People v. Heishman

• Decision Date: 09 May 1988
• Citation: 45 Cal.3d 147,246 Cal.Rptr. 673,753 P.2d 629
• Court: California Supreme Court
• Parties: , 753 P.2d 629 The PEOPLE, Plaintiff and Respondent, v. Harvey Lee HEISHMAN, III, Defendant and Appellant. Crim. 21944.

Page 673

246 Cal.Rptr. 673

45 Cal.3d 147, 753 P.2d 629

The PEOPLE, Plaintiff and Respondent, v. Harvey Lee HEISHMAN, III, Defendant and Appellant.

Crim. 21944.

Supreme Court of California In Bank.

May 9, 1988.

As Modified on Denial of Rehearing June 30, 1988.

Geoffrey Rotwein, Ruffin & Rotwein, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Herbert F. Wilkinson, Martin S. Kaye, Ann K. Jensen and Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KAUFMAN, Justice.

Defendant Harvey Lee Heishman III was convicted, after jury trial, of the first degree murder of Nancy Lugassy, with the special circumstance that she was a witness to a crime who was intentionally killed to prevent her testimony. (Pen.Code, §§ 187, 189, 190.2, subd. (a)(10).) ¹ He was also found to have personally used a firearm in committing the crime. (§ 12022.5.) The jury subsequently returned a verdict for imposition of the death penalty; defendant's motion for new trial and automatic application for modification of the verdict were denied, and he was sentenced to death. (§§ 190.3, 190.4.) This appeal is automatic. (§ 1239, subd. (b).)

We conclude that the judgment of guilt and the special circumstance finding should be affirmed. Moreover, we find no error in the penalty trial requiring reversal of the verdict imposing the death penalty. It is clear that on defendant's automatic application for modification of the penalty verdict, the trial judge failed to comply with the requirement of section 190.4, subdivision (e), that the judge "state on the record the reasons for his findings" and "set forth the reasons for his ruling on the application and direct that they be entered on the clerk's minutes." However, we conclude that the omission does not require remand in the circumstances of this case. Accordingly, we shall affirm the judgment in its entirety.

GUILT PHASE EVIDENCE

The trial to determine guilt took place in November 1980. Defendant was charged with murdering Lugassy to prevent her testifying in a criminal proceeding that had been brought against him for raping her. She lived in a cottage at the rear of a lot on Portland Avenue in Oakland, near Lake Merritt. On July 22, 1979, about 11 p.m., she ran screaming to her neighbor's and said she had just been raped. On August 9, she unhesitatingly selected defendant's picture from a photo lineup. She continually expressed fear of him. On August 10, a complaint was filed against him on the rape charge. He was arrested, and on October 24 he pled not guilty. Preliminary hearing was set for November 20, and he remained at large on bail.

On November 1, 1979, between 8 and 8:30 p.m., Lugassy's neighbors heard shots. Some also heard screams. One placed the shots at 8:20. Police were called at 8:25. Two neighbors saw a Ford LTD speeding away with its lights off. Police, arriving at 8:35, found Lugassy's body in front of her home, with the door ajar. She was dead of three bullet wounds. In her purse was a subpoena for the preliminary hearing, and in her home was a residential security check form, used by Livermore (but not Oakland) police.

Because of Lugassy's death and thus, her unavailability as a witness, the rape charge against defendant was dismissed at the preliminary hearing on November 20. A woman who was with defendant and whose description matched Cheryl Miller, whose involvement in the crime is discussed later, expressed pleasure at the dismissal and made an affectionate gesture toward defendant.

On December 12, police interviewed defendant. He said he had met Lugassy in July 1979 in the Lake Merritt area and visited her home alone, but no sex occurred. He also said that he never owned a gun and that on November 1 he was at his apartment with Cheryl Miller, who arrived between 8 and 8:30 p.m. On December 16, Miller told police that on November 1 she was with defendant from 8 p.m. on.

On February 8, 1980, Nancy Gentry approached the police and gave information about the crime. As a result defendant was arrested, Gentry's Ford LTD was impounded, and Cheryl Miller, once told of police knowledge of a relationship between defendant and Gentry, recanted her support of defendant's alibi and gave information incriminating him.

Gentry and Miller provided the eyewitness testimony regarding the plot to kill and the actual killing of Lugassy by the defendant. Their extensive testimony is summarized.

Gentry testified that she met defendant on a beach in Alameda in August 1979. They had a sexual relationship and soon discussed marriage. In August, September, and October, she made loans to him of $1,200, $3,000, and $2,500, to be used in his business. In mid-October he said he had been arrested. At first he said the arrest resulted from a bad check that Gentry had given him. Then he said he was being framed on a rape charge. Several conversations later, he asked her if she knew a "hit man." Later he asked her to find him a gun. She borrowed a .38 caliber pistol from Don Ewing, purchased ammunition, and gave it to defendant about October 21. He referred to Nancy Lugassy by name and said that he had a court date in November and feared going back to prison if she testified against him. He asked Gentry to call the Peralta College District to get Lugassy's class schedule; she did so without success.

Gentry further testified: On October 25, defendant introduced Cheryl Miller to her as his sister, Nancy. Using a Ford LTD that Lawrence Meehan had rented for Gentry, the three (defendant, Gentry, and Miller) drove around Laney College in Oakland and another Peralta campus in Berkeley, and past Lugassy's home, looking for Lugassy. On October 30, at defendant's request, Gentry again met him and Miller at his apartment in San Leandro. They drove past Lugassy's home; the lights were out. They went for coffee, then returned and parked on Van Dyke St., where defendant walked up a driveway toward a fence that bordered on Lugassy's yard. Gentry and Miller remained in the car. Defendant was gone for an hour and returned at 10:30 p.m., indicating no one was at home. They all left. Next evening, October 31 (Halloween), the three again drove by Lugassy's home and saw the lights on. They parked at the same place on Van Dyke. Defendant disappeared down the driveway and was gone two or three hours. Thereafter they returned to defendant's apartment. At some point the three discussed planting drugs on Lugassy or in her home to set her up for arrest. Gentry saw a baggie of drugs in that connection.

Gentry's testimony continued. She, herself, proposed using the ruse of a police security check as a means of access to Lugassy. On November 1, about 6:30 p.m., Gentry picked up defendant at his apartment in her Ford LTD, and the two proceeded to Portland Avenue. Gentry was dressed in a blazer and skirt, so as to look professional, and she had a police security check form she had obtained from a Livermore Neighborhood Alert Program and a lock for use on a sliding glass door. Defendant and Gentry arrived at Lugassy's home about 7:30 and, seeing that the lights were on, parked on Portland, two houses down. As Gentry got out of the car, defendant handed her a small gun and told her to use it if she got the chance. She put it in her purse. She then went to Lugassy's door, identified herself as Sue Hill from the Oakland Police Neighborhood Alert Program, and was admitted. Lugassy filled out the form, and stated that she had been raped and a hearing was pending. After 15 minutes, Gentry departed, intentionally leaving the security form and the lock in Lugassy's apartment. As they drove off, defendant told Gentry to lure Lugassy outside by pretending she needed help with her car. She left defendant at the driveway on Van Dyke Street and again parked on Portland. She walked back to Lugassy's cottage, picked up the lock, and asked Lugassy to help with her car. As they went through the yard, Gentry saw defendant standing against a utility shed, but Lugassy did not give any indication she saw defendant. Gentry and Lugassy got the car started; then Gentry dropped Lugassy off in front of her home, and proceeded on slowly with lights off. Almost immediately she heard a scream and three shots. She turned the car around, drove back to Van Dyke Street, and picked up defendant. He entered the car, removed his watch cap and false beard, and said, "Let's get out of here." They returned to his apartment, where he telephoned his father and said, "It's done." Gentry departed.

Finally, Gentry testified as follows: She saw defendant twice in the two months following the shooting: just before Thanksgiving and just before Christmas. Defendant was upset at her driving her Ford LTD to his apartment. When she phoned him on November 20 to ask how the preliminary hearing on the Lugassy rape charge had gone, he said not to call him because his phone might be tapped. He gave her his "sister's" (Miller's) number, which Gentry called and as a result learned that the rape charge against defendant had been dismissed.

Cheryl Miller also testified. She related she lived in Hayward with her mother and two children and met defendant in the summer of 1979. They dated and by September were engaging in occasional sexual activities. In early October she loaned him $500 he said he needed for his father's meat business. Shortly thereafter, defendant said he had been arrested on a rape charge. On October 25, at his apartment, he said he had been "set up" on the charge, and that the woman charging him would have to be killed because he would never go back to jail. He at first said the prior imprisonment had been for assault but later stated it had been for a rape charge on which he also had been "set up." Posing as his sister at defendant's request, Miller answered a phone call to him from Gentry. On October 26, at his...