People v. Howard, No. S004562

• Court: United States State Supreme Court (California)
• Writing for the Court: PANELLI; LUCAS; MOSK; KENNARD
• Citation: 5 Cal.Rptr.2d 268,824 P.2d 1315,1 Cal.4th 1132
• Parties: , 824 P.2d 1315 The PEOPLE, Plaintiff and Respondent, v. Albert Cecil HOWARD, Defendant and Appellant.
• Decision Date: 27 February 1992
• Docket Number: No. S004562

Page 268

5 Cal.Rptr.2d 268 1 Cal.4th 1132, 824 P.2d 1315 The PEOPLE, Plaintiff and Respondent,
v.
Albert Cecil HOWARD, Defendant and Appellant. No. S004562. Supreme Court of California,
In Bank. Feb. 27, 1992.
Rehearing Denied April 29, 1992.

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[1 Cal.4th 1148] [824 P.2d 1321] Karen S. Sorenson, Greenbrae, under appointment by the Supreme Court, and Michael Laurence, San Francisco, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Michael J. Weinberger, Thomas Y. Shigemoto and James T. McNally, Deputy Attys. Gen., for plaintiff and respondent.

PANELLI, Justice.

A jury convicted defendant Albert Cecil Howard of the first degree murder, mayhem, and robbery of Lois (Roy) Fried (Pen.Code, §§ 187, 203, 211) ¹ and the attempted murder, attempted mayhem, and robbery of Gladys Fried (§§ 187, 203, 211, 664). As special circumstances, [1 Cal.4th 1149] the jury found that defendant committed the murder during the commission of robbery and burglary and for financial gain. (§ 190.2, subd. (a)(1), (17)(i) & (vii).) The jury also found that defendant personally inflicted great bodily injury on each victim (§§ 1203.075, 12022.7) and that each was over the age of 60 (§ 1203.09). At the penalty phase, the jury returned a verdict of death.

As discussed below, we reverse the convictions for attempted murder and attempted mayhem and strike the related enhancement findings. We also strike the finding on the financial-gain special circumstance. In all other respects, the judgment is affirmed.

I. FACTS

On May 25, 1982, defendant was visiting friends and relatives in the City of Tulare. Defendant had temporarily left his residence in Compton to avoid retribution from his former employer, whose motorcycle shop he had burglarized.

Early in the afternoon a party began at Eddie Franks's house, where defendant was staying. At the party were defendant, his mother Paralee Faulk, his aunt Dorothy Haynes, his half brother Johnny Malone, his sister-in-law Pamela Malone, his half brother Ernest (Ernie) Malone, Ernie's girlfriend Denise Devine, Johnny Washington, and Howard Green. Drinking and socializing continued well into the evening.

Defendant left the party several times with Ernie ² to walk to a nearby store for beer and wine. The last such trip began sometime after dark. The two men left by way of an alley behind the house and returned about 45 minutes later. When they returned, defendant was walking ahead of Ernie and carrying a brown paper bag. Defendant showed the contents to Eddie Franks and carried it into the house.

Eventually, defendant and most of the other people at Eddie's house found their way to a second party at the home of defendant's sister, Lavern Howard. Testimony about when defendant left Eddie's house was wildly inconsistent. The witnesses' recollections were vague, openly speculative, influenced in some cases by the consumption of alcohol, and generally impossible to reconcile. According to various witnesses, defendant could have left Eddie Franks's house as early as 8 p.m., after 10:45 p.m., or at any point in between.

In any event, by 11:30 p.m. the party at Lavern's house included Lavern herself, her husband Richard Sanders, Johnny Malone, Pamela Malone, [1 Cal.4th 1150] Denise Devine, Johnny Washington, Howard Green, Dorothy Haynes, Paralee Faulk, and defendant. Pamela, defendant's sister-in-law, recounted at trial what happened when he arrived. Defendant had earlier expressed a desire to buy Johnny Malone's car. When defendant arrived, he asked Johnny if he still wanted to sell it. When Johnny said that he did, defendant dropped several bills on the

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[824 P.2d 1322] floor--one $100 and two $50's. Pamela, Johnny's wife, said, "[d]rop [$50] more and [I'll] give you the papers and everything." Defendant dropped another $50. Lavern Howard also witnessed the transaction.

Many of the people at Lavern's house heard defendant talking about something that had happened earlier that evening. Defendant was "excited" and "hyper." As Lavern later testified, defendant was "boasting" that he had "gotten some money" and "brought somebody down." Defendant said that he had "stomped" "a dude" with his foot. Ernie had "tried to stop him" but, as defendant told the story, "this old mother-fucker seen me, and he ain't going to see me no more." Other people heard defendant brag that he had "stomped" someone, "stomped somebody's face in from being identified," or "brought somebody down." Lavern also testified that Ernie, according to defendant, "was supposed to have [done] something to some woman." Besides Lavern, the witnesses who heard defendant describe the incident included Richard Sanders, Pamela Malone, Denise Devine, and Johnny Washington. Defendant's mother had recounted a similar statement to the police but repudiated it at trial.

About 1 a.m. the next morning, Ernie Malone arrived at Denise Devine's apartment. When Denise turned on the lights, she saw a wallet, money, and identification cards on the kitchen table. The cards belonged to Roy and Gladys Fried. Ernie asked Denise to count the money. She counted $540, which Ernie pocketed. Later, about 4 a.m., defendant arrived with Johnny and Pamela Malone. Defendant told Denise that he had bought Johnny's car. Ernie got upset and told defendant that "he had to leave because he talked too much." The next morning, Denise put the identification cards in a bag and discarded them in a dumpster.

About noon that same day, defendant visited Pamela. She asked defendant where he had gotten the money to buy her husband's car. As before, defendant explained that he had "brought somebody down." Defendant also explained, in more detail, that he and Ernie had "knocked on somebody's door, and an old man came to the door." The man "got hit" and grabbed defendant's leg. Defendant demonstrated with his foot how he had then "stomped" the man.

Roy Fried lived with his wife, Gladys, in a house in Tulare. Eddie Franks's house was one block away, connected by an alley. Mr. Fried was [1 Cal.4th 1151] 74, and Mrs. Fried was 71. Both had impaired mobility and used aluminum walkers. The Frieds' two sons, Leland and Albert, saw and telephoned their parents frequently. On the evening of May 25, Albert's wife Jo Ann spoke with Mrs. Fried on the telephone until a few minutes before 10 p.m. At that time everything seemed to be in order.

About 3:30 p.m. the next day, Leland's fiancee Janice Yagel and her daughter Kim Payne drove to the Frieds' home. Janice stayed in the car while Kim went in to return Mrs. Fried's medical card. When no one answered her knock, Kim opened the door and saw Mr. and Mrs. Fried on the floor, lying on their stomachs. Mr. Fried's walker was on top of his body and his pockets were turned inside out. Mrs. Fried, who was wearing a nightgown, had her arm over her husband's back. When Mrs. Fried lifted her head to see who was at the door, Kim saw that her face was bloody. Kim yelled for help, and Janice telephoned the police. Mr. Fried's body was cold and had no pulse.

The police and medical technicians arrived a few minutes later. Mrs. Fried was cold, clammy, and breathing heavily, and her face, eyes, nose, and mouth showed extensive injuries. The ambulance crew administered first aid and took her to the hospital. Mr. Fried was pronounced dead. Rigor mortis had set in, and he was lying in blood and other bodily fluids. There was broken denture material on the living room floor. The house had been ransacked. The Frieds' sons later confirmed that a large amount of cash was missing. Leland had recently repaid a $2,000 loan in cash. The tan, "government-type" envelope into which Mrs. Fried had put the money was lying on the floor, empty. Also missing

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[824 P.2d 1323] were Mr. Fried's wallet, in which he ordinarily kept several hundred dollars, and the purse that Jo Ann had given Mrs. Fried the previous Christmas. An expert on crime-scene reconstruction testified that the crimes could have been committed in as few as eight minutes.

The autopsy showed that Mr. Fried had suffered multiple blows to the head, face, neck, and chest. A blow to the neck had separated the larynx and trachea from the spine. A blow to the right eye had pushed the eyeball backwards and fractured the orbit. Multiple blows to the head had caused intracranial bleeding and bruised the brain. The blows had been delivered with considerable force by a tapering, firm or hard object and were consistent with having been delivered by a shod foot. At several places, the decedent's face showed a raised, curlicue pattern of small bruises. There were no defensive wounds. The cause of death, which took several minutes, was asphyxia with associated cranial and cerebral trauma.

Mrs. Fried had suffered very similar injuries, including multiple blows to the head, face, and eyes. Her eyelids were so swollen that they had to be [1 Cal.4th 1152] pulled open, and the whites of her eyes had hemorrhaged. Her lips and gums were injured, and her dentures had been knocked out of her mouth. She had also suffered a contusion, or bleeding within the brain.

The next day, May 27, defendant went with his sister Lavern to a pharmacy across the street from the Frieds' home. According to Lavern's testimony, the clerk was talking about how a friend of hers had been killed. Once outside the store, defendant told his sister that "he had a murder beef and he had to get out of town." He also said that "we'd be hearing about it on the news."

Police arrested defendant later that day in the car he had bought from Johnny Malone. Defendant gave a false name. Because he was barefoot and the sidewalk was hot, he told an officer that he would like to have his shoes out of the backseat. Officer Troy Otto went to get the shoes, but put them back because...