People v. Boyce

CourtUnited States State Supreme Court (California)
Citation175 Cal.Rptr.3d 481,330 P.3d 812,59 Cal.4th 672
Docket NumberNo. S092240.,S092240.
Parties The PEOPLE, Plaintiff and Respondent, v. Kevin Dewayn BOYCE, Defendant and Appellant.
Decision Date24 July 2014

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Christine Levingston Bergman and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

CORRIGAN, J.

Kevin Dewayn Boyce (defendant) and Andre Willis burglarized two businesses, robbing several people inside. During the first crime, off-duty peace officer Shayne York was killed. A jury convicted defendant of first degree murder with the special circumstances of killing a peace officer in retaliation for the performance of his duties and of murder during the commission of robbery and burglary.1 Because the jury found the peace officer special circumstance true, it necessarily concluded defendant fired the single fatal shot. Defendant was also convicted of two counts of second degree robbery and one count of second degree burglary in connection with that incident.2 On all charges defendant was found to have personally used a firearm.3 The second incident resulted in convictions of three counts of second degree robbery, three counts of attempted second degree robbery, and one count of second degree burglary, all with personal firearm use.4

Defendant was sentenced to death, and to a determinate term of 34 years four months in state prison.5 This appeal is automatic. We affirm in all particulars save one aspect of his determinate term. (Post, 175 Cal.Rptr.3d at pp. 532–536, 537–538, 330 P.3d at pp. 854–858, 859.)

I. FACTS
A. Guilt Phase
1. Prosecution

Shayne York and his fiancée, Jennifer Parish,6 were both Los Angeles County deputy sheriffs. On August 14, 1997, they were planning a trip to Las Vegas for Jennifer's birthday. Around 7:30 p.m., they went to the DeCut salon in Buena Park where Jennifer's sister, Amy, had agreed to style their hair. The three were alone in the salon. All neighboring businesses were closed.

Suddenly, Willis entered the shop wielding a semiautomatic handgun. Defendant followed closely behind, also carrying a handgun. When Willis yelled, "Get the fuck on the ground, whiteys," the three victims complied. The men demanded to know the location of the register. Amy directed them to the cash drawer, which contained about $11.

After checking the drawer, defendant became agitated and demanded to know "where is the fucking money?" Amy offered approximately $40 to Willis. York volunteered another $100. Defendant demanded York's wallet, kicking him when he did not respond quickly enough. Meanwhile, Willis yanked Jennifer off the ground, searched her pockets, and took her watch and engagement ring.

While searching York, defendant discovered his sheriff's badge and said, "Well, well, well. Look what we have here, a mother fucking pig." Defendant demanded to know where York worked. York replied, "Wayside" and "East Facility."7 Defendant, who previously had been incarcerated there, asked York if he "liked to treat nigger Crips like shit in jail?" York responded, "No, sir." Defendant retorted, "No, I know you like to treat us nigger Crips like shit in jail." York again responded, "No, sir." Defendant demanded and received the personal identification number (PIN) for York's automated teller machine (ATM) card.

One of the robbers said, "Fuck the whitey," and a shot was fired. York collapsed, bleeding profusely. Someone then declared that he had always wanted to kill a cop and that he hoped this one died. Neither Jennifer nor Amy saw the gun being fired, but both women believed that defendant had shot York based on the relative positions of the robbers.

As York lay dying, Willis rummaged through Jennifer's purse looking for her ATM card. Discovering her badge, he announced, "We've got another mother fucking pig in here." He asked which of the two women was the "other fucking white pig," and Jennifer raised her hand. Willis said, "Don't worry, bitch. We're not going to shoot you. You're a fucking woman." At his demand, Jennifer turned over her ATM card and said the PIN was written on the sleeve. The men left.

York had been shot in the head. Jennifer held him while Amy called 911. Both women spoke to the operator. York ultimately died from a single gunshot that penetrated his brain. The position of the wound

was consistent with the shooter standing over York and firing as he lay facedown.

The same night, around 10:00 p.m., Edward Tharp, Sean Gillette, Mark Cook, and Christopher Pierce were having a late dinner at Lamppost Pizza in Yorba Linda. Employees Rodney Tamparong and Ernest Zuniga were preparing to close. While emptying the trash, Tamparong noticed Willis and defendant in a Ford Mustang. One said, "Hey, come over here." Fearing they intended to rob him, Tamparong hurried back to the restaurant. Willis gave chase. Tamparong tried to close the door. Willis forced his way in and yelled, "Get on the floor, mother fuckers."

Willis opened the back door, and defendant entered carrying a semiautomatic firearm. Willis emptied the cash register, then forced Zuniga to open the safe. In total, Willis stole $483. Meanwhile, defendant robbed the restaurant patrons at gunpoint, demanding their wallets and declaring, "Look at all the white boys that we got on the floor," and "gotcha boys." Defendant kicked Tharp, Pierce, and Cook, and held a gun to Gillette's head. Tharp produced his wallet containing $80. Pierce likewise surrendered his wallet. Cook concealed his money in a pocket and maintained he had none. Gillette also said he had no wallet, but he offered a duffle bag. Defendant took nothing from Cook or Gillette.

When defendant asked if the men were cops, Cook said they were teachers. Defendant asked what he taught, and Cook replied "special ed." Defendant responded, "I was in special ed class." At that point, the tension lessened. Tamparong overheard defendant's question about police officers and hid his park ranger badge under a table. When Willis demanded Tamparong's wallet, he denied having one. Willis searched him, took nothing, and the robbers left.

At 10:40 p.m., in response to a suspect vehicle description, a Fullerton police officer stopped the Mustang. Willis drove with defendant as the sole passenger. At the detention scene, Tharp identified them as the Lamppost robbers. Tamparong identified Willis. Amy recognized Willis's clothing and build, but could not identify his face. At a subsequent live lineup, Tharp identified Willis and defendant as the robbers, and Amy identified Willis.

A search of Willis uncovered $756 and Jennifer's watch. Defendant carried $253 and three gloves. Hidden in the Mustang's center console, officers found credit cards belonging to Jennifer and York. A loaded semiautomatic and a loaded revolver were hidden behind the speakers in the backseat. Under the trunk lining officers recovered Willis's driver's license, registration for the Mustang, York's ATM card, and a DeCut Hair Salon business card with York's PIN written on it. The ATM card had been used to make a $200 withdrawal from York's account at 9:41 p.m. on August 14, 1997, at a bank located in the same mall as the Lamppost. Willis's fingerprint was found on York's Visa card. Despite an extensive search in several locations, Jennifer's engagement ring was never found.

The revolver hidden in the Mustang had an expended round in the chamber in line with the barrel. Ballistics testing confirmed it was the murder weapon. Defendant's right index fingerprint was found just above the grip. Several witnesses identified the recovered semiautomatic as similar to the one used in both robberies.

On August 15, 1997, Willis and defendant were placed together in an interview room where their conversation was covertly recorded. Willis told defendant that they were being investigated for attempted murder and robbery. He said that the police had pictures of "take out," slang for a handgun. Defendant responded, "They found em? ... Dang." Willis told defendant, "We ain't gonna say nothing, we're gonna ride this shit out man," and "when the mother fuckers come and talk, I'll put it on a third person.... I ain't going down for no mother fucking watch coward."8 Defendant asked, "Well who's the third mother fucking person?" and "Are you going to make up a story now?" Defendant said he as well "sure ain't doing [attempted murder] for no mother fuckin' watch coward." Willis replied, "I'm telling you this, I'm gonna ride it out, ok. But, in the end result in trial time (inaudible) both of us don't need to go to hell for this shit." Defendant replied, "Keep it down. Popo is sittin' right there. Man, two strikes, that's 25 anyway. We're totally fucked." A few minutes later, however, he observed, "Oh man, they can't prove it.... They can't prove a mother fuckin' thing. It's my word against they mother fuckin' word." Defendant then asked, "how can they put this shit on somebody, though? Who the nigga supposed to attempted murder anyway? ... Female, male, what?" Willis responded, "Some mother fuckin' male, police." Defendant replied, "Male police? What mother fucker that bold? I didn't kill no police. Damn."

On August 17, 1997, district attorney investigator Douglas Kennedy and Police Detective Ruben Gomez interviewed defendant. Defendant initially maintained his innocence. He claimed that the money he had when arrested came from gambling and selling marijuana. Kennedy told defendant that he had plenty of evidence linking defendant to the shooting of Deputy York and urged him to tell his side of the story. Defendant retorted that crooked officers had planted evidence against him.

Defendant then volunteered that if he...

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