Superior Court San Bernardino County FSB051580 Brian S.
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
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.
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.
Mitchell and Small's Visit to Car Dealership on August 8,
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.
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.
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.
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.
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.
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.
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.
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.
Shooting at the Car Dealership
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
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.
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.
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.
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.
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.
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.
Shooting at the Yellows Apartment Complex
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.
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
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.
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.
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.
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.
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.
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
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.
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.”
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.
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
Prosecution Evidence in Aggravation
Criminal Activity ...