People v. Sanders (11 Cal. 4th 475, 1995)

Opinion

MOSK, J.

This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.).

On March 18, 1981, the District Attorney of Los Angeles County filed an information against defendant Ricardo Rene Sanders and Carletha Stewart and Franklin Freeman, Jr., in the superior court of that county, in connection with the robbery murders that became known as the “Bob’s Big Boy murders.”

Defendant was charged with the murder of David Burrell, Dita Agtani, and Ahmad Mushuk. (Pen. Code, § 187.) It was alleged for death eligibility, as to each murder, that he did so under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)). He was also charged with robbery (Pen. Code, § 211), attempted robbery (Pen. Code, §§664, 211), and assault with a deadly weapon. (Pen. Code, § 245, subd. (a).) It was further alleged that, during the commission of each of these offenses, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and that, as to certain of these offenses, he intentionally inflicted great bodily injury within the meaning of Penal Code section 12022.7. Finally, he was charged with conspiracy to commit robbery. (Pen. Code, §§ 182, 211.)

Defendant pleaded not guilty to the charges and denied the allegations.

On December 7, 1981, after the death of victim Cesario Luna, the charge that defendant committed assault with a deadly weapon against Luna was dismissed and the district attorney filed a separate information, charging him with the murder of Luna (Pen. Code, § 187), under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)). It was also alleged that, during the commission of the murder, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The count was ordered consolidated into the previously filed case.

Defendant again pleaded not guilty to the charges and denied the allegations. Motions he made for change of venue were denied. His case was severed from that of his codefendants.

Trial was by jury. The panel returned verdicts finding defendant guilty as charged of the murders of Burrell, Agtani, Mushuk, and Luna; it also rendered a finding of true on the multiple-murder and felony-murder-robbery special circumstances. It found him guilty as charged of the counts of robbery, attempted robbery, and assault with a deadly weapon. It further found true the allegations that, as to all but one count, he personally used a firearm. Finally, it found him guilty of conspiracy.

The jury subsequently returned verdicts of death on the counts of murder. The trial court denied defendant’s application to modify the verdicts. (Pen. Code, § 190.4, subd. (e).) It imposed sentences of death for the murders of David Burrell, Dita Agtani, Ahmad Mushuk, and also for the murder of Cesario Luna with the sentence of death. For the noncapital offenses, it imposed a total term of 13 years and 8 months to life in state prison, which it stayed, pending execution of the sentence of death. (Pen. Code, § 654.)

As we shall explain, we conclude that the judgment should be affirmed.

I. Facts

A. Guilt Phase

The People introduced evidence to the following effect.

In August 1980, Bruce Woods was riding in a car on La Cienega Boulevard in Los Angeles with a man named Connie and a woman called “Collie,” whom he identified as Carletha Stewart. “Collie” asked if they wanted to make some money by robbing Bob’s Big Boy, one of a chain of fast-food restaurants with that name. Connie replied “Are you crazy?” and the subject was dropped.

Jerry Lankford learned of a possible robbery of Bob’s Big Boy in September 1980. One evening in September, as Lankford was standing on a street comer with friends, defendant drove up in a blue Cadillac. He parked and approached the group. He talked about “taking down” the Bob’s Big Boy. Lankford, who worked at a Bob’s Big Boy, told defendant that the robbery was not a good idea because there were probably off-duty police officers working there. Defendant disagreed, saying that he was “screwing” a waitress who had “cased” the restaurant. He then walked over to his car and opened the trunk, in which Lankford saw the stock of a shotgun wrapped in a blanket and shotgun shells.

In September 1980, Brenda Givens was employed as a waitress at Bob’s Big Boy restaurant on La Cienega Boulevard. On September 27, 1980, while visiting her boyfriend at the Los Angeles County jail, she saw Stewart with defendant and Franklin Freeman, Jr. Stewart said: “Good thing I seen you . . . [bjecause they gonna rob Bob’s Big Boy tonight, and I don’t want you hurt.” That evening, Givens told two managers at Bob’s Big Boy about the planned robbery. One of them, Rodell Mitchell, called the police. That evening, because of an apparently unrelated incident, the area was monitored by police from that time until 1 a.m.

About 10 p.m., Andre Gilcrest was at Stewart’s home. She told him that “Frank and Ricky”—Franklin Freeman, Jr., and defendant—were planning to rob Bob’s Big Boy that night and that she had told them how many managers worked at the restaurant, what time they closed, and where the money was kept. Between 11:30 p.m. and 12:30 a.m., Gilcrest and Stewart went to the Bob’s Big Boy, where Stewart spoke to two waitresses and made a telephone call. They then returned to Stewart’s home. Later that evening, Stewart called Givens at the Bob’s Big Boy from her home and asked how long it would be until she “g[o]t out of there.” She also asked how many employees were still inside the restaurant.

Stewart also called Freeman. She told Gilcrest that Freeman and defendant would pick her up for the robbery. Defendant drove up to Stewart’s residence 20 minutes later with Freeman in the passenger seat. Gilcrest saw that defendant had a sawed-off shotgun; Freeman also had a shotgun. After defendant and Freeman left, Stewart explained that they planned to drive to the Bob’s Big Boy.

When defendant and Freeman did not return after about an hour, Stewart went to the restaurant and knocked on the front door, but the manager did not let her in. After she returned home, she received a phone call from defendant explaining that they did not commit the robbery because the manager did not come out.

On December 13, 1980, about 9 p.m., Franklin’s mother, Orasteen Freeman, saw Stewart, defendant, and two others at her home. A few hours later, at 2 a.m. on December 14, 1980, there were nine employees and two customers inside the Bob’s Big Boy on La Cienega Boulevard. The restaurant doors were locked. The night manager was Michael Malloy. The cook was Derwin Logan; the waitresses were Dionne Alicia Irvin, Evelyn Jackson, Rhonda Robinson, and Dita Agtani; the busboys were Cesario Luna and his son Ismael Luna; the cashier was Ahmad Mushuk. The customers were David Burrell and Tami Ellen Rogoway.

Malloy was in the office preparing to count the money from the cash register when Logan told him that the two remaining customers wanted to be let out. Malloy left the office and handed the keys to the restaurant door to Logan. Logan walked to the front door with Burrell and Rogoway. When Logan opened the door, defendant and another man, both armed with shotguns, forced Logan, Burrell, and Rogoway back into the restaurant. Defendant said, “It’s a jack. It’s a stickup.” He took the keys from Logan. The cashier came forward and asked: “Hey, what’s going on?” The man with defendant stepped forward and hit Mushuk on the head with the butt of his shotgun; Mushuk fell to the floor. Irvin, Jackson, Agtani, Robinson, and Cesario Luna, who were at the counter area, were ordered to lie facedown on the floor. A few minutes later they were led to the kitchen area and again ordered to lie down on the floor.

Defendant took Malloy, Logan, Burrell, and Rogoway to the back of the restaurant and ordered them to lie facedown on the floor of the hallway outside the freezer. While they were on the floor, they heard the men checking the lunchroom, restroom, and lockers.

Defendant asked for the manager. Malloy stood up. Defendant walked him over to an electrical panel and asked, “Where’s the alarm?” Malloy pointed to the alarm. Defendant handed Malloy the keys and ordered him to open the door to the office. Inside the office, he asked: “Where’s the safe?” Malloy pointed to the safe. After defendant ordered him to give him the money in the safe, Malloy placed approximately $1,300 in a box and slid it out the door. Some of the coins were wrapped in Bank of America coin wrappers.

Defendant told everyone to “get up off the floor. . . . We are going to the back. You’re going to get hurt.” Malloy, Logan, Burrell, and Rogoway stood up and went into the freezer, which other employees already occupied. Mushuk was lying on the floor unconscious.

Defendant said: “I want watches, wallets and jewelry.” Malloy gathered items from everyone in the freezer, except Mushuk, in a bucket, which he handed to defendant. No one resisted the gunmen. Some of the people in the freezer cried and pleaded, “Please don’t hurt us”; others prayed out loud. The gunmen ordered everyone to “[t]um around and face the wall” and then to kneel. One of them said, “You’re going to get it first.” Defendant and the other gunman fired into the backs of the group. Jackson stood up and pleaded: “Don’t hurt me. Don’t hurt me.” One of the gunmen ordered her to turn around; when she complied, she was shot and fell to the floor. After the firing stopped, defendant asked, “How many rounds do you have?” The other gunman answered, “None.” The gunmen closed the freezer door.

Inside the freezer, people lay piled on top of each other and on the floor. Ismael Luna looked at his father’s body and called out, “Papa, Papa.” He jumped up to get to the door. Malloy tried to restrain him; Luna broke loose and ran from the freezer. When he returned, he said the men were gone. The bodies of the dead and seriously wounded were pulled out of the freezer. Burrell, Agtani, and Mushuk were dead. Cesario Luna was gravely wounded, and died several months later of complications from a bullet wound to the brain. Malloy was struck in the right eye, which he lost. Rogoway had shotgun injuries to her back and spine, resulting in numbness on her right side and periodic inability to walk. Jackson suffered cranial injury, resulting in permanent impairment of brain function. Irvin received a gunshot wound to the arm. Logan, Ismael Luna, and Robinson were physically unharmed. Robinson developed psychological problems requiring extensive treatment.

On December 17, 1980, Lankford called the police anonymously and told them about the conversation, in September 1980, concerning the plan to rob Bob’s Big Boy. He described defendant and his car. The police subsequently identified Lankford, who provided a written statement.

On December 20, 1980, Gilcrest contacted the police and told them what he knew about the crimes. Zola Taylor, who was living with the Gilcrest family, also contacted the police, claiming that she had personal knowledge of meetings among the defendants before the robbery. Both Gilcrest and Taylor provided written statements to the police.

In subsequent investigations, the police discovered a sawed-off shotgun and shotgun shell in the closet of defendant’s bedroom. They found shotgun shells and casings in the bedroom used by defendant’s father. At Stewart’s residence, they found, among other items, $90 in single dollar bills and several rolls of coins in Bank of America wrappings.

Defendant was arrested on December 22, 1980. A lineup was held the following day.

On March 10, 1981, Woods testified at a preliminary hearing against defendant and Stewart. Afterwards, as they were transported back to jail in a van defendant told Woods he should not testify against Stewart because she was young and that if they were convicted defendant would get the “gas.”

He warned that if Woods ever went back to jail, he or “some of [his] people probably get hurt.” He told him that “they have the address where [Woods] lives, that [Woods’s] family was going to get involved if [he] talked.”

Malloy identified defendant at a videotape of the lineup, at the preliminary hearing, and at trial. Rogoway identified defendant at trial and at a videotape" lineup. Ismael Luna identified defendant at a lineup, at the preliminary hearing, and at trial. Robinson identified defendant at a lineup and at trial.

For his part, defendant called into question the accuracy of the eyewitness identification of him and called into question the physical evidence linking him to the crime, including shotgun and shell casings found in his apartment, which were consistent with those used during the robbery, and the dollar bills and rolls of coins found at the home of Stewart, which were consistent with the money stolen—because the People did not conclusively prove that the weapons were actually used in the Bob’s Big Boy robbery or that the bills and coins found at Stewart’s home were actually taken from the restaurant.

B. Penalty Phase

The People presented evidence in aggravation concerning the circumstances of a second degree burglary committed by defendant in 1977 at the home of Dr. Donald Lawrence Cray. It was stipulated that defendant committed the burglary and that he entered a plea of guilty and was sentenced to prison.

The victim, Dr. Cray, testified to the following effect. About 11:15 a.m. on February 28, 1977, Dr. Cray, a dentist, returned to his home in Orange County. As he drove up the driveway, he saw a car parked facing down towards the entrance. He thought the car might belong to repairmen. He entered through the back door. As he came through the kitchen, he saw through the window that there were two men running toward the car from behind the garage. Both carried rifles.

Dr. Cray ran out and asked the men what they were doing there. The driver said: “Shoot him. Shoot him.” It appeared that the other man, defendant, was positioning the rifle at him. Dr. Cray ran towards the back of the car to a tree. The men drove off and Dr. Cray noted their license number and telephoned the police. Inside the house, he found personal property, including a camera and vacuum cleaner, piled up in the middle of the den. Two rifles were missing. The rifles were later discovered by the police, in damaged condition, near Dr. Cray’s home.

In mitigation, defendant introduced evidence relating to his background and character.

Defendant’s sister, Lisa Gina Sanders, testified that there were six children in the family; defendant was the second oldest. The children lived with both of their parents in a public housing project. Their mother was kind and loving, but stem. She worked and kept the house clean. She was strict about rules; on one occasion, when defendant and Lisa sneaked out on Halloween to go trick-or-treating, she spanked them. Their mother became ill with leukemia in the mid-1960’s. Defendant helped to cook, clean, and take care of the other children. He and Lisa earned money by selling newspapers and doing yard work and other chores around the neighborhood. After their mother died, “it all just kind of went crazy.” Their father was lax about discipline. The children stayed out late; the house was filthy; their clothes were old and shabby. Lisa and defendant took care of the younger children. Defendant protected the other children from their older brother, who harassed and bullied them.

Defendant taught Lisa how to swim and to ride a bicycle and roller-skated with her. After he was placed in a foster home, he would return to his family home frequently. He was generous to his younger siblings.

Lisa testified that she loved her brother and that it was always a pleasure to visit him in jail and to know that she can go and see him. She also testified that it would mean something to her for him to be alive, even if he were locked in prison for the rest of his life.

Shirley Madison testified that she had known defendant since 1968. Defendant’s father did not know how to care for the six children. The house was not clean and was filled with broken appliances he collected. He did not discipline the children strictly. He drank alcohol around the children. Defendant showed no bitterness toward his father.

Lisa and defendant lived with Madison as teenagers; Madison eventually became their foster mother. While he lived with her, defendant was respectful and helpful around the house. He helped care for her children and they looked up to him. She remained in touch with him and received calls from him once or twice a week. She loves him as though he were her own child.

Both Lisa Sanders and Madison testified about defendant’s relationship with his child, “Ricky, Jr.,” who was five years old at the time of the trial. Defendant was excited about having a child. He lived with the infant and mother as a family. He did housework and took care of the child. He was firm but gentle with him. He intervened when the mother was too severe in discipline. He would speak to the child sternly, but did not spank or physically discipline him.

Defendant’s brother Adrian Sanders, who was stationed with the Army in Korea, obtained a leave and paid his own way back to testify. During his childhood he looked up to defendant as the provider and protector. Defendant and their other brothers would sometimes steal food to feed the younger children. Defendant gave Adrian money when he needed it and also gave him his first car. When Adrian was overseas with the Army, defendant wrote letters in which he urged Adrian not to get into trouble as he had. He told Adrian to make sure to take care of their father when he returned home and to look after Ricky, Jr. Adrian looked up to defendant and felt proud of him. He would want to be his friend even if he were not his brother. He loves him very much.

Dr. Michael Paul Maloney, a clinical psychologist and associate professor of psychiatry at the University of Southern California School of Medicine, testified that he had examined defendant’s school records and juvenile probation file records. He learned from the files that before defendant’s mother died in 1966, he performed adequately at school. After her death, when he was in junior high school, his behavior deteriorated; he became difficult to handle and his grades dropped. His record improved after he was placed in foster care, although there was a “negative attitude by the father” toward foster home placement that appeared to affect defendant’s performance at school. His grades deteriorated further after he returned to his father’s home.

II. Guilt Issues

Defendant raises a number of claims attacking the judgment as to guilt. As will appear, none is meritorious.

A. Motion to Change Venue

In August 1981, defendant’s then codefendant Franklin Freeman, Jr., moved for a change of venue; he also moved, in a separate motion, for funds, pursuant to Penal Code section 987.9, to conduct a jury venire survey. Defendant joined the motion for change of venue only. Both motions were denied. Defendant’s case was subsequently severed from Freeman’s.

In March 1982, defendant filed a renewed motion for change of venue based on pretrial publicity, or, in the alternative, a continuance. He did not request funds for a jury venire survey. The trial court denied the motion without prejudice, observing that defendant “can always renew your motion and the Court would consider it anew.”

During voir dire, only one of the venire members who had previously heard about the case stated that she might be influenced by pretrial publicity; she was dismissed for cause. At that time, the trial court observed: “The record is very clear that we have talked to almost 100 jurors and this is the first one, and you can correct me if you think that I am wrong, but I think this is the first that has indicated that she is so affected by pretrial publicity that her mind is made up. . . .1 think this is the exception that proves the rule that there has not been such persuasive [sz'c] pretrial publicity as to deny this defendant a fair trial in this county.” Defendant did not renew the motion for change of venue.

Defendant contends that the trial court erred in denying the motion for change of venue. He urges that the high percentage of venire members with knowledge of the case, coupled with “the recognition that juror assurances of fairness are of dubious reliability,” demonstrate prejudice.

The claim lacks merit.

Penal Code section 1033, in relevant part, provides: “In a criminal action pending in the superior court, the court shall order a change of venue: [