People v. Guerra

• Decision Date: 02 March 2006
• Docket Number: No. S036864.,S036864.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Francisco GUERRA, Defendant and Appellant.

40 Cal.Rptr.3d 118

37 Cal.4th 1067

129 P.3d 321

The PEOPLE, Plaintiff and Respondent, v. Jose Francisco GUERRA, Defendant and Appellant.

No. S036864.

Supreme Court of California.

March 2, 2006.

Rehearing Denied May 24, 2006.^*

Certiorari Denied January 22, 2007. See 127 S.Ct. 1149.

Lynne S. Coffin and Michael J. Hersek, State Public Defenders and Arnold Erickson, Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, Keith H. Borjon and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

This is an automatic appeal (Pen.Code, § 1239, subd. (b))¹ from a judgment of death under the 1978 death penalty law. A jury convicted defendant Jose Francisco Guerra of the first degree murder of Kathleen Powell. (§ 187, subd. (a).) The jury found true the special-circumstance allegation that defendant murdered Powell while engaged in the attempted commission of rape (§ 190.2, former subd. (a)(17)(iii), now subd. (a)(17)(C))² and further found that defendant personally used a deadly and dangerous weapon, a knife, to commit the murder (§ 12022, former subd. (b), now subd. (b)(1)). After a penalty trial, the jury set the penalty at death. (§ 190.1 et seq.) The trial court denied defendant's motions for new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic.

We affirm the judgment.

I. FACTS

A. Guilt Phase

1. The Prosecution's Case

In October 1990, Kathleen Powell lived with her boyfriend, Charles Sims, on Kirkside Road in Los Angeles. The house next door to Powell's residence was being remodeled. Defendant was a construction worker at the remodeling site.

On October 25, 1990, around 7:15 p.m., Sims arrived home and found Powell's body lying on the utility room floor in a pool of blood with a knife on top of her chest. The utility room extended from the kitchen and had a door to the backyard.

Earlier in the morning, around 10:00 a.m., Powell beckoned to Odell Braziel, one of the workers at the construction site, to come to her house. Powell had hired Braziel about a week before the murder to repair some dents in her car and detail it. Thereafter, Powell occasionally had given him food and beverages as well as plates of sandwiches to share with the other construction workers. When Braziel reached Powell's house, she said, "I have a problem. I can't keep feeding all these people. You, I don't mind, you're working on my car," but "I got a problem with Francisco [defendant, Jose Francisco]. I can't keep him away from my house." Braziel suggested that she tell Sims or the contractor, or call the police. During their conversation, defendant walked into Powell's house through the utility room door and into the kitchen. The conversation ended, and as Braziel left, Powell asked him to take defendant back to the remodeling site. When he returned to the site, Braziel informed Al Canale, an electrical contractor, of Powell's complaint.

After lunch, defendant asked Braziel to buy him a quart of beer. Braziel returned shortly thereafter with the beer, found defendant standing on Powell's back patio, and gave him the beer. Around 2:30 p.m., Eric Sloane, the site manager, arrived at the remodeling site. Sloane testified that Braziel had complained that defendant was "pestering" Powell and spent considerable time at her house during the day. As Sloane walked around the site looking for defendant, he heard the gate to Powell's backyard close and observed defendant emerge from a hedge dividing the two houses. When Sloane asked defendant what he was doing on Powell's property, he noticed defendant's eyes were bloodshot and his breath carried a strong odor of alcohol. Sloane asked defendant whether he had been drinking, and defendant said that he had been robbed of his life savings the previous night. He apologized to Sloane and assured him that he would not go to Powell's property again. After his encounter with Sloane, defendant told Braziel, "Forget you see me there."

Shortly thereafter, Braziel found defendant on Powell's back patio. Braziel testified he tried to persuade defendant to leave, but defendant gyrated his hips "in a sexual way" and repeated, "Kathy for me, me for Kathy." Braziel demonstrated defendant's movement for the jury by simultaneously gyrating the lower portion of his body and thrusting his hips forward. Braziel observed defendant step through the patio sliding glass door and go about three feet into Powell's den just as the telephone rang. Powell answered the telephone in the front part of the house.

Octave Semere, a coworker of Powell's, testified that sometime between 3:00 p.m. and 3:30 p.m., he telephoned Powell. While speaking to Powell, he could hear Powell's sliding glass door open and close. Powell hollered for "Jose" to get out of the house and asked Semere whether he knew how to say "get out" in Spanish, but he did not. Semere heard a second person enter through Powell's sliding glass doors and heard a man's voice say to her in English that, "this guy Jose is crazy" and "not to trust him." He then heard Powell tell a third person who had come through the sliding glass door to get out of her house.

Meanwhile, in Powell's den, Braziel told defendant that Powell was just friendly and did not like him romantically. Defendant repeated "Kathy-me, me-Kathy" and continued to gyrate his hips. A few days earlier, while sitting around with several coworkers, defendant had made similar statements and gyrations and used the Spanish word "panocha," a slang term for female genitalia, in reference to Powell. Braziel believed defendant was drunk because he slurred his words, had a strong odor of alcohol on his breath, and had difficulty standing. Powell then called out, "Francisco, why don't you go to work? Why don't you find something to do?" and indicated, with a "shooing" motion, for Braziel to leave and take defendant with him. According to Braziel, she "begged" him to take defendant back to the jobsite. Braziel warned Powell that she should "watch out" for defendant and lock her door. He then returned to the jobsite with defendant.

Braziel testified that Powell had arranged to take him to her friend's house in the evening to work on the friend's car. Powell had told him she was going to take a nap and asked him to wake her up at 4:00 p.m. by tapping on her back window. When Braziel woke Powell from her nap, she said, "Francisco was in my house when I was asleep, and my door was open." Braziel asked her how she knew defendant was there, and she explained, "I know. I know. I could feel him. I know he was there. I locked my doors and I woke up, my doors were open."

Braziel returned to the jobsite and informed Canale about Powell's fear that defendant had been in her house. Canale testified that sometime after this conversation, he was working on an electrical panel about 12 to 15 feet away from Powell's utility room. Through the utility room window, he observed defendant standing in the utility room near the opened door leading to the backyard. Defendant was drinking a brown substance from a glass that Canale believed was Jack Daniels whiskey based on the odor of alcohol emanating from the utility room. Defendant walked in and out of Powell's utility room several times.

John Romanak, an electrical contractor, testified that he arrived at the remodeling site between 4:15 p.m. and 4:30 p.m. Canale informed him that defendant had been drinking and was bothering Powell. Defendant then staggered out of the kitchen and asked, "Que pasa?" Canale understood the phrase to mean, "What's happening?" and responded, "Nada," meaning "nothing." Defendant emitted a strong odor of alcohol. Romanak commented, "What's wrong with this guy? He seems awful uptight." Romanak suggested they put away their tools and leave for the day. Braziel put his tools away and met Powell in front of her house. After he got into her car, defendant approached Powell on the driver's side, reached for the upper back of the driver's seat with his right hand, and simultaneously leaned his upper body and head into her car, possibly as if to kiss her. Defendant said something in Spanish to Powell, but Braziel did not understand him. Powell "jerked back" away from defendant and towards the passenger seat. She said she was afraid and would start locking her doors.

Susan Michel, Powell's neighbor, testified that sometime after 4:00 p.m., she observed defendant as she walked by the remodeling site. He asked her whether she had come from Powell's house. Michel answered, no, that she lived on the corner.

Powell and Braziel arrived at Ayshea Levy's house shortly before 5:00 p.m. so Braziel could detail Levy's car. Powell left 10 to 15 minutes later. After Braziel completed his work on Levy's car around 7:30 p.m., Levy's gardener, Roberto Gonzalez, gave him a ride to the intersection of Pico and La Brea.

Powell was scheduled to begin her work shift at 7:00 p.m. Around 7:15 p.m., Sims found Powell dead in their utility room and called 911.

Los Angeles Police Detective Kurt Wachter found Powell's purse in her car with the keys in the ignition. Powell's wallet was on the bar area of her house. The knife on Powell's chest matched the knife set in Powell's kitchen. The door leading from the utility room into Powell's backyard was locked with a key-to-key deadbolt. The side door to the house being remodeled was ajar.

Several of defendant's fingerprints and his bloody palm print were found on the walls of Powell's utility room, and his bloody palm print was found on the kitchen counter of the house being remodeled. Blood samples collected from the wall bearing the palm print in Powell's utility room and the fence separating Powell's front and backyards were consistent with Powell's blood type, as...