People v. Bishop

• Decision Date: 08 April 1996
• Docket Number: No. B082840,B082840
• Citation: 51 Cal.Rptr.2d 629,44 Cal.App.4th 220
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 2495, 96 Daily Journal D.A.R. 3988 The PEOPLE, Plaintiff and Respondent, v. Robert J. BISHOP, Defendant and Appellant.

Page 629

51 Cal.Rptr.2d 629

44 Cal.App.4th 220, 96 Cal. Daily Op. Serv. 2495,

96 Daily Journal D.A.R. 3988

The PEOPLE, Plaintiff and Respondent, v. Robert J. BISHOP, Defendant and Appellant.

No. B082840.

Court of Appeal, Second District, Division 7, California.

April 8, 1996.

Certified for Partial Publication. ^*

Rehearing Denied May 9, 1996.

Review Denied July 10, 1996.

[44 Cal.App.4th 222] Peter Gold, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Donald J. Oeser, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Associate Justice.

Appellant, Robert J. Bishop, appeals his conviction for murder during the commission of a robbery. He contends the court's instruction, during deliberations, which permitted the jury to find the special circumstance allegation true on a theory of aiding and abetting deprived him of due process and effective assistance of counsel because counsel did not have an opportunity to address this newly introduced theory in closing argument. In addition, appellant claims there was insufficient evidence to support the convictions on an aiding and abetting theory but, if there was, it was error not to instruct the jury his liability as an aider and abettor ended when the stolen property was carried away to a place of temporary safety. Appellant also argues the trial court erred in failing to grant his motion to suppress evidence of a canvas money bag found in his home, and in allowing evidence he had often referred to the victim as a "black bitch." We affirm.

FACTS AND PROCEEDINGS BELOW

Appellant worked for the Stanley Smith Security company as a security guard. From October 26, 1991, to January 19, 1992, the security company assigned appellant to work as a guard for the "Parking Violations Bureau" located at 8835 West Pico Boulevard in Los Angeles. The public used this facility to pay traffic tickets and fines.

The victim, Effrage Davis, was the supervisor of the Parking Violations Bureau. Each day she would open the office between 7:00 a.m. and 7:30 a.m. Security guards were to arrive at 7:30 a.m. and other employees would arrive between 7:45 and 8:00 a.m. Davis let personnel into the office through the frosted glass back door.

In February 1992, Elwood Bush worked as a security guard at the Parking Violations Bureau. On February 28th, Bush arrived at about 7:15 a.m. and saw Davis' car parked outside the office. He parked in a parking structure and ate breakfast in his car. At 7:30 a.m. Bush went to the back door of the office and knocked. Normally, Davis would ask, "Elwood, is that you?" After Bush answered, "Yes," Davis would open the door and let him in. This time no one answered his knock, so he pushed on the door. The door opened and Bush went inside. He found Davis lying face down on the floor by the safe. Davis had been shot once through the back of the head. Davis died from the single gunshot wound.

The safe was empty except for a plastic bag containing checks, a small amount of cash and the stamp for the city seal. Bank bags containing the previous day's receipts of $16,677 were missing, as was the cashiers' $500 start-up money for the next day.

Appellant's wife, Heather, and appellant's friend, Gilbert Holguin, testified for the prosecution under grants of immunity. Appellant met Holguin when they both worked for the same company as security guards.

Appellant did not like Effrage Davis. She made him do tasks unrelated to his job as a security guard. She complained when he arrived late for work and otherwise caused problems for him at the Parking Violations Bureau. Appellant referred to Davis as a "big, fat, ugly, black, no-tooth, ugly bitch."

By August or September of 1991, appellant and Heather had serious financial difficulties. Certain bill collectors threatened Heather with legal action. Later Heather learned she was subject to criminal prosecution for numerous checks she had written which were returned unpaid for insufficient funds. In January of 1992, appellant told Heather of his plan to improve their financial condition. He and Holguin planned to burglarize the Parking Violations Bureau.

On February 24, 1992, Holguin brought a safe to appellant's and Heather's house in the trunk of his car. Appellant tried to open the safe using a stethoscope. When he failed Heather suggested they just steal the whole safe. Appellant rejected the suggestion because the safe at the Parking Violations Bureau was too big, too heavy and securely bolted to the floor.

Two days later on February 26, 1992, appellant and Holguin went to stakeout the Parking Violations Bureau. They arrived at about 6:35 a.m. and parked in the back of the building. After sitting in the car for awhile, appellant walked up to a wall, stayed there for a minute and returned to the car. He told Holguin that Davis had arrived at the office. They drove off.

During the drive home appellant told Holguin stealing money from the Parking Violations Bureau would solve his financial difficulties. He also told Holguin he would have to kill Davis to eliminate any witnesses to the crime.

When they arrived home appellant told Heather they could not just steal the safe and that he decided he would have to kill Davis. Heather asked him why and appellant replied, "because dead men tell no tales." Heather was not particularly bothered about stealing the money because they were "young and struggling financially." But she was shocked appellant would kill Davis and did not believe him.

The next day Holguin called Heather. Holguin claimed he tried to suggest alternatives for Heather and appellant to raise some cash. He suggested they borrow money from their parents. He also suggested appellant could help him sell marijuana. Heather rejected these suggestions because they needed a lot of money right away.

On February 28, 1992, appellant woke up at 5:00 a.m. and left the house. Heather woke up between 8:00 a.m. and 8:30 a.m. Appellant returned in Heather's car approximately 15 minutes after Heather got out of bed. Appellant was wearing a black leather jacket and black jeans and was carrying a motorcycle helmet and a gym bag. ¹

In the bedroom, appellant took out his gun, five rounds of ammunition and one empty According to Holguin, appellant called when he got home and said, "I did it." Within the hour Holguin arrived at appellant's and Heather's residence. Appellant and Holguin went into another room to talk. Appellant told him he went to the back door of the Parking Violations Bureau wearing his "equipment," meaning his firearm, boots, work pants, a leather jacket and leather gloves. Appellant said he knocked on the door and said, "Security." When Davis let him in she asked why he was not in uniform and asked what had happened to the other security guard. Appellant told her he was not coming in. Appellant pulled out his gun and ordered Davis to open the safe. He told her to turn around and "kiss the safe." Appellant then shot Davis in the back of the head. As appellant grabbed the money bags out of the safe he noticed blood gushed from Davis' head like a fountain. ³

                shell. 2  The gun smelled like gun powder.  Appellant emptied the contents of the gym bag on the bed.  The bag contained approximately $17,000 in bundled money, a deposit slip with notations of denominations of money on it, and a series of cloth bags with numbers on them.  Heather went to the bathroom and got sick.  She later returned to the bedroom and helped appellant count the money.  Appellant hid the cash in the base of a lamp in the living room.  Appellant put dust in the barrel of the gun to make it appear as though it had not been fired
                

When they reappeared Holguin told Heather there might be blood on appellant's clothes and to wash them immediately and take appellant's leather jacket to the cleaners. The two men then went into the yard and burned the money bags.

Appellant told Holguin he threw some latex gloves out of the car window after leaving the Parking Violations Bureau. He and Holguin drove in Holguin's car to retrieve the gloves. Holguin spotted the gloves in an alley near the Parking Violations Bureau. Holguin got out of the car and picked them up.

That afternoon appellant went to work as usual so nothing would look out of the ordinary. Before he left he gave Holguin $2,000 for a pound of marijuana.

In the following months Heather helped appellant spend the money. They paid outstanding bills and back rent. They had her car and his motorcycle repaired. They rented a car and took a trip to Mexico where they purchased clothes, fireworks and blankets. They purchased a boa constrictor and a pedigree dog. Appellant bought Heather a diamond ring and they later took a trip to Las Vegas. Heather told her cousin, who accompanied them on the trip to Mexico, their money had come from appellant's drug sales.

A month or two after the murder appellant became withdrawn. He had nightmares. He became violent and physically abusive toward Heather. He threatened to kill Heather if she ever told anyone about the murder, or if she had an affair with another man, or for any other good reason that warranted it. Heather had had an affair but claimed it had not been with Holguin, who she found scary and physically unattractive. Holguin also denied having an affair with Heather.

At some point Heather began to fear for her safety. On October 10, 1992, with her stepfather's assistance, she moved many of her and her children's belongings out of the house and placed them in storage. At Heather's and her parents' request, police watched the premises while they moved as much furniture and clothing as they could out of the house. Heather went to a battered women's shelter in northern California.

On ...