People v. Lenart

• Decision Date: 06 May 2004
• Docket Number: No. S049389.,S049389.
• Citation: 32 Cal.4th 1107,12 Cal.Rptr.3d 592,88 P.3d 498
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Howard LENART, Defendant and Appellant.

12 Cal.Rptr.3d 592

88 P.3d 498

32 Cal.4th 1107

The PEOPLE, Plaintiff and Respondent, v. Thomas Howard LENART, Defendant and Appellant.

No. S049389.

Supreme Court of California.

May 6, 2004.

Rehearing Denied June 23, 2004.

Gregory Marshall, Palo Cedro, 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, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

A jury convicted Thomas Howard Lenart of the first degree murder of Oberta Toney (Pen.Code, § 187)¹ and found true the special circumstance that the murder was committed `in the course of, or flight after, a robbery (former § 190.2, subd. (a)(17)(i)). It also convicted him of the robbery of Toney (§ 211) and the attempted murder of Eleanor Gallardo (§§ 664/187), and it found that the attempted murder was willful, deliberate and premeditated. As to each of these crimes, the jury found that defendant had personally used a firearm. (§ 12022.5, subd. (a).) Lastly, the jury convicted defendant of being a convicted felon in possession of a firearm (§ 12021). After a court trial, defendant was found to have three prior convictions for serious felonies (§ 667, subd. (a)). At the penalty phase, the jury returned a verdict of death. Defendant's appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment.

I. FACTS

A. Guilt Phase — Prosecution Case

About noon on July 15, 1993, Eleanor Gallardo stopped at the Anderson Lounge in Anderson, Shasta County. After parking behind the building, she entered the bar through the back door. Almost immediately she was confronted by a man with a bundle under his arm and a gun in his hand who told her to get down on the floor. Gallardo started to comply, then turned and grabbed the gun with both hands, trying to point it away from herself. During the struggle, the gun fired. When the man took one hand off the gun in an effort to apply a choke hold to Gallardo, she managed to pull free and run out the front door, gun in hand. As she ran screaming down the street, she turned and saw that her assailant had followed her onto the sidewalk; she ran into a nearby hair salon from which police were summoned. At the Anderson Lounge, officers discovered the body of bartender Oberta Toney in a small closet behind the bar where she was lying face down, hands crossed under her chest.

Gallardo, who was unable to identify defendant at a lineup on July 22, testified at trial that the man accosted her shortly after she entered the dimly lit bar from the sunny parking lot. Once she saw the gun pointed at her, she focused her attention on it.

At trial, several witnesses who were in the bar on the morning of July 15, 1993, testified that defendant came into the bar between 9:30 and 10:00 a.m. Floyd White identified defendant and recognized defendant's yellow pickup because on an earlier occasion defendant had visited White's home to look at some tires White was selling. Denice Foster identified defendant as the man who sat next to her until she left the bar at noon. Thomas McBroome identified defendant as the man in the bar that morning drinking a bottle of Budweiser and introducing himself as "Tom." Police found defendant's fingerprint on a Budweiser bottle in the bar.

Bar co-owner Sharon Munns testified that on the morning of the crime the cash register contained about $1,800 including $1 bills in packets of 25 bills secured with rubber bands and coins rolled in orange paper wrappers bearing the logo G.A.M.E. The bar's cashbox, kept behind the bar, had a check for $827.80 payable to a beer supplier, Foothill Distributors, as well as $2,000 in $100 bills that Toney, the bartender, had requested in order to cash paychecks for employees of a local business. Munns identified defendant as the man who sat next to her in the bar on that morning until she left at 11:44 a.m. When police arrived about 12:20 p.m., the cash register was empty and two bloodstained $100 bills were lying on the floor.

The gun Gallardo had wrested from her assailant was a .22-caliber Colt single-action revolver belonging to Dale Cutler, who had kept it in a toolbox in his barn. Sometime between July 5 and July 10, 1993, Cutler discovered the gun was missing. During June or July 1993, defendant had visited his former wife, who occupied a rental unit on Cutler's property, and in early July he had borrowed tools from Cutler.

Candida Kelly testified that in July 1993 defendant was putting a new roof on her house. She agreed to pay him for his labor with a used car and $150 in cash. On July 13 and 14, at his request, she gave him gas money. On July 15, she was at home, but defendant did not show up to work.

Karen Grabenstatter, with whom defendant was living in July 1993, testified that on the afternoon of July 15, 1993, defendant picked her up and they drove to Viacom Cable and to Redding Utility. A receipt from Viacom showed payment to defendant's account was made in cash at 1:28 p.m. on the 15th. Defendant's landlord testified that defendant paid some $300 in past due rent that same afternoon between 4:00 and 4:30.

On July 21, 1993, the police executed a search warrant at defendant's apartment. On the kitchen floor they found a paper grocery bag containing coin wrappers, burnt fragments of the missing Anderson Lounge check, cigarette butts and ashes. The officers also retrieved a pair of tan cowboy boots from defendant's closet. Later testing found, under the metal toe band of one boot, some drops of human blood that were consistent with the blood of the murdered bartender, Toney.

On August 17, 1993, Grabenstatter discovered an unfamiliar Sentry strongbox in her storage shed and called police. The strongbox was identified by its owner Margaret Alcock, defendant's previous girlfriend, who had kept over $1,000 in it. When the box was in Alcock's possession, she kept some rolled pennies in it, but none of them were in orange G.A.M.E. wrappers like those on several of the 14 rolls of coins found in the box in August. At that time, the box also contained four bundles of twenty-five $1 bills, each bundle secured with a rubber band. In addition, the box had jewelry that Alcock identified as hers, as well as jewelry that she recognized as belonging to defendant.

Criminalist Carmel Suther, of the California Department of Justice laboratory, conducted electrophoretic testing of samples of blood spots found on the bar's back door handle. The blood on the door was consistent with defendant's blood.

Dr. Joseph Tripoli, formerly Shasta County Medical Examiner, who performed an autopsy on Toney, testified that horseshoe-shaped lacerations on the back of her head could have been caused by kicks from the pointed toe of a cowboy boot. Shasta County forensic pathologist Harold Harrison concluded that Toney was lying down when she was killed by two bullets fired into her head from a distance of two to four feet. While she was still alive, Toney received blunt force injuries on her head and defensive injuries on her arms.

B. Guilt Phase — Defense Case

Defendant stipulated that he was a convicted felon, and the defense rested without presenting evidence.

C. Court Trial on Prior Convictions

Before the penalty phase began, there was a court trial on allegations that defendant had been convicted of three prior serious felonies (§ 667, subd. (a)). The court found that defendant in July 1970 was convicted in Los Angeles County of robbery (§ 211), in October 1987 was convicted in San Bernardino County of grand theft of a firearm (§ 487), and in November 1987 was convicted in Shasta County of robbery (§ 211).

D. Penalty Phase — Prosecution Case

The prosecution introduced evidence of prior criminal acts by defendant involving force or violence. (§ 190.3, subd. (b).)

William Davis, who in 1977 was a security guard for a Torrance grocery store, testified that while he and a partner were questioning defendant in a store interview room about a suspected shoplifting, defendant suddenly pointed a handgun at Davis's stomach. During the ensuing struggle, defendant fired one shot before Davis and his partner overpowered him. At the police station defendant threatened Davis, saying, "I'm going to kill you, motherfucker."

George Watford testified to a January 1987 incident at a bar in Cottonwood, where he was working as a janitor. Hearing a knock on the locked door about 4:00 a.m., Watford opened the door to discover defendant pointing a handgun at him. Defendant ordered Watford and a female employee onto the floor, told them to cover their eyes, and kicked Watford in the head and ribs with his cowboy boots. Threatening to kill Watford, defendant put his .45-caliber pistol close to Watford's head, and Watford heard the click of the hammer being cocked.

Two members of murder victim Oberta Toney's family, her daughter and her sister, testified as to the grief Toney's death caused them and her two young grandchildren.

A fingerprint expert testified that defendant's fingerprints matched those on documents from the Department of Corrections pertaining to two of defendant's prior convictions found true by the court.

E. Penalty Phase — Defense Case

Lieutenant Clarence Finmand of the Anderson Police Department testified that when he had interviewed William Davis in 1994, Davis's 1994 account of what happened in the interview room in 1977 was slightly different from his trial testimony. In the 1994 interview, Davis said the gun went off after he kneed defendant in the groin as he and his partner attempted to subdue defendant.

The sole evidence in mitigation offered by the defense was the testimony of Jack Stewart, a former felon currently associated with Eagles Soar, "a men's discipleship home." Called as an expert on prison life, Stewart testified that inmates learn to take what they need by...