People v. Whalen

Citation294 P.3d 915,56 Cal.4th 1,152 Cal.Rptr.3d 673
Decision Date04 February 2013
Docket NumberNo. S054569.,S054569.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. Daniel Lee WHALEN, Defendant and Appellant.

OPINION TEXT STARTS HERE

A. Richard Ellis, Mill Valley, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Patrick J. Whalen, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

CANTIL–SAKAUYE, C.J.

A jury found defendant Daniel Lee Whalen guilty of the 1994 first degree murder (Pen.Code, § 187, subd. (a)) 1 and first degree robbery (§ 212.5, subd. (a)) of Sherman Robbins, and found true the special circumstance allegation that the murder was committed during the course of a robbery ( § 190.2, former subd. (a)(17)(i), now subd. (a)(17) (A)), and the allegation that defendant personally used a firearm in the commission of the offenses (§ 12022.5). Defendant admitted he had suffered three prior serious felony convictions (§ 667, subd. (d)), and had served four prior prison terms (§ 667.5, subd. (b)). After a penalty trial, the jury returned a verdict of death for the murder. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)), and imposed the death sentence for the murder and a prison term for the robbery and enhancements.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Facts

In March 1994, Sherman Robbins was house sitting for his brother, who was away on vacation. Late one evening, defendant and his accomplices, Michelle Lee Joe and Melissa Fader, gained entry into the home by pretending the car they had been driving had broken down. The three took numerous items from the house, and defendant shot Robbins as he lay on a couch with his hands tied behind his back. Joe and Fader were initially charged, along with defendant, with Robbins's first degree murder and robbery, but each agreed to plead guilty to lesser charges in exchange for her testimony against defendant.2 At trial, defendant attempted to place the blame for the murder on Joe and argued the evidence was legally insufficient to corroborate the accomplice testimony. At the penalty phase, defendant's attorney and an expert relayed to jurors defendant's expressed desire for the jury to impose the death penalty, but each made a case for sparing defendant's life.

A. Guilt Phase
1. The prosecution's case
a. Background and investigation

Sherman Robbins was an elderly diabetic man who normally lived alone in an apartment in Modesto. Sherman was kind to “street people and they were welcome at his apartment for food or a bath. In mid-March 1994, Sherman was house sitting at his brother Bill's house at 519 Nebraska Avenue in Modesto while Bill and his wife, Alvina, vacationed in Ireland. Bill's daughter-in-law, Shirley Robbins, occasionally visited Sherman at the Nebraska Avenue house and took him for blood tests.

On Saturday, March 19, Shirley was at the Nebraska Avenue house most of the day with other family members, helping Sherman clean the yard. A few days earlier, the family had rented a dumpster to facilitate the cleanup. Around noon, a man and a woman whom Shirley did not know, but who later were identified as Johnny Long and Michelle Joe, drove up in an olive green, late 1960s Ford Mustang, and stayed for a couple of hours. Sherman introduced Long as his cousin, and Long helped Sherman move a pole. Joe mostly stayed in the car with her three children, but went into the house at least once to get water or to take her children to the bathroom.

The next day, Sunday, Shirley spoke with Sherman on the phone about his doctor's appointment on Monday. On Monday, March 21, Shirley's daughter, Krista, arrived at the Nebraska Avenue house around 8:00 or 9:00 a.m. to take Sherman to the doctor. When Krista arrived, Joe was there going through the dumpster, while Joe's children played in the yard. Sherman told Krista that Joe was his cousin's girlfriend. After Krista dropped Sherman off for his appointment, she informed Shirley that Joe had been at the house. Shirley directed Krista to go back to the house and make sure the doors were locked. When Krista returned, Joe was no longer there. Krista checked the doors, but not the windows. As she was leaving, she noticed Joe and Long driving up again in the green Mustang. They stopped and gave Krista a “dirty look,” but Krista did not stop or speak with them because Sherman had said they could take some boxes from the house, and Krista assumed they were going to the house to retrieve the boxes.

Shirley spoke with Sherman by phone between 7:00 and 9:00 p.m. that evening. The following day, Tuesday, March 22, she tried to call him several times but he did not answer.

Shirley went to the Nebraska Avenue house early Wednesday morning. When she pulled up, she noticed two newspapers were in the driveway. Both the screen door and wooden front door were open. Sensing something “wasn't right,” she entered the house and discovered Sherman's dead body on the couch. She immediately called 911. When the police arrived, she told them about Long and a woman with long hair (Joe).

Stanislaus County Sheriff's Department Patrol Officer Brian Markum arrived at the scene about 8:00 a.m. Upon entering the house, he found Sherman's body on the couch, surrounded by blood. There was a large hole in Sherman's right temple. Markum determined Sherman was deceased and secured the crime scene.

Giles New, an investigator with the Stanislaus County Sheriff's Department, arrived at the scene around 9:00 a.m. and later that day became the principal investigator. Inside the house, he noticed a hole in the end of the couch near Sherman's head. Cotton material from inside the couch, as well as shotgun pellets, were on the floor. Sherman's senior citizen's identification card was in a wallet on a bed in the second bedroom.

Examining the exterior of the house, New found that a screen had been removed and placed on the ground below the windows of each of the two bedrooms on the south side of the house. One window was open in each bedroom. There was a fresh trail in the high, wet grass leading from the south side of the house to an area 30 to 40 feet from the brush pile at the end of the dirt road that extended south from Nebraska Avenue. Tire tracks extended along the dirt road and ended near the brush pile, and there were shoe tracks in that area. None of the tracks were ever matched to any tires or shoes.

Stanislaus County Sheriff's Department identification officer Dan Cron photographed the crime scene and processed it for fingerprints. He determined that a latent palm print taken from the back bedroom window on the south side of the house matched the rolled palm print of Melissa Fader.

Department of Justice Criminalist John Miller helped recover shotgun pellets and a “torn and chewed up” 20–gauge shotgun shell from the crime scene. The pellets were scattered all over the room in which Sherman's body lay on the couch, and a group of pellets had gouged a hole in the floor near the couch. Based on measurements of the height of the gunshot hole in the arm of the couch near Sherman's head, and the location of the hole gouged in the floor in relation to the couch, Miller determined the shot had been fired at an angle of approximately 30 degrees relative to the floor. Miller further concluded Sherman had been shot while lying in the position in which his body was found.

Department of Justice firearms expert Duane Lovaas later examined the pellets and partial shotgun shell recovered from the crime scene. He discovered there were two sizes of pellets, and that the shell had striations indicating it had travelled through the barrel of a shotgun. Additionally, the powder in the shell had not ignited. Based on this evidence, Lovaas concluded someone had loaded a 12–gauge shell behind a 20–gauge shell in a 12–gauge shotgun and then fired, propelling the 20–gauge shell through the barrel like a bullet, followed by the 12–gauge pellets. No firearm was given to Lovaas for comparison.

On Thursday, the day after Shirley found Sherman's body, forensic pathologist Thomas Beaver conducted an autopsy. He determined the cause of death was a shotgun wound to the right temporal area of Sherman's head. The presence of black, sooty material around the wound indicated the shot was fired at close range, probably from within inches. Sherman's hands were tied tightly behind his back with a twill-patterned necktie. Ligature furrows on the skin under the tie had the same pattern. The absence of bruising under the skin indicated there had been minimal struggle against the soft cloth. Beaver estimated Sherman had died 24 to 48 hours earlier.

When Bill and Alvina returned home from Ireland, they determined that a Remington 870 12–gauge shotgun and a .22–caliber rifle were missing from the gun cabinet. Also missing were a typewriter, a microwave oven, a small television set, a Magnavox CD player, a small tape player, a large peanut butter jar full of pennies, and a Makita grinder that had been stored in the barn behind the house. Bill identified People's exhibit No. 56, an item recovered in the murder investigation (see 152 Cal.Rptr.3d at p. 696, 294 P.3d at p. 934,post ), as his Makita grinder.

Investigator New arrested defendant in April 1994. Upon his arrest, defendant spontaneously said, “I was expecting to get picked up sooner or later. Sometimes the best place to hide is right under your noses.”

b. Events surrounding the murder

Defendant's accomplices, Joe and Fader, provided the principal testimony regarding the killing. John Richie and Rick Saso testified about events both before and after the killing. The testimony of these witnesses was consistent in many...

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3 cases
  • People v. Johnson
    • United States
    • United States State Supreme Court (California)
    • January 21, 2016
    ......The two groups of defendants are not similarly situated. ( People v. Whalen (2013) 56 Cal.4th 1, 91, 152 Cal.Rptr.3d 673, 294 P.3d 915 ; People v. McKinnon (2011) 52 Cal.4th 610, 698, 130 Cal.Rptr.3d 590, 259 P.3d 1186 ; People v. Watson (2008) 43 Cal.4th 652, 703–704, 76 Cal.Rptr.3d 208, 182 P.3d 543.) Nor does California's failure to adopt procedural safeguards ......
  • People v. Whalen
    • United States
    • United States State Supreme Court (California)
    • February 4, 2013
    ...56 Cal.4th 1294 P.3d 915152 Cal.Rptr.3d 673The PEOPLE, Plaintiff and Respondent,v.Daniel Lee WHALEN, Defendant and Appellant.No. S054569.Supreme Court of CaliforniaFeb. 4, See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 556 et seq.152 Cal.Rptr.3d 690]A. Richard El......
  • People v. Johnson, S178272.
    • United States
    • United States State Supreme Court (California)
    • January 21, 2016
    ...findings, does not violate the equal protection clause. The two groups of defendants are not similarly situated. (People v. Whalen (2013) 56 Cal.4th 1, 91, 152 Cal.Rptr.3d 673, 294 P.3d 915 ; People v. McKinnon (2011) 52 Cal.4th 610, 698, 130 Cal.Rptr.3d 590, 259 P.3d 1186 ; People v. Watso......

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