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People v. Young

Supreme Court of California

July 25, 2019

The People, Plaintiff and Respondent,
Jeffrey Scott Young, Defendant and Appellant.

          Superior Court: San Diego County: SCD173300 John M. Thompson Judge:

          Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Arlene Aquintey Sevidal, Ronald A. Jakob, Stacy Tyler and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.


          KRUGER, J.

         Defendant Jeffrey Scott Young was convicted of the first degree murders of Teresa Perez and Jack Reynolds (Pen. Code, § 187, subd. (a)), the attempted murder of Daniel Maman (id., §§ 187, subd. (a), 664), and the carjacking of Jim Gagarin (id., § 215, subd. (a)). The jury found true allegations that defendant had personally used a firearm (all counts; id., §§ 12022.5, subd. (a)(1), (a)(2), 12022.53, subd. (b)); that defendant had personally and intentionally discharged a firearm (the first degree murders and attempted murder; id., § 12022.53, subd. (c)); and that the firearm discharge caused death (the first degree murders; id., § 12022.53, subd. (d)). The jury also found true the special circumstance allegations that the murders were committed during a robbery (id., §§ 190.2, subd. (a)(17), 211), and that defendant had been convicted of multiple murders in the same proceeding (id., § 190.2, subd. (a)(3)). The jury was unable to reach a verdict as to penalty, and the trial court declared a mistrial. After a penalty retrial, the jury fixed the penalty at death, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).)

         We affirm the judgment as to guilt. But we find the trial court erred at the penalty retrial by permitting the prosecution to make improper use of inflammatory character evidence for purposes unrelated to any legitimate issue in the proceeding. Having carefully reviewed the record, we conclude the error was prejudicial. We therefore reverse the judgment as to the sentence of death and remand the matter for a new penalty determination.

         I. BACKGROUND

         A. Guilt Phase

         On July 18, 1999, defendant and two other men robbed a Five Star Park, Shuttle & Fly (“Five Star”) parking lot near the San Diego International Airport. The three robbers were aided by a former Five Star employee, James Torkelson, who planned the robbery and assisted in it by pretending to be on duty. During the robbery, the robbers shot and killed Five Star employees Teresa Perez and Jack Reynolds. Then, while fleeing the scene, the robbers shot at bystander Daniel Maman and stole the car of a second bystander, Jim Gagarin, at gunpoint.

         Although the case initially went cold, subsequent investigation revealed the identities of the perpetrators. In 2003, defendant was jointly charged with one of the other robbers, David Raynoha, but defendant was tried alone. Defendant did not contest his participation in the robbery or the carjacking, but argued that he did not fire the shots that killed Perez and Reynolds.

         1. Prosecution Case

         Around 12:30 a.m. on July 18, 1999, Kendrick Bowman began a shift in the toll booth at the Five Star parking lot, which was located at the intersection of Sassafras Street and Pacific Highway. Bowman relieved fellow employee Perez, whom he saw empty the cash drawer and head to the Five Star temporary office in a nearby trailer. Shortly after he began his shift, Bowman encountered Torkelson. Bowman was surprised by Torkelson's presence; he thought Torkelson, who had worked as a security guard at the parking lot, had been fired, and Torkelson was atypically early for his shift. Bowman also noticed Torkelson heading for a remote side of the parking lot, which differed from the usual starting point for Torkelson's rounds.

         Immediately after Torkelson disappeared from Bowman's line of sight, someone approached Bowman from behind and said, “Hey, you.” Bowman turned around and found a man pointing a gun at him. Although the gunman wore nylon stockings over his head, Bowman observed that the gunman was a White man in his twenties with a fair complexion and short, reddish-blonde hair. The gunman ordered Bowman to lay facedown on the floor of the toll booth. Bowman used his hand-held radio to send a covert distress signal to the security guard, but received no response. Unbeknownst to Bowman, all of the security guards had left after Torkelson told each guard that he was there to relieve him or her. Bowman then complied with the gunman's demand. The gunman stepped down on Bowman's back, emptied the cash drawer, and expressed disappointment at its contents. The gunman remained in the toll booth and Bowman asked him why he did not leave. The gunman responded, “I can't leave. I'm waiting for my ride.”

         Bowman heard the door to the bathroom near the trailer open, and the gunman yelled at someone to go into the trailer. Bowman assumed the gunman was yelling at Perez, since she had been heading to the trailer. Bowman then heard one gunshot, followed by a series of shots after a brief pause. The gunman standing over him then fled toward Pacific Highway. Bowman stood up and saw the gunman clearly; he also saw two other men running in the same direction. Bowman then called 911.

         Maman, who had plans to spend the night with Perez, arrived at the Five Star parking lot a few minutes after 12:30 a.m. to pick her up. Maman was driving a green van. As Maman was parking the van near the trailer, he saw two men come out of the trailer. One of the men aimed a revolver at him and started firing. Maman immediately drove away. Maman described the gunman as being approximately five feet seven inches tall, and wearing a stocking over his head.

         Around the same time, Gagarin was retrieving his car from Park & Ride, a parking lot across Pacific Highway from the Five Star parking lot. He stopped at the Park & Ride exit booth, which was manned by Michael Mackey. Gagarin and Mackey first heard noises coming from the Five Star parking lot that Mackey dismissed as firecrackers, followed by noises that sounded more like gunshots. Gagarin and Mackey then saw a dark van leave the Five Star parking lot, followed by three men running towards the Park & Ride parking lot from the Five Star parking lot. The first man to arrive at the Park & Ride parking lot was armed and ran past the exit booth. The second and third men fired shots behind them before running up to the exit booth. Gagarin and Mackey both testified that the men were White and wore dark clothing, dark caps and nylon stockings over their faces. The shorter of the two men pointed a gun at Mackey and demanded the car, while the taller man pointed a silver-colored gun at Gagarin. Both Gagarin and Mackey raised their hands in surrender, and Gagarin told the assailants to take his car. The assailants then exited the lot, heading east on Sassafras Street. Just as they left, the dark van that Gagarin and Mackey had seen driving away from the Five Star parking lot pulled into the Park & Ride parking lot. The driver asked if they were all right and told them that there had been shots fired at the Five Star parking lot and he believed that the shots were aimed at him. Mackey then called 911. At the preliminary hearing, Mackey “felt 75 percent sure” that defendant was the shorter gunman.[1]

         San Diego Police Department officers arrived within minutes of Bowman's call. Before they arrived, Bowman had entered the trailer and discovered the bodies of Perez and Reynolds facedown on the ground with multiple gunshot wounds to the back of their heads. Bowman did not touch anything, having recognized that Perez and Reynolds were dead. When the officers arrived, they checked both victims for signs of life but found none.

         A homicide investigation team from the San Diego Police Department also responded to the scene. Members of the team discovered that the telephone lines and computer power cord in the trailer had been cut. They found two bullet casings fired by a Glock nine-millimeter semiautomatic firearm: one near Perez's arms and another by Reynolds's head. They also recovered four fired bullets: (1) a.38-caliber revolver round fired from inside the trailer, leaving a bullet hole in the trailer wall; (2) a.38-caliber revolver round near Perez's body, and (3) two Glock rounds near Reynolds's body. They also found bullet holes in the carpet under the victims' heads, which indicated that the victims had been shot while lying facedown. There were no signs of a struggle, and the safe was open. Perez's car was found inside the Five Star parking lot. A nine-millimeter Glock cartridge was found on the ground outside the car, and a Glock bullet, which was used to shatter the passenger window, was found lodged in the driver's seat. A bank deposit bag containing $1, 512 in cash and a deposit slip for a $2, 457 deposit were recovered in the front seat. A roll of duct tape was also found. A strand of hair found on the tape was later tested; testing revealed the DNA belonged to Max Anderson, who would later be identified as one of the robbers.

         Gagarin's car was discovered less than a mile from the Five Star parking lot. A nine-millimeter bullet casing was found on the ground outside the car, and a Glock containing 12 live nine-millimeter cartridges was found on the front passenger seat. Ballistics testing confirmed that all of the nine-millimeter casings from the trailer matched the magazine in Gagarin's car. Dr. Christopher Swalwell examined the bodies at the scene on the night of the robbery and performed autopsies the next morning. Dr. Swalwell concluded that both victims died from gunshot wounds to the back of the head. Perez had two gunshot wounds, one on each side of her head, caused by a.357 magnum or a.38-caliber revolver. Reynolds had three gunshot wounds, one in his right arm and two to his head, caused by a nine-millimeter Glock handgun. Based on the nature of the wounds and position of the bodies, Dr. Swalwell concluded that both Perez and Reynolds had been shot in the back of the head while lying facedown with their arms over their heads. And based on a distinct star-shaped tearing around the entry point of each gunshot wound and the presence of soot within each wound, Dr. Swalwell also concluded that the gunshot wounds were contact wounds, meaning that the barrel of the gun was pressed against the victims' skin at the time of discharge. Steve Simmonds, the operations manager of the Five Star parking lot, testified that he initially believed that approximately $3, 400 was taken in the robbery. But with the bank deposit bag recovered from Perez's car, Simmonds estimated that the total monetary loss was approximately $2, 000. Simmonds also testified that it was company policy that all employees were to comply and not resist in the event of a robbery.

         Detective Stephen McDonald testified that the case went cold for three years until he contacted Paula Daleo, Torkelson's girlfriend at the time of the robbery. Daleo disclosed two incidents that connected defendant to the robbery. First, the night before the robbery, Torkelson brought four men back to their home: a man known to her as “Li'l Jeff, ” Raynoha, and two others. Daleo did not know Li'l Jeff's last name, but recognized him from frequent hangouts with Torkelson. Li'l Jeff also had two distinct tattoos: one on his arm that said “Nigger Thrasher” and another on his neck that depicted the hammer of the Norse god Thor. After the robbery, Torkelson and Li'l Jeff went to Tempe, Arizona to stay with a man named Jason Getscher. At trial, Daleo identified defendant as Li'l Jeff.

         The second incident occurred about a year after the robbery, when Daleo attended a party in Li'l Jeff's home in June 2000. Daleo recalled a general discussion of the robbery, in which Torkelson was described as the organizer of the robbery, and Li'l Jeff and Raynoha were described as participants. Someone said the killings during the robbery took place because “Jeff got trigger happy.” Li'l Jeff responded, “No, I did not, ” but did not deny involvement with the robbery.

         Based on the information obtained from Daleo, Detective McDonald contacted Getscher. At the time, Getscher was serving a term in Arizona state prison for forgery. Getscher explained that he met defendant during an earlier prison term in 1996. Because he was 10 years defendant's senior, Getscher sought to protect defendant inside prison and keep him out of trouble after they were released. Defendant, Anderson, and Torkelson stayed in Getscher's house immediately before the robbery. During their stay, defendant, Anderson, and Torkelson discussed robbing a business where Torkelson worked as a security guard. Getscher was present when the three men discussed their plans and left to commit the robbery and when they all returned to Getscher's home. Torkelson repeatedly warned defendant not to say anything.

         On a subsequent occasion, defendant told Getscher that the robbery had not gone well and that defendant had shot someone. Getscher also saw defendant attempting to lace his boots with red laces. Getscher explained that he and defendant were skinheads in prison, and that in skinhead culture “red laces would indicate that you have drawn the blood of an enemy.” Defendant insisted that he had earned the laces, but Getscher disagreed because defendant had “killed an innocent victim and that he didn't kill an enemy that was trying to get him.” Getscher also noticed a cut on defendant's hand, which defendant explained was a burn from putting his hand over the barrel of the gun to silence the gunshots.

         Getscher agreed to call defendant from prison and get him to talk about the robbery while Detective McDonald recorded the conversation. This arrangement resulted in two recorded conversations. In the first conversation, which took place on October 28, 2002, Getscher referred to the “stupid little stunt” and “escapade” that defendant, “James, ” and “Max” had participated in two to three years earlier. Defendant did not deny his involvement. In the second conversation, which took place on November 26, 2002, Getscher told defendant that he was building a small team for a bank heist and would allow defendant to join so long as defendant told him “what happened before, ” so he could be sure “it ain't happenin' again.” Getscher also indicated that whoever “did it” on the last job would not be participating in the bank heist. Defendant identified the participants in the Five Star parking lot robbery as himself, Torkelson, and Anderson. Defendant described the robbery as poorly planned by Torkelson, but defendant also admitted that he had been affected by nerves and adrenaline. Defendant explained that the three men had “covered up” to hide their identities, but forgot to bring materials to tie up the victims. As the robbery got out of hand, “it happened.” Getscher asked who started the gunfire, and defendant responded, “I, I was the first one that fired.” Defendant explained that panic and adrenaline led him to open fire and he was “thinkin' they're gonna get away, fuck, I don't want to go down.” Getscher asked if Anderson had shot the woman during the robbery. Defendant responded, “Nah, that was me.” Defendant explained that “everything was just going wrong [and] the next thing I know I just did it. I don't know. It just kind of happened.” Anderson fired his weapon after defendant fired his. As defendant and Anderson left the trailer, defendant also fired at someone in a car and at some man in a “box thing” in the parking lot because he thought one of them had seen him. Defendant explained that the escape plan fell apart when the key broke in the ignition of the getaway vehicle, and everyone scattered. The robbery yielded very little because “most of the stuff got left behind.” Getscher and defendant also discussed the red laces: Defendant told Getscher that he understood why he did not earn the laces during the robbery and assured Getscher that he would not overreact in a subsequent heist.

         After these recorded calls, defendant was arrested. While in custody, Detective McDonald played a portion of the second recorded call for defendant. When asked if he wanted to tell his side of the story, defendant responded, “You heard it all, ” and “I ain't gonna talk about it no more.”

         2. Defense Case

         Defendant did not call any witnesses and rested on the record. In closing argument, defense counsel conceded that defendant was in the trailer during the robbery and participated in carjacking Gagarin. Defense counsel argued that defendant did not shoot Perez and that Anderson instead shot both Perez and Reynolds. Defense counsel acknowledged that defendant had claimed responsibility for shooting Perez in his second recorded conversation with Getscher, but argued that defendant was merely posturing to impress Getscher. Further, counsel argued, this conversation revealed that defendant acted out of panic, nerves, and adrenaline, and that he lacked the intent to kill.

         B. Penalty Phase

         At the first penalty phase trial, the jury had been unable to reach a verdict and the trial court declared a mistrial on November 10, 2005. The penalty phase retrial began several months later, on June 19, 2006.

         1. Prosecution's Case in Aggravation

         The prosecution called witnesses from the guilt phase to describe the robbery, defendant's role in the robbery murders, and the forensic evidence. The prosecution also presented evidence of defendant's attitude following the robbery murders. Getscher testified about defendant's attempt to put red laces in his boots as a mark of having “dr[awn] the blood of an enemy.” Getscher took the laces away, telling defendant that he had not earned them because the laces were only for killing non-White “enem[ies].” Defendant responded, “Oh, I earned them.... It was a Mexican.”

         The prosecution presented victim impact evidence from family, friends, and coworkers of Perez and Reynolds, who described how the victims' deaths affected them. The prosecution presented evidence of defendant's participation in three prior crimes: (1) an attempted theft at an Arizona bank in July 1999; (2) an attack on inmate Robert Harger while defendant was incarcerated during trial; and (3) an assault on Lee Alvin committed during a robbery of an Arizona convenience store in 1992.

         2. Defense's Case in Mitigation

         Members of defendant's family, including his grandmother, aunts, uncle, and parents, testified about hardships defendant had encountered growing up. Defendant's parents separated when he was one year old, and defendant had no contact with his father until he was around 12 years old. Defendant struggled with learning and was placed in special education classes. When defendant was nine years old, he was sexually abused by his older cousin. Defendant's father began giving him alcohol as an infant and later introduced him to drugs as an adolescent. Defendant spent some time in an adolescent psychiatric hospital and a drug rehabilitation center. Defendant was a nonviolent person and a loving and attentive father to his son and stepdaughter. Defendant accepted responsibility for the crimes he committed in Arizona. After the trial court ruled that this evidence of defendant's good character opened the door for the prosecution to introduce evidence of defendant's racist tattoos and affiliations in rebuttal, some family members testified they were “confused” by his racist tattoos because, to their knowledge, he was “never really racist.” Defendant obtained a GED while in prison in Arizona and subsequently learned welding to support his family. Defendant called two acquaintances who knew him in a professional capacity; they testified that defendant was a hard worker who had no problems with coworkers of other races. The founding director of the Center for Children of Incarcerated Parents testified about the ability of parents who are incarcerated to have a meaningful role in their children's lives.

         Aaron Beek, an inmate who participated in the attack on inmate Harger when defendant was awaiting trial, attested to being the only one who physically attacked Harger; defendant, Beek testified, was not present during the assault. But Beek acknowledged authoring a letter in which he said he pleaded guilty to the assault to “take the charges off... [his] comrade Jeff.” At trial Beek explained, “I don't feel comfortable letting [defendant] get charged with something I did.” On cross-examination, the prosecution presented Beek with another letter confiscated by jail officials and signed in defendant's name that bragged about being a member of the “American Front” and the “shot-caller” for the Caucasian prisoners in jail. Beek claimed to have authored this letter as well.

         An officer who investigated the attack on Harger testified that although Harger identified defendant as being present during his assault, Harger misidentified defendant's hair color and name. A family therapist characterized defendant as a “follower” who is “highly susceptible to the influence of others.” The therapist noted that the sexual molestation that defendant suffered, as well as his early exposure to alcohol, may have affected his development and led to later alcohol and drug abuse problems. The therapist testified that defendant became a skinhead for two reasons: (1) to achieve a sense of belonging as he felt like an outsider in his family, and (2) as a means of self-preservation in prison. In response to questioning about what values might have attracted defendant to “the skinhead philosophy, ” the therapist testified that the values “incorporat[e] not only the negative ones that we associate with it, but also ones that have to do with honor, respect, loyalty, fidelity to one's group, a sort of misguided protection of the common man... and a lot of pride.”

         3. The Prosecution's Rebuttal

         On rebuttal, the prosecution presented evidence in accordance with the trial court's ruling that testimony by defendant's grandmother supporting his good character could be rebutted with evidence of defendant's racist tattoos and affiliations. Deputies investigating the assault on Harger testified that the day after the assault they found a Celtic rune above defendant's cell door and a swastika outside his cell, both apparently drawn in blood. Police officers who had interacted with defendant in 1999 testified about defendant's tattoos, which included the phrase “Nigger Thrasher, ” a swastika, and the number “88.” Joanna Mendelson, the director of investigative research at the Southern California branch of the Anti-Defamation League, testified about the origins and ideology of skinheads generally and the American Front and Aryan Nations groups specifically. Mendelson explained that skinheads adhere to a religion known as Odinism, which provides skinheads in prison the “opportunity to congregate” in order to “conduct criminal activity and violence.” Mendelson reviewed defendant's tattoos and symbols on letters he had written and explained their meaning within skinhead culture, identifying several as “inherently racist symbol[s].”

         4. The Defense's Surrebuttal

         Two Hispanic inmates housed in the same jail as defendant testified that defendant never expressed any support for racial violence and got along with inmates of other races. A sheriff's department sergeant who investigated the assault on Harger testified that an informant identified Beek and an inmate named Britain as the “shot-caller[s]” for the Caucasian inmates. The informant witnessed Britain sharpening the shanks later recovered from the attack on Harger, Beek looking nervous outside his own jail cell when the attack occurred, and Beek washing his hands after the attack.


         A. Guilt Phase Claims

         1. Admission of Statement Given in Response to Police Questioning

         After defendant was arrested, he was interviewed by Detective McDonald. Deferring defendant's repeated requests for “his rights, ” Detective McDonald instead began the interrogation by playing the tape of defendant's conversation with Getscher, in which defendant described the circumstances of the robbery and admitted to fatally shooting Perez. Then, after reading defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), Detective McDonald asked if defendant wished to tell his side of the story. Defendant responded, “You heard it all, ” before asking for an attorney and terminating the interrogation. Defendant argues this statement should have been excluded under the Fifth and Fourteenth Amendments to the federal Constitution, as well as under state evidence law, and that the failure to exclude the statement calls for reversal. We find no reversible error.

         a. Background

         Detective McDonald interviewed defendant on March 20, 2003. After confirming defendant's name and address, Detective McDonald explained that defendant was in custody “regarding a 1999 murder case we revisited” and asked if defendant knew “James Torkelson.” Defendant expressed uncertainty, and Detective McDonald responded that “[Torkelson]'s up in prison right now. He's looking at thirty years and he's looking for deals and he gave us some information regarding a murder case in 1999. It happened at [a] Park and Ride, Airport Park and Ride.” Defendant confirmed he knew Torkelson as “Woody.”

         Detective McDonald explained that Torkelson and another individual had given law enforcement “some information, ” and so “things are starting to fall apart on this whole operation you guys were... involved in.” Detective McDonald further explained that Torkelson was “doing thirty years” and “wants a deal, ” but that “[w]e're not sure we want to deal with him.” The conversation then continued as follows:

         “MCDONALD:... But we want to hear, this would be your opportunity to tell us your side of the story. We do have other evidence too. We have a tape here that I could play for you if you want to hear that. But I just want to know would you like to tell us your side of the story what happened at this lot?

         “YOUNG: After I get my rights.

         “MCDONALD: But only if this, yeah, I'm just letting you know if you, I can read your rights.

         “YOUNG: (Unintelligible), that's, one step at a time.

         “MCDONALD: Okay. Like to go that route?

         “YOUNG: It's getting kind of weird. Cause, yeah, I know about that. Woody told me about it, you know, cause he's working security there.

         “MCDONALD: Okay.

         “YOUNG: Yeah, I'd like my rights.

         “MCDONALD: Okay. Let me uh

         “YOUNG: If you don't mind. I don't want to be, make like a dick or anything or make anything

         “MCDONALD: No, but would you like to listen to a tape first?

         “YOUNG: Uh

         “MCDONALD: I won't say nothing. I won't ask you any questions. ...

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