People v. Gutierrez, No. S018634.

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER, J.
• Citation: 28 Cal.4th 1083,124 Cal.Rptr.2d 373,52 P.3d 572
• Parties: The PEOPLE, Plaintiff and Respondent, v. Isaac GUTIERREZ, Jr., Defendant and Appellant.
• Decision Date: 15 August 2002
• Docket Number: No. S018634.

124 Cal.Rptr.2d 373
28 Cal.4th 1083
52 P.3d 572

The PEOPLE, Plaintiff and Respondent,
v.
Isaac GUTIERREZ, Jr., Defendant and Appellant

No. S018634.

Supreme Court of California.

August 15, 2002.

As Modified August 15, 2002.

Rehearing Denied October 2, 2002.

As Modified October 2, 2002.

Certiorari Denied April 28, 2003.

124 Cal.Rptr.2d 388

Paul M. Posner, under appointment by the Supreme Court, Paso Robles, for Defendant and Appellant

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, Holly D. Wilkins, Esteban Hernandez and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied April 28, 2003. See 123 S.Ct. 1899.

BAXTER, J.

A jury convicted defendant Isaac Gutierrez, Jr., of the first degree murders of Billie Faye Jones and John Stopher (Pen. Code, § 187),¹ first degree residential burglary (§§ 459, 460, subd. (a)), kidnapping of Rose V. (§ 207, subd. (a)), aiding and abetting the forcible rape of Rose V. (§ 261, subd. (a)(2)), and the attempted murder of Police Officer David Dunavent (§§ 664, 187). Multiple-murder and lying-in-wait special circumstances (§ 190.2, subd. (a)(3) and (15)) were found true; the latter in connection with the murder of Stopher. The jury further found that defendant personally used a deadly weapon in the murders of Jones (garrote) and Stopher (shotgun), the kidnapping and forcible rape of Rose V. (shotgun), and the attempted murder of Officer Dunavent (handgun). (§ 12022, subd. (b).) After a penalty trial the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and imposed the death sentence.² This appeal is automatic. (§ 1239.)

Finding no prejudicial error, we affirm the convictions and judgment of death in their entirety.

I. FACTS

A. Guilt Phase

1. Prosecution evidence

In August 1984, defendant was convicted in Kern County of assault with a deadly weapon (vehicle) on a peace officer and sentenced to state prison for four years. At that time he was married to Rose V., his second wife, and they had a five-year-old daughter. They owned a house located on Montrose Street in Hesperia.

In June 1985, while defendant was in prison, Rose V. met John Stopher, who soon moved in with her at the Montrose Street house. Stopher, age 25, was a female who had been receiving large amounts of testosterone since age 18. Stopher had a full-face dark beard, no breast development, and female genitalia. In November or December 1985, Rose V. advised defendant that she was living with her boyfriend, i.e., Stopher, and that she was going to divorce him. Defendant was angry, told Rose V. he was going to kill Stopher, and wrote her a letter memorializing his threats. Rose V. filed for dissolution of marriage in April 1986.

In August 1986, defendant was released from prison on parole. In October 1986, he moved into the Bakersfield home of his sister and his brother-in-law, Henry Lostaunau, a former police officer. While in

124 Cal.Rptr.2d 389

prison, defendant had communicated with Billie Faye Jones, a 41-year-old single mother who worked as a medical clerk at Kern County General Hospital and lived with her mother and two sons. On October 30, 1986, Jones told her mother she was having dinner with defendant that evening and would also be seeing him again the following day, which was Halloween. On the morning of October 31, Jones drove her six-year-old son to school, returned home, left again in her van around 1:00 p.m. to run some errands, and never returned

At approximately 3:00 p.m. on the afternoon of October 31, defendant told Lostaunau he was going to Montgomery Ward and would need a ride home. Lostaunau went to pick up defendant at the arranged location, waited for over an hour, then returned home alone. Defendant testified the plan was a ruse to get Lostaunau out of the house so that he could take firearms, which were kept in the home, without Lostaunau's knowledge.

Defendant has a son, Joseph, from his first marriage, who was 15 years old at the time in question. On the afternoon of October 31, defendant picked up Joseph at the Greyhound bus station in Billie Faye Jones's van. Defendant testified he forced Joseph to accompany him. They stopped briefly at the Lostaunau home to pick up guns and then drove to Hesperia, defendant telling Joseph he had "a little something to take care of concerning his wife, Rose V. They arrived at the house on Montrose Street, drove past it more than once, then parked on a street atop a nearby hill and waited for Rose V. and Stopher to return home. Around 9:00 to 9:30 p.m., a member of the Hesperia Fire Department approached defendant and Joseph, who were seated in the parked van, questioned them briefly regarding a report of children setting off firecrackers in the area, then departed. Shortly thereafter Rose V. and Stopher returned home. Stopher went to take a shower in the master bathroom.

Defendant and Joseph put on Halloween costumes consisting of rubber masks and capes that defendant had brought along. Defendant put a .380 automatic pistol and a derringer in his jacket pockets, both of which he had taken from Lostaunau's residence, and also concealed a shotgun under his cape.

According to defendant's testimony,³ before he parked Jones's van outside Rose V.'s house he had not told Joseph what his intentions were regarding his planned contact with V. and Stopher. Defendant testified he threatened Joseph with a gun and ordered him to enter the home and assist him with whatever he was going to do inside. Joseph told defendant, "Dad, I don't want to do this. I don't want to be involved in it." Defendant struck Joseph in the head when he at first refused to enter the house.

Rose V. testified that when she answered the doorbell defendant and Joseph shoved open the door and pushed her to the floor. Defendant's mask flew off. Rose V. thought defendant had a "rifle," although she testified she did not know the difference between a rifle and a shotgun. Joseph, wearing a Halloween mask, placed a handgun to Rose V.'s head. When Rose V. screamed to warn Stopher, she was ordered to shut up. Joseph stayed in the living room watching Rose V. with the handgun while defendant forced his way through the locked door of the bathroom

124 Cal.Rptr.2d 390

and fatally shot Stopher with the 12-gauge shotgun. Expert medical testimony established that Stopher was killed by a shotgun blast to the face and head that left brain tissue spattered about the shower stall. Defendant fired four or five additional shotgun blasts into Stopher's chest, abdomen and left arm

Defendant and Joseph dragged Rose V. out of the house and forced her into Jones's van, hitting her in the head with a gun. Defendant told Rose V., "your boyfriend back there, he's gone; we blew him away." Defendant drove south toward the freeway while Joseph held a gun to Rose V.'s head. Defendant told her to shut up and threatened that Joseph would cut her if she did not cooperate. At defendant's direction Joseph took some ropes, tied Rose V.'s hands behind her back, tied her ankles, blindfolded, and gagged her.

Defendant drove south on Interstate 15 toward San Bernardino. Although Rose V. knew Joseph, she did not realize he was the assailant accompanying defendant; at first he was wearing a Halloween mask, and thereafter she was blindfolded. Using a knife, Joseph cut off her bra. When he was unable to remove her pants, he cut the rope that was tying her, slicing a half-inch cut in her ankle. Joseph proceeded to rape Rose V. When Joseph was finished, defendant told him to make sure Rose V. could breathe and to keep her covered with a sheet.

Nearing Coachella, defendant got off the freeway and stopped for gas. Joseph took a gas can from the rear of the van and passed it out to defendant; as it was being placed back in the van some of the gas dripped on Rose V.'s face. During the stop Rose V. also felt a finger being inserted into her vagina. She was unable to tell who did this to her. Defendant drove away from the gas station and was stopped by police a short time thereafter.

Coachella Police Officer David Dunavent testified that shortly after midnight on November 1, 1986, he stopped defendant for driving with a headlight out. Defendant got out of the van and spoke with the officer at the rear of the vehicle. He could not produce his driver's license or registration. Officer Dunavent looked into a bubble window on the side of the van and saw someone looking out at him. At that moment defendant placed a handgun to the back of Officer Dunavent's neck. Officer Dunavent heard a click, which he recognized as the sound of a gun dry firing on an empty chamber. The officer turned and ordered defendant to halt or freeze and to drop the weapon. Defendant fired a round at Officer Dunavent and a gun battle ensued. The officer managed to radio for a backup while taking cover behind the patrol unit. At one point Joseph exited from the van wielding a rifle or shotgun. Ultimately, defendant was wounded by two bullets; neither Officer Dunavent nor Joseph was hit during the exchange of gunfire. Other police officers arrived and arrested defendant and his son.

Inside the van, Rose V. managed to free her hands, remove the gag and call out to the police for help. Police recovered three weapons from the ground in the area of Jones's van. The 12-gauge shotgun and Lostaunau's .380 automatic pistol were near the front of the van; Lostaunau's derringer was found at the rear of the vehicle.

During the early morning hours of November 1, 1986, defendant was contacted by Coachella Police Detective Pete Yanez in the X-ray room of John F. Kennedy Memorial Hospital. Defendant greeted Detective Yanez, whom he knew when he (defendant) had worked as a fireman at the Mecca fire station and Yanez was a Riverside deputy sheriff. Yanez, who was

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