People v. Cash

• Decision Date: 25 July 2002
• Docket Number: No. S029460.,S029460.
• Citation: 50 P.3d 332,122 Cal.Rptr.2d 545,28 Cal.4th 703
• Parties: The PEOPLE, Plaintiff and Respondent, v. Randall Scott CASH, Defendant and Appellant.
• Court: California Supreme Court

122 Cal.Rptr.2d 545

28 Cal.4th 703

50 P.3d 332

The PEOPLE, Plaintiff and Respondent, v. Randall Scott CASH, Defendant and Appellant.

No. S029460.

Supreme Court of California.

July 25, 2002.

Rehearing Denied September 11, 2002.

Certiorari Denied February 24, 2003.

Mark D. Greenberg, under appointment by the Supreme Court, Oakland, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Laurence K. Sullivan and John H. Deist, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied February 24, 2003. See 123 S.Ct. 1270.

KENNARD, J.

A jury convicted Randall Scott Cash of the first degree murder of Bud Smith (Pen.Code, § 187),¹ and it found true a special circumstance that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(A)). The jury also convicted defendant of the attempted murder of Susan Balestri (§§ 664/187). With respect to both the murder and the attempted murder, the jury found that defendant personally used a firearm (§ 12022.5). It also found that in committing the attempted murder, defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)), and personally inflicted great bodily injury (§ 12022.7). At the penalty phase the jury returned a verdict of death. Defendant's appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment as to guilt and the robbery special circumstance, but, because of prejudicial error in death qualification of the jury we reverse the judgment as to the penalty of death.

I. Facts

A. Guilt Phase—Prosecution's Case

In June 1985, defendant sublet a room in a house occupied by Bud Smith, a cocaine dealer, and by Susan Balestri, Smith's girlfriend. Over the course of the summer, defendant began to exhibit mood changes, lost a job he had held for four years, and experienced financial difficulties.

Todd Babbitt, a friend of defendant's, testified that in mid-September 1985, defendant jokingly said to him, "I ought to just tie [Smith] up and take [Smith and Balestri's] money and his dope." Defendant told Babbitt that Smith kept $3,000 to $4,000 in cash in his bedroom.

By October 1985, defendant's car had been repossessed, and he owed $330 in back rent to Smith, who set a payment deadline of Monday, October 28. At a party on the evening of October 26, defendant asked David Rogers to get drugs for him from Smith. When Rogers returned empty-handed, defendant remarked he wished he knew a coke dealer to "knock off for money or drugs.

Later that evening, defendant and three friends were at the Smith house. They sat in the living room watching television, drinking alcohol, and using "speed." Meanwhile, Smith and Balestri were in their bedroom. Sometime after 4:00 a.m., Balestri walked through the living room, where she found defendant and one friend asleep on separate couches. She returned to the bedroom and locked the door.

Around 9:30 the next morning, Balestri was still in bed when the bedroom door burst open and defendant, armed with a rifle, started shooting at Smith's back. When Balestri screamed, defendant told her: "Shut up. If you don't do what I say, I'm going to kill you too. I have to. I have to." When Balestri covered her face, defendant shot her, injuring her finger. He then grabbed her by the hair, dragged her into the living room, and shot her in the chest. Grabbing a wooden baton from the coat rack, defendant beat Balestri on the head until the baton broke.

Defendant dragged Balestri back into the bedroom, tied her legs together, and repeatedly pounded her head with his rifle. Using a set of handcuffs belonging to Balestri, defendant handcuffed her right wrist to her left ankle and gagged her. She could hear defendant opening drawers and rummaging through the closets and the jingling of keys attached to Smith's wallet. She also heard the sound of a razor blade chopping on a mirror, followed by a sniffing sound, leading her to believe defendant was snorting cocaine.

While Balestri was on the floor, defendant kicked her in the stomach and asked where the money was kept. She told him it was on a clipboard kept underneath the nightstand. She heard him go to that part of the room. When she next saw him, defendant was holding a thick wad of bills. Before leaving the bedroom, defendant tied Balestri up more tightly, lashing her to the bed and to Smith's body. Defendant fired two more shots at Balestri and left the bedroom. Shortly thereafter, defendant returned, pulled apart Balestri's thighs, and looked at her genitals.

Balestri eventually freed herself and summoned help from the neighbors, who called the police. The responding officers found a note on the front door of Smith's house. It said: "Do not disturb till 6:00 o'clock."

On October 29, 1985, the police arrested defendant at a Fresno motel. In the room he had occupied, they found a rucksack containing a hunting knife, a pistol, and a brown box containing $700 and several bindles of cocaine bearing Smith's distinctive label.

Smith died from multiple gunshot wounds, three of which had been fired at close range. Although Balestri sustained lacerations on her head and four gunshot wounds, she survived and testified as a prosecution witness.

B. Guilt Phase—Defense Case

Defendant did not testify.

William Bratten testified that on the day of the shooting he had spoken to his friend Todd Babbitt, but Babbitt never mentioned an earlier conversation with defendant during which defendant spoke of harming or stealing from Smith, the murder victim.

A defense investigator testified that when he tried to interview David Rogers, the latter refused to cooperate, saying that he had no interest in helping defendant, and that his only interest would be to "bury" defendant.

Three witnesses testified about events shortly before the shooting.

Defendant's employer characterized defendant as his "right-hand man" until a month or six weeks before defendant failed to return from vacation in late August 1985. In those weeks preceding his vacation, defendant had become belligerent and had begun wearing a hunting knife.

A friend of Smith's testified that he overheard Smith tell defendant to move out because he had not paid his rent. Defendant was distraught and asked for more time, but Smith gave him a one-week deadline.

Patrick Malone, a former resident of the house, testified that Smith had exchanged cocaine for the use of defendant's truck and that defendant had given Smith all his vacation pay, some $700 to $800, to pay for drugs.

C. Penalty Phase—Prosecution Case

The prosecution presented evidence of two prior murders: in January 1977, when he was 17 years old, defendant had killed his elderly grandparents, Daniel and Verneva Kent. Their bodies were found in easy chairs in the living room of their home in the State of Kansas. Each had been shot in the head. The house was in disarray, with pills scattered about and a woman's purse lying open on the floor.

Mark Nelson, a friend of defendant's, was present when defendant argued with and shot the Kents. Defendant and Nelson were arrested early the next morning while driving the Kents' car. In the car, the officers found a stereo and two shotguns.

Defendant was tried as a juvenile in Kansas. He admitted killing his grandparents and, in August 1977, was committed for treatment to a state facility. After successfully completing probation, defendant was released in January 1979.

D. Penalty Phase—Defense Case

The defense presented many witnesses who testified to the circumstances of defendant's early life. His parents' marriage broke up when he was 14 months old. His mother left defendant and his sister with her parents, the Kents. Defendant was sickly as a child, suffering from asthma and extreme nearsightedness. Defendant stayed with the Kents until his freshman year in high school, when he moved in with his mother and her third husband.

In the fall of his sophomore year in high school, defendant returned to his grandparents' home. Daniel Kent had been diagnosed with prostate cancer, and Verneva Kent needed defendant to drive her to medical appointments. Verneva Kent suffered from a variety of ailments that confined her to a wheelchair.

In 1979, after his release from the juvenile treatment facility in Kansas, defendant came to Southern California, where he lived with his mother. In 1981, defendant and his mother moved to Fremont in Northern California. Defendant found work in a printshop, where he was considered a steady, dependable worker during most of the four years of his employment.

Defendant testified on his own behalf. In the summer of 1985, he sublet a room from Smith, a cocaine dealer. Smith often gave defendant cocaine in payment for errands. When defendant lost his job and his car was repossessed, he began trading his personal possessions to Smith in exchange for drugs. By mid-October, defendant's daily consumption of alcohol and drugs included two to three 6-packs of beer, a pint of hard liquor, marijuana, and up to half a gram of cocaine or methamphetamine.

On the morning of October 27, 1985, Smith got up about 8:00 a.m. and defendant obtained some cocaine from him. Smith again threatened to beat up defendant if he did not pay his debts. Shortly after that conversation, defendant took the loaded rifle kept by the front door, went into the bedroom, and shot Smith. He left the house after tying Balestri to Smith's body. Realizing he had no money, he returned, ungagged Balestri, and asked her where Smith kept his cash.

Two psychiatrists, Dr. Herbert Modlin and Dr. William Vicary, testified on defendant's behalf. Dr. Modlin, of the Menninger Clinic, was appointed by the Kansas court in 1977 to examine defendant in connection with the murders of defendant's grandparents. He diagnosed defendant at that time as having depressive neurosis. Dr. Modlin did not consider defendant a...