People v. Boyd

CourtCalifornia Court of Appeals
Citation271 Cal.Rptr. 738,222 Cal.App.3d 541
Decision Date25 July 1990
Docket NumberNo. E005961,E005961
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Glenn L. BOYD, JR. and Anthony Thomas, Defendants and Appellants.
OPINION

DABNEY, Associate Justice.

A jury found Glenn L. Boyd, Jr. and Anthony Thomas guilty in count 1 of first degree murder (Pen.Code, § 187, subd. (a)) 1 and in count 2 of second degree robbery (§ 211). The jury found not true the special circumstance allegation that Boyd committed the murder during the commission of a robbery (§§ 211/190.2, subd. (a)(17)) and the special allegations that Boyd personally used a firearm (§§ 1203.06, subd. (a)(1)/12022.5) and that Thomas was a principal in the commission of the crimes in which his coparticipant was armed with a firearm (§ 12022, subd. (a)). The trial court sentenced Boyd to state prison for a term of 25 years to life on count 1 and a concurrent 5-year term on count 2. The court sentenced Thomas to a term of 25 years to life on count 1, a consecutive 1-year term on count 2, and a consecutive 5-year term for a separate conviction for sale of a narcotic substance.

On appeal, both defendants contend that (1) the trial court failed to instruct the jury on the elements of aiding and abetting a crime; (2) an Aranda 2 violation and the breach of an agreement by the prosecutor occurred when defendants' statements which implicated each other were admitted in their joint trial; (3) the trial court failed to instruct the jury sua sponte on the lesser included offense of second degree murder; (4) the trial court erred in several evidentiary rulings; (5) the prosecutor committed prejudicial misconduct in closing argument; and (6) the prosecutor failed to disclose evidence favorable to the defense until after the trial was over.

Boyd contends that the prosecutor acted in bad faith by questioning defendants without a reasonable basis for believing the underlying facts to be true. Thomas contends that (1) the trial court improperly admitted an identification of Thomas which was the product of an unduly suggestive lineup; (2) the court failed to instruct the jury that the flight instruction applied only to Boyd; (3) the consecutive sentences for robbery and felony murder violate section 654; and (4) the trial court failed to state proper reasons for imposing consecutive sentences.

FACTS

On September 9, 1987 at about 12:50 a.m., Kenneth Burley, a driver for Domino's Pizza in San Bernardino, left to deliver a pizza to an apartment at 2004 McKinley Street in San Bernardino. Kurtis Hobel was sitting on the lawn on front of his family's apartment at the corner of 20th Street and [222 Cal.App.3d 549] McKinley talking to Lisa Lopez. Kurtis Hobel's sister, Hope Hobel, was also there with a friend, Kelly Evans. The moon was almost full, the sky was clear, and street lights were on. Kurtis Hobel saw a blue pickup truck park at an angle on the left side of McKinley. 3 Burley, wearing a Domino's Pizza shirt and matching baseball cap, got out of the truck. Burley left the truck's headlights on and walked toward an apartment complex. Two men, whom Kurtis Hobel later identified as Boyd and Thomas, approached Burley, who stood with his back to Kurtis Hobel. Boyd stood on Burley's left and Thomas on Burley's right, facing Burley. Boyd held a clear bottle and took a drink from it.

Kurtis Hobel heard the words, "Give me," and "Money." He then heard, "I don't have any." Burley put his hands in his front pants' pockets, pulled them out and raised them palms up. Kurtis Hobel did not see Burley give Boyd and Thomas anything, but he heard something like, "Is that all." Burley simultaneously tapped his rear pants' pockets with his hands. Boyd then struck Burley in the face with his right hand and Thomas kicked Burley between the legs. When Burley bent forward and grabbed his groin, Boyd raised his right hand. Kurtis Hobel saw a flash

on Burley's left and heard a gunshot, but did not see a gun. Burley fell to the ground. Boyd and Thomas went north on McKinley. Kurtis Hobel heard a car door shut and saw a white Chevrolet Blazer which had been parked on McKinley drive away. He did not see anyone in the Blazer, but told the police that Boyd and Thomas could have been inside

Burley died almost instantly from a gunshot wound to the heart. The wound was caused by a bullet which could have been anything from .30 to .44 caliber.

When the shooting occurred, Hope Hobel and Evans jumped up because the bullet appeared to ricochet on the curb close to them. A .44 caliber bullet was later found in the gutter near where they had been sitting. The bullet matched bullets found in the trunk of a car which belonged to a friend of Boyd. However, the murder weapon was never found.

Detective Craig Keith of the San Bernardino Police Department investigated the crime scene. He discovered a clear glass bottle partly full of beer lying a few feet from Burley's body. The label had been torn off the bottle. A latent fingerprint lifted from the bottle was identical to that of Boyd's right middle finger. Keith found an Old English 800 beer bottle at the base of an apartment building nearby. Investigators also found torn pieces of a [222 Cal.App.3d 550] beer bottle label and several coins scattered on the ground near Burley's body. A latent fingerprint lifted from one of the pieces of label matched that of Mark Miles' right thumb. Burley's pants' pockets were turned inside out.

Kurtis Hobel told a police officer that night that he would be unable to identify the assailants because he did not see their faces. He also stated that all Blacks look alike in the dark. At trial, he explained that he told the officer he would be unable to identify anyone because he was ambivalent about becoming involved, and he was concerned for his family's safety. He stated that the second remark was a joke.

At trial, Kurtis Hobel testified that the man who shot Burley was 5'9"' to 5' 10"' tall and weighed 165-170 pounds, wore light colored clothing and had curly, wet-looking hair. The man who stood on Burley's right was an inch or two taller and lighter complexioned than the shooter, but weighed about the same, and wore dark jeans, a light shirt, and a visor. Right after the shooting, Kurtis Hobel had described the second man as four to five inches taller than the shooter. 4 Kurtis Hobel also testified that both of the assailants had worn their hair in a "Jheri-curl" style.

In late November 1987, Kurtis Hobel viewed photographic lineups which included Thomas's and Boyd's photographs. He did not identify anyone. On December 2, 1987, Kurtis Hobel, Lopez and Evans viewed a six-person live lineup. Kurtis Hobel identified number 5, Thomas, as the man who had stood on Burley's right during the shooting. Neither Lopez nor Evans could identify anyone. Two days later, Kurtis Hobel viewed a second live lineup. He identified number 3 as the second assailant. Boyd was in number 4 position. At trial, Kurtis Hobel testified that he thought number 4 also resembled the assailant. Evans also attended that lineup but failed to identify anyone.

Thomas was arrested on September 10, 1987 during a routine traffic stop. En route to the Medical Center for a pre-jail checkup, Thomas volunteered that he did not shoot the delivery man, but that "G-Bo" had. Mark Miles was also arrested in connection with the shooting. 5 n

On September 13, 1987, Keith interviewed Paris Reeves, who knew of Thomas' and Miles' arrests. Reeves volunteered that the third person involved was Boyd, also known as G-Bo. Reeves said he had seen G-Bo, [222 Cal.App.3d 551] Thomas and another person in the alley west of McKinley about an hour before the shooting, and that Boyd had a "Dirty Harry" style handgun. At trial, Reeves denied that he told Keith he had seen defendants near the crime scene,

that Boyd had had a gun, or that either Thomas or Boyd had shot the victim

Burley's supervisor testified that when Burley started his shift in the evening of September 9, he received a $20 "bank" to use to give change to customers. When he left to make the delivery, he was wearing a watch and a gold chain. No watch, chain or money was found on Burley's body. The pizza and carrier bag were never found.

Angelina Garcia testified that she lived with her three sons at 2178 East 19th Street. Shortly before Burley was killed, Thomas, known to her as "Commando," knocked at her door. Boyd waited in a green car with a woman. Thomas asked for Angelina Garcia's son, Johnny Demison, who was not there. Thomas kept insisting that Johnny was there and opened his jacket to display a gun. Angelina Garcia and her relatives told Thomas to go away. Thomas ran down the street away from the car. Angelina Garcia reported the incident to the police. Angelina Garcia testified that she later received a telephone call from her son, Johnny Demison, telling her not to testify. He told her that the guys involved had money, and someone would get hurt. He mentioned Commando and G-Bo.

An officer testified that at about 12:25 a.m., he contacted Angelina Garcia in response to a report of a disturbance. The officer asked her if any weapons were involved, and she told him she had not seen any. He did not interview anyone else.

Hayward Demison, Angelina Garcia's brother, corroborated her testimony, except that he stated Thomas came to her door between 8 and 9 p.m., and that Boyd was...

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