People v. Frierson

• Decision Date: 02 May 1991
• Docket Number: No. S004761,C,S004761
• Citation: 53 Cal.3d 730,280 Cal.Rptr. 440,808 P.2d 1197
• Court: California Supreme Court
• Parties: , 808 P.2d 1197 The PEOPLE, Plaintiff and Respondent, v. Lavell FRIERSON, Defendant and Appellant. rim. 26221.

Page 440

280 Cal.Rptr. 440

53 Cal.3d 730, 808 P.2d 1197

The PEOPLE, Plaintiff and Respondent, v. Lavell FRIERSON, Defendant and Appellant.

No. S004761, Crim. 26221.

Supreme Court of California In Bank.

May 2, 1991.

Rehearing Denied June 26, 1991.

Fern M. Laetham, State Public Defender, under appointment by the Supreme Court, Adrian K. Panton and Sandra L. Goldsmith, Deputy State Public Defenders, Los Angeles, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Mark Alan Hart, Susanne C. Wylie, Noreen F. Berra, Susan L. Frierson and Richard L. Walker, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

ARABIAN, Justice.

This case, arising out of the 1977 death penalty law, is before us for the third time. In People v. Frierson (1979) 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587 (Frierson I ), we reversed defendant's conviction of first degree murder with special circumstances and other offenses, together with a verdict of death, because of ineffective assistance of counsel for failing to investigate or present a diminished capacity defense. Defendant was retried, convicted of the same offenses with the same special circumstances, and again sentenced to death.

In People v. Frierson (1985) 39 Cal.3d 803, 218 Cal.Rptr. 73, 705 P.2d 396 (Frierson II ), we affirmed convictions of first degree murder (Pen.Code, § 187), ¹ two counts of robbery (§ 211), two counts of kidnapping for purposes of robbery (§ 209), and assault with a deadly weapon (§ 245, subd. (a)), with firearm-use and great-bodily-injury enhancement allegations (§§ 12022.5, 1203.06, subd. (a)(1), 12022.7). We reversed special circumstance findings under the 1977 death penalty law for murder during the course of a robbery and a kidnapping (former § 190.2, subds. (c)(3)(i), (ii)), and the death sentence, because defense counsel elected not to present a diminished capacity defense at the guilt phase despite defendant's wish that such a defense be presented.

At the third trial, the jury again found the special circumstances true, and again imposed the death penalty. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal, like the previous two, is automatic. (§ 1239.) This time, we affirm.

I. FACTS

A. Guilt Phase

The jury convicted defendant of kidnapping and robbing Edgardo Kramer and Guillermo Bulnes, of murdering Kramer execution style, and of shooting Bulnes in the back of the head.

1. Prosecution Evidence

The prosecution case-in-chief at the third trial revealed essentially the same facts as the first two trials. We review them briefly.

On January 3, 1978, Kramer and Bulnes, two Peruvian airline employees, drove to the Holly Aire Motel in Inglewood to visit a woman named Chris. Bulnes knocked on the door to room 18 and told the young woman who responded--later identified as Zondre Wooley--that he was looking for Chris. Wooley said she was not there, offered to call her for him, and walked to a nearby telephone booth. Wooley later said that Chris would arrive shortly. Bulnes and Kramer then sat in Bulnes's car parked across the street from the motel.

Soon thereafter, defendant approached the car and asked if they were waiting for Chris. When Bulnes said that they were, defendant drew a gun and pointed it at Bulnes. He entered the back seat behind the two men, and ordered Bulnes to lock the door, close the windows, start the car and begin driving.

During the ride, defendant demanded and obtained property from both victims. Although defendant told Bulnes to watch the road and not look back, Bulnes turned and glanced at defendant's face several times. After traveling a few blocks at defendant's direction, defendant ordered Bulnes to park the car. He then shot both Bulnes and Kramer in the backs of their heads. Kramer was killed. The bullet directed at Bulnes hit him above the ear but did not penetrate his skull. He was able to grapple with defendant and disarm him. Bulnes pointed the gun at defendant and left the car.

After running a few steps, Bulnes fell to the ground. Defendant grabbed him around the neck and tried to retrieve the weapon. During the ensuing struggle, Bulnes emptied the gun's chamber by firing shots into the ground and threw the gun away. When defendant released his grip, Bulnes ran to a nearby street, flagged down a passing motorist, and was driven to a hospital.

At the retrial, Bulnes gave the foregoing account of the incident and positively identified defendant as the assailant. He had observed nothing suggesting defendant was intoxicated. The investigating police officers testified that defendant and Wooley were arrested a few hours after the crimes in room 18 at the Holly Aire Motel. Distinctive watches owned by the victims, defendant's bloody clothing, and other incriminating evidence were found in the motel room. An inmate who had been at the county jail when defendant was initially apprehended testified that defendant had recounted the entire crime to him, admitting that he had robbed and shot the two victims.

2. Defense Evidence

Defendant primarily presented a diminished capacity defense. Testimony of his mother, several friends and Wooley suggested that at the time of the crimes, defendant's mental state was affected by his use of phencyclidine (PCP) and possibly other drugs and beer. Dr. Marvin Gillick, a forensic psychiatrist, examined defendant and reviewed selected materials supplied by the defense. He opined that at the time of the crime, defendant was able to form the specific intent to commit robbery and to harbor malice but, due to mental impairment caused by the ingestion of PCP, was unable to "form the specific intent to commit first degree murder, that means deliberate, premeditate and maturely and meaningfully reflect." Carl Trout, a "narcotics consultant," testified that it is not easy to determine if a person is under the influence of PCP.

B. Penalty Phase

1. Prosecution Evidence

On May 20, 1972, Douglas Green was killed in Los Angeles by a bullet wound in the chest. Detective Sergeant Thomas Miller arrested defendant, Michael Concepcion and Lewis White for the homicide. All 3 were 15 or 16 years old. Detective Miller placed the three in an interview room, and went to another room where he could overhear conversation among them. He heard defendant say, " 'I thought he had a cake cutter in his pocket and I pulled it out and it was a gun.' " Defendant said that he had "clicked the gun a couple of times and the gun went off, shooting the deceased"; and something to the effect, " 'I wonder if it would be self-defense if I had shot this dude with his own gun.' " There was some laughter followed by defendant imitating "the noises that the deceased made after he was shot in trying to breathe." Defendant said something like, " 'Did you hear the dude when I shot him? Did you hear him?' "

Documentary evidence established that the juvenile court sustained a petition alleging that defendant had murdered Green. The court committed defendant to the California Youth Authority.

The prosecution also presented evidence showing that defendant committed one armed robbery on December 21, 1977, and a second robbery involving three victims on December 24, 1977.

2. Defense Evidence

A correctional officer at San Quentin testified that defendant had been "better than a model prisoner" while on death row. A neighbor testified that defendant had been a "good boy." Defendant's parents and sister testified about his drug usage and violent tendencies while on drugs.

Philip McCain testified that he was at the party at which Green was shot and killed. McCain testified that Louis White shot Green; afterwards White said that he "did it." Michael Concepcion testified that he was present at the shooting. He did not see who did it, but defendant was not there. Concepcion further testified that White was present and possessed a gun. White refused to testify on self-incrimination grounds.

Defendant admitted the two December 1977 robberies, but denied shooting Green. He testified about his drug problems. He said he was "very sorry" about what had happened.

II. DISCUSSION

A. Issues Relating to Counsel

Defendant contends the court erred in denying him cocounsel status, not granting him substitute counsel, and denying his eve-of-trial motion to represent himself.

1. The Facts

Following the second reversal of this case, the trial court appointed Arnold Lieman to represent defendant on November 18, 1985. On January 14, 1986, through counsel, defendant requested that he be allowed to act as cocounsel because "he is intimately involved in the proceedings, and as co-counsel ... he would have access to the law library and the privileges in regard to being able to perhaps help in researching the law." The court denied the request.

On June 5, 1986, trial was set for September 29. On September 26, the court trailed the case until October 1. However, on September 29, defendant expressed dissatisfaction with his attorney and asked to represent himself. On that day and the next, the court held a "Marsden " hearing (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) outside the presence of the prosecution. Defendant complained about his attorney and investigator, and they responded. The court found that defense counsel was acting competently and diligently on defendant's behalf, and found no "good cause to relieve the attorney."

Defendant's self-representation was thereafter discussed in the presence of the district attorney. Defendant asked to take the case off calendar and for a 60-day continuance so he could prepare for trial. The court found no need to continue the trial, and denied the motion for self-representation since defendant was not ready to proceed in propria persona. The defense was granted a...