People v. Dykes, S050851.

• Decision Date: 15 June 2009
• Docket Number: No. S050851.,S050851.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernest Edward DYKES, Jr., Defendant and Appellant.

209 P.3d 1

95 Cal.Rptr.3d 78

46 Cal. 4th 731

The PEOPLE, Plaintiff and Respondent, v. Ernest Edward DYKES, Jr., Defendant and Appellant.

No. S050851.

Supreme Court of California.

June 15, 2009.

Karen L. Landau, Oakland, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias, Eric D. Share and René A. Chacón, Deputy Attorneys General for Plaintiff and Respondent.

GEORGE, C.J.

Defendant Ernest Edward Dykes appeals from a judgment of the Alameda County Superior Court imposing a sentence of death following his conviction of the first degree murder of Lance Clark (Pen.Code, § 187, subd. (a)),¹ one count of attempted murder (§§ 664, 189), and one count of robbery (§ 211), both involving Bernice Clark. In connection with each count, the jury found true an allegation that defendant personally used a firearm. (§ 12022.5.) With respect to the charge of attempted murder, the jury found not true an allegation that the attempted murder had been willful, deliberate, and premeditated. (§§ 189, 664, subd. (a).) In connection with the attempted murder and robbery counts, the jury found true the allegations that the victim suffered great bodily injury and that she was a victim age 70 years or older. (§ 12022.7, subd. (c).) The jury found true a robbery-murder special-circumstance allegation. (§ 190.2, subd. (a)(17)(A).) At the penalty phase of the trial the jury determined that the punishment should be death. The trial court imposed a sentence of death and imposed sentence on the noncapital offenses. Defendant's appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase Evidence

Bernice Clark owned an apartment building in Oakland. During a period of unemployment, defendant, who was 20 years of age, resided for several months with his mother in one of the apartments in Bernice's building. The apartment defendant shared with his mother overlooked the rear parking lot of the building.

Tenants, including defendant, were aware that Bernice carried ample cash with her on her frequent visits to the apartment building. On her visits, Bernice cashed checks for tenants and lent them money; she had cashed a check for defendant. Indeed, another tenant, LaCondra Douglas, had warned Bernice not to carry cash with her. Douglas testified that defendant had expressed an intent to rob Bernice prior to the commission of the charged crimes. Tenants testified that they had observed Lance Clark, the murder victim, who was Bernice's young grandson, accompanying Bernice on her rounds on multiple occasions.

In November 1992, defendant acquired a .45-caliber revolver. Bianca Rodriguez, then his girlfriend, testified that at his request she gave him the money with which to purchase the weapon. Douglas testified that about two months prior to the commission of the charged crimes, she sold defendant approximately 20 bullets for his handgun.

On the afternoon of July 26, 1993, Bernice, who was then 70 years of age, and her grandson Lance, then nine years of age, drove to the rear parking lot of the apartment building, where she consulted with her handyman. Bernice testified that she was approached by one of her tenants, Edward Tyson, who asked to borrow $20. She agreed, and while he was signing a receipt, a man approached wearing a stocking mask. The man placed a dark object against her head. She recognized the man as defendant and told him that he looked like one of her tenants. She heard a shot, then defendant said something about money or a holdup, and she recalled a struggle over her wallet. She heard only one shot, but her recollection of the crime was confused, and she was unable to hear well after the weapon discharged.

Tyson testified that on the afternoon of July 26, 1993, Bernice agreed to lend him $20. He heard her drive to the rear parking lot and approached her as she sat in the driver's seat with the door open. Tyson observed Lance seated in the passenger seat of the vehicle. As Tyson signed a receipt, a man approached wearing a light-colored hooded sweatshirt. He had a woman's nylon stocking over his head. The man demanded money of Tyson, but Tyson backed away and denied he had any. Tyson witnessed the man point his weapon at Bernice and demand money. Tyson heard Bernice inform the man that he resembled one of her tenants named Ernest. Tyson fled, and as he passed a gap in the fence he heard a firearm "dry fire." He subsequently heard two shots in quick succession, the first followed by a sound of breaking glass. After an interval he heard a third shot. He heard the robber continue to demand money after the first shot.

Alphonso Odom, who had been staying for several months with a resident of the apartment building located next to the one owned by Bernice, testified that he was acquainted with defendant and with Bernice. Odom observed defendant in front of the apartment building a few minutes prior to the shooting. Defendant was wearing a grey hooded sweatshirt and green or blue acid-washed jeans. Odom observed Bernice drive with her grandson to the rear of the apartment building. Shortly thereafter, Odom heard two shots and witnessed the second shot being fired as he stood on his apartment balcony. He observed defendant standing by Bernice's vehicle holding a firearm and wearing a gray sweatshirt and green or blue acid-washed jeans. He heard the sound of breaking glass after the second shot, and observed defendant flee over the back fence.

Odom ran from his apartment to the scene of the shooting, joining Tyson, who had returned after initially fleeing. They observed Lance slumped over in the automobile. Bernice's neck was bleeding. Lance had been shot and soon stopped breathing. Emergency medical personnel were unable to revive him.

Tyson remained at the scene, while Odom returned to his apartment. Tyson gave a statement to the police, picked defendant's photograph from a photo lineup, and reported that the robber's voice sounded like defendant's. Odom, on the other hand, did not contact the police concerning his knowledge of the crime until after he was arrested on unrelated charges a few days subsequent to the commission of the charged offenses. He hoped for leniency in return for information he was able to provide. His testimony was impeached with prior felony convictions.

Defendant changed his attire and returned to the scene of the shooting. There he spoke with a police officer, stating that he had observed Tyson speaking with Bernice as she sat in her vehicle and that as he crossed the parking lot he heard shots. An unidentified, armed Black male wearing jeans and a white hooded sweatshirt ran past him and fled over the back fence. The officer testified that defendant appeared composed and was not intoxicated. Odom overheard some of this discussion, reporting that defendant told the officer, "that's messed up. The dude ran right by me."

In the afternoon or evening of July 26, 1993, Odom lent his bicycle to defendant. When defendant returned with some beer, defendant said to Odom, "that was f'd up, you know, what happened." Odom agreed and said he knew defendant was responsible for the shooting. Odom testified that defendant admitted he was the culprit and said, "man, I didn't mean it to go down like that."

Lance was killed by a single gunshot that passed through his body from his left chest, exiting on the lower right side of his back. There was a large entry wound, indicating the same bullet had passed through Bernice's neck before it struck Lance. The forensic pathologist, Dr. Paul Hermann, was unable to determine with certainty Lance's position when he was shot, but the pathologist believed Lance had been leaning to the left. Bernice received an injury to her neck but survived.

An examination of Bernice's automobile produced a bullet lodged inside the rear door on the passenger side. The impact of the bullet had shattered the door's window. Another bullet later was discovered in the front passenger floor area.

Dr. Lansing Lee, a firearms expert, testified that the bullets discovered in Bernice's vehicle were for a .45-caliber semiautomatic pistol. Although the ammunition was manufactured for a semiautomatic weapon, it also could be fired by a certain vintage Colt .45-caliber revolver. Such a weapon could be fired by single action if the shooter pulled back the hammer using two pounds of pressure. The weapon also could be fired without pulling back the hammer, but would require at least eight pounds of pressure to fire.

Sergeant Madarang of the Oakland Police Department was interviewing Tyson at the police station on the day of the crime when he received a telephone call from someone who would identify herself only as Connie, stating that she had sold defendant some bullets a few days preceding the crime, and that defendant had told her he planned to rob Bernice. In her own testimony, LaCondra Douglas would admit only that she placed an anonymous call to the police on that date, denying she had reported that defendant had purchased ammunition from her.

On August 7, 1993, defendant telephoned the Oakland Police Department, stating he "want[ed] to know if I shot somebody." He mentioned Bernice and provided his location, but denied responsibility for the crime. He was arrested and transported to the police department for interrogation. Arresting officers directed him not to speak while he was being transported, but he did so in a rambling manner, wondering how he could be identified and stating he would not commit anything like the charged crimes. Once defendant arrived at the police station, he was advised of his constitutional rights and interrogated by Officers Chenault and Madarang. During two hours of questioning, he denied responsibility for the crime. He reported that...