People v. Gurule

• Decision Date: 22 July 2002
• Docket Number: No. S018815.,S018815.
• Citation: 28 Cal.4th 557,51 P.3d 224,123 Cal.Rptr.2d 345
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond Anthony GURULE, Defendant and Appellant.
• Court: California Supreme Court

123 Cal.Rptr.2d 345

28 Cal.4th 557

51 P.3d 224

The PEOPLE, Plaintiff and Respondent, v. Raymond Anthony GURULE, Defendant and Appellant.

No. S018815.

Supreme Court of California.

July 22, 2002.

Rehearing Denied October 2, 2002.

Certiorari Denied April 7, 2003.

Violet Elizabeth Grayson, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald

A. Bass, Assistant Attorney General, Catherine A. Rivlin and Jeffrey M. Bryant, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied April 7, 2003. See 123 S.Ct. 1754.

WERDEGAR, J.

Raymond Anthony Gurule was convicted in 1989 in San Mateo County Superior Court of the first degree murder of Elliott Dolinka. (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained special circumstance allegations that defendant had previously been convicted of murder (§ 190.2, subd. (a)(2)) and that the murder had occurred during the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now redesignated subd. (a)(17)(A)). The initial jury deadlocked on the issue of penalty, and the trial court declared a mistrial. A second jury was empanelled. On October 18, 1990, the second jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

After considering the claims raised on appeal, we affirm the judgment in its entirety.

I. GUILT PHASE

A. Facts

1. The Murder

Barry Van Otten owned Barry's Chevron, a service station in Daly City. He employed 15-year-old Elliott Dolinka as a part-time employee. On Saturday, May 15, 1982, Van Otten opened his station at 7:00 a.m., placing about $55 in the cash box from the safe in the office. Van Otten had the only key to the safe. Dolinka arrived for work around 7:30 in the morning. Van Otten left shortly thereafter to obtain some auto parts.

About 8:25 a.m., George Burton and Stan Moore drove into the station for gas. Burton noticed an Oldsmobile Cutlass parked at the station. Shirley Funk also drove into the station for gas at that time and recalled seeing Moore's Cadillac and a light-colored, older American car. Dolinka, wearing his Chevron uniform, pumped gas for both Funk's car and Moore's Cadillac. A young African-American man (Mark Garrison) paced around the station and also helped pump gas for customers, although he was not wearing a Chevron uniform. One customer, David McLaughlin, asked Dolinka if the young African-American man was a friend of his. Dolinka replied, "I don't know who he is."

Around this time, another young man (defendant) came to the station and spoke with the African-American man. The second man was neither White nor Black, but possibly Asian or Hispanic.¹

Van Otten called in around 8:35 a.m., and Dolinka reported everything was fine. He said two people in a Cutlass had come in, needing auto repairs. Van Otten said to write up a work order and tell them he would be back at 10:00 a.m. to work on their car.

Charles Arivett owned the Shell service station across the street from Barry's Chevron. About 8:45 in the morning, Arivett heard someone making gurgling and choking sounds and emerged from his office to see Dolinka, bleeding profusely from his throat. Dolinka, whom Arivett identified from his Chevron uniform, was trying to speak but could only manage some gurgling sounds. Arivett told one of his employees, Reginald Ram, to call 911. Arivett and his employees tried to stop the bleeding with some rags. Arivett then armed himself and went to the Chevron station, but found no one around.

Police responded and found blood splatters and a pool of blood at Barry's Chevron. Everything else was tidy; there was no sign of a struggle. It was later determined that about $73 had been taken from the cash box. No identifiable fingerprints were found at the crime scene.

Despite Arivett's assistance, Dolinka died from a loss of blood. An autopsy revealed his neck had been cut almost to his neck vertebrae with a sharp knife, severing the carotid artery, jugular vein and esophagus. Dolinka would have sucked in blood when he tried to breathe, making it difficult to speak. His survival time would have been between one and five minutes. He bore no defensive wounds.

Despite pursuing literally hundreds of leads, including obtaining a list of several thousand registered owners of 1967 to 1969 model Oldsmobile Cutlasses who lived in the Bay Area, police had no suspects for the crime from the date of its commission in May 1982 until November 1987. Then, on November 4, 1987, there was a break in the case. On that date, Mark Garrison called Daly City police from Grand Prairie, Texas. Garrison told Sergeant George Quinn that he had been in the Bay Area in 1981 and 1982, that he had participated in a robbery in Daly City in which the victim was killed by slashing his throat, and that about $75 was taken. Garrison told Quinn he had a 1967 Oldsmobile Cutlass.² Sergeant Quinn verified part of the story, finding the car was registered in Texas but had been issued several parking tickets in Oakland.

Sergeant Quinn and Detective Donald McCarthy flew to Texas to interview Garrison at his home. Garrison waived his Miranda³ rights and recounted his participation in Dolinka's murder. He described his crime partner as well. Garrison exhibited no hesitancy in confessing his guilt to the police. Quinn and McCarthy obtained an arrest warrant. Garrison waived extradition and accompanied the officers back to California.

Once back in California, the officers drove around with Garrison. Garrison pointed out the location of Barry's Chevron, which by that time was just a vacant lot, the station having been demolished in the intervening years. They looked for the location where Garrison said he had thrown the knife after fleeing the crime scene. He could not remember the exact location and provided some possible places, but a thorough search of those locations failed to locate a knife.

The officers and Garrison crossed the Bay Bridge into Oakland and, following Garrison's directions, drove to 30th Street and San Pablo Avenue, where he said an auto body shop once stood. He said he had brought his car to the shop after having suffered an accident. Police later verified an auto body shop was once at that location, as Garrison had described.

It was at that auto body shop that Garrison reported having met a man he knew only as "Apache." Garrison explained that "Apache" assisted him in the robbery and murder of Dolinka. Garrison described "Apache" as having the name "Apache" tattooed on his arm, and as having come from Los Angeles. With this information, police identified defendant Gurule as the man Garrison knew as "Apache."

Garrison directed the officers to his former residence, an apartment house in the 600 block of 30th Street in Oakland. He then tried to find defendant's residence, settling on one house in which he thought "Apache" may have lived, although he was not sure. Police later verified defendant had lived in a house just four blocks away.

2. Garrison's Testimony

Garrison testified for the People. He said he came to California from Texas as part of the United States Army Reserve in 1982 or 1983. At the time, he drove a 1970 or 1971 Oldsmobile Cutlass Supreme, brown with a white top. (Police confirmed Garrison had a 1971 tan Oldsmobile Cutlass Supreme with a white roof.) He got into a car accident and took his car to a body shop. There he met a man with a tattoo on his arm that said "Apache." Garrison called the young man "Apache" and did not know his real name.

Garrison told "Apache" he was short of money and was thinking of committing a robbery to obtain enough money to return to Texas. The two agreed jointly to commit a robbery. Garrison explained to "Apache" that he had never been in trouble before so he thought it best to kill the victim to facilitate their escape, although if it was left to him, he would not kill the victim. According to Garrison, "Apache" replied, "Okay, it won't be no problem, I'll do it." "Apache" indicated he had killed before and was ready to kill again. Lacking funds to buy a firearm, they decided to buy a knife. They eventually purchased a fish knife from a local Sears store in Oakland.

Garrison testified that a few days before the murder, he had been driving around Daly City looking for a job when he stopped at a service station to use the men's room. He saw an employee putting money in a safe and got the idea to rob the station. The day of the murder, Garrison and "Apache" drove to Daly City and parked across the street from the service station. The plan was for "Apache" to hold the attendant while Garrison opened the safe. They waited for about two hours, but eventually abandoned the plan because the station was too busy.

Now improvising, the pair drove up the hill and saw another service station that looked promising because it had only one attendant. They stopped and may have had the attendant wash their windows. After leaving, Garrison and "Apache" agreed that Garrison should return alone and pretend something was wrong with his car. In accordance with the plan, Garrison dropped "Apache" off and returned, pulling his car into one of the service bays. He had the attendant check his oil and engaged him in conversation.

At some point, Garrison and the victim were standing around the car with the hood up when "Apache" entered the service bay. Garrison testified he nodded to "Apache," who then grabbed the attendant by the neck. "Apache" had the knife because, according to Garrison, "I wasn't going to do a murder. I wasn't going to kill anyone." While "Apache" was holding the attendant, Garrison asked where the money was. The attendant replied there was a safe and a cash register in the front office. (Garrison later...