People v. Ervine, No. S054372.

• Court: United States State Supreme Court (California)
• Writing for the Court: Baxter
• Citation: 102 Cal.Rptr.3d 786,47 Cal.4th 745,220 P.3d 820
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dennis Newton ERVINE, Defendant and Appellant.
• Decision Date: 07 December 2009
• Docket Number: No. S054372.

220 P.3d 820 47 Cal.4th 745 102 Cal.Rptr.3d 786 The PEOPLE, Plaintiff and Respondent,
v.
Dennis Newton ERVINE, Defendant and Appellant. No. S054372. Supreme Court of California. December 7, 2009.

[220 P.3d 831]

Michael J. Hersek State Public Defender, under appointment by the Supreme Court, and Douglas Ward, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Patrick J. Whalen and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

After his motion for change of venue was granted, defendant Dennis Newton Ervine was convicted by a Sacramento County jury of the first degree murder of Lassen County Deputy Sheriff Larry Griffith and the attempted willful, deliberate and premeditated murder of Commander William Freitas, Deputy Wayne Aldridge, and Deputy Henry Mahan, all by use of a firearm. (Pen.Code, §§ 187, subd. (a), 664, subds. (a), (e)(1), 1203.06, 12022.5.)¹ The jury found true the special circumstances that defendant murdered a peace officer in the line of duty (§ 190.2, subd. (a)(7)), that defendant committed the murder to avoid arrest (id., subd. (a)(5)), and that defendant committed the murder by means of lying in wait (id., subd. (a)(15)). After a penalty trial, the jury returned a verdict of death on March 6, 1996. The court denied defendant's motions for new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced defendant to die. Defendant was also sentenced to three consecutive sentences of life

220 P.3d 832

imprisonment without the possibility of parole and an additional term of 16 years. This appeal is automatic.

We affirm the judgment in its entirety.

I. BACKGROUND

Commander William Freitas and Deputy Sheriffs Wayne Aldridge, Larry Griffith, and Henry Mahan of the Lassen County Sheriff's Department drove to defendant's residence on the morning of March 2, 1995, following a report of an incident of domestic violence the night before by his wife, Julie Ervine. They were in marked patrol vehicles and in uniform. Defendant, who had barricaded the downstairs windows and watched the officers' arrival from an upstairs bedroom, responded by firing his .30-.30 Winchester rifle at the officers, killing Deputy Griffith. Defendant continued to fire his weapon until a bullet from one of the officers grazed his head. After a standoff of several hours, the surviving officers were evacuated under cover of a dump truck. Defendant surrendered several hours after that.

Guilt Phase Evidence

On March 2, 1995, Wayne Aldridge was awakened by a call from the Lassen County Sheriff's Department dispatcher around 3:45 a.m. The dispatcher told Aldridge, the on-call deputy, that a woman had reported a domestic violence situation at her home in Ravendale, during which a gun was fired. Aldridge put on his uniform — dark brown slacks and a khaki-colored shirt with Lassen County Sheriff's Department patches on each shoulder, dark brown epaulets, dark brown pocket covers, and a badge on the upper left chest — and met Deputy Larry Griffith at the sheriff's department in Susanville. Griffith was also in uniform. The reporting party was identified as Julie Ervine, and the officers were dispatched to meet her at the post office in Ravendale, about 60 miles away. They drove in a marked patrol car — a brown 1994 Ford Crown Victoria with Lassen County Sheriff's Department insignia on each side, a sheriff's logo on the rear, and red and blue overhead lights — and arrived around 5:30 a.m. Julie Ervine (Julie) was there, dressed in a bathrobe and accompanied by her neighbor, John Boske.

Julie reported that defendant had seemed strange when she returned home around 9:00 p.m. the night before. He had been cleaning a semiautomatic rifle, despite the late hour and despite the fact he had recently cleaned it. About an hour later, they argued. He demanded the keys to her car, ostensibly to repair the windshield wiper on the rear window. Julie pointed out that the wiper had been "messed up" for two years. As the argument escalated, Julie announced she was going to leave him. Defendant entered the bedroom, grabbed her by the neck, and threw her on the bed. He then pulled out a silver-colored semiautomatic handgun and pressed it against her left cheek. When he said he ought to kill her right there, she tried to talk her way out of the situation. He pulled the gun away, fired a round into a stuffed toy dinosaur that was near her head, and left the room. Julie, clad only in her bathrobe, climbed out the bathroom window. However, she made a noise closing the window, and defendant rushed in and saw her escape. She ran towards the rear of the house and hid in the sagebrush. From her position, she could see defendant moving vehicles around at the front of the house, so she crawled to the Boske residence, approximately half a mile away to the south.

Upon hearing this account, Deputy Aldridge decided to call for backup and the two officers, accompanied by Julie and her neighbor, went to the Boske residence to do so. Aldridge parked the patrol car in front, with its rear facing defendant's residence. There was a clear view between the residences. Reached by phone, Commander Freitas instructed Aldridge and Griffith to continue to observe the Ervine residence and said that he would "gather the troops" in the meantime. Through his binoculars, Aldridge saw defendant shuttle back and forth between the Ervine house and a red car, which was the vehicle parked closest to the house. Griffith went outside the Boske house with another pair of binoculars and watched defendant, who in turn was watching the two deputies through his own pair of binoculars. Defendant continued to watch them for about a minute and then went into the house and up the stairs, where he observed them through his binoculars for another minute.

220 P.3d 833

Meanwhile, Commander Freitas tried to telephone defendant's house, but defendant never picked up the phone and the answering machine message was garbled. Freitas and Deputy Henry Mahan then drove to the Boske residence and parked their patrol vehicle directly behind Aldridge's vehicle. They were wearing the same uniforms as Aldridge and Griffith. Julie described to them the weapon defendant had used the previous night, which appeared to be a .22-caliber semiautomatic, as well as other weapons defendant possessed. As to defendant's state of mind, Julie told the officers that he "had lost it." The four officers got back into their vehicles and headed towards defendant's house around 9:00 a.m., intending to arrest him for felony domestic violence.

The deputies proceeded down the Ervines' long driveway towards the Ervines' fenced-in yard, with Freitas's car in the lead. Outside again, defendant watched them for a time and then walked toward and re-entered his residence as the deputies approached, turning once or twice to look back as he did so. Freitas and Mahan stopped at the locked gate and exited their vehicle. They yelled to defendant to come and talk. Aldridge and Griffith parked behind them and at an angle. Aldridge pulled out his binoculars and observed defendant at a second-story window with what appeared to be a weapon. Aldridge warned the others and opened his car door. Griffith exited Aldridge's vehicle on the passenger side and knelt down. Defendant came closer to the second-story window, used his weapon to knock a hole in it, and immediately began firing.

Freitas ducked behind his car door and heard two quick shots fired by defendant, who had a tactical advantage by being able to fire down from above the officers, approximately 187 feet away. Although there was some dispute at trial over the sequence of the subsequent shots, the record showed that defendant fired in Freitas's direction at least twice; that defendant fired another shot that grazed the top of Mahan's head as well as firing other shots in Mahan's direction; that defendant shot Griffith in the head; and that Aldridge, who tried to find a vantage point but could not because the lead patrol vehicle's rear window and light bar were in the way, took cover in the "V" of his open vehicle door.² The record also showed that Griffith managed to fire a single round from his M16 rifle before being shot; that Freitas returned defendant's fire using his .45-caliber semiautomatic pistol; and that Mahan used his shotgun to fire once at defendant. After the shotgun was fired, defendant appeared to roll backwards away from the window, leading Mahan to think defendant had been knocked down. The entire encounter lasted about 10 to 15 seconds.

As Commander Freitas moved towards the rear of his vehicle to retrieve his sniper rifle, he saw that Deputy Griffith had been hit in the head. Freitas was sure Griffith was dead and told Aldridge, "We've got an officer down. Call 1199," using an emergency code indicating an officer in trouble. Aldridge thought that Mahan must have been the victim because he did not see Mahan at first, but, as Aldridge grabbed his car radio to report the 1199 call, he saw Mahan do the same thing in the lead vehicle. Aldridge then noticed a piece of skull membrane on his radio and "pink material" splashed on the front seat and elsewhere in the car's interior and called out to Griffith. There was no response. Aldridge dropped down to the ground and saw Griffith lying on the ground on the other side of the vehicle. There was an exit wound at the back of his head.

After the shooting stopped, defendant did not reappear at the window or otherwise communicate with the officers, and they were concerned that defendant, a veteran of the Vietnam War, might come out of the house and pick them off from behind. The patrol vehicles constituted the only cover available to the officers, and they were pinned down, unable to move,...