People v. Lewis

14 Cal.Rptr.3d 566

91 P.3d 928

33 Cal.4th 214

The PEOPLE, Plaintiff and Respondent, v. Robert LEWIS, Jr., Defendant and Appellant.

No. S020670.

Supreme Court of California.

June 24, 2004.

Rehearing Denied August 11, 2004.

Robert M. Sanger, Santa Barbara, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

A jury convicted defendant of the first degree murder (Pen.Code, § 187)¹ and robbery (§ 211) of Milton Estell. It found true allegations of deadly weapon use (§ 12022, subd. (b)) and personal use of a firearm (§§ 12022.5, 1203.06) as well as a special circumstance allegation that the murder was committed during the commission or attempted commission of a robbery. (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A).) The jury fixed the punishment at death. Although finding no other reversible error, this court vacated the judgment of death because the trial court erroneously considered a probation report in ruling on defendant's automatic application to modify the penalty. (§ 190.4, subd. (e); see People v. Lewis (1990) 50 Cal.3d 262, 286-287, 266 Cal.Rptr. 834, 786 P.2d 892 (Lewis I).) On remand, the trial court denied the application for modification and reinstated the judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen.Code, § 1239.)

We find no error in the trial court's denial of the modification application or any other rulings on remand and affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because resolution of the issues raised in this appeal depends solely on the original trial record, we cite to the factual statement set forth in Lewis I, supra, 50 Cal.3d 262, 266 Cal.Rptr. 834, 786 P.2d 892:

"GUILT PHASE FACTS

"A. Prosecution Case.

"During the first three weeks of October 1983, Milton Estell had been trying to sell his 1980 Cadillac by parking it in a Long Beach shopping center affixed with a `for sale' sign. Mr. Estell also advertised the car in a newspaper classified ad. Mr. Estell's neighbors, Michael and Allen Washington, knew that he was selling his car. On Thursday, October 27, 1983, as they were returning home about 6:30 or 7 p.m., the Washington brothers saw Mr. Estell standing on the sidewalk in front of his house, looking at the Cadillac, and talking to defendant.² The hood of the car was up.

"Jacqueline Estell, the victim's ex-wife, tried to telephone Mr. Estell several times between 8 and 10 p.m. on October 27, to make arrangements for him to have custody of their children for the weekend. She received no answer and continued trying to call him the next morning between 7 and 7:30. She called his employer that day (Friday, Oct. 28) and learned that he had not come to work. After further unsuccessful attempts to reach Mr. Estell, she left the children with a neighbor of Mr. Estell's and left for the weekend.

"Officer Laduca of the Long Beach Police Department went to Mr. Estell's house about 11 p.m. on October 28 because some neighbors had expressed concern. Both the front and back doors were locked, so Officer Laduca entered through an open window. A light was on in a back bedroom, but the room was empty. The door to the next bedroom was shut. As he opened the door he smelled a strong odor, which he recognized as the odor of a dead person. There was no furniture in the room, only some children's toys. Officer Laduca opened the sliding doors to a closet and found a Black male, lying on his side, obviously dead. The Black male was later identified as Mr. Estell. His hands and legs were tied together with neckties; yellow toilet paper was stuffed in his mouth and he was gagged with a necktie. There were three stab wounds in his chest and a bullet hole in his back. Two pillows were near the body; one had a contact bullet hole in it. Two knives were lying next to the body. The stab wounds were later determined to have been the cause of death.

"The victim's wallet was lying near the body; the wallet had numerous credit cards but no cash. The Cadillac was missing. There were no signs of forced entry into the house. The front door was locked from the inside with a deadbolt. The back door was locked with a standard lock, but the deadbolt was not thrown. Defendant's palm print was found in the bathroom, on the doorjamb behind the door, near the toilet paper receptacle containing yellow toilet paper. Eleven other latent prints were lifted; two prints were the victim's, and the others were never compared with those of anyone but the victim and defendant.

"Jacqueline Estell accompanied police officers to the victim's house on Monday, October 31, and found a number of things missing: a television and stand, a camera, a radio, and a cassette player. A TV Guide was lying open to the date of October 27. The next day she noticed that a gold chain and a ring were also missing. The ring was later found at the coroner's office with the victim's belongings. Mrs. Estell later identified the missing gold chain as the one that defendant had worn at the preliminary hearing.

"On November 1, 1983, two Long Beach police officers spotted the missing Cadillac parked on the street with no one in it. About 35 minutes later, defendant and a woman entered the car and drove off. The officers stopped the car, arrested the occupants, and impounded the car. Defendant was searched and found to have about $400. He gave a false name at the time of his arrest and booking.

"Defendant was taken to the police station and booked. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), he was interviewed by Detective MacLyman. Defendant said that he went to look at the Cadillac on October 24 at the owner's residence. He bought it that day—October 24—for $11,000 cash, which he had carried in a brown paper bag. The owner made out the bill of sale to defendant's girlfriend because defendant did not want the car in his name. Defendant said he had won the money playing blackjack in Las Vegas. Defendant said the entire transaction took place on the front porch; he never went in the house.

"Defendant was interviewed again the next day. This time he said he had won $17,000 in Las Vegas; the day before he had said he had won $11,000. This time he said he carried the money in a white paper bag; the day before the money had been in a brown paper bag. When asked about the discrepancies, he said that Detective MacLyman must have been mistaken. Defendant continued to assert that he had bought the car on October 24, even when Detective MacLyman told him that neighbors had seen the car at the victim's residence on October 27.

"Detective MacLyman found a bill of sale in the Cadillac when he searched it at the impound lot. He also found a garage door opener in the car that opened the victim's garage door. The victim's signature on the bill of sale was later determined to be a forgery.

"B. Defense Case.

"Defendant's father, Robert Lewis, Sr., testified that he had registered defendant and a girl named Tuti at the Kaialoha Motel on October 24, 1983, because defendant had no identification. He had written his driver's license number and the license plate number of Milton Estell's Cadillac on the motel registration card. The manager of the motel testified that she did not remember the transaction, but she did know that she had written down the date, room number, and amount of money paid. The customer had filled out the name, address, car license number, and number of guests.

"Defendant's sister, Gladys Spillman, testified that the gold chain taken from defendant looked like the one she had purchased in January 1983 and had given to defendant.

"Defendant did not testify." (Lewis I, supra, 50 Cal.3d at pp. 271-274, 266 Cal.Rptr. 834, 786 P.2d 892.)

"PENALTY PHASE FACTS

"A. Prosecution Case.

"The only additional evidence introduced by the prosecution was defendant's stipulation that he had suffered four prior robbery convictions; two in 1977 and one each in 1972 and 1982.

"B. Defense Case.

"Defendant presented testimony by his sister, Rose Davidson. Miss Davidson testified that she has one other sister, Gladys Spillman, and an additional brother, Ellis Williams. Williams was currently in state prison and had been in jail a couple of other times. Their father had been in prison a number of times, and their mother had died in 1967. Miss Davidson also testified that she loves defendant and cares about what happens to him." (Lewis I, supra, 50 Cal.3d at p. 278, 266 Cal.Rptr. 834, 786 P.2d 892.)

After hearing the penalty phase evidence, the jury returned a verdict of death. The trial court denied the automatic application for modification of the verdict (§ 190.4, subd. (e)) and imposed sentence.

On appeal, this court found no reversible error except with respect to the ruling on the application for modification:

"Defendant contends the case must be remanded for a new hearing on the application for modification of verdict because the court considered matters from the probation report that had not been presented to the jury. After hearing argument from both sides the court ruled as follows: `Pursuant to Penal Code section 190.4, subsection (e), I have made an independent review of the evidence. I have taken into account and been guided by the aggravating and mitigating circumstances.

"`I find that the jury's findings and verdict are according to the law and the evidence.

"`I find that the aggravating circumstances outweigh the mitigating circumstances. My reasons for this are as follows: That this 32-year-old defendant has shown himself to be a hostile and violent man.

"`He has been either incarcerated or on parole most of his adult life. And even before he reached adulthood he had such a...