53 Cal.4th 535, S027094, People v. Elliott

Docket Nº:S027094.
Citation:53 Cal.4th 535, 269 P.3d 494, 137 Cal.Rptr.3d 59
Opinion Judge:KENNARD, J.
Party Name:The PEOPLE, Plaintiff and Respondent, v. Marchand ELLIOTT, Defendant and Appellant.
Attorney:Richard B. Mazer, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Sharlene Honn...
Case Date:February 02, 2012
Court:Supreme Court of California

Page 535

53 Cal.4th 535

269 P.3d 494, 137 Cal.Rptr.3d 59

The PEOPLE, Plaintiff and Respondent,


Marchand ELLIOTT, Defendant and Appellant.

No. S027094.

Supreme Court of California

February 2, 2012

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[137 Cal.Rptr.3d 72] Richard B. Mazer, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Sharlene Honnaka, Joseph P. Lee, Thomas C. Hsieh and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.


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[269 P.3d 505] Defendant Marchand Elliott 1 appeals from a judgment of death upon his conviction by jury verdict of one count of murder in the first degree (Pen.Code, §§ 187, 189),2 with the special circumstance of murder during the commission of a robbery (§ 190.2, subd. (a)(17)). The jury found him guilty also of one count each of robbery (§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)), and it found that he personally used a handgun to commit both the robbery and the assault (§ 12022.5). At the penalty trial, the jury returned a verdict of death for the murder. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and sentenced defendant to death.

This appeal from the judgment of death is automatic. (§ 1239, subd. (b).) We affirm the judgment.


A. Prosecution's Guilt Phase Case-in-chief

1. Robbery and assault at Boys Market

Around 9:45 a.m. on October 31, 1988, an armored car driven by a man named Ramirez 3 stopped in the parking lot of the Boys Market on North La Brea Avenue, in Inglewood, Los Angeles County. Joseph Swal, Ramirez's partner, got out to retrieve a shopping cart, which Ramirez then loaded with a box of coins and a canvas bag full of currency. Pushing the cart, Swal entered

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the store and walked to the courtesy booth, where he delivered the coins and currency, receiving in exchange some clear plastic bags containing currency and coins. Swal placed the plastic bags in the canvas bag, which he put in the shopping cart. He walked toward the store exit, where he removed the canvas bag from the shopping cart. As he was about to leave [269 P.3d 506] the store, Swal heard a mumbled voice, but he did not understand what was being said. Continuing to walk, he heard the voice again and felt a gun pressed against his right temple. The person holding the gun, who was identified at trial by a witness as defendant, said, " Drop it, drop it, drop the bag."

Swal dropped the bag. Defendant said, " Get down, get down on the floor, get down." As Swal was lying on the floor, defendant pulled Swal's revolver from its holster, picked up the canvas money bag, and started running toward the back of the store. As he was running, defendant encountered a store employee, Pierre Jacobs, near the end of one of the store's aisles. Defendant told Jacobs to " get back," and Jacobs immediately dropped to the floor. [137 Cal.Rptr.3d 73] As Jacobs was lying on the floor, he twice heard a sound he recognized as a gun's trigger being pulled, but no gun fired.

Holding a gun in each hand, and with the money bag tucked under his arm, defendant ran through the interior double doors leading into the store's warehouse area. Placing one gun against the right temple of Ardis Irvine, a store employee, defendant said, " Motherfucker, open the door now or I'm going to blow your damn head off." Irvine began rolling up the exterior warehouse door, but the door stuck. Defendant repeated his threat, pressed the gun harder against Irvine's head, and pulled back the hammer. When the door opened, defendant ran outside, jumped off the loading dock, and ran off. The store's manager, Wilson Colon, saw defendant run to a blue van waiting on Market Street. The van drove off after defendant entered on the passenger side. Colon reported the van's description and license number to the police.

Inglewood Police Officer Randy Goodro was driving a patrol car on the morning of October 31, 1988, when he received information about a robbery at a Boys Market on La Brea in Inglewood. The information included a vehicle description and license number. Around 10:30 a.m., Officer Goodro found a van matching the description in a carport behind an apartment building on North Market Street. The van, which had been reported stolen that day, was unoccupied and unlocked. After being examined for fingerprints, the van was impounded and towed.

2. Robbery and murder at Lucky Supermarket

Around 11:00 a.m. on December 15, 1988, an armored car driven by Howard Sands stopped near the front entrance of the Lucky Supermarket on

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Lakewood Boulevard in Bellflower. Since the store's opening, just eight days before, the armored car had arrived every day around the same time. Patrick Rooney, Sands's partner, got out of the armored car and entered the store to make a delivery and a pickup. Michael Fiamengo, the assistant store manager, met Rooney at the store's safe. Rooney delivered payroll checks and cash, receiving in exchange $64,184 in cash and around $30,000 in checks, which he put in a canvas bag. As he walked back through the store to the front entrance, Rooney carried the canvas bag in his left hand and his gun, held by his side and pointing down, in his right hand.

As Rooney was about to exit the store, a man identified as defendant at trial by 12 witnesses rushed up behind Rooney, put his left arm around Rooney's neck, and shoved Rooney's head into the glass door, shattering it. At the same time, defendant pointed a gun, held in his right hand, at the right side of Rooney's head and fired one shot, killing Rooney. After grabbing the canvas bag and Rooney's gun with his left hand, defendant then ran back through the store to the warehouse area. As he ran through the store, defendant shouted: " Get the fuck out of my way. Everybody get the fuck out of my way." When he reached the warehouse area, defendant pointed his gun at Lawrence Diehl, a store employee. Defendant ran outside through the receiving doors and across the street to the corner of Palm Street and Virginia Avenue, where he stopped and waited. A van pulled up, defendant got in, and the van drove off.

At 11:35 a.m. the same day, in an apartment complex parking lot on Palm Street in Bellflower, Los Angeles County Deputy Sheriff Ronald Dietrich found a van matching the description of the one used in the robbery [269 P.3d 507] . The engine was running, but no one was in or around the van. The van had been stolen six days earlier after its [137 Cal.Rptr.3d 74] owner had parked it on a street in the City of Rancho Cucamonga. A set of keys that the owner had left in the van was found next to Rooney's body at the entrance to the Lucky Supermarket. After determining that the van had been stolen, Sergeant Dietrich impounded it.

The van and its contents, including a plastic container lid and a tabloid newspaper, were examined for fingerprints by Los Angeles County Deputy Sheriff Ronald George. He found and photographed five fingerprints that he determined were made by defendant. Two of the fingerprints were on the container lid; the other three were on the tabloid newspaper.

An autopsy revealed that Patrick Rooney died of a gunshot wound to the head, the bullet entering through the right temple. When it was fired, the gun was in loose contact with Rooney's temple.

Janet Delaguila, a Lucky Supermarket employee, was one of the witnesses who identified defendant at trial as the perpetrator of the robbery and murder

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of Patrick Rooney. She testified that two days before those crimes, on December 13, 1988, she had seen defendant in the Lucky Supermarket and had recognized him as a regular customer of Courtesy Cleaners, a dry cleaning store in Compton, where she had previously worked. During the two years she had worked at Courtesy Cleaners, she had seen defendant approximately three times each week. On December 13, defendant had been in the company of a woman, and they were pushing a shopping cart. When she next saw defendant, on December 15, 1988, he was running through the Lucky Supermarket carrying two guns, one in each hand, and a bag. On December 15, 1988, about an hour after the murder, a police officer took her to the dry cleaning store in Compton to search for a record with defendant's name. She remembered only that defendant's last name started with the letter " E." They looked at several months of receipts but did not find anything helpful.

B. Defense Case at the Guilt Phase

Fourteen persons who had been present at Lucky Supermarket when Patrick Rooney was killed testified as defense witnesses. Before trial, none of them had unequivocally identified defendant as the person who shot Rooney, and immediately after the crime they had described the perpetrator's appearance, hair style, and clothing in ways that were arguably inconsistent with descriptions given by other witnesses. On cross-examination, however, six of these witnesses identified defendant in court as the person they had seen at Lucky Supermarket that day shooting Patrick Rooney or running through the store immediately afterward with guns and a canvas bag. Of the remaining eight, one testified that defendant was definitely not that person, one testified that he could not identify defendant in court, although he had tentatively selected defendant's photo from a photo array, and the other six...

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