People v. Flinner

• Decision Date: 23 November 2020
• Docket Number: S123813
• Citation: 271 Cal.Rptr.3d 648,10 Cal.5th 686,476 P.3d 240
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael William FLINNER, Defendant and Appellant.

10 Cal.5th 686

476 P.3d 240

271 Cal.Rptr.3d 648

The PEOPLE, Plaintiff and Respondent,

v.Michael William FLINNER, Defendant and Appellant.

S123813

Supreme Court of California.

November 23, 2020

Patrick M. Ford, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Theodore Cropley and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

A jury convicted defendant Michael William Flinner of the first degree murder of Tamra Keck and found true financial-gain and lying-in-wait special-circumstance allegations. ( Pen. Code, § 187, subd. (a) ; id. , § 190.2, subd. (a)(1), (15).) The jury also convicted Flinner of conspiracy to commit murder and grand theft (id. , § 182, subd. (a)(1); id. , § 187, subd. (a) ; id. , § 487, subd. (a)); mingling a harmful substance with food or drink (id. , § 347, subd. (a)); and solicitation to commit murder (id. , § 653f, subd. (b)). The jury could not reach a verdict on a second count of solicitation to commit murder. Following a penalty phase trial, the jury returned a death verdict and the trial court entered a judgment of death. The court also sentenced Flinner to an indeterminate term of 25 years to life for the conspiracy conviction, a determinate term of four years for the mingling a harmful substance with food or drink conviction, and a determinate term of six years for the solicitation to commit murder conviction. The court imposed but stayed the indeterminate and determinate sentences pending the resolution and execution of the death judgment.

This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

The trial evidence showed that on June 11, 2000, Flinner called his fiancée, Tamra Keck, while she was out shopping. He directed her to meet his former employee, Haron Ontiveros (also known as Juan de la Torre), at a local gas station so that she could help jump start Ontiveros's car. Keck picked Ontiveros up from the gas station and drove to a nearby cul-de-sac where Ontiveros's car was parked. As Keck was propping the hood of her car open, Ontiveros approached her from behind and shot her in the back of the head, killing her.

1. Prosecution Evidence

Flinner met Keck in 1999. At the time, Keck was 18 years old and had just started her senior year of high school. Flinner was 31 or 32 years old and was operating a landscaping business after being paroled from prison earlier that year. Flinner and Keck developed a romantic relationship. Keck moved into Flinner's apartment in Alpine, California, and the two made plans to marry.

On December 29, 1999, Flinner and Keck met with an Allstate Insurance agent and applied for a $500,000 term life insurance policy for Keck, naming Flinner as the primary beneficiary. At the meeting, Flinner introduced Keck as his fiancée and represented that she was an employee of his landscaping business with an annual income of $30,000 per year. Flinner explained to the Allstate agent that they were taking out the life insurance policy because Keck was an important part of his landscaping business and that he would suffer financially were something to happen to her. This explanation was false. Keck was not, in fact, a regular employee of Flinner's business; Keck occasionally purchased office supplies for Flinner, who then reimbursed her, but those payments were irregular and relatively small. Although Flinner did not provide verification of Keck's employment or salary, the agent issued the insurance policy. Flinner and Keck paid for the first insurance premium payment that day, and Flinner paid for the next two premium payments in March and April 2000.

The prosecution sought to show that Flinner's business was suffering financially in the months leading up to the murder and that he accumulated an increasing amount of debt. After Keck's death, Flinner attempted to collect on the insurance policy, attempted to make large purchases on credit with the promise of payment out of his forthcoming insurance proceeds, and continued even in custody to tell fellow inmates that he expected to receive a substantial payout plus interest from the life insurance policy.

The prosecution also presented evidence that Flinner's relationship with Keck was strained. Flinner took another teenage girl, Tiffany Faye, out for meals several times and told her that although Keck thought they were going to get married, he could get rid of Keck and date Faye. In December 1999, while Faye was visiting Flinner and Keck at their apartment, Flinner proposed a "threesome," which prompted Faye to break off her relationship with Flinner. Various witnesses testified that Flinner treated Keck poorly, said Keck was just after his money, and referred to her by derogatory names. Two days before the murder, Keck called her mother, crying, to report the wedding was going to be postponed.

Around the time Flinner and Keck took out the life insurance policy, Flinner began asking associates what it would cost to have someone killed and whether they would kill someone on his behalf. Robert Johnston, one of Flinner's employees, testified that sometime between December 1999 and January 2000 Flinner asked whether Johnston would kill somebody for him. Charles Cahoon, who worked briefly for Flinner, testified that in January 2000, Flinner asked Cahoon how much it would cost to have somebody killed and whether $10,000 would be enough. When Cahoon asked Flinner what he was talking about, Flinner said that he had gotten Keck insured for $1,000,000. Juan Morales testified that in April 2000, while paying Flinner for a car Morales had bought from him, Flinner asked Morales if he knew where to get a gun.

A few days before the murder, Flinner obtained the car that codefendant Haron Ontiveros, one of Flinner's landscaping employees, would use on the day of the murder.¹ Flinner visited an auto dealership that he had done business with before and signed a borrower agreement for a small white Nissan NX car. Amir Bahador, an employee at the auto dealership, testified that when Flinner came to pick up the Nissan NX, he was accompanied by a "Hispanic gentleman, kind of short, kind of stocky," though Bahador could not say for sure that it was Ontiveros. Flinner told Bahador that he was getting the car for his employee, the man who was with him at the dealership. After the murder, Flinner also gave Ontiveros a forged check for $7,000 in payment for his role.

On the morning of the murder, at about 10:45 a.m., video surveillance showed Flinner driving his white Ford pickup to the Ultramar gas station in Alpine. Flinner was also placed at that location through his cell phone records and the testimony of Phillip Finch, who drove by Flinner while he was pulled over on the road near the gas station to make a call. The clerk at a nearby Shell station testified that around 10:30 a.m. Flinner purchased gas and milk and asked the clerk to hurry ringing up the purchase because he "was late to meet his friend down the street."

At about the same time, video surveillance showed the white Nissan NX driving into the Ultramar gas station. Shortly thereafter, video showed both Flinner's Ford pickup and Ontiveros's Nissan NX leaving the Ultramar station and heading toward a cul-de-sac down the street. Flinner later admitted to detectives that he entered the cul-de-sac sometime between 10:00 a.m. and 11:00 a.m. on the morning of the murder. Suzanne Scanlan, who volunteered at a veterans’ organization that had a view of the cul-de-sac, testified that in this timeframe she saw two white cars parked next to each other in the cul-de-sac. Video footage picked up the two white cars exiting the cul-de-sac road about 15 minutes after they entered.

Flinner arrived at his parents’ house at about 11:30 a.m. on the day of the murder. Shortly thereafter, at around 11:45 a.m., Keck and Flinner left Flinner's parents’ house separately — Flinner to go shopping and to a car wash with his son and Keck to go to Walmart and Vons. Walmart's video surveillance showed Keck entering and shopping in the store. While Keck was at Walmart, phone records show she received two calls from Flinner, at 12:08 p.m. and 12:15 p.m., and Flinner confirmed in a police interview that he called Keck while she was at Walmart. Video then showed Keck leaving the Walmart and, instead of driving to Vons, entering the Ultramar gas station.

In the meantime, surveillance video showed the white Nissan NX driving back into the cul-de-sac at 12:02 p.m. A man left the cul-de-sac by foot at 12:08 p.m. and headed toward the Ultramar gas station, where he arrived and waited in front of the station. At 12:32 p.m., video showed Keck's white Mustang coming into the Ultramar station and pulling up to where the man was waiting (although he was no longer visible in the surveillance video), and it then showed the Mustang leaving the station and heading toward the cul-de-sac. About three minutes after the Mustang entered the cul-de-sac, video showed the white Nissan NX speeding out of it.²

Shortly after the murder, a motorist discovered Keck's body and called the police. Keck's body was found lying in front of her car. The car's engine was running, the hood was ajar and the passenger side door open. Keck had been shot once in the back of the head. This and other circumstantial evidence indicated that, once she had parked in the cul-de-sac, Keck left her car running and exited the vehicle. While she was opening the hood of her car, she was shot in the head from behind. She died within a minute of being shot.

Flinner attempted to cast the responsibility for Keck's murder on others. In the days before the murder, Flinner had told two sheriff's deputies that one of his...