People v. Abel

• Decision Date: 19 March 2012
• Docket Number: No. S064733.,S064733.
• Citation: 2012 Daily Journal D.A.R. 3558,271 P.3d 1040,53 Cal.4th 891,12 Cal. Daily Op. Serv. 3173,138 Cal.Rptr.3d 547
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Clyde ABEL, Defendant and Appellant.

12 Cal. Daily Op. Serv. 3173

138 Cal.Rptr.3d 547

2012 Daily Journal D.A.R. 3558

271 P.3d 1040

53 Cal.4th 891

The PEOPLE, Plaintiff and Respondent,

v.John Clyde ABEL, Defendant and Appellant.

No. S064733.

Supreme Court of California

March 19, 2012.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Kate Johnston and Mary K. McComb, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

A jury convicted defendant John Clyde Abel of the first degree murder of Armando Miller (Pen.Code, § 187, subd. (a)), also finding he had personally used a firearm in the commission of the offense ( id., § 12022.5, subd. (a)) and finding true the special circumstance that defendant had committed the murder during the course of a robbery ( id., § 190.2, subd. (a)(17)). It imposed a sentence of death. We affirm the judgment.

I. FACTS

A. Introduction

Armando Miller's family owned the Alameda Market in the City of Orange. Every Friday morning, Miller or his father withdrew either $10,000 or $20,000 from the Sunwest Bank in Tustin to provide check-cashing services to the market's customers. On Friday, January 4, 1991, Miller withdrew $20,000. A few moments later, an unidentified man in the bank's parking lot shot Miller once in the head, killing him. The man left, carrying a paper bag. The money was never recovered. Defendant was linked to the crime by the descriptions provided by witnesses who saw the man in the parking lot, the witnesses' selection of defendant's photograph out of photographic lineups, one witness's in-court identification of defendant, and a second witness's testimony that a photograph taken of defendant near the time of Miller's death was a photograph of the man she had seen. In addition, defendant admitted he had been in the market on at least one occasion, and there was evidence he was aware someone from the market typically withdrew large sums from the bank on Fridays. Further, a woman who had participated in a series of armed robberies with defendant later in 1991 testified defendant had told her about killing Miller and given her the murder weapon.

B. Prosecution's Guilt Phase Case

Police responding to reports of the murder found an expended .22–caliber shell casing close to Miller's body, but little other physical evidence. No one saw the shooting, but several witnesses reported seeing a man with a gun, or a man running from the vicinity of the shooting carrying a paper bag.

Detectives showed witnesses numerous photographs and many photographic lineups of men resembling the description of the gunman, but the witnesses reported that none was of the man they had seen. Detectives also interviewed Miller's family and showed them photographs, trying to discover if they knew anyone who might have been the killer, but again to no avail. The investigation was suspended after all leads had been exhausted without bringing the police any closer to identifying the killer. It was reopened on August 3, 1993, after Police Detective Nasario Solis received an anonymous telephone call from a woman who told him Miller was killed by a man named John Abel, who was then serving a long prison sentence for a series of bank robberies. Detective Solis learned that defendant was incarcerated in Folsom State Prison for a number of armed robberies. He obtained defendant's photograph and over the next year attempted to corroborate other information provided by the anonymous caller.

Detective Tom Tarpley picked up the investigation when he rotated into the homicide unit in 1995. In March 1995, he showed witness Bettina Redondo a photographic lineup containing defendant's photograph. Redondo picked defendant's photograph out, saying he was the man she had seen. Tarpley showed the photographic lineup to a second witness, Colleen Heuvelman, who immediately identified defendant as the man she had seen. Tarpley showed the photographic lineup to Miller's mother, America Miller, who reported having seen defendant in the market with James Gano, a regular customer who had also arranged mortgage loans for the business and was aware of the family's practice of obtaining funds on Friday mornings for the check-cashing aspect of the business. Tarpley also contacted Lorraine Ripple, who had been convicted of committing a number of armed robberies with defendant, asking her if she had any information about Miller's murder. Ripple said defendant had told her he killed Miller and had given her the murder weapon.

Linda Pratt, who had been a teller at Sunwest Bank, testified she cashed a $20,000 check for Miller on the morning of his death. A short time later, she heard a popping sound from outside the bank, looked out the window, and saw Miller lying on the ground. She also saw a person wearing a navy blue watchman cap and carrying a bag run away through a gap in the bushes outside the bank.

Bettina Redondo testified she was outside a building next to the bank when she heard what sounded like a gunshot and saw a man standing with his arm extended, holding in his hand a small, smoking gun. The man walked toward her through the bushes. She went back into the building, but watched the man, who passed within approximately 15 feet of her. She looked carefully so she could describe him to the police. He appeared to be in his late 40's or early 50's, was of medium build, and was carrying a brown bag with a holiday design that looked like it was from a grocery store. He wore a dark blue or black watchman cap over his ears and hair, a dark blue windbreaker, and loose trousers. Redondo estimated she observed the man's face for between 20 and 30 seconds. She recalled he was unshaven and had well-defined cheeks and jaw and the beginnings of a mustache.

Redondo related having worked with a police artist to put together a composite picture of the man she had seen, being shown “over a thousand” photographs and selecting a photograph of a man who later was identified as Larry Jones. But after viewing Jones in a live lineup, she realized he was not the gunman. In March 1995, Detective Tarpley showed her another photographic lineup. She picked out defendant's photograph, telling Tarpley “on the record” she was 80 percent certain defendant was the man, but “off the record” she was 100 percent certain he was the man. Redondo explained she had not wanted to be the only person to identify defendant. She did not identify defendant at trial, explaining she was not comfortable because so much time had passed. But she confirmed defendant's photograph was a photograph of the man she had seen.

Colleen Heuvelman testified she was working at the bank on the morning of January 4, 1991, but had to leave early to take care of her son, who was ill. She was acquainted with Miller and chatted with him for a moment on her way out. She left through a door to the parking lot, turned a corner, and nearly ran into a man standing there. Heuvelman got into her car but continued to watch the man while she put the seatbelt on her son and placed her keys in the ignition; she estimated she observed him for well over a minute. She kept watching because it was unusual to see anyone where the man was standing. She described him as a White male, approximately 46 to 48 years old, with high cheek bones, the mustache of a man who had not shaved in three or four days, thin lips, and very dark eyes. He wore a coat and a dark-colored watchman cap. He had a bit of graying hair sticking out from under the cap. When Heuvelman got home, she learned Miller had been shot in the bank's parking lot. She immediately called the police, telling them she thought she might have seen the gunman. The following day, and again about two months later, police showed Heuvelman a number of photographs, but although some resembled the man she had seen, his picture was not among them. In 1995, Detective Tarpley showed her a photographic lineup that contained defendant's photograph. She identified defendant almost immediately. She also identified defendant at trial, stating she was 100 percent certain he was the man in the bank's parking lot on the morning of January 4, 1991.

Lorraine Ripple, who had committed a large number of robberies with defendant, admitted to multiple convictions for robberies committed in 1987 and 1991. She also admitted she had been convicted of assaulting a prison guard, and stated she would be spending the rest of her life in prison. She said she had not been promised anything in return for her testimony and would not benefit from it; to the contrary, she believed her overall situation would be made more difficult. Ripple testified she had known defendant since the early 1960's and had spent time with him on and off over the years. In March 1991, after being released from prison, she lived for a while with Deborah Lankford. During that time, defendant spent five days a week with her. He was married at the time and spent weekends with his wife. Ripple reported that once when they were in bed together defendant told her he had killed someone in Tustin, telling her it was “an easy score, that he had hit a guy inside a bank, coming out. And [the victim] had a business, a little mini store ... and he cashed checks for a lot of ‘wetbacks'....” Ripple testified defendant had given her the gun he used to kill Miller, which she described as a .22–caliber automatic handgun that ejected casings. She later traded it to a Mexican connection for drugs.

Ripple stated defendant always had a mustache in 1991. He had a blue windbreaker and a navy knit watchman cap he wore with the cuff turned up. He used glasses for reading, but did not normally wear them at other times. When shown a June 1991 picture...