house. As he left, defendant remarked that he had “some things to do.” Burlingame arrived home about 7:45 or 8:00 p.m.

         At about 8:30 p.m. on the same day, Tracy Grimes went to The Office to see Val Manuel, The Office's bartender. Grimes saw defendant there. Grimes also saw Gary Tudor, a customer who sometimes helped Manuel close the bar. Manuel told Grimes she was going to close the bar in about 15 minutes. Grimes left after a short visit.

         Anita Dickinson and her fiancé, Randy Pickens, lived in a trailer behind The Office in exchange for cleaning the bar. Dickinson was outside the trailer sometime between 7:30 and 8:45 p.m. when she heard a gunshot. She ducked behind her car. When she heard two more gunshots, she ran into her trailer and yelled to her fiancé that someone was shooting in the bar. Pickens said it might have been firecrackers, so they did not notify the authorities.

         Leslie and Joe Lorman were friends of Manuel and Tudor. Driving past The Office around 9:00 p.m., they noticed Tudor's truck parked outside and decided to stop and visit Tudor. The lights inside the bar were on, but they were surprised to find that the front door was locked. They entered the bar through the side door, calling Tudor's name. Leslie went to use the women's restroom and saw the bodies of Manuel and Tudor when she opened the door. The Lormans ran out of the bar and called the police.

         Sacramento County Deputy Sheriff Craig Norris received a radio call at 9:43 p.m. directing him to go to The Office. He was the first of several law enforcement officers to arrive. Deputy Norris and another officer entered the bar through the side door and Deputy Norris found the bodies of Manuel and Tudor in the women's bathroom in a pool of blood. The cash register was open and there were no bills inside, just some pennies. The owner of the bar later determined that $320 had been taken.

         A.45 caliber shell casing was discovered on the floor near the cash register and there was a depression in the floor that appeared to have been caused by a bullet. There were several more.45 caliber shell casings, as well as expended bullets, in the women's bathroom.

         An autopsy later revealed that both Manuel and Tudor had been shot in the head twice from close range. Both victims likely were either crouched down or kneeling when they were shot.

         Defendant arrived at the home of Mary Webster about 10:00 p.m. that night. Webster testified that she had met defendant about a year earlier through a personal ad she had placed in the newspaper. A few days after they met, they went to The Office together for some drinks. They began dating regularly and defendant moved in with Webster after a few weeks. They lived together from July 1992 until March 1993, when defendant moved in with Baker.

         Defendant described himself as a bank robber. He bragged about it and told stories about it “every night.” According to Webster, “he loved it.” He said that he used a product called Nu-Skin to mask his fingerprints. He owned a.45 caliber automatic pistol that he had purchased with money he borrowed from Webster.

         On the night of the murders, defendant arrived at Webster's home driving Jerri Baker's car. He “had a big wad of money” and gave Webster $125 in small bills to settle a bet they had made. When defendant entered the bathroom and took off his shirt, Webster saw it “was full of blood.” He took off his cowboy boots, which Webster had bought for him, and Webster saw there was blood on the boots as well. She began trying to clean off the blood, but defendant said it would not come off. Defendant washed his arms, which were “saturated with blood, just layers and layers, ” and asked Webster to “get rid of” his shirt and boots. At defendant's request, Webster retrieved defendant's gun from the passenger seat of Baker's car. Defendant removed the bullets and gave the gun back to Webster; she put the gun in her closet.

         Defendant told Webster he had been in a card game in Del Paso Heights and had shot two Black men who had tried to prevent him from collecting his winnings. No double-victim assaults or homicides were reported in Del Paso Heights around that time. Before he left, defendant kissed Webster and whispered in her ear that he probably would get caught because he left fingerprints. After defendant left, Webster threw defendant's bloody shirt and boots in a dumpster by some nearby apartments.

         Defendant returned home after 11:00 p.m. He told Baker he had killed two Black men during a poker game in Del Paso Heights. Baker later checked the pockets of the pants defendant was wearing and found about $40.

         Defendant did not go to work the next morning. He asked Baker to tell people at work that his mother was ill and he had gone to Indiana to be with her. He also told Baker she “should clean up the car especially around the driver's seat, door handles, foot pedals, steering wheel.” Baker testified that she did as instructed, using “dry cleaning spotting chemicals, specifically ammonia, ” to wipe down everything she “could think of to wipe down.” Baker testified that “[b]lood turns green in ammonia, so the rag had some green where I was wiping it down.” She added: “There was a glop of what appeared to be flesh or I took it to be brain matter or something along those lines. I wiped that off before I could even get in the car.”

         Sheriff's department criminalists later detected small amounts of human blood on the gear shift knob and steering wheel of Baker's car. The amounts were too small for the blood type to be determined.

         When Webster woke up the next morning, she telephoned a Sacramento Police Department detective she had met and asked him for advice. At his direction, she retrieved the shirt and cowboy boots from the dumpster. She then waved down a passing sheriff's department patrol car and told the deputy what had happened. He escorted her to the sheriff's department and introduced her to Detectives Stan Reed and Darryl Edwards, who were investigating the murders at The Office. The deputy gave the detectives the clothing. Human blood was detected on the shirt and the cowboy boots. The blood type was the same as Val Manuel's, and also was consistent with blood that came from both victims. The blood on the clothing could not have come from defendant. Webster gave Detective Reed $100 that defendant had given her, consisting of three $10 bills, ten $5 bills, and twenty $1 bills.

         Webster described to the detectives her encounter with defendant the previous night. An audiotape of her statement was played for the jury. Webster agreed to accompany the detectives to her house to retrieve defendant's gun but before leaving, Webster called her home to speak to her son and was surprised when defendant answered the telephone. She motioned to the detectives that defendant was on the telephone and they recorded the call. The tape recording of the telephone conversation was played for the jury. Defendant asked her if she had gotten “rid of the stuff” and she said she had. Defendant asked if she had put it all in one place, and she assured him she had not.

         The detectives went to Webster's home and arrested defendant. Detective Reed retrieved defendant's.45 caliber automatic pistol, which was in a box on a shelf in a closet in the master bedroom. Human blood was later detected on the gun. Ballistics tests revealed that the shell casings and bullets recovered from the scene of the crimes had been fired from this gun.

         Jerri Baker testified that in the spring of 1993, defendant told her that he wanted to commit robberies but feared going to jail if he did. He said he would have to kill any witnesses if he did commit robberies so that he would not go to jail.

         Greg and Stacey Billingsley testified that defendant admitted he had been in prison and described himself as a bank robber. Defendant owned a handgun, which Greg had borrowed before going on a camping trip. Greg returned the gun to defendant a couple of months before the crimes. The weekend before the crimes, defendant spent the night at the Billingsleys' and slept on the couch. The next morning, Greg found the gun under the couch. Greg returned the gun to defendant a few days before the crimes. The gun resembled the gun Detective Reed retrieved from Webster's home.

         Greg Billingsley also testified that the same year the crimes were committed, defendant asked him if he “wanted to do a job with him” by helping him rob a woman on her way to make a bank deposit. Greg declined, saying, “[N]o, that's not for me.”

         Another friend of defendant's, Billy Joe Gentry, testified that about a year before the crimes, defendant said he planned to buy a gun; defendant later showed Gentry the gun he had obtained. A short time later, defendant asked him if he would like to earn some money “being a driver in a hold-up.” Gentry declined.

         2. Defendant's Case

         A defense criminalist testified that Nu-Skin was ineffective in hiding fingerprints and defendant's boots could not have made some bloody footprints found on the floor of The Office. After examining the shirt that Webster said she had gotten from defendant, the criminalist concluded that “just from the shooting, you wouldn't necessarily expect there to be any blood on the shirt of the person doing the shooting.... [I]t would only be on that part of the shirt that's exposed facing the area of the blood. So it doesn't really account for the blood on the back of the shirt, for example, .... And it certainly doesn't account for the large transfer on the left sleeve. That's a contact transfer, and it means that that sleeve of the shirt was in touching contact with the source of the blood.” He testified that the blood on defendant's boots also looked “like a transfer” and could have been “a smear of blood.” Finally, the defense criminalist said that if the shooter was wearing defendant's shirt, he “certainly wouldn't be surprised” to find blood stains on the shooter's pants as well. The criminalist did not believe the blood on the clothing “resulted from the shooting itself” and said it was possible that someone took the shirt and boots into the crime scene and deliberately put blood on them. Finally, the criminalist testified that cleaning human blood with ammonia produces a reddish color on a rag, not green.

         Mary Webster's brother, Steven Langford, testified that he was living with Webster in 1993. On the night of the murders, defendant arrived at Webster's house between 10:00 and 10:45 p.m. Langford let defendant in and, as defendant passed him and entered Webster's bedroom, Langford noticed that defendant “had something plastered all over his shirt.” When defendant came back into the living room 15 to 20 minutes later, he had changed his clothes. Defendant said that he had been in a card game in Del Paso Heights and had “shot two colored people.”

         According to Langford, defendant asked Webster to retrieve his gun from the car he had driven, and she did so. The gun was so warm that Langford did not want to touch it. Langford acknowledged that he had told the district attorney and the investigator that he had retrieved the gun from the car. Langford also said that the substance that “was plastered” on defendant's shirt did not look like blood. Webster took the gun into her bedroom.

         Margaret Cari testified she was a friend of Jerri Baker's and had worked with her at McKenry's Drapery Service. Cari recalled Baker telling her that on the night of the murders, Baker was in bed when defendant arrived; he got into bed and she rolled over and went to sleep.

         Jean McKenry testified that defendant worked at her establishment as “a presser” and served customers at the counter. McKenry could not recall if defendant worked on Saturdays, but the employee on Saturday would pay him or herself $40 from the cash register and put the day's profits in a safe on the premises.

         An employee of Wells Fargo Bank testified that over a two-year period, Clyde Miller, an elderly widower who suffered from Alzheimer's disease, made approximately 100 withdrawals, always accompanied by Mary Webster. In 1991, the bank employee became concerned and contacted the county conservator. In June 1991, a financial conservatorship was imposed on Miller.

         In 1991, Webster presented to Wells Fargo Bank two insurance checks payable to Clyde Miller. One check for $2, 000 was cashed and the other, in the amount of $6, 000, was deposited into Webster's account. The bank employee who handled the transaction did not know that the Conservator's Office had placed stop payments on both checks.

         Joan Cooney, a Deputy Public Guardian for Sacramento County, testified that on June 21, 1991, she received a telephone call from a woman who identified herself as Mary Webster. The woman angrily demanded that Cooney remove the stop payments “because the bank was trying to get the money back from her.” Cooney refused, informing the woman that Miller was under conservatorship. The woman cursed at Cooney and terminated the call.

         Dale Michels had lived with Webster. Clyde Miller had been Michels's grandfather's best friend. Michels testified that Webster stole the wedding ring set of Miller's deceased wife.

         Jerri Baker's sister, Loureen Gilmore, worked with Baker at McKenry's Drapery Service. Gilmore and her 19-year-old son, Brian Webber, had also lived with Baker in 1993. Gilmore did not recall ever seeing defendant with a handgun, “although [she] heard talk of one.”

         Defendant called as a witness Detective Reed and asked him about his pretrial interview of Tracy Grimes, who had testified to seeing defendant at The Office shortly before the murders. Detective Reed testified that Grimes had told him a White male in his fifties with graying hair combed back wearing jeans and cowboy boots had been playing pool in the bar. Grimes had seen this person playing pool there on previous occasions, including the night before the murders. Grimes indicated that he would recognize this person if he saw a photograph and Detective Reed indicated he would make arrangements in the near future to show him some photographs, but never did so. Had he done so, he would have shown Grimes a photo lineup of five or six photographs of different people, including defendant.

         Tony Gane, an investigator for the defense, testified about a conversation he had with Steven Langford. Langford said he had retrieved defendant's gun from the car defendant had been driving on the night of the murders. According to Gane, Langford said: “I don't recall seeing any blood on it. I almost touched it but didn't. I reached down to touch it, and I could feel the warmth of the metal radiating from it. I assumed that it had been fired recently.” Langford gave the gun to defendant, who took it into Mary Webster's bedroom.

         Defendant called the prosecutor as a witness. The prosecutor testified that he met briefly with Greg Billingsley during a break in the defense cross-examination. Greg looked upset. The prosecutor asked what was wrong and Greg replied that he could not understand why defendant was permitting his attorney to try to make Greg “look like a fool” when Greg knew “so much more” about defendant. The prosecutor asked what he meant, and Greg explained that defendant had asked him “to do a robbery with him.” The prosecutor said, “just hold on” and took Greg into the courtroom, outside the presence of the jury, to have him “testify so that everybody gets to hear this at the same time.”

         3. The Prosecution's Rebuttal

         The prosecutor called members of Baker's family to establish on rebuttal that no one had bled inside Baker's car. Baker performed a demonstration by using a solution of ammonia, soap, and water on a rag to remove some of her blood from a porcelain dish, which produced “an olive drab green” color.

         A sheriff's department crime scene investigator testified in response to defense expert testimony that a bloody shoe print could not have been made by defendant's boots. The investigator testified that the print was made by “the people from the morgue as they removed the decedents from the bathroom.”

         The prosecutor introduced portions of defendant's pretrial statement in which defendant acknowledged having seen on a television news broadcast that a homicide had occurred at The Office the night before. He admitted he had been at The Office that night with a woman named Sue, having driven there in Jerri Baker's Ford Probe. He took Sue home about 6:00 or 7:00 p.m. and then returned to The Office and shot pool by himself until the bartender said the bar was closing at about 9:00 p.m. Defendant said that at that point, “there wasn't nobody in there but me and this other guy anyway” but insisted that the victims were alive when he left the bar.

         When asked how he could explain the clothing the detectives had gotten from Mary Webster, defendant insisted he had no idea what Webster was talking about. Defendant said to the detectives: “I guess you'll have to talk to Mary about that.” He said he had “no idea” whether the blood on the clothing was going “to match the people over there in The Office bar.” He admitted the clothes were his and explained that he had gotten “blood on 'em from shaving.” Detective Edwards remarked that he did not “see any marks on [defendant] from shaving” and defendant replied that he “healed fast.”

         B. Penalty Phase

         1. Prosecution's Evidence

         The prosecution introduced evidence that defendant had previously been convicted of first degree robbery and served a term in prison. In another case, defendant was convicted of multiple counts of assault with a deadly weapon, oral copulation, rape, robbery, and attempted rape and sentenced to more than 33 years in prison. Defendant also had suffered convictions in Indiana for burglary and escape.

         Relatives of the victims described the impact the murders had on the victims' families.

         Sally S. testified that in 1978 she was working as a salesperson in a retail store when defendant entered, produced a handgun, ordered her to be silent, and struck her on the head with the gun, knocking her to the ground. Defendant took her and a fellow employee to another area in the store where he raped Sally S. After warning the employees that he would come back and kill them if they identified him, defendant took some money from the office and left.

         Bettie H. testified that in 1978 she was working as a salesperson in a shoe store when defendant followed her into a back room, grabbed her by the hair, put a gun to her head and threatened to “blow [her] head off.” At defendant's direction, she put about $35 from a cash drawer into a paper bag and gave it to defendant. He forced her to orally copulate him and then he raped her. He bound her ankles and wrists with tape and “stomped on [her] face” after she fell to the floor. Before he left, he threatened to come back and kill her and her children if she called the police.

         Virginia P. owned a flower shop in 1978. Defendant entered holding a gun and said, “this is a robbery.” Defendant bound her ankles and wrists with tape and struck her in the face. He took her rings and watch and threatened to rape her but left after threatening to come back and kill her if she screamed or called out.

         In 1974, Delores Ogburn was a waitress and cashier at an all-night restaurant. One morning around 4:30 a.m., defendant came up behind her holding a steak knife. She tried to escape, but he cut and punched her, knocking her to the floor. He took money from the cash register and, as he left, threw an older woman against a table, breaking her ribs.

         In 1978, Patricia J. worked in a “small ladies dress shop.” One morning, defendant entered just after she opened the shop at 10:00 a.m., put a gun to her head, and ordered her into a back room where he bound her ankles and wrists. Defendant threatened to rape her or force her to orally copulate him and struck her on both sides of her head. He took her billfold and some jewelry, including her wedding rings, her watch, and some money from the cash register and left.

         Tennye Pettinato was sitting in the dress shop she owned in 1978 when defendant came in, drew a handgun, and ordered her into the back room, where he bound and gagged her. Defendant took the rings off her fingers and money from the cash register. He left when the telephone rang.

         2. Defendant's Evidence

         Dode Hall testified that as a teenager he had been incarcerated with defendant in the Indiana State Reformatory. He described the horrible conditions, including the threat of rape and assault. They remained friends after release and Hall drove the getaway car for one of defendant's robberies. Defendant liked to brag about his exploits. Defendant came from a poor family and drank heavily. Defendant had been married, but separated from his wife.

         Jerry Stokes was physically unable to travel from Indiana but was deposed telephonically. Portions of his deposition were read to the jury. He testified that he and defendant met in an orphanage when they were young teenagers. He described the horrific conditions, including beatings and torture by the staff and sexual assault by older orphans. Defendant and Stokes frequently ran away but each time were found and returned to the orphanage. Stokes met defendant's family and once saw defendant's father sexually abuse defendant. Defendant drank alcohol “as far back” as Stokes could remember. Defendant was “not the same person” when he was drinking. He would “get mean.” Stokes later served time in state prison with defendant and defendant was raped there.

         Dennis Barnes had been incarcerated at Folsom State Prison since 1982. He testified that he met defendant there in 1984. Barnes said there were many “race problems” at the prison that resulted in “a lot of stabbings and killings.” He described defendant as “a nice guy” who followed the rules and got along well with other inmates and the staff.

         William Mayfield shared a cell with defendant at Folsom Prison starting in 1986. Folsom Prison was “a very scary place.” Defendant helped him learn the unwritten rules and “morals” he needed to understand in order to survive.

         Gretchen White testified as a clinical psychologist that she interviewed defendant and examined various records, including interviews of defendant's friends and family members, documents from the orphanage, medical records, his juvenile file, and prison records. In White's expert opinion, defendant was “unable to function outside of an institution” because he had been institutionalized beginning at age 12 and came from “a multi-problem family” that “had biological or genetic or physiological kinds of problems.” Defendant was the sixth of nine children. Several of defendant's siblings suffered from epilepsy and one was developmentally disabled. Defendant's father worked as a truck driver and often was gone. When he was home, he often was drunk and would fight violently with defendant's mother.

         Defendant's parents divorced in 1957 and his mother worked two jobs to support the family, leaving the children “completely unsupervised.” This led to “a lot of fighting among the siblings.” When he was 12 years old, defendant was sent to the Knox County Children's Home because he was “incorrigible” and was “stealing things” and “mouthing off to his mother.” White characterized the home as “a fairly brutal cold place to be housed.” She described severe punishment, mistreatment, and torture.

         Defendant left the Children's Home at age 16. When he was 17 years old, he was sent to Pendleton Reformatory, which actually was “a State Prison where the younger inmates were sent.” It was “a very frightening and dangerous place.” While defendant “functions very well within a structured setting, ” he “never was able... to develop any kind of internal controls. He moves when he's on the outside from impulse to impulse.” And because he had been abused, defendant has “quite a lot of anger and resentment.” “When he's on the outside, [defendant] could basically be called an alcoholic, ” and alcoholism runs in defendant's family.

         Eldred Lewis had been a guard at Folsom State Prison for 20 years and had supervised defendant. Lewis described defendant as a “good worker” who did not cause problems. Amos Griffith was “a maintenance man” at Folsom Prison who knew defendant and kept in touch with him after defendant was released. Griffith said defendant was “very good” at his job at the prison, was polite to other inmates, and did not get into trouble. Challough Randle supervised defendant at his job in Folsom Prison. Defendant did “a good job” and received many “exceptional” ratings for his job performance. He did not give the staff or his fellow inmates “any problem.”

         Following his retirement from the Department of Corrections and Rehabilitation, James Park, who was trained as a clinical psychologist, consulted as a prison expert. He described “what happens to a prisoner if he gets life without the possibility of parole.” He described the different classifications of prisons in California and explained in detail the conditions of confinement of a prisoner serving a term of life without possibility of parole.

         III. Discussion

         A. Pretrial Issues

         1.Compliance with ...

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