People v. Leon, No. S056766.

• Court: United States State Supreme Court (California)
• Writing for the Court: CORRIGAN, J.
• Citation: 61 Cal.4th 569,189 Cal.Rptr.3d 703,352 P.3d 289
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard LEON, Defendant and Appellant.
• Docket Number: No. S056766.
• Decision Date: 29 June 2015

61 Cal.4th 569
352 P.3d 289
189 Cal.Rptr.3d 703

The PEOPLE, Plaintiff and Respondent
v.
Richard LEON, Defendant and Appellant.

No. S056766.

Supreme Court of California

June 29, 2015.

189 Cal.Rptr.3d 710

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Alison Pease and Mary McComb, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Keith H. Borjon,

189 Cal.Rptr.3d 711

Joseph P. Lee and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

CORRIGAN, J.

61 Cal.4th 576

352 P.3d 296

During a month-long crime spree in Los Angeles County, defendant Richard Leon committed a string of armed robberies, murdered two store clerks, and was eventually arrested after a high-speed chase. A jury convicted him of two counts of murder, 16 counts of robbery, three counts of assault with a deadly weapon,¹ and two counts relating to the chase.² It found defendant personally used a firearm during all offenses except the evasion charges and one robbery.³ It found true the special circumstances of robbery murder and multiple murder⁴ and fixed the penalty at death. We affirm the conviction but reverse the penalty determination due to the erroneous exclusion of three prospective jurors.

I. BACKGROUND

A. Guilt Phase

1. Incidents

Defendant committed some crimes with one or two accomplices. Witnesses typically described him as White and his partners as Black.

a. January 14: Chan's Shell Service Station Robbery

Around 7:00 p.m. on January 14, 1993, defendant walked into a Hollywood service station, held the manager at gunpoint, and demanded that he open the register. Manager David Su complied. Defendant emptied the register, ordered Su to the ground, and threatened to kill him if he moved. Another employee, Roberto Zaldivar, emerged from the bathroom and saw Su lying on the floor. Defendant ordered Zaldivar back into the bathroom, where

61 Cal.4th 577

he stayed for about two minutes. When he emerged defendant was gone. The crime was recorded on videotape and shown to the jury.

Su described the robber as a “skinny” White man, approximately six feet tall, 150 to 155 pounds, in his mid–30s, with a mustache and dark hair in a ponytail. A week or two after the robbery, Su picked defendant's photo from a group of six photographs (photo array). Su also selected defendant at a live lineup and identified him at trial.

b. January 19: Ben's Jewelry Robbery

Around 1:00 or 2:00 p.m. on January 19, 1993, a Black man entered Ben's Jewelry in Beverly Hills and began looking at the cases. Marina Pekel showed the man some jewelry while Yossi Dina and Shant Broutian worked in their rear offices. About five minutes later defendant, described as a White man with long hair and a long coat, walked into the store. He pulled a revolver and ran

352 P.3d 297

toward the back of the store. Broutian grabbed his own gun and turned to face defendant. After a brief confrontation, Broutian surrendered his weapon. Defendant ordered Broutian and Pekel to lie on the showroom floor. Hearing the commotion, Dina retrieved a semiautomatic pistol from his desk but looked up to find the Black man pointing a

189 Cal.Rptr.3d 712

gun in his face. The man put the gun barrel in Dina's mouth, asked for a key to the showcase, and ordered Dina to lie on the floor next to Pekel and Broutian. At this point, a younger Black man joined the robbers.

Two customers came in during the robbery. Clifford Young was immediately accosted by one of the Black robbers, who held a gun to his head while defendant demanded his money. They took Young's cash and pushed him into a rear bathroom. Defendant also forced Gregory Lansing to the back of the store. He held one gun to Lansing's head and another to his chest. At defendant's demand, Lansing surrendered his money.

The customers and employees were moved to the rear bathroom, where their hands and feet were bound with duct tape. Pekel was tied up after she emptied merchandise from the showcases into a trash bag defendant held. One robber demanded the safe key, which Dina relinquished. The victims were told to remain quiet or they would be killed. After the robbers left, Broutian freed himself and the others. They found the showcases and safe open. Jewelry valued at nearly $800,000 had been taken.

All victims but Young viewed a photo array with defendant in position No. 5.⁵ Broutian and Lansing selected photographs No. 3 and No. 5. Lansing

61 Cal.4th 578

specifically recalled the acne scars in photograph No. 5. Pekel circled only No. 5. Dina also selected No. 5 and testified that he was “100 percent” certain of the identification.

At trial, Broutian testified that defendant resembled the man who had held a gun to his face. Lansing identified defendant as the man who had held the two guns on him. Dina identified defendant at a live lineup, the preliminary hearing, and trial.

c. January 30: H & R Pawnshop Robbery

Around 1:00 p.m. on January 30, 1993, two men, one Black and one White, entered the H & R Pawnshop in North Hollywood and tried to sell a necklace. Owner Ruben Avsharian offered to buy it, but the men rejected his price and left. Three hours later they returned, accompanied by another Black man. When Avsharian declined to offer more for the necklace, each man produced a gun. The White man jumped over a counter, pointed a .38–caliber pistol at employee Hunan Ganazyan's temple, and told him to lie down. Avsharian and employees Ambertsum Sarkisyan and Vardkes Aslanyan were ordered to get on the floor. Then the robbers began shooting. They fired between 10 and 15 shots and shattered a large jewelry showcase. A bullet hit Avsharian's wrist, and Sarkisyan was shot in the thigh. After a few minutes, the robbers demanded to be let outside. Someone buzzed open the security door, and they left.

Many pieces of jewelry were taken. An empty holster, capable of holding a .38–caliber handgun, was found near the shattered showcase. Police recovered multiple bullet casings and slugs at the scene. Defendant's left palm print was lifted from a glass display case.

Avsharian, Ganazyan, and Aslanyan picked defendant's photograph from a photo array. Ganazyan and Aslanyan identified defendant at a live lineup. Avsharian did not. At trial, all three victims testified defendant was one of the robbers.

d. February 2: Sun Valley Shell Robbery Murder

Around 7:30 p.m. on February 2, 1993, Raffi Rassam pulled into a Shell station in

189 Cal.Rptr.3d 713

Sun Valley. He noticed a white car and a Jeep Cherokee with side paneling parked behind the store. Someone sat in the Jeep with the engine running. Rassam parked at a pump, walked into the store, and handed the cashier $14 for gas. The cashier's name

352 P.3d 298

was Norair Akhverdian, but Rassam knew him as “Nick.” Rassam tried to fill his gas tank, but the pump had not been turned on. He walked back toward the store but stopped when he heard

61 Cal.4th 579

change falling. Akhverdian was behind the cash register, facing a man across the counter and looking “very scared.” The man jumped over the counter and shot Akhverdian. The assailant then walked quickly past Rassam toward the Jeep. He had a ponytail and an acne-scarred complexion. Rassam called the police.

Melikset Kirakosyan was working in a back hallway when he heard a gunshot and Akhverdian yelling. He found Akhverdian lying on the floor behind the register, unconscious but breathing. He called 911.

The cash drawer lay upside-down on the floor, devoid of currency. Police recovered a .380–caliber shell casing and expended bullet. These were later matched to a Walther handgun recovered from defendant's car. Videotape from the store's security camera showed an individual jump the counter holding a dark item. Akhverdian's arms were lowered in front of his body when he was shot. He died of a single gunshot wound to the heart.

Rassam picked defendant's photograph and one other from a group of six. At a live lineup, Rassam identified defendant as the shooter. He also identified defendant at trial, stating he was “confident 110 percent.”

e. February 10: Jack's Liquor Robbery Murder

Around 3:45 p.m. on February 10, 1993, Yepraksia Kazanchian was working at a hamburger shop on Hollywood Boulevard when she heard gunfire. Kazanchian ran to the front of the shop and saw a customer pointing toward Jack's Liquor. Kazanchian saw a beige or white car with wood paneling...