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.
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.
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.
Statement of the Case
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.)
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.
Statement of Facts
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.”
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.
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.
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.
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
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.
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.
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.”
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.
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
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.”
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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
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.”
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
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
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.
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
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.
of the victims described the impact the murders had on the
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.
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
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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
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
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.