People v. Ashmus

Decision Date05 December 1991
Docket NumberNo. 25643,No. S004723,S004723,25643
CourtCalifornia Supreme Court
Parties, 820 P.2d 214 The PEOPLE, Plaintiff and Respondent, v. Troy Adam ASHMUS, Defendant and Appellant. Crim.

Linda F. Robertson, under appointment by the Supreme Court, Burlingame, and Charles Bush, San Francisco, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., John H. Sugiyama, Asst. Atty. Gen., Dane R. Gillette, Herbert F. Wilkinson and Ronald S. Matthias, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOSK, Justice.

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 August 17, 1984, the District Attorney of Sacramento County filed an information against defendant Troy Adam Ashmus in the superior court of that county.

Count I charged that on May 19, 1984, defendant murdered Marcella D. in violation of Penal Code section 187. It was alleged that he committed the offense under the following special circumstances: (1) felony murder in the course of rape under Penal Code section 261, within the meaning of Penal Code section 190.2, subdivision (a)(17)(iii); (2) felony murder in the course of sodomy under Penal Code section 286, within the meaning of Penal Code section 190.2, subdivision (a)(17)(iv); and (3) felony murder in the course of a lewd or lascivious act on the person of a child under 14 years of age under Penal Code section 288, within the meaning of Penal Code section 190.2, subdivision (a)(17)(v). Counts II, III, and IV charged, respectively, that on that same date defendant engaged in rape, sodomy, and lewd or lascivious conduct against the same victim, in violation of the statutory provisions cited above--specifically, as to rape, former subdivision (2) (current subd. (a)(2)) of Penal Code section 261 (Stats.1983, ch. 949, § 1, p. 3416); as to sodomy, subdivision (c) of Penal Code section 286; and as to lewd or lascivious conduct, subdivision (b) of Penal Code section 288.

Defendant pleaded not guilty to the charges and denied the special circumstance allegations. On his motion, the court subsequently changed venue from Sacramento to San Mateo County.

Trial was by jury. The jury returned verdicts finding defendant guilty as charged, determined the murder to be of the first degree, and found all the special circumstance allegations true. It subsequently returned a verdict of death. The court entered judgment accordingly, sentencing defendant to death for the murder and to full, separate, and consecutive middle terms of six years in prison for each of the three noncapital offenses.

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

I. FACTS
A. Guilt Phase

Most of the basic facts relevant here were essentially undisputed at trial.

About 4 o'clock on the afternoon of Saturday, May 19, 1984, Marcella (Marcie) D., who was 7 years of age, rode to Howe Park in Sacramento on her bicycle. There she met her brother Arby, age 10, who was responsible for her, and Arby's friend Ernesto (P.J.) G., age 9. Arby and P.J. walked to a pond to fish from a dock, and Marcie went to play with some children within a few feet of the boys.

Defendant, who was 22 years old, approached Arby and P.J. as they were fishing. For the past few days he had been camping in an area in adjacent Santa Anita Park called Stoner's Pit, a site that was filled with litter but also secluded and covered with vegetation. He gave the boys advice and help in their fishing, and stayed nearby.

About 5 or 5:30 p.m., Arby and P.J. walked to the park clubhouse. Marcie soon rode up. She said that she was going off to Santa Anita Park with defendant: he had told her that he knew of a duck's nest there, and that he would give her a duckling if any had hatched. The boys said that she should return in about an hour.

Defendant and Marcie proceeded to Stoner's Pit. Once there, he subjected her to a fatal attack. He raped her and perhaps also penetrated her with some foreign object, making a very large tear through the length of her vagina to within a quarter of an inch of her rectum. He sodomized her, inflicting two small wounds in the anal or rectal tissue. He possibly committed oral copulation by inserting his penis into her mouth. He evidently ejaculated over her body. He stuffed into her mouth and throat material including two plastic bags, a piece of cellophane about six inches long and two to three inches wide, and a pair of red shorts she had been wearing; the bags were wedged side-by-side in separate tight wads deep in her throat with the cellophane in between; the shorts were tightly compressed within her mouth; the bags obstructed her throat and caused her to die by asphyxiation. Covering her naked body with a carpet remnant he had used for a sleeping mat during his stay at Stoner's Pit, he fled the scene.

When Marcie did not return as she had been told, Arby and P.J. became concerned. They searched without success. Arby telephoned his father. He too searched without success. The police were called in. About 8:30 p.m., a neighborhood man who was assisting the officers found Marcie's body. Within a few hours, defendant was arrested. He had fresh abrasions on at least one of his hands. It does not appear that the duck's nest of which defendant spoke had ever existed.

Although most of the basic facts were essentially undisputed, one was strongly contested: intent to kill. The People sought to prove intent by evidence including the manner and means defendant used to kill Marcie. By contrast, defendant, who took the stand himself, expressly denied intent. In his testimony, he generally confessed his culpability, admitting that he had lied in extrajudicial statements to the police and others in which he attempted to avoid responsibility and even tried to shift blame to his brother Tracy, who was three years younger. All the same, he asserted that Marcie's death was accidental.

Beyond the basic facts set out above, the People and defendant disputed the proper characterization of the events.

The People attempted to prove that defendant was especially cruel and his attack singularly brutal. They relied largely on the established circumstances of the offenses.

For his part, defendant tried to show the opposite. For example, he testified to the following effect: he had consumed marijuana on the day in question; not long after reaching Stoner's Pit with Marcie, "something right then and there hit me"; he asked her to take her clothes off, and she complied; he then took off his own; his intention was "[j]ust to make her happy"; at first, she did not resist "because all I was doing was I was like a man would regularly treat a woman"; during what he called "the process of making love to her," he did "nothing that would be harmful"; "Let's put it this way," he continued, "when I make love to a woman--one of my girlfriends--she don't have no complaints at all"; soon, however, Marcie's eyes began to flow with tears and she cried for help; "[a]bout two seconds later someone walked by and yelled out, 'Did someone holler for help?' "; he then pushed the plastic bags into her mouth, but only "to keep her quiet"; after the act, he cleaned himself off and dressed; "I believe she was still moving when I finally left"; he did not remove the bags from her mouth because "I forgot they were there"; he covered her with the carpet remnant "out of courtesy"; he felt remorse and shame, apparently from the very moment he did the deed; and he stated that he preferred to refer to Marcie as a "person" because "I'm tired of people using the word 'child.' "

B. Penalty Phase

In their case in aggravation, the People introduced evidence to prove that defendant suffered two felony convictions: the first, in 1981, for burglary in the second degree in violation of Penal Code sections 459 and 460, in Kern County; and the second, in 1985, for assault with intent to commit rape in violation of Penal Code section 220, in Sacramento County. They also presented evidence to establish the facts underlying the latter conviction. Lisa Cronin, the victim, testified that in the early hours of May 19, 1984--the date of the crimes against Marcie--defendant attacked her, and in fact bruised and sprained one of her arms; he announced his intent to commit rape; but he fled without accomplishing his purpose when bystanders came to her aid.

In his case in mitigation, defendant introduced evidence to generally describe his background and character, from before birth up until the time of trial. The testimony, given by lay witnesses as well as psychiatric and psychological experts, painted the following picture: defendant suffered abuse and neglect from his earliest years at the hands of his father and mother; his parents had a troubled and unhappy marriage, which was dissolved when he was about 17 or 18 years old; he was an emotionally and behaviorally disturbed child, youth, and adult; over the years, he had been cruel to animals and hurtful to his peers; he had experimented with drugs; he was friendless, angry, and refractory; and he may have experienced organic brain damage or impairment. Further, the evidence supported an inference that he may have been under the influence of some mental or emotional disturbance at the time of the crimes. It also showed that his burglary conviction arose from petty, nonviolent criminal conduct. In addition, it suggested that he would not be dangerous in prison if his life were spared.

In rebuttal, the People introduced evidence through the testimony of a psychologist who opined that defendant had not, in fact, experienced organic brain damage or impairment.

II. JURY-SELECTION ISSUES

Defendant raises a number of claims bearing on the process of jury selection in order...

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