People v. Chism

58 Cal.4th 1266

324 P.3d 183

171 Cal.Rptr.3d 347

The PEOPLE, Plaintiff and Respondent,

v.Calvin Dion CHISM, Defendant and Appellant.

No. S101984.

Supreme Court of California

May 5, 2014.

See 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 21 et seq.

Mark D. Lenenberg, Simi Valley, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

A jury convicted defendant Calvin Dion Chism of the first degree murder (Pen.Code, § 187, subd. (a) (count one)) ¹ and attempted robbery (§§ 211/664 (count two)) of Richard Moon, and the second degree robbery of Jung Ja Chung ( § 211 (count three)).² THE JURY FOUND TRUe the special circumstance allegation that the murder was committed during the attempted commission of a robbery ( § 190.2, subd. (a) (17)(A)). It also found true allegations that a principal in counts one and two was armed with a firearm (former § 12022, subd. (a)(1)), and that defendant personally used a firearm in the commission of all three counts, (former § 12022.5, former subd. (a)(1), now subd. (a)). The trial court found true the allegation that defendant had suffered one prior serious or violent juvenile adjudication within the meaning of the “Three Strikes Law” (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

The jury was unable to reach a penalty verdict, and the trial court declared a mistrial. Another jury was impaneled. After a retrial of the penalty phase trial, the second jury returned a verdict of death as to count one.

The trial court denied defendant's motion for new trial (§ 1181) and his motion to modify the penalty verdict (§ 190.4, subd. (e)). With regard to count one, the trial court sentenced defendant to death plus a consecutive upper term of 10 years for the personal use of a firearm enhancement. The court sentenced defendant to an upper term of six years on count two, plus a consecutive term of five years for the personal use of a firearm enhancement, but the court stayed this 11–year sentence pursuant to section 654. The court then imposed a consecutive upper term of five years on count three, doubled to 10 years under the Three Strikes Law, plus a 10–year consecutive sentence for the personal use of a firearm enhancement. Defendant was awarded 643 days of presentence custody credits. This appeal is automatic.

We conclude defendant is entitled to 96 days of conduct credit (§ 2933.1, subd. (c)), and order the clerk of the superior court to modify the abstract of judgment to reflect those 96 days of conduct credit. The judgment, including the death sentence, is otherwise affirmed.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

a. Riteway Robbery

On May 18, 1997, defendant entered the Riteway Market (Riteway or market) in Compton alone and asked the lone clerk, Jung Ja Chung, for hair gel. Chung said she did not have any, and defendant left. Defendant quickly returned with codefendant Johnson and three accomplices. One accomplice approached Chung, pointed his gun at her, and demanded money. Defendant went behind the counter and told Chung to open the cash register. Defendant took cash from the register and a nine-millimeter Glock handgun (the Glock) that the owner kept under the counter. The other robbers took various items. Defendant pointed the Glock at Chung as he followed his accomplices out of the store.

At trial, defendant's California Youth Authority (CYA) parole officer, Kenneth Lipkin, viewed the Riteway surveillance videotape of the robbery and recognized defendant as the person who first entered the market and later pointed the Glock at Chung as he left. Lipkin recognized defendant's voice on the tape saying, “We're in the house. They don't have a video,” “There's a Glock,” and “187.” Lipkin noted that defendant's “187” comment was a reference to the Penal Code section that defines murder.

b. Eddie's Liquor Store

(1) The Murder and Attempted Robbery

On June 12, 1997,³ Edward Snow owned Eddie's Liquor (Eddie's or liquor store), which was located at the intersection of East Artesia Boulevard and Butler Avenue in Long Beach. Richard Moon was employed at Eddie's as a clerk.

Codefendant Johnson's sister Marcia ⁴ was acquainted with defendant and Taylor.⁵ Around 9:00 a.m. on June 12, defendant, Johnson, Taylor, and Marcia met at Marcia's home in Compton. Defendant wore black jeans and a black T-shirt with the word “Air” and a white Nike logo printed across the front (Nike Air T-shirt). Defendant had a Glock handgun in his waistband, the same gun Marcia had seen him carrying “all the time” during the previous month. Defendant told them about his plan to rob Eddie's and assigned each person a task. He instructed Marcia to enter Eddie's to determine the location of any surveillance video cameras and the number of clerks. Defendant appointed Taylor to be the driver, and directed Johnson to go into the store with defendant. No one objected to defendant's plan.

Approximately 15 minutes later, the group left Marcia's house in a light gray Plymouth Voyager van Taylor had borrowed from his girlfriend, Zonita Wallace. ⁶ Defendant had the Glock tucked in his waistband when he entered the van. Around 2:00 p.m., Taylor parked a couple of blocks away from Eddie's. Marcia exited, walked to the liquor store and went inside. She saw a camera, and she saw a clerk standing behind the counter. Marcia purchased candy, returned to the van, and told defendant what she had seen. Defendant and Johnson then walked towards the liquor store. Defendant had a bulge in his waistband. Within a minute or two, there were one or two gunshots, and defendant and Johnson then ran from the liquor store to the van. Taylor drove the group to a house in Long Beach to meet Iris Johnston. The drive took 20 to 30 minutes. The group stayed at the house for about 10 minutes. They then left with Johnston and a friend and drove to defendant's residence.

Steven Miller had been sitting on a bus bench across the street from Eddie's on June 12 when he saw two African–American men enter the liquor store. ⁷ Shortly thereafter, Miller heard a popping sound he thought was a gunshot. He then saw the same men run from the store. They ran north on Butler Avenue approximately two blocks and turned right onto East Marker Lane. Miller immediately ran into Eddie's and saw Moon under the counter on his back, unconscious and bleeding. Miller telephoned the police. He described the two African–American males as 17 to 18 years old, five feet and seven or eight inches tall, with short “Afro style” hair and “thin builds.” Miller added that one wore dark jeans and a black shirt with white stripes on the front.

Stephanie Johnson heard gunshots as she drove near the intersection of Artesia Boulevard and Butler Avenue between 2:00 and 3:00 p.m. on June 12. She then saw two men running from the direction of the liquor store. One was dark-skinned, slim, and of medium height. He was wearing dark khaki pants and a black shirt with a white shirt underneath, and his hair was curly on top and shaved around the bottom. Stephanie could not describe the second person or recall his clothing.

During the afternoon of June 12, Peter Motta was driving on East Marker Lane when he saw a light-colored Plymouth Voyager, the same make and model as Wallace's, parked near the intersection of East Marker Lane and Butler Avenue. Two African–Americans were inside, one in the driver's seat, the other in the passenger seat. Two men ran very fast from Butler Avenue towards the van and then “disappear[ed].” Motta noticed one was African–American, thin, and slightly taller than average.

(2) Events Immediately Following the Crimes at Eddie's

Long Beach Police Officers Rudy Romero and Stacey Holdredge arrived at Eddie's at 2:08 p.m. While Romero spoke with Miller outside, Holdredge went inside and found Moon lying on the floor behind the counter, bleeding and unconscious. Moon died before the paramedics arrived.

Iris Johnston was acquainted with defendant, Johnson, Taylor, and Marcia. The group met Johnston at the Long Beach home of one of her friends between 1:00 and 1:30 p.m. the day Moon was killed. Johnston testified they arrived in a van similar in make and model to Wallace's van. After about 10 minutes, Johnston and the group left in that van and drove to defendant's residence. Along the way, Johnston saw helicopters overhead and asked what happened. Someone said, “There must have been a robbery.” Defendant said “I” or “we” “know [who] did it.” Inside defendant's residence, they watched the news on television. They then walked to a store. Defendant appeared nervous when they saw a police car. Later, while defendant, Marcia, and Johnston were on a three-way telephone call, defendant told Johnston he wanted to talk privately with Marcia. That evening, Johnston wrote and hand delivered a letter to defendant in which she accused him and the others of having committed “that little robbery in Long Beach.”

(3) Investigation

Police recovered a bullet from the floor near Moon's hip and a spent nine-millimeter cartridge casing on the floor near the liquor shelves. There was an indentation in the ice cream machine in the store, which was consistent with the type of mark caused by a bullet ricocheting off a hard item. The owner of Eddie's testified there was no indentation on the ice cream machine prior to June 12, and nothing was missing from the cash register. Police retrieved a videotape from a videocassette recorder (VCR) inside the liquor store (videotape; or liquor store or surveillance videotape).

Los Angeles County deputy medical examiner Stephen Scholtz performed an autopsy on Moon's body and determined the cause of death was a gunshot to Moon's back. The bullet had exited...