People v. Cain

• Decision Date: 04 May 1995
• Docket Number: No. S006544,S006544
• Citation: 40 Cal.Rptr.2d 481,10 Cal.4th 1,892 P.2d 1224
• Parties: , 892 P.2d 1224 The PEOPLE, Plaintiff and Respondent, v. Tracy Dearl CAIN, Defendant and Appellant.
• Court: California Supreme Court

Page 481

40 Cal.Rptr.2d 481

10 Cal.4th 1, 892 P.2d 1224

The PEOPLE, Plaintiff and Respondent, v. Tracy Dearl CAIN, Defendant and Appellant.

No. S006544.

Supreme Court of California In Bank.

May 4, 1995.

Rehearing Denied July 19, 1995.

Willard P. Norberg, Cooper, White & Cooper, San Francisco, for defendant and appellant.

Linda C. Johnson, Office of the Atty. Gen., Los Angeles, CA, for plaintiff and respondent.

WERDEGAR, Justice.

Defendant Tracy Dearl Cain was convicted following a jury trial of the first degree murders of William and Modena Galloway (Pen.Code, § 187, subd. (a), 189). ¹ The jury found true robbery-murder, burglary-murder, attempted-rape-murder and multiple-murder special-circumstance allegations. (§ 190.2, subds. (a)(3) & (17).) Defendant was also convicted of two counts of burglary (§ 459) and one count of robbery (§ 211), but was acquitted on a charge of rape (§ 261). The jury fixed the penalty for each murder at death. After denying the motion for modification of the penalty verdict, the court entered judgment accordingly. The present appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

GUILT PHASE FACTS

Prosecution's Case

1. The Victims

Prior to the weekend of October 17, 1986, Modena Shores Galloway and William Jefferson Galloway lived in Oxnard. Their next door neighbor was Persey Cain, the father of defendant. Mr. Galloway, 63 years of age, had injured his back and was in poor health. Since Mr. Galloway was unable to work on his own car, his son, William, and Persey Cain had sometimes repaired the car in the Galloway driveway with the garage door open. Defendant observed some of these repairs.

Mr. Galloway had a habit of keeping large amounts of cash in his house. When he received his monthly disability check, which ranged from $1,500-$2,000 per month, he placed $200-$300 in a savings account and retained the remainder in cash. He paid all of his bills in cash and did not have a checking account. Mr. Galloway had shown his son-in-law, Kenneth Mehaffie, a brown wallet containing approximately $1,000, which he kept in the desk next to the bed. He also kept a black wallet containing less cash on his person.

Mrs. Galloway stored her jewelry in a small wooden box with a sliding top. The On Monday, October 20, 1986, the Galloways' son, William, found them dead in their home. William entered the house through the garage. The door between the garage and the kitchen was broken off its hinges. William found his father's body lying in the hallway to the living room. Dried blood was on the wall. William found his mother's body in her bedroom. Again, dried blood was splattered on the wall.

[892 P.2d 1234] Galloways also owned a Sanyo beta videocassette recorder (VCR), which was kept in Mr. Galloway's room. The Galloways kept a child-sized rocker in the living room of their home for their grandchild. Their home was equipped with several night lights that turned on automatically and remained on when the Galloways retired. These night lights provided sufficient light by which to recognize someone they knew.

2. Chronology from Witness Testimony

Defendant lived with his father, Persey Cain, next door to the Galloways. On Tuesday, October 14, 1986, Persey Cain went on a week-long trip, leaving defendant and defendant's younger brother Val in charge of the house, with food in the refrigerator and approximately $50. Prior to his departure, Persey Cain took parts from defendant's Pinto to Barber Auto Parts for a valve job. On Sunday, October 12, 1986, defendant had received a paycheck in the amount of $111.75 from Manpower Temporary Services.

a. Friday, October 17, 1986

The auto parts store records show $57.18 was paid in cash for defendant's valve job on October 17. Beginning in the late afternoon on that day, defendant and Val held a party at their house. Acquaintances attending the party included David Cerda, Floyd Clements, Rick Albis, Kevin Walker, Ulysses Anthony Mendoza, and two unidentified girls. At the party, everyone consumed beer and everyone, except Albis, consumed marijuana. Later in the evening, defendant "rock[ed] up" some cocaine and smoked it out of a pipe. ²

Around 8:30 p.m., defendant complained he was missing $10. He threatened "to beat all of their asses" if someone did not find the money. Mendoza told defendant his money was in his top dresser drawer, where defendant had placed it after returning from purchasing beer. Defendant found the money.

According to Mendoza, defendant remained angry, because his brother Val and Walker were in the bedroom with the two girls. Defendant complained Val should have included him instead of Walker. Defendant was so angry he kicked the door and put a hole in it. A few minutes later, Walker and the girls left and did not return. Clements testified this incident occurred on Saturday night, not Friday night, while Albis testified it occurred on Friday but he, not Walker, was in the bedroom with Val and the girls. ³

Mendoza testified that around 11 p.m. he and defendant walked to a nearby 7-Eleven to buy more beer. On the way to the store defendant asked Mendoza to help burglarize the Galloways' house so "he could get thousands." Mendoza declined, saying he didn't have the nerve.

At the 7-Eleven, Mendoza and defendant encountered Richard Willis and Sean Sampson. Defendant told them he wanted to buy drugs. According to Mendoza, he and defendant climbed in the backseat of Sampson's car and drove off to obtain drugs. While they were in the car, defendant tapped Mendoza on his knee and made a strangling gesture with his hands. Mendoza told Sampson and Willis that, if they were smart, they would turn around and drop him off or something foolish would happen. They complied and Mendoza returned to the party. About 20-30 minutes later, defendant returned home and called Mendoza a "pussy," because he would not help him.

Willis's account of his encounter with defendant differed somewhat. Willis testified that, as he was leaving the 7-Eleven store at approximately 6:30 or 7 p.m., he met defendant, who asked if Willis knew where he could get some marijuana. They drove to defendant's house, because defendant said he needed to get some money, then to Willis's house. When Willis asked to see the money, defendant claimed he forgot to bring it, so they returned to defendant's house. When defendant returned to the car, he brought Mendoza with him. They returned to Willis's house, but when Willis again asked to see the money defendant still didn't have any. They returned to the car. As they started to drive, defendant asked if Willis knew where he could sell a home entertainment system so he could purchase the marijuana. Willis directed him to Aleric Street. Mendoza then said, "If you know what is good for you, you'll take me back." Willis "got the hint" and dropped them back at the Cain house. Sampson testified he did not see either Mendoza or defendant on Friday night.

Mark Pina lived across the street from the Cain residence. At approximately 12:30 a.m., on Saturday, October 18, defendant and Mendoza visited Pina. Defendant asked Pina if he owned a freebase pipe and offered him $10 for it. Pina gave the pipe to defendant and declined payment. During the brief visit, Pina thought defendant looked "sprung," as though he had already used cocaine, he talked fast, repeated things, and did not seem to hear when Pina spoke to him.

Mendoza testified that, sometime after he returned from his ride with Willis and Sampson, he was seated on the couch. (The record is not clear whether he and defendant had yet visited Pina.) Mendoza heard defendant call to Cerda. Cerda walked outside the front door and talked with defendant. He came back inside, grabbed his jacket, and left again. Cerda returned three or four minutes later without defendant. A bit later, Val asked Cerda to go check where defendant was. Cerda left and returned again in a couple of minutes without defendant.

Rick Albis, who had left the party with Floyd Clements sometime between 10 and 11 p.m., returned less than one hour later. He stayed for 10-20 minutes. Cerda, Mendoza and Val were present, but Albis did not see or hear defendant.

Approximately 20-30 minutes after Albis left for the second time, defendant returned. Mendoza, Val and Cerda were present. According to Mendoza, defendant had blood on the inner part of the bill of his hat, on his right cheekbone, on his right foot, on his right leg by his pocket, and on his chest area. Defendant said he had gotten "thousands." Mendoza saw defendant holding a lot of money in his left palm. The money was folded in half with a $100 bill on top. Defendant said he had "knocked them smooth out" or he had "blipped somebody." Val had defendant remove his clothes to be washed. Mendoza and Cerda spent the remainder of the night at the Cain residence.

b. Saturday, October 18, 1986

On Saturday defendant was scheduled to work at a temporary job, but did not report to work. When Mendoza awoke, he went into the living room. Defendant was asleep in a recliner. Mendoza picked up a wad of bills lying next to defendant and counted the money. The wad contained $500. Defendant woke up, grabbed the money and exclaimed: "Give me my fucking money." Albis also testified defendant showed him a check and a wad of money when he returned to the Cain house on Saturday morning.

During the encounter, Mendoza noticed what appeared to be fresh cut wounds on defendant's right hand. Later on Saturday afternoon, Clements saw defendant hold his right hand in a fist in the palm of his left hand. He heard defendant ask Mendoza to get him a Band-Aid. That morning Mendoza heard Val ask defendant what he did with the people the previous night. Defendant responded: "That's on them."

Sometime that day, defendant, Mendoza, Albis and Cerda went shopping. Defendant bought a pair of black leather hightop basketball shoes, a black Raiders hat, some cassettes and a...