People v. Gordon

Decision Date21 June 1990
Docket NumberNo. S004684,S004684
Citation270 Cal.Rptr. 451,792 P.2d 251,50 Cal.3d 1223
CourtCalifornia Supreme Court
Parties, 792 P.2d 251 The PEOPLE, Plaintiff and Respondent, v. Patrick Bruce GORDON, Defendant and Appellant. Crim. 24551.

Frank O. Bell, Jr., Harvey Zall and Fern M. Laetham, State Public Defenders, and Monica Knox, Acting State Public Defender, under appointment by the Supreme Court, Dee A. Hayashi and Michael Tanaka, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Edmund D. McMurray, Lisbeth M.P. Bellet and Ward A. Campbell, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190.1 et seq.).

Together with his brothers, Bernard Patrick Gordon (hereafter Bernard) and Michael Eugene Caputo (hereafter Michael), defendant Patrick Bruce Gordon was charged with conspiracy (Pen.Code, § 182) to commit murder (id., § 187) and robbery (id., § 211); the murder of William Camp Wiley; and the robbery of the same individual. As to the murder charge, a felony-murder-robbery special circumstance (id., § 190.2, subd. (a)(17)(i)) was alleged against all three men. As to both the murder and robbery charges, personal use of a firearm (id., § 12022.5) was alleged against Bernard and Michael. All three men pleaded not guilty and denied the allegations. Defendant was tried separately. A jury found him guilty as charged and determined the special circumstance allegation was true. It subsequently fixed the penalty at death. The court entered judgment accordingly.

As we shall explain, we conclude that the judgment must be affirmed.

I. FACTS
A. Guilt Phase

At the guilt phase the prosecution's theory was that defendant was responsible with his brothers for the crimes charged--specifically, he was liable for the robbery and murder by aiding and abetting them as their getaway driver, or at least by conspiring with them to commit the offenses. The issues subject to greatest dispute were identity, intent, and degree of participation. To support its theory, the prosecution presented evidence in its case-in-chief relating directly to the crimes charged and also to certain prior uncharged offenses. The tale told is in substance as follows.

On November 15, 1982--about 13 months before the commission of the crimes for which defendant was standing trial--Mark Allen Freed, a courier for an armored-car service, was robbed and murdered in the sales area of a K mart store in Riverside after he picked up the business's receipts for deposit to its bank account. Freed was carrying the receipts and was armed with a .38-caliber revolver. He was accosted by two men with handguns and without masks. Soon shots rang out. One of the men fired two rounds of Winchester Western .45-caliber automatic ammunition from a .45-caliber automatic or semiautomatic pistol possibly manufactured by Star; both bullets went through Freed, and one apparently lodged in the shooter's partner. That man fired one round of 9-mm. Luger ammunition from a 9-mm. Luger pistol; the bullet went through Freed and apparently lodged in the shooter's partner. Freed fired his revolver and hit the man who was armed with the .45-caliber pistol. Freed was shot through the chest, behind the left ear, and in the upper left arm, and died as a result of the chest wound. The perpetrators fled through a fire exit at the rear of the store, taking with them Freed's gun as well as the business's receipts.

Evidence connected defendant and his brothers to the Riverside K mart incident. For example, at the scene of the shooting was found a hat; it matched one to which defendant and his brothers evidently had access. Also discovered was a trail of blood leading from the scene to the fire exit; the blood could have come from about 7 percent of the Caucasian population in the state, including defendant but not his brothers. Moreover, some time before the incident, defendant had purchased a Star .45-caliber semiautomatic pistol from a firearms dealer; he had sought, and received, a "powerful and concealable" weapon.

Further, some time before November 25, 1982, Bernard left California with defendant and Michael, driving a red pickup truck with a camper shell; defendant and Michael had recently sustained gunshot wounds, the former to his hip and arm, the latter to his stomach. The trio set out for the house of their uncle, Dennis Rauch, who lived in Hinesville, Georgia. Rauch was a sergeant in the Army, had served in Vietnam, and was quite familiar with gunshot wounds. Bernard had evidently informed Rauch of the injuries suffered by defendant and Michael, and Rauch told Bernard to bring them to him for treatment.

On November 26 the trio arrived at Rauch's house. Rauch checked the wounds sustained by defendant and Michael. He determined defendant's arm was broken; he recommended a hospital visit, but it was decided that such a visit should take place only after the gunshot wounds had healed. Rauch began to treat the injuries. At Bernard's request, and with his offer of a sum between $1,000 and $2,000, Clark Pace traveled from California to Hinesville and, once there, assisted Rauch in the treatment. Bernard stayed about three days. Rauch took him to the Savannah airport for a flight back to California, and received $2,000. After defendant's gunshot wounds had healed sufficiently, Rauch took him to a hospital in Hinesville and from there to a hospital in Savannah. Defendant and Michael eventually returned to California. They bore scars and other indications of the wounds they had suffered.

Finally, after a physical lineup conducted on February 3, 1984, defendant was identified as one of the perpetrators by Beverly Gomez, a K mart employee who had witnessed the incident. (Gomez, however, did not identify defendant at trial.)

On December 18, 1983, William Camp Wiley, a courier for an armored-car service, was robbed and murdered in the sales area of a K mart store in Stockton after he picked up the business's receipts for deposit to its bank account. Wiley was carrying the receipts and was armed with a .38-caliber revolver. He was accosted by two men with handguns and without masks. Soon shots rang out. One of the men fired three rounds of Remington Peters 9-mm. Luger ammunition from a 9-mm. Browning Luger pistol. The other fired one round of Winchester Western .38-caliber Super Plus P automatic ammunition, apparently from a .38-caliber automatic or semiautomatic pistol. Both hit their mark: Wiley was shot three times in the chest and once in the abdomen, and died as a result of his wounds. The perpetrators fled through a fire exit at the rear of the store, taking with them Wiley's gun as well as the business's receipts.

Evidence connected defendant and his brothers to the incident at the Stockton K mart as well as that at the Riverside store. For example, at and around defendant's residence in Chino the following items, among others, were found: a police call radio directory for states including California, bearing defendant's fingerprints, with marks at several frequencies used by the Stockton Police Department; a similar directory, with marks at several frequencies apparently used by the Riverside Police Department; two portable programmable scanning radios capable of monitoring police broadcasts; two handheld transceivers or "walkie-talkies" with clip-on microphones; ten rounds of Remington Peters 9-mm. Luger ammunition; two Browning 9-mm. barrels, which had been sent to Michael in care of defendant; more than $1,000 in cash; and a map of Tucson, Arizona, bearing defendant's fingerprints, with marks indicating, among other things, the location of certain K mart and similar stores.

At and around Bernard's residence in Upland the following items, among others, were discovered: the Browning 9-mm. Luger pistol used in the crimes committed at the Stockton K mart, fitted with a different barrel; a portable programmable scanning radio capable of monitoring police broadcasts, which had in fact been tuned to one of the main channels used by the Stockton Police Department; a registration slip and other title documents relating to a beige Chevrolet station wagon, purchased by defendant in San Diego under an assumed name for cash, which was evidently used in the Stockton crimes and then abandoned; more than $13,000 in cash; a police call radio directory for states including Arizona, with marks at several frequencies apparently used by law enforcement authorities in Phoenix; and a map of Phoenix, bearing defendant's left palm-print, with marks indicating, among other things, the location of certain K mart stores.

At Michael's residence in Upland was found, among other items, Winchester Western .38-caliber Super Plus P automatic ammunition--the kind of ammunition used by one of the perpetrators at the Stockton K mart.

Further, while they were in custody after their arrest, defendant and Bernard passed coded notes which were intercepted, and partially decoded, by the jailers. Defendant sent a note that read in part: "Talked to said wife, worried about Denny [i.e., Dennis Rauch] cracking. I agree with you pizza [?] would stop. If not I'll tell your story. Biggest thing against me is marks on call book for here. I saw the reg. slip on wagon ..., that's scary." Bernard responded with a note, "Were you talking about the station wagon?" Defendant replied with a note that read in part: "Yes, on station wagon ..., it's a registration slip." The station wagon was subsequently found abandoned about a block from the Stockton K mart.

Finally, at trial Bernard and Michael were named as the shooters at the Stockton K mart by several witnesses who had observed the incident. Defendant had been seen by one witness shortly before the event: he was sitting in the...

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