People v. Adcox
| Decision Date | 17 November 1988 |
| Docket Number | No. S004558,Cr. 23192,S004558 |
| Citation | 47 Cal.3d 207,763 P.2d 906,253 Cal.Rptr. 55 |
| Court | California Supreme Court |
| Parties | , 763 P.2d 906 The PEOPLE, Plaintiff and Respondent, v. Keith Edward ADCOX, Defendant and Appellant. |
Fred Caploe, Martinez, under appointment by the Supreme Court, and Linda F. Robertson, Burlingame, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert D. Marshall, Edmund D. McMurray, George M. Hendrickson, Ward A. Campbell and Michael T. Garcia, Deputy Attys. Gen., for plaintiff and respondent.
Defendant Keith Edward Adcox was convicted of the first degree murder of David Orozco (Pen.Code, § 187), 1 robbery ( § 211), and grand theft auto ( § 487, subd. 3). The jury made an express finding "that the murder was willful, deliberate, and premeditated." Defendant was found to have personally used a firearm in the commission of the robbery. ( § 12022.5). Two special circumstance allegations under the 1978 death penalty law were found true: that the murder was committed while defendant was engaged in the commission or attempted commission of robbery ( § 190.2, subd. (a)(17)(i)), and that the murder was intentional and carried out for financial gain ( § 190.2, subd. (a)(1)). The jury fixed the penalty at death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)
We conclude that the murder-for-financial-gain special circumstance must be set aside under People v. Bigelow (1984) 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994. In all other respects the judgment is affirmed.
On May 23, 1982, defendant, age 20, his girlfriend Annette Tillery, age 16, and acquaintance Howard Love, age 18, left Modesto to go on a camping trip in Tuolumne County. 2 Defendant brought camping and fishing gear, a knife, and his .22 caliber rifle. The group purchased dried beans and potatoes with $23 obtained from Tillery's uncle. A friend of defendant's drove them to Twain Harte. They hitched a ride up the mountain to Mi-Wuk Village, continued walking toward Long Barn, and eventually left the highway and made camp. Defendant used his rifle to shoot at small animals near the campsite.
The following day they walked to a campground at Lyons Lake and set up camp in an undesignated area. Tillery and Love cut into a tent and stole canned foods. The manager told them to move to a proper camping space. According to Tillery, defendant became upset that evening. Fearing he was "going to do something," she put his rifle under her coat and took a walk with Love. Upon their return, Love unloaded the weapon. The group stayed at Lyons Lake for two days. When advised they would have to pay for the campsite, they moved on.
On the fourth day they walked to the north fork of the Tuolumne River and set up camp alongside a footpath paralleling the river bank. Defendant had possession of his rifle which he kept in his sleeping bag. The three ate meals of beans, potatoes and fish caught by defendant and Love.
On the fifth day, May 27, Tillery became tired of eating potatoes and fish and announced she wanted cinnamon rolls. She suggested selling her coat to get money for them, but defendant and Love said no. Two fishermen, Richard Smith and the victim, David Orozco, walked past the campsite at different times. Smith spoke briefly with defendant about the fishing. Tillery offered to use herself as "bait" to set one of the men up for a mugging. Defendant refused, stating he was not interested in her plan. At one point Tillery asked if she could leave to hitchhike home alone. She then suggested that they hit someone over the head and throw him into the river to get some money. The matter was discussed; defendant and Love ultimately agreeing to rob someone in that manner.
Tillery walked out to the dirt parking area, observed two vehicles: a Volkswagen Scirocco and a small truck, and reported back to defendant and Love. Richard Smith testified that he fished for about an hour and again exchanged a few words with defendant about the fishing as he walked past their campsite en route back to his truck. Love then went to the parking area and returned, reporting that the Volkswagen was now the only car left in the area. After further discussion it was agreed that defendant and Love would rob the victim "to get some money to get back home and transportation." Love asked Tillery, "Are you ready for this?" She replied, "I am." Defendant told Tillery to stay at the campsite. Defendant took his rifle, Love picked up a "club" from the ground, and the two walked off in the direction taken by David Orozco.
Defendant and Love were gone 30 to 45 minutes when defendant came running down the trail and stated to Tillery, "Let's get out of here." Tillery asked "if the guy was dead"; defendant replied that he did not know. Defendant and Tillery quickly gathered their belongings and headed for the dirt parking area. Love followed "shortly behind." Love had the keys to the Volkswagen. They loaded their gear into the vehicle and Love drove off, with defendant in the passenger seat and Tillery on his lap. Tillery testified that defendant had the victim's wallet. He removed the money and threw the wallet out of the car. Defendant told Tillery he had shot Orozco, that it was "horrible," and that "there was blood bubbling out of his nose and mouth." 3
The group drove back to Modesto in the victim's Volkswagen. Defendant devised a plan to push the car into a canal. He enlisted the assistance of his brother, Michael Adcox, who was told to follow them to the canal in his own car to assist in disposing of "Love's" vehicle because "it had too many tickets on it." En route, defendant removed the in-dash stereo cassette player from the victim's car.
At the canal, defendant, Love and Tillery removed additional items from the vehicle, including the victim's red baby carrier, and placed them in Michael's vintage 1957 Chevrolet station wagon. Defendant and Love then pushed the car into the canal. Tillery was dropped off at her grandmother's house; she took her belongings and the baby carrier. When she asked defendant for some money, he obtained $5 from Love and gave it to her. Michael Adcox then drove defendant and Love to Love's father's residence in a trailer park. Defendant and Love told Michael not to tell anyone they were back in town. They offered to sell him the victim's car stereo for $50, but Michael declined. Defendant kept the stereo cassette player and gave it to friends with whom he was staying on the following day.
A farmer was disking his field on the evening of May 27 when he saw a vehicle partially submerged in the canal and a distinctive 1957 Chevrolet station wagon speeding away from the scene. He attempted to pull the Volkswagen from the water with his tractor and then notified the police of his find.
On the morning after the murder the body of David Orozco was discovered by another fisherman who alerted the Tuolumne County Sheriff's Office. An autopsy was performed and a .22 caliber bullet removed from the victim's head. Sheriff's divers found defendant's .22 caliber rifle in the river 100 feet upstream from where the body was found. Criminalist William Chisum reviewed the crime scene and physical evidence, and conducted experiments in an attempt to reconstruct the shooting. It was clear from the evidence that the victim was kneeling, looking down, and placing a salmon egg on his fishhook when he was shot from behind. Powder burns and other evidence established that the muzzle of the rifle was between six and ten feet from the entry wound when the fatal shot was fired from a ledge of rocks overlooking the victim's position. The victim fell on his face onto a rock directly in front of where he was kneeling. Bloodstains evidenced that he had been rolled over while still alive. His wallet, car keys and vehicle were missing.
An all-points bulletin was put out for the victim's Volkswagen. The investigation focused on defendant when his father learned that a car matching the description of his son Michael's 1957 Chevy station wagon was seen speeding from the site where the victim's car was pulled from the canal. Defendant's father and brother went to the Stanislaus County Sheriff's office where Michael furnished a statement regarding his involvement in defendant's and Love's attempt to dispose of the car.
On May 30, Tuolumne County Sheriff's deputies executed a search warrant at Tillery's grandmother's house and recovered the baby carrier stolen from the victim's vehicle. As they were leaving, defendant and Tillery were observed walking down the street. Tillery was taken into custody; defendant fled and managed to escape. He was apprehended the following day at the home of friends with whom he had been staying. The stereo cassette player stolen from the victim's vehicle was seized from the house. Tillery initially gave a false statement; thereafter she furnished a second statement admitting her role in the robbery and implicating defendant and Love in the crimes. She returned to the crime scene with police and also led them to the roadside location from which the victim's wallet was recovered.
At trial, the prosecution and defense entered into broad stipulations covering several major aspects of the People's case. The jury was told that the parties had stipulated to all of the following: that David Orozco was shot and killed on May 27, 1982; that the fatal bullet removed from his skull was fired by the .22 caliber rifle recovered from the river in the vicinity where his body was found; that defendant had brought the rifle into Tuolumne County on a camping trip; that on May 27 defendant, Love and Tillery left the scene near where the victim's body was found in the victim's vehicle; that defendant rode as a passenger in the vehicle to the location in Modesto where...
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