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People v. Mitchell

Supreme Court of California

June 24, 2019

THE PEOPLE, Plaintiff and Respondent,
LOUIS MITCHELL, JR., Defendant and Appellant.

          Superior Court San Bernardino County FSB051580 Brian S. McCarville Judge

          Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointment by the Supreme Court, Harry Gruber and Maria Morga, Deputy State Public Defenders, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.


          LIU, J.

         A jury in San Bernardino County convicted defendant Louis Mitchell, Jr., of three counts of first degree murder of Mario Lopez, Patrick Mawikere, and Susano Torres (Pen. Code, § 187, subd. (a); all undesignated references are to this code), and three counts of first degree attempted murder of Juan Bizzotto, Jerry Payan, and Armando Torres (§§ 664, 187, subd. (a)), arising from two shootings committed by Mitchell on August 8, 2005. The jury found true special circumstance allegations that Mitchell committed multiple murders and the enhancements that in each offense Mitchell personally and intentionally discharged a firearm. (§§ 190.2, subd. (a)(3), 12022.53, subd. (d).) The jury returned a verdict of death. The trial court then sentenced Mitchell to death for the three counts of conviction of first degree murder and imposed an additional sentence of 150 years to life in prison for the three counts of conviction of first degree attempted murder and the firearm enhancements. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment in all respects.

         I. Facts

         A. Guilt Phase

         1. Prosecution Evidence

         (a) Mitchell and Small's Visit to Car Dealership on August 8, 2005

         In August of 2005, Mitchell and Dorene Small were living together in an apartment in Rialto, along with Small's five children and three of Mitchell's children. Small had recently been in a car accident and received a settlement from her insurance company. She intended to use the settlement proceeds to buy another car.

         On August 8, 2005, after Small picked up the settlement check from her insurance company, she and Mitchell went to California Auto Specialist (CAS), a used car dealership in Colton, to shop for a replacement vehicle. They arrived at CAS between 10:00 and 10:30 in the morning in Small's white Chevrolet Lumina. Small testified that although she owned the Lumina, it was often driven and used by Mitchell.

         At first, they were helped by CAS salesman Juan Bizzotto. Because Bizzotto could not speak English well, he referred them to his colleague, Mario Lopez. Ultimately, Lopez helped Small complete paperwork to purchase a used Dodge Durango truck. According to the testimony of another CAS salesman Jerry Payan, it appeared that Mitchell tried to dissuade Small from buying the Durango because he preferred a larger truck. But Small did not like the bigger truck, and her poor credit status prevented her from qualifying for the more expensive truck that Mitchell preferred.

         Mitchell left CAS, leaving Small to finalize the car purchase with Lopez on her own. There was conflicting testimony as to Mitchell's demeanor when he left Small. Payan recalled that Mitchell was angry with her over her choice. Bizzotto, on the other hand, remembered Mitchell acting “fine” during the deal, despite his disagreement with Small's decision.

         Small then told Lopez that she needed to cash a check at a bank in order to make the downpayment. Lopez agreed to allow Small to drive the Durango to the bank, and Bizzotto followed Small in a separate car. On the way back to the dealership, the Durango broke down and could not be restarted. They left the Durango on the side of the road for repairs, and Bizzotto drove Small back to the dealership.

         Small testified that she was not upset about the breakdown of the Durango, and Bizzotto confirmed in his testimony that Small had reacted calmly. According to Bizzotto, Small went ahead with the purchase of the Durango, even though she had the right to back out of the deal. Small chose to take a loaner car and allow the dealership to fix the Durango. While still at the dealership, Small called home to tell her son Kenrod Bell that she had bought a car but was not coming home with it because it broke down.

         When Small arrived home, Mitchell was not there, and she did not see her Chevy Lumina. Small noticed that Mitchell had left his cell phone, which was unusual for him. Small then left for work, arriving there around 2:30 p.m. But she left shortly thereafter because she was not feeling well, and she returned home around 4:00 p.m.

         Around 2:00 p.m., Mitchell called Christina Eyre, who at the time of trial was Mitchell's girlfriend. Eyre testified that she and Mitchell had been in a relationship for about two years, including the time that Mitchell was together with Small. Their conversation lasted less than five minutes. Mitchell mentioned to Eyre that he and Small had been “screwed over” in a car deal; according to Eyre, Mitchell did not say he was mad, but noted that Small had insisted upon buying the defective Durango. Eyre further stated that she heard Romen Williams, also known as “Chrome, ” and Small's son Bell in the background.

         (b) Shooting at the Car Dealership

         Between 2:15 p.m. and 2:30 p.m. on August 8, 2005, Payan, Lopez, and Patrick Mawikere were gathered at Payan's desk facing the window overlooking the car lot. They saw Mitchell return to the dealership driving the same white Lumina in which he and Small had arrived earlier that day. Bizzotto, who was on his desk phone talking with his wife at the time, also noticed Mitchell. Bizzotto saw that Mitchell was not alone; he was accompanied in the Lumina by two other people. Bizzotto described the two as African American men between 25 and 35 years of age; they remained in the car as Mitchell entered the dealership.

         There were no customers in the dealership at the time. Payan and Bizzotto both testified that they saw Lopez meet Mitchell at the entrance of the dealership office. Mitchell repeatedly asked Lopez where Small was. Lopez replied that Small had left to go to work. Both Payan and Mawikere stood up, intending to assist Lopez. Although Payan was not alarmed by Mitchell's behavior at this time, Bizzotto testified that Mitchell was excited and angry, in contrast to his behavior earlier that day.

         Payan then saw Mitchell pull a gun out of his pants pocket and shoot Lopez. Payan testified that Mitchell was looking at Payan while he shot Lopez. When Payan heard a second gunshot, he ran toward a window looking to escape. Because Mitchell was standing in front of the only exit, Payan decided to escape by jumping through the closed window. Before he crashed through the window, Payan heard two or three more gunshots and was shot in the right arm. Payan landed between two large cars parked outside the office and crouched between them. Mitchell pointed his gun outside the window and shot at him. Payan heard one or two more gunshots, but he was not hit. As he continued to crouch between the two cars, Payan heard another series of gunshots coming from inside the dealership. He also noticed that Mitchell's white Lumina was in front of him, with a man sitting in the front seat. Payan made eye contact with him, and the man exited the Lumina. According to Payan, the man was a tall, thin African American man, perhaps 18 or 19 years old. Payan saw that this man had his hand down by his side, and it looked like he had a gun. Payan then ran across the dealership lot and across the street, seeking help. Payan ultimately caught the attention of an ambulance and was given medical assistance on the street before being transported to a hospital.

         Bizzotto testified that he saw Mitchell push Lopez back from the front door of the dealership as Lopez was attempting to escort him outside, pull out a gun, and shoot Lopez in the abdomen. Bizzotto then saw Payan jump through a window while Mitchell shot at Payan. When Mawikere tried to intervene, Bizzotto saw Mitchell point his gun at Mawikere, and Mawikere asked Mitchell not to shoot him. Mitchell then shot Mawikere in the head and turned toward Bizzotto. Bizzotto attempted to hide underneath his desk, and Mitchell started shooting at him. Bizzotto was shot in the right arm and the right thigh. Mitchell fired another seven times at Bizzotto, causing Bizzotto to suffer shrapnel wounds to his left leg. After he heard two additional shots, the sound of the door opening, and a car being driven away, Bizzotto emerged from underneath his desk. He saw that Lopez was injured and told him to remain calm. He saw that Mawikere had been shot and was unresponsive. Bizzotto instructed his wife, who was still on the phone, to call 911. Bizzotto also called 911 himself.

         John Vasquez was driving by the dealership around 2:30 p.m., when he saw Bizzotto come out of the dealership with blood running down his arm. He testified that Bizzotto was staggering and being assisted by another man who was holding his arm up. Vasquez noticed a broken window and thought that Bizzotto had fallen through it, so he stopped to offer help. Bizzotto told Vasquez that he had been shot by two black men and that he feared for his life.

         Responding to the 911 calls, officers from the Colton Police Department arrived at CAS at approximately 2:45 p.m. They found that a window in front of the dealership office had been smashed, and there was a trail of blood outside the window leading south toward the street. Officers encountered Bizzotto outside the dealership and saw that he had been shot in the arm. Bizzotto told them that the person responsible was a black man who had been at the dealership earlier that day to buy a black Durango. Inside the office of the dealership, officers found Lopez lying on the floor on his back, near the front door. Lopez was conscious and in pain from two gunshot wounds but able to relate that a lone black man, who had arrived in a white 1997 Chevy Lumina, had shot him. The officers then found Mawikere behind a desk, dead and facedown with a gunshot wound to the head. Lopez died later that night at the hospital as a result of three gunshot wounds.

         The police interviewed Payan and Bizzotto at the hospital where they were being treated for their injuries. Payan was shown photo displays of two suspects. At first, Payan was unable to cooperate because he was under the influence of morphine. Thereafter, Payan identified a photograph of Mitchell as the shooter. Bizzotto was physically unable to talk to the officer who visited him at the hospital. After his discharge from the hospital, Bizzotto was shown a display of six photographs and identified Mitchell's photograph as the person who shot him.

         (c) Shooting at the Yellows Apartment Complex

         The Yellows was the colloquial name given to an apartment complex in San Bernardino. On August 8, 2005, around 3:00 p.m, Armando Torres was at the complex visiting his mother and his brother Susano Torres. Mitchell had previously lived at the complex and still visited it frequently. Armando and Susano knew Mitchell from around the complex and had not had any problems with him.

         On his way to a friend's apartment, Armando saw Susano speaking to Rita Ochoa through the window of her apartment. Armando told Susano that their mother was looking for him. Armando then went to his friend's apartment, where he smoked methamphetamine.

         As Armando came out of his friend's apartment, Mitchell walked towards him and said, “Hey devil, let me talk to you, ” and repeatedly told Armando to “come here.” Armando had an unusual tattoo of horns on his head. Armando testified that Mitchell appeared to be upset. Armando asked what Mitchell wanted, and Mitchell demanded that Armando come to him. Armando refused and Mitchell pulled out a gun and said, “You fucked up.” Mitchell shot at Armando at least three times, hitting him once in the leg as a woman managed to pull him inside her apartment and call 911. Armando stated that he heard more shots fired about 30 seconds later.

         Susano was joined by his friend Phillip Mancha, and they were talking to Ochoa outside her window when they heard shots. Mancha climbed through Ochoa's window, and he and Ochoa got down on the ground. Susano went to check what was happening and encountered Mitchell. According to the testimony of another resident of the Yellows, Valerie Hernandez, Mitchell shot Susano. He was with Romen Williams, and one of them said something to the effect of “[f]uck that. That's what they get.” Hernandez could not see Mitchell's face because it was obscured by the leaves of a tree in her line of sight, but she saw his body and a gun in his hand when the shots were fired. Then after the shots were fired, she saw Mitchell pull down the gun to his side and walk away between the apartments toward the parking area. Mancha testified that he heard Susano getting hit and yelling for help. Ochoa testified that she looked outside and saw Susano on the ground bleeding from the nose. The bullet passed through both of Susano's lungs, and he died shortly thereafter from internal bleeding. Neither Ochoa nor Mancha identified Susano's shooter.

         Just before 3:00 p.m., Rosalba Villaneda, Armando's sister-in-law and a resident of the Yellows, heard several gunshots being fired. She testified that about five minutes later, Mitchell walked by them with a gun in his right hand, unaccompanied. Although Villaneda did not know him by name, she was familiar with Mitchell. Mitchell then entered a car on the passenger side and left the area.

         Shortly thereafter, San Bernardino police officers arrived at the Yellows to respond to the incident. Officer James Voss saw a group of people by Torres, who was lying in a dirt area with no pulse. Voss called for medical assistance. A resident of the Yellows then directed Voss to her apartment, where he found Armando on the floor.

         (d) Mitchell's Arrest

         On the next day, August 9, 2005, Mitchell went to the Del Mar apartment complex in San Bernardino. He was at Tracy Ruff's apartment, where he and another person were smoking marijuana and cigarettes. Suddenly, Mitchell pulled out his gun and fired it into the air six or seven times. Then Mitchell walked out in front of the apartment complex, waving his gun in the air. A nearby resident, Patricia Conger, saw Mitchell pointing his gun at other cars, people, and houses. Around the same time, another nearby resident, James Morrison, was outside his house working on a car and heard several gunshots. He then saw Mitchell waving a gun, so Morrison ran into his house.

         Ruff followed Mitchell to the street and saw Mitchell wave his gun in the air and say, “I killed the devil.” Ruff told Mitchell that the police were going to come and asked Mitchell to give him the gun. Ruff returned to the apartments and hid the gun in the tire well of a van in the rear parking structure.

         Officer Thomas Adams arrived on the scene, and Mitchell immediately started yelling at him. Officer Adams testified that he made numerous commands that Mitchell ignored. Instead of complying, Mitchell kept approaching the officer and said, “My gun is bigger than yours. Fuck it. I'll just take your gun.” Officer Adams then shot Mitchell in the leg to stop him from advancing.

         Officer Kevin Jeffery testified that Mitchell was agitated when officers were handcuffing him and in the ambulance on the way to the hospital. During this time, Mitchell told Officer Joshua Cogswell that if he was going to die, the officer was going to go with him. He also told Officer Jeffery, “God would not judge him for killing the devil.”

         (e) Forensic Evidence

         Criminalist Heather Harlacker located one fired cartridge case outside the CAS office building and 10 more fired cartridge cases and bullet fragments inside the building. According to Harlacker's expert testimony, all 11 cartridge casings were from the same nine-millimeter caliber gun. Seven cartridge casings, all nine-millimeter casings of the same brand, and nine bullet fragments were collected at the Yellows. At the Del Mar complex crime scene, a forensic technician recovered a nine-millimeter gun containing an empty magazine concealed in the wheel well of a van, with Mitchell's DNA on it. Criminalist Kerri Heward concluded that six of the seven cartridge casings had definitely been fired from the same nine-millimeter gun retrieved, and the other cartridge probably was. The technician also recovered a second empty nine-millimeter magazine inside the pocket of Mitchell's pants. Furthermore, Heward opined that the casings recovered from the car dealership, the Yellows, and the Del Mar complex were all fired from Mitchell's gun.

         2. Defense Evidence

         The defense case focused on inconsistencies in the witness's testimony and the lack of scientific evidence. Defense counsel argued that Payan's account of Lopez's death conflicted with the medical examiner's findings. Counsel challenged the credibility of Armando's testimony on account of the fact that he was under the influence of methamphetamine and his brother was killed, and additionally pointed out inconsistencies in his recitation of the facts. Counsel also challenged Hernandez's recitation of the facts as inconsistent. Finally, defense counsel underscored that the bullets recovered from the victims could not be matched to the casings at the crime scenes and to Mitchell's gun.

         B. Penalty Phase

         1. Prosecution Evidence in Aggravation

         (a) Criminal Activity ...

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