People v. Potts

6 Cal.5th 1012

436 P.3d 899

245 Cal.Rptr.3d 2

The PEOPLE, Plaintiff and Respondent,

v.Thomas POTTS, Defendant and Appellant.

S072161

Supreme Court of California.

March 28, 2019

Michael P. Goldstein, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Maggy Krell, Ryan B. McCarroll and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Cantil-Sakauye, C. J.

This case arises from the robbery and murder of an elderly couple found dead in their home. A jury convicted defendant Thomas Potts of two counts of first degree murder, one count of first degree robbery, and one count of grand theft (from a different victim). ( Pen. Code, §§ 187, subd. (a) [murder], 211 [robbery], 487, subd. (a) [grand theft].)¹ The jury found that defendant knew or reasonably should have known that each murder victim was at least 65 years old. (§ 667.9, subd. (a) [elderly victim enhancement].) The jury also found true two different special circumstance allegations—multiple murder and robbery murder—and returned verdicts of death at the close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple murder], (a)(17) [robbery murder].) As relevant here, the trial court found true two prior felony offense allegations; imposed a four-year determinate term based on the age of the victims; imposed a $ 10,000 restitution fine; denied the automatic motion to modify the verdict; and sentenced defendant to death. (§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].) This appeal is automatic.

(§ 1239, subd. (b).) We modify the judgment by striking the four-year determinate term and otherwise affirm.

I. BACKGROUND

A. Guilt Phase

1. Prosecution case

a. Crime scene

Fred and Shirley Jenks made their home in Hanford, California. A florist attempted to deliver them flowers on the morning of August 5, 1997. When the Jenkses' doorbell went unanswered, the florist entrusted the flowers to a neighbor rather than leaving them to wilt outside in the summer heat.

That evening, the neighbor went to see whether the Jenkses were home. When their doorbell again went unanswered, the neighbor peered through a glass portion of the front door. Inside, she saw Fred's body—with blood on the floor and splattered on the wall. Police later discovered Shirley's body in the master bedroom. The evidence adduced at trial suggested that Fred and Shirley had each been attacked with a hatchet-type weapon and at least one knife. There was no dispute that the attacks likely occurred the previous day, after 1:00 p.m.

Detective Darrell Walker led the homicide investigation. He observed that drops of blood near Fred's body reached as high as a roughly ten-foot-tall ceiling. Near the body, Walker saw a small metallic pin of the sort used to connect a watch band to a watch face. The watch on Fred's wrist had pins intact. Underneath him, however, was a watch with a missing pin and a partially detached band.

Bloody shoeprints were found at the scene. The prints had a wavy pattern and at least some bore the word "Nike." A print similar to those seen in several portions of the house also appeared on Fred's back.

Investigators found an open cutlery drawer in the Jenkses' kitchen. One knife was discovered in the Jenkses' pantry, sticking out of a package of cookies. The kitchen sink contained a short-bladed paring knife and a knife sharpener, both of which tested positive for blood. The blood on the sharpener could have come from Fred, but could not have come from Shirley. A longer-bladed boning or filet-type knife was found in the Jenkses' master bedroom, with blood on the knife's handle. Neither Fred nor Shirley was excluded as a potential blood contributor.

The knife in the master bedroom was found underneath various boxes. Although some valuables remained in the room, portions of it had been "ransacked"—with empty jewelry trays and more than 30 empty jewelry boxes left behind. All told, it appeared that at least 200 pieces of jewelry had been taken. By contrast, a different bedroom was found "basically immaculate."

No direct evidence indicated how the perpetrator entered the Jenkses' home. The only window or exterior door that was unlocked, however, was the front door, and glass panes made it possible to see who was outside that door before opening it. There were no signs of forced entry.

b. Causes of deaths

Armand Dollinger, M.D., performed both autopsies. He testified that Fred suffered "numerous contusions, bruises, abrasions, lacerations, and ... stab wounds." Twenty-eight separate wounds were visible on the top and back of Fred's head. Several of his fingers were nearly amputated. His chest had been stabbed nine times, causing six wounds to his lungs. His ribs were fractured in a manner consistent with "[s]omebody forcibly jumping or stomping on ... either the front or the back of the chest."

Dr. Dollinger opined that the instruments used to attack Fred likely included a knife and "a narrow-bladed hatchet" with a round hammer on the back. It was possible that Fred was stabbed with both the shorter knife in the kitchen sink and the longer knife in the master bedroom. The shorter knife alone may not have been long enough to cause some of Fred's injuries.

Dr. Dollinger identified Fred's cause of death as "open cranial injuries due to multiple blunt trauma and stab wounds of the head. Other contributing conditions, multiple stab wounds of posterior chest with penetrating wounds of the lungs." Blood found in Fred's pleural cavity indicated to Dr. Dollinger that Fred was "probably alive when he sustained stab wounds to the chest," though Dr. Dollinger acknowledged that prior head wounds"might have" killed Fred instantly and collectively left him, "if not already dead, [then] almost dead and dying."

Shirley suffered three main types of injuries. She was struck four times in the head with a hatchet-type weapon, fracturing her skull and causing brain tissue to extrude from a wound. She was stabbed at least six times in the chest, puncturing her heart. And she was twice slashed across the throat.

Dr. Dollinger described for the jury what he believed to be the sequence of wounds that caused Shirley's death: "It's my opinion that she was down on her back, unconscious, dying, as a result of the wounds to her head when the stab wounds were incurred. She was near—certainly near death at that time because there was very little bleeding into the chest. I feel that she was actually probably dead at the time the slashing wounds were made. I can't be absolutely certain on that, they could all have been postmortem ..., but she was near death or dead at the time the chest wounds were incurred and the slashing wounds of the throat." The longer knife found in the bedroom could have caused Shirley's stab and slash wounds.

c. Thomas Potts

Defendant Thomas Potts worked as a part-time handyman and house cleaner. Fred Jenks was one of defendant's clients. Because defendant did not own a car, Fred would usually pick him up for work. Otherwise, defendant would ride his bicycle.

Roughly six months before the murders, Sergeant Darrel Smith "contact[ed]" defendant while defendant was cycling down an alleyway. Smith testified that defendant was carrying a dark duffel bag containing a small axe or hatchet, which had a blunt edge opposite the blade. Defendant claimed to use the hatchet for construction work and left with the tool. The following month, a different officer stopped defendant. Defendant was carrying a gym bag containing pawn receipts, plus "a small hatchet" with a roughly 5-inch blade opposite something "like a hammer." Defendant again left with the tool.

Diana Williams, defendant's friend and former roommate, saw him nearly every day. She confirmed that defendant owned a hatchet with a blade and "a hammer part." Sometime during the month before the murders, defendant moved into a new apartment. Williams saw him use the hatchet in his new home to hammer speaker wire into place.

Diana also described some of defendant's other belongings. When her son Quentin outgrew a pair of Nike shoes, he gave them to defendant. Diana also had been with defendant when he purchased the watch that he wore "every day." She was familiar with it because "the watch pin that would keep the band on" would detach, and she at least twice helped him reinsert the pin.

d. Events preceding the killings

Defendant received a Social Security payment on the first of every month. Diana Williams was his payee. On August 1, three days before the killings, she received the payment (around $ 600) and gave it to defendant.

Defendant was a customer at a Hanford liquor store. The store permitted him to maintain a charge account, with payment due every 30 days. Defendant would ordinarily pay the prior month's bill on the first of each month; he paid his May '97 bill on June 1 and his June '97 bill on July 1. On Friday, August 1, however, defendant did not pay his $ 140 bill for July. According to the store's owner/operator, defendant instead called that day to say that he would be in to pay his tab the following Monday or Tuesday.

Williams returned from an out-of-town trip on Sunday, August 3rd at around 4:00 p.m. Later that evening, at defendant's apartment, she and he watched a movie that he had rented. Williams estimated that they met around 5:00 p.m. and were together for two to three hours.

The next day, August 4th, defendant and Williams went grocery shopping together around 11:00 a.m. Defendant told Williams that "he didn't have any money" because he had gone to a casino in Lemoore. She did not see him after around 2:00 p.m. As noted, the People and the defense agreed that the Jenkses were likely killed that day after 1:00 p.m.

e. Events after the killings

The day after the killings, on August 5th, defendant...