People v. Horning, No. S044677.

• Court: United States State Supreme Court (California)
• Writing for the Court: CHIN, J.
• Citation: 102 P.3d 228,34 Cal.4th 871,22 Cal.Rptr.3d 305
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny Ray HORNING, Defendant and Appellant.
• Decision Date: 16 December 2004
• Docket Number: No. S044677.

22 Cal.Rptr.3d 305
34 Cal.4th 871
102 P.3d 228

The PEOPLE, Plaintiff and Respondent,
v.
Danny Ray HORNING, Defendant and Appellant

No. S044677.

Supreme Court of California.

December 16, 2004.

Rehearing Denied January 26, 2005¹.

Certiorari Denied October 3, 2005.

22 Cal.Rptr.3d 312

John F. Schuck, Palo Alto, under appointment by the Supreme Court, for Defendant and Appellant

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Eric L. Christoffersen and Erik R. Brunkal, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied October 3, 2005. See 126 S.Ct. 45.

CHIN, J.

A jury convicted defendant Danny Ray Horning of the first degree murder of Sammy McCullough under the special circumstances of robbery murder and burglary murder and with personal use of a handgun. (Pen.Code, §§ 187, 190.2, subd. (a)(17), 12022.5, subd. (a).)² After the guilt verdict, defendant waived his right to a jury trial as to further proceedings. The court then found true that defendant had suffered three prior serious felony convictions. (§ 667, subd. (a).) After a penalty trial, the court found that death was the appropriate penalty, and it imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. THE FACTS

A. Guilt Phase

1. Prosecution Evidence

The victim, Sammy McCullough, was a marijuana dealer and fish farmer who lived in a geodesic dome house on East Mariposa Road, near the end of Clark Drive, in a rural area of Stockton. He was known to keep large amounts of cash at his home. Between 1988 and 1990, he told others that he had sometimes been burglarized. Telephone records showed that McCullough tried to call his friend and business partner Kevin Crowley around 7:00 p.m. on September 19, 1990. He was not heard from after that evening.

During the evening of September 20, 1990, Mark Lawson was fishing in a portion of the San Joaquin River Delta near Highway 4 called Burns Cut. He found in the water a bag containing a man's leg. He "got out of there pretty quick" and called the police. Over the course of the next day or so, authorities found other body parts in the water at Burns Cut, including a bag containing two arms that were tied together at the wrists with duct tape, a torso wrapped in a bed sheet, and a head floating freely, with tape wrapped around it covering the eyes. A serrated knife that could have been used to dismember the body was found with the torso. Fingerprint comparison revealed that the body was McCullough's. McCullough's

22 Cal.Rptr.3d 313

wallet, containing no money, was found in the pants on the torso. A .22-caliber bullet was found in McCullough's brain. An autopsy revealed that McCullough had been killed by a single gunshot wound to the forehead fired from close range, within two inches. The body had been dismembered after death

James Casto was camping at Burns Cut the evening of September 19, 1990. He saw a "white, square-backed vehicle" drive back and forth a "couple of times" going "kind of fast." The vehicle stopped a short distance away, and Casto "heard something thrown out into the bushes and into the water down there." He told the sheriff's department the vehicle might have been a Toyota or a station wagon type of car. When shown photographs of McCullough's white Jeep Cherokee, Casto said the vehicle he saw had the "same shape."

McCullough's Jeep Cherokee was found in Stockton on September 21, 1990. The mats in the back were moist and the vehicle was very clean. The Jeep contained checks in McCullough's name and car ownership documents. An expert testified that an unknown person other than McCullough had signed McCullough's name to some of the checks and car ownership documents. It appeared the person had tried to trace McCullough's signature. One of the documents contained the date September 21, 1990. Defendant's thumbprints and fingerprints were found on two of the car ownership documents. No other usable fingerprints were found inside the Jeep. Some usable prints were found on the Jeep's exterior, but they did not belong to defendant or any of several others with whom they were compared.

A search of McCullough's home revealed human blood in the bathroom. A piece of human tissue was found on the bathroom mirror. A set of knives with one missing was found in the kitchen. Bags and tape like those used to wrap and bind the body parts were found in the house. A .22-caliber bullet casing was found just outside the front door.

On September 21, 1990, Vicki Pease and Shirley Sanders, both girlfriends of McCullough, and Crowley gathered at McCullough's house before the police arrived. They removed some items from the house, including legal papers and a Rolex watch. Pease later told Deputy Sheriff Armando Mayoya, the lead investigator in the case, what they had done. Pease also testified that various items were missing from the house, including McCullough's nine-millimeter handgun. She said the handgun "never left [McCullough's] side." She had seen it at McCullough's house as recently as September 18, 1990, the last time she was there. Sanders testified that McCullough accumulated spare change in a planter box in the house. The planter was "heaping" in change, so much so that Sanders had "started another one in a coffee can." After McCullough's death, the coins were no longer there.

Cynthia Ann Cuevas, defendant's sister, testified that defendant had been trying to find a job the summer of 1990. She saw defendant and their brother, Steven, on September 19, 1990. Her brothers were supposed to fix her car. However, they could not do so at that time because a necessary part was unavailable. Cuevas arranged with her brothers to return to fix the car on September 21, 1990, but they never did. The parties stipulated that, if called as witnesses, defendant's parents would testify that in September 1990, defendant lived in a trailer on their property at 2606 Munford in Stockton. Defendant had told them he needed money. He and Steven Horning left unexpectedly after the two had gone to fix Cuevas's car. Steven returned a few days later, but defendant never returned.

22 Cal.Rptr.3d 314

Defendant had been released on parole from prison on June 16, 1990. His parole agent testified that she had had her last monthly contact with him on September 16, 1990, in his trailer on Munford. As of that time, he had been abiding with the conditions of his parole, although he did not have a full-time job. On October 10, 1990, the parole agent tried to contact defendant. Steve Horning told her that defendant was gone. Because of this, the parole agent listed him as a "parolee at large," meaning that he had "absconded supervision."

The parties stipulated that, if called as a witness, Ray Van Vleet would testify that he was the sheriff of Caribou County, Idaho. On September 23, 1990, he received a report of an abandoned vehicle on a mountainside near Olsen Creek. He checked the vehicle. It was a 1976 Monte Carlo that Cuevas testified Steven Horning and defendant had driven. Shortly after he checked it, the vehicle was moved.

John Sharp testified that he had a ranch in Freedom, Idaho, where he raised hay and grain. On October 20, 1990, he saw defendant coming out of the mountains. Defendant told him he was going to Henry — which was about four miles away — but then he offered to help Sharp work on the hay. Defendant said he had walked over the mountains and was staying "up there on the hill." He said that "he'd had trouble with his family, and he liked to go out and camp," and that "his brother brought him up." When asked whether he had a tent, he said he had "a canvas." He said he planned to stay there all winter. Sharp told him he could not "stay there all winter. You'll freeze to death." He offered to let defendant stay in a cabin he owned.

Wade Carney testified that he worked in a country store in Wayan, Idaho, about seven to eight miles from Freedom. During the winter months of 1990, defendant came to his store about three or four times to buy groceries. Defendant paid with "change most of the time." He had a lot of money in change. Defendant explained that he had been saving his change to go deer hunting. Carney once picked up defendant's bag of coins; he estimated it weighed about 50 to 75 pounds.

On October 26, 1990, Sheriff Van Vleet contacted defendant at an abandoned cabin near Soda Springs, Idaho. Defendant told him he had received permission from the owner to use the cabin and gave his name and other identifying information. Sheriff Van Vleet later ran a check on defendant. He learned that the birth date defendant gave him did not match, and that defendant had an outstanding warrant for parole violation. Sheriff Van Vleet returned to the cabin the next day, only to discover that defendant had left, leaving behind a note and a calendar. Handwriting comparison established that defendant had written items on the calendar. The note contained defendant's signature and three messages telling "John" (presumably John Sharp) to let himself in.

Defendant was arrested in Winslow, Arizona, on March 22, 1991, while committing a bank robbery. A nine-millimeter SIG Sauer handgun with the serial number U126340, was in his possession. Sales documents containing that serial number and trial witnesses established that Joseph Cutrufelli had purchased that gun and later gave it to Nicholas Montano. Montano testified that in 1988 he gave McCullough the gun he had received from Cutrufelli. Vicki Pease positively identified that gun as the gun that McCullough had continually possessed and that she had seen in McCullough's house on September 18, 1990. She specifically recognized some scratches on the gun, she accidentally had made. Shirley Sanders testified that the gun looked "exactly like" McCullough's

22 Cal.Rptr.3d 315

gun. She had occasionally fired the gun herself near McCullough's barn....