People v. Banks

Decision Date14 August 2014
Docket NumberNo. S080477.,S080477.
Citation331 P.3d 1206,59 Cal.4th 1113,176 Cal.Rptr.3d 185
Parties The PEOPLE, Plaintiff and Respondent, v. Kelvyn Rondell BANKS, Defendant and Appellant.
CourtCalifornia Supreme Court

Stephen M. Lathrop, Rolling Hills Estates, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two counts of first degree murder ( Pen.Code, § 187 ; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder ( §§ 187, subd. (a), 664 ), one count of forcible rape ( § 261, subd. (a)(2) ), one count of forcible oral copulation ( § 288a, subd. (c) ), one count of first degree residential robbery ( § 211 ), one count of first degree residential burglary ( § 459 ), and one count of attempted second degree robbery ( § 211 ). The jury also found true the special circumstances allegations of multiple murder, robbery murder, and burglary murder ( §§ 190.2, subd. (a)(3), (17)(A) & (G) ); the allegations that defendant personally used a firearm in the commission of each offense (former § 12022.5, subd. (a)); and the allegation that the attempted murder was committed willfully, deliberately and with premeditation ( § 664, subd. (a) ). Defendant was acquitted of a third murder count related to the killing of Michael Haney in a separate incident.

The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death in 1999. The trial court denied the automatic motion to modify the penalty ( § 190.4, subd. (e) ), sentenced defendant on the noncapital counts and enhancements, and imposed a sentence of death.

This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) As explained below, the conviction on count 2 of willful, deliberate, and premeditated attempted murder must be reduced to attempted murder. In all other respects, we affirm the judgment.

A. Guilt Phase
1. Prosecution Evidence
a) Crimes against Charles Coleman and Latasha W.(1) Latasha W.

Latasha W. testified that during the early morning hours of July 1, 1996, defendant raped her, shot her, and murdered Charles Coleman.

At 2:00 a.m., her friend Charles Coleman, a parapalegic confined to a wheelchair but able to drive, was driving her in his car to his house on Halldale Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began taking shopping bags from the car to the house. As she was returning to the car, Latasha W. saw defendant and another man approach Coleman's car from an alley around the corner of the street. Coleman appeared to know defendant and the other man. At Coleman's request, defendant pulled Coleman and his wheelchair up the three or four steps that led to the house.

Once inside the house, defendant stood directly behind Coleman and pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but the weapon did not discharge. Defendant pulled the trigger a third time, firing a single bullet into the back of Coleman's head. The impact caused Coleman to fall to the floor from his wheelchair.

Defendant grabbed Latasha W.'s arm and forced her into Coleman's bedroom where he demanded the location of Coleman's money and drugs. Latasha W. responded that she did not know where Coleman stored his drugs, but that he kept his money in a hole inside his mattress. Defendant instructed Latasha W. to kneel in the corner of the bedroom; he then threw the mattress on top of her. From underneath the mattress, Latasha W. could hear the two men rummaging through the bedroom.

Defendant eventually removed the mattress. He then led Latasha W. by the arm to the laundry room, where he unbuckled his pants while holding his gun in his right hand. Defendant then ordered Latasha W. to get on her knees and, after placing the gun on top of the washing machine, forced her to orally copulate him. He then ripped her shorts, forced her onto her hands and knees, and raped her. After ordering Latasha W. to lie down on her back, defendant raped her a second time.

Defendant then took Latasha W. into the kitchen, where the second man was standing with a third man. Defendant kept Latasha W. in the kitchen while the other two men rummaged through the house. Defendant and his accomplices referred to one another as "Blood," a term Latasha W. believed had gang significance. Although Latasha W. did not know if Coleman was a gang member at the time of his death, she was aware that he used to be affiliated with the Black Stone gang, a Bloods gang affiliate.

Latasha W. was led into the living room and forced to lie facedown on the floor. Using a telephone cord, the second man tied Latasha W.'s hands and legs. The men then searched the house for five to seven minutes until Latasha W. heard one of the men say they had found what they were looking for. The two accomplices exited the house, but defendant remained inside. Defendant shot Coleman again, striking him in the head. From a distance of approximately six feet, defendant shot at Latasha W. The bullet struck her ear as she lay facedown on the floor in the living room. Latasha W. remained motionless until she heard the three men drive away in Coleman's car. After waiting several minutes, Latasha W. ran outside the house to seek help.

At trial, Latasha W. identified defendant as the person who shot Coleman and sexually assaulted and shot her.

(2) Los Angeles Police Officer Martin Martinez

Los Angeles Police Officer Martin Martinez testified that around 3:00 a.m. on the morning of July 1, 1996, Latasha W. flagged him down in his patrol car on Slauson Avenue. Latasha W. told Officer Martinez that her friend had just been shot and that she had been raped and shot. She described the shooter as an African–American male who was approximately 27 years old, five feet nine inches tall, 180 pounds, and bald. She reported that the shooter was wearing a black jacket, a white T-shirt, and black or dark-colored shoes. The gun he was carrying was made of stainless steel.

(3) Madeline Marini

Madeline Marini testified that on July 1, 1996, she performed a sexual assault examination on Latasha W. at California Hospital. Marini collected oral, vaginal, and rectal swab specimens from Latasha W. and drew a blood sample. Latasha W. had physical injuries that were indicative of sexual assault, including redness, abrasions, and small broken vessels in the vagina. Latasha W. described the rape suspect as five feet nine inches tall, 170 pounds, bald, and wearing black clothes.

(4) Los Angeles Police Detective Sal LaBarbera

Los Angeles Police Detective Sal LaBarbera testified that on July 1, 1996, at about 3:30 a.m., he was notified of a homicide at 5835 South Halldale Avenue. LaBarbera responded to the crime scene with his partner, Officer Christopher Barling.

LaBarbera further testified that on August 7, 1996, he presented Latasha W. with a six-pack photographic array. As he was removing the six-pack from his binder and before he could place the photo array on the table, Latasha W. "blurted out that she already sees him, the person that she identified." Latasha W. then selected defendant's photograph and identified him as her and Coleman's assailant.

(5) Deputy Medical Examiner Pedro Ortiz

Deputy Medical Examiner Pedro Ortiz testified that he conducted an autopsy on Coleman's body on July 3, 1996. Coleman had been shot twice. One bullet entered the back of his head, passed through the back of his skull, and exited through the center of his head. Soot deposits and evidence of gunpowder on the entrance wound

suggested that this wound was made at close range. A second bullet entered the left side of his head above the left earlobe and exited through the right temple. This second wound was sustained from a distance of more than two feet.

(6) Criminalist Michael Mastrocovo

Michael Mastrocovo, a criminalist employed by the Los Angeles Police Department, testified that he was responsible for analyzing sexual assault evidence for criminal court cases. He testified that he analyzed the items in Latasha W.'s rape kit and found sperm on all three vaginal slides, the vaginal aspirate, and the rectal swab and slide. Sperm was also detected in a stain on the crotch area of Latasha W.'s underwear. On April 30, 1997, Mastrocovo sent the vaginal swab samples from Latasha W.'s rape kit, along with blood samples drawn from Latasha W. and defendant, to Cellmark Diagnostics (Cellmark) for DNA analysis.

(7) Dr. Robin Cotton

Dr. Robin Cotton, the director of Cellmark, testified that Cellmark conducted a DNA analysis of the vaginal swabs and blood samples submitted by Mastrocovo. The DNA from the sperm fraction of the swabs was compared to the DNA from defendant's blood sample; the DNA matched at all nine loci tested, meaning that defendant could not be excluded as the donor of the sperm sample. Latasha W. could not be excluded as a match with the DNA in the nonsperm fraction, which is consistent with the swab having been taken from her. Dr. Cotton testified that the combination of allele types common in the sperm sample and defendant's blood sample would occur in about one in 17 million people in the African–American population.

(8) Stipulation

The parties stipulated that a tattoo on defendant's left arm reads "HPB," which stands for Harvard Park Bloods or Harvard Park Brims. The Harvard Park Brims are a Bloods gang affiliate operating in an area of Los Angeles roughly bounded by Slauson Avenue, Vermont Avenue, Gage Avenue, and Western Avenue. The word "Blood" is a term commonly used between members of Bloods gangs.

b) Crimes Against Charles Foster
(1) Sandra Johnson and Yvonne...

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