People v. Dalton

• Decision Date: 16 May 2019
• Docket Number: S046848
• Citation: 7 Cal.5th 166,247 Cal.Rptr.3d 273,441 P.3d 283
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kerry Lyn DALTON, Defendant and Appellant.
• Court: California Supreme Court

7 Cal.5th 166

441 P.3d 283

247 Cal.Rptr.3d 273

The PEOPLE, Plaintiff and Respondent,

v.Kerry Lyn DALTON, Defendant and Appellant.

S046848

Supreme Court of California.

May 16, 2019

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointment by the Supreme Court, Denise Anton and Jolie Lipsig, Deputy State Public Defenders, for Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly Wilkens, Pat Zaharopoulos and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Liu, J.

Defendant Kerry Lyn Dalton was convicted of conspiracy to commit murder and the first degree murder of Irene Melanie May. (Pen. Code former § 182, subd. (a)(1), § 187, subd. (a), former § 189 (all further undesignated statutory references are to this code).) The jury also found true lying in wait and torture-murder special-circumstance allegations and an allegation that Dalton personally used a deadly weapon in committing the murder. (Former §§ 190.2, subd. (a)(15), (a)(18), 12022, subd. (b).) In a separate proceeding, Dalton admitted a prior serious felony conviction for burglary and a prior prison term. (Former §§ 459, 667, subd. (a), 667.5, subd. (b), 1192.7, subd. (c)(18).) At the penalty phase, the jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)

For the reasons below, we vacate as unauthorized the death sentence imposed (and stayed) on the conspiracy to commit murder count (Count I). We further vacate the lying in wait special-circumstance true finding. We remand and direct the trial court to state on an amended abstract of judgment a sentence of imprisonment for 25 years to life, stayed pursuant to section 654, on the conspiracy count (Count I), and to strike the lying in wait special-circumstance true finding. We affirm the judgment, as modified, in all other respects.

I. FACTS

A. Guilt Phase

On June 26, 1988, Dalton, her boyfriend Mark "TK" Tompkins, and Sheryl Ann "John Boy" Baker murdered 23-year-old Irene Melanie May in Joanne Fedor’s trailer located in the Live Oak Springs Trailer Park in Boulevard, California. Her body was never found.

Dalton and her coperpetrators were jointly charged, but Dalton’s trial was severed. Tompkins pled guilty to first degree murder. Baker pled guilty to second degree murder in exchange for testifying at the 1995 trial against Dalton. The prosecutor also agreed to other terms, including notifying the Department of Corrections or Board of Prison Terms of Baker’s cooperation and her level of culpability in Dalton’s case, requesting she serve her prison time out of state, and transporting her to and from court separately from Dalton. Baker had not yet been sentenced at the time of her testimony.

Because Dalton challenges the sufficiency of the evidence for every charged count and special circumstance allegation, we review in detail the evidence in support of the prosecution’s case.

1. Prosecution evidence

a. Events before the murder

1) Events before arriving at Fedor’s trailer

Sheryl Baker, who had been previously convicted of grand theft auto, and in 1988 used crystal methamphetamine several times a day, testified that in June 1988, she was living in Lakeside and had known Irene Melanie May (May) for about two months.

May was married to Bobby May and had three children. On Saturday, June 25, 1988, May had been evicted from her Lakeside apartment, and she and Baker were shooting methamphetamine and moving May’s belongings into storage. Bobby May was incarcerated at the time, and a man named George, whom Baker met for the first time that day, and several other individuals helped them. Dalton, whom Baker had known since 1986, and who other testimony established had previously lived with May and Bobby May, also arrived with two women, Patricia Collins and Pamela McGee. Dalton angrily told Baker much of the furniture in the apartment was hers and she wanted it, and she was looking for certain pieces of jewelry. Baker told Dalton she would look for her property, and Dalton left. Collins testified she bought a dresser from May. Collins had not met May before and described her as a "[s]kinny little speed freak."

At about 5:00 p.m., Baker, May, and George went to a convenience store to meet May’s connection to obtain drugs. While waiting at the store, Baker called Dalton and told her she had not found her jewelry. Dalton, who lived nearby, arrived at the store a few minutes later with Mark Tompkins in a small yellow pickup truck.

Baker, Dalton, and Tompkins decided to locate and steal a Trans Am that belonged to an individual they knew, and May and George accompanied Baker because they were "partying with" her. May expressed concern about going because she was afraid of Dalton. About 6:00 p.m., the group left the store in two trucks; Dalton and Tompkins were in their truck, and Baker, George, and May followed in George’s truck. No plan had been discussed other than to steal the car. They drove for hours, and eventually happened to come upon Dalton’s acquaintance Joanne Fedor.

Fedor, who was accompanied by her three- and four-year-old children, testified she had pulled her truck over to the side of the road because of an electrical fire. She encountered Dalton and her group about 11:30 p.m. Dalton offered to drive Fedor’s children to Fedor’s home in case the fire resumed. Fedor agreed and left, followed by the two trucks. According to Baker, the group following Fedor then lost their way, and the truck carrying Dalton and Tompkins broke down. Dalton, Tompkins, and Fedor’s children joined Baker, May, and George in George’s truck.

2) Events at Fedor’s trailer the night and morning of June 26, 1988

Fedor testified that about 2:30 a.m. on the morning of June 26, 1988, Dalton and her companions arrived at Fedor’s trailer. Baker recalled Fedor was "freaking out" and thought her children had been kidnapped.

Baker testified that the group and Fedor stayed up all night and some individuals used drugs. Baker used about a gram of methamphetamine "throughout the time of this." By the following morning Baker had been up at least 24 hours.

At some point during the night or the following morning, Dalton and Baker searched through papers in George’s truck because they did not know him, and Dalton wanted to be sure he was not connected to law enforcement. Also at some point Dalton emptied May’s purse and "found some of her jewelry." Dalton was upset, and "started making [May] her slave and making her clean [Fedor’s] trailer," performing chores such as washing dishes and cleaning the kitchen. May told Baker she was "very scared."

Fedor testified she asked her guests several times during the night "to please be quiet, that my neighbor next door was nosey, I didn’t need no problems. At one point ... the neighbor sent somebody over to complain." During the night, Fedor heard Dalton and May arguing, and someone said May was a "snitch, ratting her old man off." Fedor also heard Dalton say that while May thought Dalton was in jail, May had held a yard sale that included Dalton’s belongings. During this discussion, Dalton sounded angry, and May sounded "scared to death." At some other point that night, Fedor heard Dalton, Baker, and May using drugs in the bathroom. Dalton and Baker became angry with May when they learned they had all shared a needle and May had hepatitis

.

Later that morning, Fedor, like Baker, observed Dalton treat May "like a slave," "[c]ommanding her" to wash dishes, clean the house, and make breakfast for and dress Fedor’s children. At one point when Fedor was drying dishes with May, May "had a knife" and "wanted to use it on [Dalton], because she was scared." May asked Fedor "how she could get out." Fedor replied, "if you are afraid, go outside because there [are] mobile homes on both sides, scream," and gave May directions to the freeway. Fedor also, at May’s request, left a message for Nina Tucker, the child protective services worker assigned to May’s family, that May would be unable to attend a scheduled meeting with Tucker.

Fedor did not see May alone in the trailer. Dalton appeared to tell the others what to do, and Fedor did not observe Baker or Tompkins refusing to do anything Dalton told them to do.

Baker testified that sometime that morning, she, Tompkins, and George left the trailer for about an hour to repair and return with the truck that had broken down.

3) Emergency medical technicians

Lona Agnew testified that in June 1988 she was a volunteer emergency medical technician for the Boulevard Fire and Rescue Department and lived in the same trailer park as, and knew of, Joanne Fedor. Early on the morning of June 26, 1988, she responded to a page regarding a person having difficulty breathing and a possible asthma

attack at Fedor’s trailer. A woman who was not Fedor and a short white man were outside, and the man took Agnew into the trailer.

The trailer was very dirty, and there were clothes and other items "all over." A tall man with long hair appeared and asked Agnew what she was doing there. Agnew said she was from the fire department and they had received a medical call. The man said, "No, there is no problem here." Agnew showed the man the report of an asthma

attack. The man again said, "No, there is no problem here." He seemed angry Agnew was there, and instructed the other man to "[g]et her out of here."

Once outside, and as Agnew began walking back to her trailer, Fedor leaned out a window and asked if Agnew had a bronchial inhaler, explaining her son had asthma

and was having difficulty breathing. Agnew said no, and that there was nothing she could do unless Fedor let her in to see the patient. Fedor would not let her in, and said, "No, I just need one of those inhal[ers]."

A short time later, Agnew and her...