People v. Debose

Decision Date05 June 2014
Docket NumberNo. S080837.,S080837.
Citation172 Cal.Rptr.3d 606,59 Cal.4th 177,326 P.3d 213
Parties The PEOPLE, Plaintiff and Respondent, v. Donald Ray DEBOSE, Defendant and Appellant.
CourtCalifornia Supreme Court

Richard P. Siref, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.*

A jury convicted defendant Donald Ray Debose, Jr., of the first degree murder and second degree robbery of, and arson causing great bodily injury to, Dannie Kim ( Pen.Code, §§ 187, subd. (a), 189, 211, 212.5, 451, subd. (a) ),1 and it found true special circumstance allegations that Kim's murder took place during the commission of arson and robbery ( § 190.2, subd. (a)(17) ). The jury convicted defendant of the attempted premeditated murder and second degree robbery of Vassiliki Dassopoulos. ( §§ 187, subd. (a), 211, 664, subd. (a).) It also found true sentencing enhancement allegations that defendant personally used a firearm in committing the murder, attempted murder, and robberies (§ 1203.06, subd. (a)(1), former § 12022.5, subd. (a)(1)), and personally inflicted great bodily injury during the attempted murder and robberies (former § 12022.7, subd. (a)). As to victim Kim, the jury was unable to reach a verdict on two counts of anal and genital penetration by a foreign object, or on alleged special circumstances that her murder occurred during the commission of rape by instrument and involved the infliction of torture. A mistrial was declared on these counts and special circumstances.

At the penalty phase, the jury returned a verdict of death. The trial court denied defendant's motions for modification of the verdict ( § 190.4, subd. (e) ) and for a new trial. For the crimes against Kim, the court sentenced defendant to death for the first degree murder with special circumstances and to 10 years' imprisonment for the gun-use enhancement, one year for the robbery, and nine years for the arson. For the crimes against Dassopoulos, the court sentenced defendant to life imprisonment with the possibility of parole for the attempted murder, plus three years for the great bodily injury enhancement and one year eight months for the firearm enhancement, and one year for the second degree robbery, plus three years for the great bodily injury enhancement and one year eight months for the firearm enhancement. The court ordered the sentences for the crimes against Kim and Dassopoulos to run consecutively.2

This appeal is automatic. ( § 1239, subd. (b).) We vacate the arson-murder special-circumstance finding, but otherwise affirm the judgment.

I. FACTS
A. The Guilt Phase

During the early morning of December 17, 1997, security cameras at the Hollywood Park Casino in Inglewood, California, recorded the movements and interactions of defendant and codefendants Carl Higgins and Anthony Flagg. In the video footage shown at trial, the three men appeared to monitor the gambling activities of Dannie Kim. After Kim collected her winnings, the men followed her out of the casino. A few hours later, firefighters called to the scene of a car fire discovered Kim alive, locked in the trunk. She had been shot several times and her body was badly burned. Abrasions and tears found in the genital region suggested she had been sexually assaulted. Kim died five days later from her injuries.

During the early morning of December 23, 1997, Hollywood Park Casino security cameras again recorded defendant, this time with Derrick Grey, as the two men watched the gambling activities of Vassiliki Dassopoulos. After Dassopoulos cashed in her poker chips, they followed her out of the casino. As Dassopoulos pulled into her home garage, defendant attacked and robbed her, shooting her in the head. She survived. Three days later, police arrested defendant at the casino. He had Dassopoulos's credit card on his person. Later testing of a gun found under the front passenger seat of defendant's car confirmed that the gun had been used in the Kim and Dassopoulos shootings.

At trial, defendant presented an alibi defense. Codefendant Higgins challenged the prosecution's eyewitness testimony, while codefendant Flagg presented eyewitness and alibi testimony, as well as expert testimony to rebut the sexual assault evidence.

1. The prosecution's case
a. Crimes against Dannie Kim

On December 16, 1997, Kim, who was from Washington State, had been visiting her sister, Miah Richey, in Los Angeles for several days. At 3:00 p.m. that afternoon, they met at the Hollywood Park Casino, a place that Kim, a professional card player, frequented during her visits. Kim drove her Chrysler LeBaron to the casino. About 11:00 p.m., Kim told Richey "to go home," saying she would be "right behind her." Richey left the casino and did not see her sister again that night. The next morning, Richey noted Kim had not come home. She did not consider it unusual because Kim would sometimes spend the entire night at the casino, forgetting to call. Richey called Kim on the cell phone Richey had loaned her but did not reach her.

Around 5:00 a.m. on December 17, 1997, Rosemarie Howard was in her home on South Osage Avenue in Inglewood, across the street from Kelso Elementary School, when she heard "a woman talking extremely loudly outside." About five to 10 minutes after the woman stopped talking, Howard heard approximately five gunshots fired in rapid succession. Fifteen minutes later, an explosion shook her apartment building. Howard ran outside, saw that a car was on fire, and told a neighbor to call 911.

About 5:15 a.m. that morning, Willard Lewis and a prostitute were parked on South Osage Avenue in Lewis's car. Some 20 minutes later, Lewis heard people arguing. He saw two men, whom he identified at trial as defendant and codefendant Higgins, arguing with an Asian woman as the three stood near the end of a car. The woman, who looked "beat up in the face," repeatedly said "no, no, no." Lewis saw defendant grab the woman by the arm and pull her towards him, while Higgins stood behind the woman. Lewis also thought he saw the silhouette of a third person leaning into the car. The argument continued for five to 10 minutes. Lewis did not come to the woman's aid because he was married and should not have been there with a prostitute and therefore did not want to get involved.

As Lewis lay down on his car seat, he heard a door or trunk slam shut, followed by three or four gunshots. When he looked, he saw defendant tuck something into his clothing. Lewis then heard Higgins say, "Come on, Don." Lewis waited a few minutes until he felt it was safe to leave. He then drove around the corner to a telephone, where the prostitute called 911. When Lewis returned 20 minutes later, the car where the shooting had occurred was on fire.

That same morning, Valerie Hutchinson–Gluck, a teacher at Kelso Elementary School, came to work between 6:15 a.m. and 6:30 a.m. and saw a man standing outside a car parked near the school's entrance. He was wearing dark, baggy clothing and leaning into the driver's side window at a 90–degree angle. It struck Hutchinson–Gluck as "peculiar" to see someone there so early in the morning. A short time later, a student told her that a car outside the school was on fire and that a body had been found inside it. Realizing it was the same car she had seen the man leaning into, Hutchinson–Gluck went to speak to a police officer at the scene.

Around 6:30 a.m., Inglewood firefighters at the scene in response to 911 calls saw a parked Chrysler LeBaron on fire. It took about 10 minutes to put out the fire, at which time a semiconscious woman was discovered in the car's trunk. She had third-degree burns

on the left side of her body and had been shot in the torso and left arm. The victim had a pulse and was breathing, but paramedics were unable to get a blood pressure reading.

Using the burned car's license plates, Inglewood Police Department Detective Craig Lawler obtained a copy of Kim's driver license, but because of the severity of Kim's injuries, Lawler was unable to positively identify Kim from the photograph on the license. On December 18, Lawler met with Richey to discuss the possibility that the victim might be her sister. Richey then went to the hospital, where she confirmed Kim's identity. She was only able to recognize Kim by her fingernails, which Richey had painted a few days before.

Chris McClung, a registered nurse and sexual assault examiner, examined Kim in the hospital two days after the attack, while Kim was unconscious and in critical condition. In McClung's opinion, there was a strong possibility Kim had been sexually assaulted. Evidence of vaginal penetration included a healing abrasion, possible bruising of the hymen, and redness and swelling of the vaginal canal. McClung conceded, however, that the redness and swelling could also have been caused by renal failure

and infection. Based on multiple tears and abrasions, redness, and swelling found in the anal area, McClung expressed the opinion that Kim had also been assaulted rectally.

Los Angeles County Sheriff's Department criminalist Don Johnson testified that the lack of semen found on Kim did not negate the possibility of sexual intercourse. He explained that the likelihood of detecting semen decreases over time, and that hospital personnel had washed Kim's body by the time the sexual assault kit samples were collected. Also, the perpetrator might not have ejaculated, a condom could have been used, the volume of the ejaculation could have been low, or a foreign object could have been used. Semen, furthermore, is less likely to be present in the rectum due to defecation and bacteria.

Dr. Lee Boohacker of the Los Angeles County coroner's office performed Kim's autopsy. He testified that Kim...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT