People v. Kelly
| Decision Date | 26 November 1990 |
| Docket Number | No. S004718,S004718 |
| Citation | 800 P.2d 516,275 Cal.Rptr. 160,51 Cal.3d 931 |
| Court | California Supreme Court |
| Parties | , 800 P.2d 516 The PEOPLE, Plaintiff and Respondent, v. Horace Edwards KELLY, Defendant and Appellant. |
Harvey Zall and Fern M. Laetham, State Public Defenders, under appointment by the Supreme Court, Edward H. Schulman, Chief Deputy State Public Defender, Richard Avila and Sandra Goldsmith, Deputy State Public Defenders, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Jay M. Bloom and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.
This is an automatic appeal from a judgment of death. Defendant Horace Edwards Kelly was found guilty of one count of first degree murder (Pen.Code, § 187) 1; the jury also found to be true two special circumstance allegations that the murder was committed during the commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(ii)), as well as an allegation that defendant used a firearm in the commission of the murder. (§ 12022.5.)
On November 22, 1984, Thanksgiving Day, 11-year-old Danny O. was shot and killed in the County of Riverside. The events leading up to this tragedy were as follows: On the date in question, Danny and his family were visiting relatives in Riverside for the traditional Thanksgiving dinner. An hour or two after the families finished dinner, Danny and his 13-year-old cousin, Shannon P., decided to walk to a convenience store in a nearby shopping center to buy candy. It was dark when the two children left the house.
After their purchase, Danny and Shannon proceeded to walk home. Their route took them through a 7-Eleven parking lot and onto a dirt path adjacent to Limonite Avenue. As they approached a rise, they saw a man walking toward them from the opposite direction. As the man passed, Shannon noted that he was dressed "in a sort of ranger uniform," "like a cop." The children began to walk faster because, as Shannon recalled, the man "looked weird like he was up to something."
The next thing Shannon remembered was Danny telling her to run. Danny ran down the path and Shannon followed. She looked back and saw that the man was pursuing them. As she ran, she noticed a van parked on the side of the road facing traffic. The van's engine was running. She noted that it had distinctive stripes on the side.
The man caught Shannon from behind, grabbing her around the neck with his arm. She felt something hard at her side, looked down and saw that it was a pistol. Danny, in the meantime, had run into the middle of the street and was waving his arms and yelling "stop" in an effort to flag down a passing car for assistance. The man told Shannon to "get [her] brother over to where" she was. Shannon called out to Danny. As she did so, the man placed the gun against her neck and began to drag her toward the van. Shannon tried to resist by digging her heels into the ground but to no avail. They moved closer to the van.
As Danny approached he asked the man why he was doing this. The man told him to "shut up." Shannon asked him, "Do you want any money?" The man replied, He continued to drag and pull Shannon closer to the van. Just then, Danny kicked the man, enabling Shannon to drop down and escape from his grasp. She ran perhaps 40 feet and started to climb a brick wall. As she reached the top, she looked back and saw a flash and heard a gunshot. She jumped off the wall and heard another shot. There was a pause. Then she heard Danny say, A third shot registered. Shannon ran and eventually obtained assistance at a nearby house.
Shortly after 6 p.m. on the same evening, Virgil Hayden, who lived on a street parallel to Limonite Avenue, stepped outside of his house for a cigarette and saw a van pull up across the street. It had large exhaust pipes and a distinctive red stripe. Mr. Hayden noticed that the driver had his head cocked toward the side mirror, as though he was looking to the rear of the vehicle. After a few minutes, he saw the driver get out of the van and run back toward the 7-Eleven. Mr. Hayden returned to his house and, after several minutes, heard three noises like the sound of a car backfiring. When he went back outside, the van was gone.
A short time later, Danny's body was discovered by a passing motorist on Limonite Avenue. The body was in the middle of the street, lying on its back, arms outstretched. The body was still warm but did not respond to CPR. There was a bullet hole between the eyes. The victim was taken to a hospital, but was pronounced dead on arrival.
Later that evening, Shannon provided the police with a detailed description of her assailant and his distinctive van. About 10 p.m., a deputy sheriff spotted the vehicle and radioed another officer, Detective Cornejo, who was at the crime scene with Shannon and her parents. Detective Cornejo took Shannon to a point where she could observe the van as it drove by; she identified it as the vehicle involved in the assault earlier that evening. The van was immediately stopped and Shannon identified the driver, defendant, as her assailant. Defendant was wearing a tan shirt with a badge and security guard patches on the sleeves. He was also wearing leather gear and a baton. A search yielded eight rounds of .357 magnum ammunition in defendant's trouser pocket.
Defendant was transported to the Riverside County Sheriff's Department for booking and interrogation. (The facts of the interrogation will be set forth separately below.) A subsequent search of the van revealed a tool box containing a blue steel .357 magnum caliber pistol, 12 live .357 magnum rounds and dozens of expended .357 magnum casings. Forensic tests on two bullets found at the crime scene showed conclusively that they had been fired from defendant's gun. Blood on the barrel of the gun was consistent with Danny's blood and inconsistent with that of defendant. Gunshot residue was found on defendant's hands.
An autopsy revealed two bullet wounds to the victim; the first shot entered the right side of the boy's chest and exited through the back; the second entered between the eyes and exited through the left side of the brain. The primary cause of death was the bullet which passed through the brain. Gunshot powder burns and residue on the victim indicated that the gun was four to six inches from the boy when the shot was fired between his eyes.
The gun used to kill Danny O. had been purchased from a gun shop in San Bernardino two months earlier. The dealer's record of sale indicated that it had been sold to defendant.
The prosecution presented evidence of two prior instances of criminal activity involving defendant's use of force or violence. (§ 190.3, factor (b).) Both related to homicides in San Bernardino that had occurred one week before the murder of Danny O. Early on the morning of November 16, 1984, between 4 and 5 a.m., Ms. Sonia Reed was dropped off by an acquaintance in an area of San Bernardino called Waterman Gardens, near defendant's place of residence. Ms. Reed had a history of drug use and had smoked cocaine earlier that morning. She had once been arrested for soliciting an act of prostitution.
About 5 that morning, Mrs. Irene Gamboa, who lived at 10th Street and Waterman Avenue, was awakened by a muffled banging sound. Several minutes later she heard someone say, "Oh, God," and then a minute or two later she heard another bang. Later that morning, the body of Sonia Reed was discovered behind a headstone at a nearby memorial business. The body was nude from the waist down. An autopsy revealed two contact gunshot wounds; the first shot entered the victim through the back, the other through the back of the neck; the latter wound was inflicted while the barrel of the gun was pressed against the victim's head. Forensic tests established that the bullets which killed her were fired from defendant's .357 magnum pistol.
The next morning, November 17, 1984, the body of another woman, Ursula Houser, was discovered in an alleyway near Highland Avenue and D Street in San Bernardino. The victim's skirt had been pulled up above her waist and her panties and pantyhose had been ripped off. The body appeared to have been dragged some distance. An autopsy revealed a contact gunshot wound similar to that inflicted on Ms. Reed. The bullet entered through the back of the head and traveled through the brain, causing instant death. Forensic tests definitively established that the bullet which killed Ms. Houser had been fired from the .357 magnum pistol recovered from defendant's van.
Defendant called numerous witnesses in mitigation. Several family members, friends and school officials were called to testify to defendant's poor and abused childhood. Margaret Carter, a friend of defendant's family for over 40 years, described defendant's father as "brutal" and "dominating." The father died when defendant was nine, and thereafter defendant worked at various odd jobs to help support the family. She described defendant as shy and introspective. Several family members, including defendant's mother, also recalled that defendant was abused and terrorized by his father. Many expressed shock over defendant's actions, which they believed were inconsistent with his personality. They consistently described defendant as unusually subservient to authority and educationally retarded.
Two school psychologists, a learning disability specialist and a social worker presented testimony concerning defendant's performance in high school. Their tests and observations from that period of time indicated that defendant had serious learning disabilities or...
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