People v. Hovey

Citation244 Cal.Rptr. 121,44 Cal.3d 543,749 P.2d 776
Decision Date25 February 1988
Docket NumberCr. 22487
CourtUnited States State Supreme Court (California)
Parties, 749 P.2d 776 The PEOPLE, Plaintiff and Respondent, v. Richard Adams HOVEY, Defendant and Appellant.

Blair Hoffman, Deputy Atty. Gen., Office of the Atty. Gen., San Francisco, Cal., for plaintiff and respondent.

William Bennett Turner, 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 and Blair W. Hoffman, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

Defendant Richard Adams Hovey appeals from a judgment imposing the death penalty following his conviction of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), accompanied by a special circumstances finding that the murder was wilful, deliberate and premeditated and was committed during the commission of a kidnapping (former § 190.2, subd. (c)(3)(ii), part of the 1977 death penalty law under which defendant was tried). Defendant was also found guilty of kidnapping (§ 207), accompanied by the intentional infliction of great bodily injury (§ 12022.7). In addition, during both the murder and kidnapping, it was found that defendant used a deadly weapon (§ 12022, subd. (b)). As will appear, we have concluded that the judgment should be affirmed in its entirety. 1


On March 10, 1978, witness Anderson discovered victim Tina Salazar, an eight-year-old girl, lying severely injured on a roadside in Hayward. Tina was unconscious and bound hand and foot. Police officers observed that she was bleeding from the head and had sustained extremely serious injuries. Medical testimony disclosed that Tina had suffered approximately 14 stab or puncture wounds on both sides of her head. Although several doctors testified that the wounds appeared to have been caused by a blunt object, a neurosurgeon opined that the injuries were caused by a sharp instrument such as a knife. Tina died of her injuries on March 18. An autopsy disclosed multiple skull fractures and two skull puncture wounds consistent with some type of sharp pointed instrument.

Various witnesses had observed an old, light blue Ford car in the vicinity; witness Irons thought he saw a struggle occurring between a child and the male occupant of the car. Irons believed the man was hitting the child with some kind of object. When witness Anderson approached the scene, the blue car sped away. Anderson thereupon discovered victim Tina Salazar lying where the blue car had been parked. The evidence indicated that defendant owned a 1961 blue Ford automobile which he sold in May 1978, one month prior to his arrest. Witness Irons picked defendant's photograph from a photographic lineup as being similar to the man he saw in the car.

Following his arrest, defendant made statements to two different cellmates concerning the killing. Cellmate Hughes testified that defendant admitted killing a "Spanish girl" after abducting her from a sidewalk. According to Hughes, defendant further admitted that he was armed with a knife during the incident. 2 Defendant told Hughes that he preferred younger girls; he killed his victim because she kept pulling a bag from her head, and defendant feared that she would recognize and identify him.

Cellmate Lee, who was unavailable at trial and whose preliminary hearing testimony was read to the jury, testified that defendant admitted picking up a little "Chicano" girl near a school, blindfolding and tying her, and driving down a deadend road where no one could see them. There, he "played" with her and then stabbed her in the head and face after her blindfold slipped and she saw defendant. According to Lee, defendant admitted that he liked to pick up girls and "play with them" which, according to Lee, meant "playing with their body." (We discuss defendant's challenges to the admissibility of Lee's testimony in a subsequent part of this opinion.)

In order to exclude guilt phase evidence regarding a subsequent child kidnapping by defendant, an offense deemed relevant to the issue of identity, defendant and his trial counsel stipulated in writing that defendant "acknowledge[s] taking possession of Tina Salazar against her will and driving her from her neighborhood," and further "acknowledge[s] doing the act which caused injuries which ultimately lead [sic] to [her] death...."

The defense evidence at the guilt phase consisted of (1) testimony by a radiologist that, on the basis of Tina's x-rays, her injuries were not caused by a knife, except possibly the handle of a knife, and (2) certain evidence pertinent to defendant's challenge to his cellmate's testimony, discussed below. In addition, through cross-examination and argument, defense counsel attempted to dispute that the murder was premeditated, as required by the 1977 death penalty law. (Former § 190.2, subd. (c)(3).)

Following the jury's guilty verdict, the penalty phase commenced. The prosecution focused upon defendant's June 1978 kidnapping of a nine-year-old girl, Michele G., in Albany, an offense for which defendant was convicted. Defendant's penalty phase evidence consisted of testimony by various relatives and acquaintances regarding defendant's character and background, and a psychiatrist's testimony regarding defendant's mental illness (schizophrenia), and his supposed "loss of control" or panic when victim Salazar became frightened. On rebuttal, the prosecutor introduced evidence of defendant's reading child pornography, his successful completion in April 1978 of courses at an advancement training center, and his ability to function well in his job prior to his arrest. As indicated previously, the jury selected the death penalty, and the trial court sentenced defendant to death. The present appeal is automatic. (§ 1239.)

A. Sufficiency of Evidence of Premeditation

Defendant first contends that the evidence of premeditation and deliberation was too insubstantial to support the special circumstance finding. Defendant relies upon the familiar tripartite test set forth in People v. Anderson (1968) 70 Cal.2d 15, 26-27, 73 Cal.Rptr. 550, 447 P.2d 942, which requires us to focus upon evidence of (1) the defendant's planning activity prior to the killing; (2) his motive to kill, derived from his prior relationship or conduct with the victim, and (3) the manner of killing, indicating some preconceived design to kill in a certain way. Evidence of all three elements is not essential, however, to sustain a conviction. As we stated in Anderson, an appellate court will sustain a conviction where there exists evidence of all three elements, where there is "extremely strong" evidence of prior planning activity, or where there exists evidence of a motive to kill, coupled with evidence of either planning activity or a manner of killing which indicates a preconceived design to kill. (Ibid.) As will appear, in the present case the record contains substantial evidence of each of Anderson 's three elements.

Although the evidence was in some conflict on this point, the jury could conclude that defendant was armed with a knife or other weapon capable of stabbing. He kidnapped his young victim, tied and blindfolded her, and drove her to a place he considered secluded. Although not conclusive proof of a prior plan to kill, such evidence is certainly substantial evidence thereof. As we recently stated in a strikingly similar case involving the kidnapping/stabbing of a 12-year-old girl, "[W]hen one plans a felony [kidnapping] against a far weaker victim, takes her by force or fear to an isolated location, and brings along a deadly weapon which he subsequently employs, it is reasonable to infer that he considered the possibility of homicide from the outset. [Citations.] Thus, there is substantial evidence of a 'planned' killing--the most important prong of the Anderson test." (People v. Alcala (1984) 36 Cal.3d 604, 626-627, 205 Cal.Rptr. 775, 685 P.2d 1126.)

As for motive, the testimony of defendant's cellmates indicates that he killed Tina because her blindfold slipped and enabled her to view defendant adequately to identify him to the authorities. Once again, Alcala is pertinent: "The evidence ... suggests that defendant had committed a serious felony, kidnaping, on the victim and believed she was the only person who could implicate him. '[H]ence he could [surmise] that by killing her ..., he would eliminate the only [witness] to his [crime].' [Citations.]" ( Alcala, supra, at p. 627, 205 Cal.Rptr. 775, 685 P.2d 1126.)

Finally, as for the manner of killing, the evidence indicated that defendant stabbed or beat Tina repeatedly in the head. As in Alcala, where the victim was "all cut up," such a brutal method of injuring his victim, coupled with the foregoing evidence of planning and motive, "supports the inference of a calculated design to ensure death, rather than an unconsidered 'explosion' of violence. [Citation.]" ( Alcala, supra, at p. 627, 205 Cal.Rptr. 775, 685 P.2d 1126; see also People v. Cruz (1980) 26 Cal.3d 233, 245, 162 Cal.Rptr. 1, 605 P.2d 830.)

Defendant naturally views the evidence differently. Relying on the testimony of several doctors, defendant disputes the suggestion that Tina was stabbed with a knife, and he observes that the record does not show that defendant brought a knife or other weapon with him to the crime scene. (Both cellmates Hughes and Lee, however, stated that defendant admitted being armed with a knife.) But the jury was entitled to rely upon other medical testimony that Tina's wounds were consistent with a knife or other stabbing instrument, and upon the testimony of cellmate Lee that defendant admitted stabbing Tina with a knife. Similarly, the jury reasonably could infer that, in light of the nature of...

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