People v. Gay, S093765.

Citation73 Cal.Rptr.3d 442,42 Cal.4th 1195,178 P.3d 422
Decision Date20 March 2008
Docket NumberNo. S093765.,S093765.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. Kenneth Earl GAY, Defendant and Appellant.

Therene Powell, under appointment by the Supreme Court, Sunnyvale; Lynn S. Coffin and Michael J. Hersek, State Public Defenders, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

After a joint trial before separate juries in the Los Angeles County Superior Court, Raynard Paul Cummings and defendant Kenneth Earl Gay were convicted of the June 2, 1983, murder of Paul Verna, a Los Angeles police officer. The juries found that Officer Verna was intentionally killed while engaged in the performance of his duties (Pen.Code, § 190.2, subd. (a)(7)), that the murder was committed for the purpose of preventing a lawful arrest (id., § 190.2, subd. (a)(5)), and that a principal was armed (id., § 12022, subd. (a)) and that each principal personally used a firearm in the commission of the murder (id., §§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). Each jury returned a penalty verdict of death.

On direct appeal, we reversed Gay's convictions for robbery, attempted robbery, and conspiracy to commit robbery because of instructional error but otherwise affirmed the judgments against both Gay and Cummings, including the death judgments. (People v. Cummings (1993) 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1.) While that appeal was pending, defendant Gay filed a petition for writ of habeas corpus. After issuing an order to show cause on the claim of ineffective assistance of counsel at the penalty phase and ordering a reference to resolve disputed questions of fact, we determined that defendant had not received constitutionally adequate representation, granted the petition, and remanded for a new penalty trial. (In re Gay (1998) 19 Cal.4th 771, 80 Cal.Rptr.2d 765, 968 P.2d 476.)

Upon retrial, the jury again returned a verdict of death, and the trial court entered judgment accordingly. This appeal is automatic. (Pen.Code, § 1239, subd. (b).) We find that the trial court erred at the penalty retrial in barring defendant from offering significant mitigating evidence concerning the circumstances of the murder—in particular, evidence that Raynard Cummings fired all of the shots—and in instructing the jury not only that a prior jury had found defendant guilty of murdering Officer Verna by personal use of a firearm, but also that it had been "conclusively proved by the jury in the first case that this defendant did, in fact, shoot and kill Officer Verna" and that the jury was to "disregard any statements ... and ... any evidence to the contrary during the trial." Having carefully reviewed the record, we conclude that the errors were prejudicial and that the judgment of death should again be reversed and the cause remanded for a second retrial on the issue of penalty. (See People v. Terry (1964) 61 Cal.2d 137, 142-147, 37 Cal.Rptr. 605, 390 P.2d 381, overruled on other grounds in People v. Laino (2004) 32 Cal.4th 878, 893, 11 Cal.Rptr.3d 723, 87 P.3d 27.)

Background

Officer Paul Verna was shot and killed by defendant and Raynard Cummings after Verna had stopped the car in which they were passengers for a traffic infraction in the Lake View Terrace district of the San Fernando Valley region of Los Angeles. The prosecution's theory was that defendant and Raynard Cummings, passing one gun between them, shot and killed Verna so as to avoid arrest for a series of robberies that the two men, along with Pamela Cummings (who was then Raynard's wife) and Robin Anderson (who was then defendant's wife), had committed in Los Angeles County in the weeks preceding the traffic stop.

Evidence Concerning the Robberies Preceding the Murder

The two couples began socializing early in 1983. Pamela Cummings, who had met Raynard Cummings in high school and subsequently wrote letters to him while he was in prison in Delaware, became his girlfriend upon his release on parole in February 1983. Robin Anderson met defendant in March 1983, after his release on parole, and was introduced to Pamela and Raynard a short time later. The two couples had a double wedding in Las Vegas on May 12,1983.

Neither defendant nor Raynard Cummings had a job. Their preferred pastime was engaging in robberies, unusually brutal ones. Pamela often drove them, in Robin's green car, to the targeted business and acted as a lookout, and Robin sometimes accompanied them. They regularly used a particular seating arrangement in the car to avoid drawing attention to the fact that the Cummingses were a mixedrace couple. Defendant, "who had a light complexion (his mother was White and his father was Black), sat in front with Pamela who was White; Raynard, who was Black and was noticeably darker than defendant, sat in the back.

The prosecution introduced evidence of four such robberies.

The first one occurred at Kenn Cleaners in Granada Hills. After closing time on the evening of April 25, 1983, Raynard Cummings entered the shop with a gun in his hand and ordered owner Hagop Parunyan and another employee, Lisa Pina, to get on the ground and count to a thousand. Raynard took the money from the cash register, hit Parunyan in the neck with the gun for not counting slowly enough, and left. Meanwhile, another man outside the cleaners had stuck a gun behind the car of Parunyan's brother-in-law, Shahan Somounjian, forced him down to the ground, and stole his wallet. The man then used the gun to beat Somounjian about the head several times, breaking Somounjian's finger as Somounjian attempted to use his hands to protect himself. Somounjian could not identify his assailant, but a witness, Todd Husk, who spotted a woman waiting inside a car and two men exiting the area near the cleaners, identified defendant as one of those men. Husk's friend, Troy Gann, identified the other man as Raynard Cummings. Pamela Cummings confirmed that defendant and Raynard had committed the robbery at the cleaners. Raynard had taken $200 to $300 from the cash register, and defendant had hit a man over the head with a gun. Pamela had acted as a lookout.

On the evening of May 13, 1983, defendant and Raynard Cummings entered a recreational vehicle repair shop in Reseda. The shop was closed and the owner, Richard Hallberg, was alone. Defendant demanded money from Hallberg at gunpoint and hit him repeatedly over the head with a revolver. So did Raynard. They hit Hallberg so hard the gun broke. Defendant stole a buck knife and about $1,600. Hallberg suffered injuries to his face, car, and hands. He identified defendant in court but not in any lineups. Pamela confirmed that defendant and Raynard committed this robbery.

On May 20, 1983, Raynard Cummings entered Desire Florists in Chatsworth. He approached Carmen Rodriguez, the owner, and forced her into her office with a knife. When defendant walked in, he told Rodriguez not to look at him and struck her in the head with a gun. Defendant threatened to kill her if she did not open the safe, but Rodriguez was having trouble remembering the combination because of the blow to her head. She begged for more time, explained there was nothing in the safe, and asked the men to take her jewelry and the money from the cash register. Before leaving, Raynard instructed defendant to shoot Rodriguez. Defendant ordered Rodriguez to get on the floor and said, "I hate to do this to you." Rodriguez begged him not to kill her. Defendant beat her with his fists and with the handle of the gun before leaving the store. Rodriguez suffered a concussion and received stitches over several parts of her head as well as her finger. She also experienced deficiencies in her memory lhat caused her to close her shop. Brett Sincock, who owned a nearby store in the shopping center, saw the two men leave Desire Florists and get into the green car driven by Pamela Cummings. Pamela testified that defendant and Raynard thought it was "funny" that Rodriguez had attempted to resist.

On May 21, 1983, all four participated in a robbery at Artistic Mirror & Bath in Tarzana. Pamela Cummings and Robin Anderson entered the store first, around 5:00 p.m., asked what time the store closed, and left without buying anything. They were casing the store, looking for security buttons and cameras. Half an hour later, around closing time, defendant came to the back door of the store and asked for "Epsom salts." Jeremy Glick, an owner of the store, said he had "bath salts" and let defendant inside. Defendant ordered Joyce Glick, Jeremy's mother and a co-owner, to the ground by placing a gun to the back of her neck. Then Raynard Cummings entered the store, held a switchblade against Jeremy's neck, and forced him to the floor, too. After telling the Glicks several times they would be killed if they said or did anything, the men went through Joyce's purse, where she had put the day's receipts, and removed the money. Defendant also took some jewelry from her person. Before the men left, defendant told the Glicks to stay face down and count backwards from a hundred. Pamela testified that defendant gave her a ring he had stolen during this episode, although she had testified at the prior trial that Raynard had given her the ring.

Evidence Concerning the Murder of Officer Verna

On June 2, 1983, Officer Verna of the Los Angeles Police Department was part of a motorcycle team assigned to traffic enforcement in the northeast quadrant of the San Fernando Valley. Verna told Sergeant James Leiphardt that he was going to enforce the stop sign at Gladstone Avenue and Van Nuys Boulevard. Verna said he had grown up in that neighborhood and that his parents had moved away only two years earlier. The last...

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