People v. Fauber

• Decision Date: 18 June 1992
• Docket Number: No. S005868,S005868
• Citation: 9 Cal.Rptr.2d 24,831 P.2d 249,2 Cal.4th 792
• Court: California Supreme Court
• Parties: , 831 P.2d 249 The PEOPLE, Plaintiff and Respondent, v. Curtis Lynn FAUBER, Defendant and Appellant.

Page 24

9 Cal.Rptr.2d 24

2 Cal.4th 792, 831 P.2d 249

The PEOPLE, Plaintiff and Respondent, v. Curtis Lynn FAUBER, Defendant and Appellant.

No. S005868.

Supreme Court of California,

In Bank.

June 18, 1992.

Rehearing Denied Sept. 3, 1992.

[2 Cal.4th 810] [831 P.2d 257] L. Marshall Smith, St. Paul, Minn., for defendant and appellant.

Pamela C. Hamanaka, Office of Atty. Gen., Los Angeles, Cal., for plaintiff and respondent.

PANELLI, Justice.

A jury convicted Curtis Lynn Fauber of robbery (Pen.Code, § 211), ¹ burglary (§§ 459, 460, 462, subd. (a), 667) and first degree murder (§ 187), finding true the special allegations that he intentionally committed the murder while engaged in the commission of the robbery and burglary (§ 190.2, subd. (a)(17)) and that he personally used a deadly weapon (an ax) in committing the offenses (§ 12022, subd. (b)). Following a penalty trial, the jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).)

The judgment is affirmed.

I. GUILT PHASE FACTS

A. Prosecution Case

Early in the summer of 1986, defendant travelled from New Mexico, where he had grown up, to Ventura to visit Brian Buckley, whom he had befriended in 1985 while both were serving in the Army. Buckley was living in his mother's apartment on Crimea Street. Defendant stayed either in the apartment or in a trailer, which Buckley's mother kept in the lot near the apartment.

While Buckley's mother was away on a trip to Illinois, defendant and Buckley socialized with Buckley's neighbors, Jan Jarvis and Mel Rowan. (Rowan, who had been convicted of delivery of a controlled substance and burglary of a habitation in Texas, and had violated his parole, was using the name "Tim Johnson" to escape detection by law enforcement authorities.) Jarvis, Rowan, Buckley, and defendant used drugs together.

In June or July 1986, defendant and Buckley visited Rowan's apartment, bringing A week later, Rowan and Jarvis drove by Urell's beachfront house in Oxnard with defendant and Buckley, on a motorcycle, following. Rowan or Jarvis pointed out the house. Rowan told defendant to "rip off" Urell "now," but defendant said they wanted to check it out some more. They saw a Chevrolet El Camino pickup truck parked in Urell's driveway. At defendant's suggestion, he and Buckley twice returned to "scope out" the house.

[831 P.2d 258] a shotgun and a gram scale. Defendant borrowed a hacksaw and began to saw off the barrel of the shotgun. In the course of conversation, Jarvis mentioned she had a former boyfriend, named Tom Urell, who sold cocaine. Defendant or Buckley asked where he lived. She drew a map showing the location and layout of Urell's house and said he had a lot of cocaine in a safe. Buckley, Rowan, and defendant discussed burglarizing the house.

Defendant did not testify at trial, and the only account of the murder was provided by the testimony of Brian Buckley. Between four days and one week after the initial drive-by, defendant and Buckley went on defendant's motorcycle to Urell's house. It was about midnight. Defendant parked the motorcycle about half a block from the house. Defendant brought a backpack or bag containing a bandanna, gloves, a hat, and the shotgun he had been sawing at Rowan's apartment. Buckley brought a bag containing a .22-caliber pistol, a bandanna, gloves, and a knit stocking hat. One of them had a roll of duct tape. They walked down to the beach, donned hats, gloves and bandannas, and loaded their weapons. It was defendant's idea to bring the weapons and to wear the bandannas so that they would not be identified. Defendant told Buckley he might have to kill Urell to prevent him from being a witness.

They entered the house and defendant led the way to the bedroom. Urell, who was asleep in bed, woke when they approached. Using a false Mexican accent, defendant told Urell not to move. Urell told them to take anything they wanted and not to hurt him. Defendant directed Urell to lie on his stomach. While Buckley held the shotgun, defendant taped Urell's wrists behind his back. Defendant and Buckley searched the drawers in the room, and defendant asked Urell for the combination to the safe. Urell said he did not know the combination and the safe contained nothing valuable. Buckley found cocaine paraphernalia, rolls of quarters, and a few silver dollars in Urell's bedroom. He put these items in his bag. Defendant took a baggie of cocaine and a calculator.

Defendant found an ax under the bed and asked Urell what he was doing with it. Then he raised the ax, turned it in his hands, and hit Urell in the back of the neck. Buckley, who was holding the shotgun, heard the thud of the blow and a hissing sound coming from Urell as if he were having a hard time breathing. Buckley left the bedroom and went into the kitchen. Defendant hit Urell again and the hissing noise became quieter or stopped. Only a second or two elapsed between the first and second blows. Defendant may have hit Urell a third time while Buckley was in the kitchen. Defendant emerged from the bedroom. He and Buckley discussed putting the safe into Urell's pickup truck. Buckley asked defendant if Urell were dead. Defendant responded that he did not know. Defendant returned to the bedroom, and Buckley heard two more hits.

They loaded the safe onto the truck. Defendant drove back to Buckley's apartment, while Buckley drove defendant's motorcycle. Defendant knocked on Rowan's door about 1 a.m., asking for the key to the storeroom underneath the apartment. Rowan gave it to him, got dressed, and went downstairs. He helped defendant unload the safe from the El Camino.

Defendant told Rowan that Urell had not been at home. Rowan returned to his apartment to talk to Jarvis. Later, Rowan went back downstairs and noticed the outer door of the safe was open. Defendant told him he had found the combination in a jewelry box. Buckley went to the trailer and was joined by defendant and Rowan. Buckley was putting a .22-caliber pistol Defendant and Buckley took everything into the trailer. Defendant then drove away in the El Camino, while Buckley left on defendant's motorcycle. Defendant disposed of the El Camino over a cliff in an area called "The Cross" and returned to the apartment on the motorcycle with Buckley.

[831 P.2d 259] and shotgun in the trailer and opening a briefcase that had been in the El Camino. Rowan asked if they had got any cocaine; defendant said they had not. Rowan again returned to his apartment.

Defendant began to try to open the inner door of the safe, but presently stopped due to the noise he was making. He and Buckley injected the cocaine they had found at Urell's house.

Rowan appeared and again asked if anyone had been at Urell's house. Eventually defendant admitted that Urell had been at home and that he thought he had killed him. He said he had hit Urell because Urell had seen his face, telling Rowan he was not ready to leave Ventura yet. Rowan advised defendant and Buckley to throw away everything except the cash.

The next day, defendant succeeded in opening the inner door of the safe. Inside were jewelry, old silver dollars, gold nuggets, and coin books. Rowan tore up the coin books and threw them away. Jarvis took the jewelry and gold and was directed to throw them away. Defendant and Buckley took the safe to Ojai and dumped it near Lake Matilija.

Urell's body was discovered by his friend, Ronald Siebold. Siebold found Urell lying on his bed, apparently dead, with his hands taped behind his back and a pillow on his head. Siebold yelled Urell's name, pulled the pillow off, and dialed 911.

The police arrived 10 minutes later. Urell's room appeared to have been ransacked. Leaning against the foot of the bed was a wooden-handled ax. A subsequent search of the house yielded narcotics paraphernalia.

Dr. Frederick Warren Lovell, the Chief Medical Examiner for Ventura County, examined the body at the scene at 7:54 p.m. on July 16, 1986. He estimated that death had occurred some 14 to 22 hours earlier. A subsequent autopsy showed that the neck bore a series of four overlapping premortem blows from a rectangular object consistent with the blunt side of an ax. The blows broke the victim's neck and caused paralysis that inhibited or possibly cut off his breathing. Dr. Lovell determined the cause of death to be asphyxia, caused in one of the following ways: (1) someone held a pillow over the victim's face for two to five minutes; (2) after the blows to the head, the victim was unable to move his head while lying face down and died of suffocation over the course of two to four minutes; or (3) the blows destroyed the nerve system that causes breathing.

On July 16, 1986, Buckley sold the silver dollars taken from Urell's house to a coin shop in Ventura, sharing the proceeds with defendant. Barbara Adams, employed by the shop, testified that she bought the silver dollars from Buckley, who showed military identification.

Urell was a construction supervisor employed by Bianco Corporation, located in Camarillo, and had been assigned an El Camino as a company car. He also had been assigned company credit cards, including a telephone card.

On July 19, 1986, police searched the trailer belonging to Buckley's mother and found a book of maps stamped with Bianco Corporation's name and address.

On July 20, 1986, Paul Wolny found Urell's El Camino and reported his discovery to the police. The El Camino was impounded and found to be registered to Bianco Corporation.

Defendant gave a friend, Hal Simmon, the telephone calling card he had taken from Urell's briefcase. Simmon used the card 20 to 25 times. Simmon knew the card was stolen because he discovered the number was registered to a business. When police found Simmon in Tampa, Florida, in September or October 1986, they seized his address book, in which he had written the calling card number.

In September 1986, Buckley was arrested for a traffic violation and gave...