People v. Lewis

• Decision Date: 28 April 2008
• Docket Number: No. S031603.,S031603.
• Citation: 75 Cal.Rptr.3d 588,181 P.3d 947,43 Cal.4th 415
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Irvin LEWIS II, Defendant and Appellant.
• Court: California Supreme Court

181 P.3d 947

75 Cal.Rptr.3d 588

43 Cal.4th 415

The PEOPLE, Plaintiff and Respondent, v. John Irvin LEWIS II, Defendant and Appellant.

No. S031603.

Supreme Court of California.

April 28, 2008.

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, and Kathleen M. Scheidel, Assistant State Public Defender, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, Keith H. Borjon, John R. Gorey, Sharlene A. Honnaka and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

A jury found defendant John Irvin Lewis II¹ guilty of the first degree murder (Pen. Code, § 187; further undesignated statutory references are to the Penal Code) and robbery (§ 211) of Jose Avina and Agustine Ramirez and of the first degree murder, robbery, kidnapping for robbery (§ 209, subd. (b)), and kidnapping (§ 207, subd. (a)) of Willie Sams, Elizabeth Nisbet, and Shirley Denogean. As to each of the five murders, the jury found true special circumstances of murder by means of lying in wait (§ 190.2, former subd. (a)(15)), and murder during the commission of robbery (§ 190.2, former subd. (a)(17)(i) [now subd. (a)(17)(A) ]). The jury found true special circumstances of murder during the commission of a kidnapping or kidnapping for robbery (§ 190.2, former subd. (a)(17)(ii) [now subd. (a)(17)(B) ]) for the Sams, Nisbet, and Denogean murders, and it found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)).

The jury also found defendant guilty of the robbery, kidnapping for robbery, and kidnapping of Eugene Valdez, Juan Rios, and Sonia Aguirre; one count of receiving stolen property (§ 496, former subd. (1) [now subd. (a) ]); and one count of conspiracy (§ 182, subd. (a)(1)). The jury found that defendant had personally used a firearm (§ 12022.5, subd. (a)) during each of the murders, robberies, kidnappings for robbery, and kidnappings.

After a penalty phase, the jury fixed defendant's penalty at death for each of the murders. The trial court denied defendant's automatic motion to modify the verdicts (§ 190.4, subd. (e)) and imposed death sentences for those counts. The court imposed prison terms for the other counts and enhancements, stayed pending imposition of the death penalty.

This case is before us on defendant's automatic appeal. (§ 1239, subd. (b).) For the reasons set forth below, we vacate the lying-in-wait special-circumstance findings related to victims Avina, Sams, Nisbet, and Denogean; reverse defendant's six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25); modify the judgment to reflect a single sentence for conspiracy (count 27); and order stayed the sentences for the conspiracy conviction in count 27 and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23. Otherwise, we affirm the judgment, including the sentence of death.

I. FACTUAL BACKGROUND

During July and August 1991, defendant and codefendants Robbin Monique Machuca, Vincent Gerald Hubbard, and Eileen Marie Huber engaged in a crime spree in Los Angeles County involving the robberies, kidnappings, and/or murders of eight separate victims. Defendant was linked to the crimes by eyewitness accounts, automated teller machine (ATM) photographs, fingerprints, ballistics and other forensic evidence, and defendant's statements to police. Defendant and his three codefendants were tried together.²

A. Guilt Phase

1. Prosecution's case-in-chief

Viewed in the light most favorable to the judgment (People v. Posey (2004) 32 Cal.4th 193, 201, 8 Cal.Rptr.3d 551, 82 P.3d 755; People v. Neal (2003) 31 Cal.4th 63, 69, 1 Cal.Rptr.3d 650, 72 P.3d 280), the evidence at trial established the following.³ In July and August 1991, defendant was living in apartment E of the Woodside Village Apartments in West Covina with codefendants Huber (defendant's girlfriend), Machuca (defendant's half sister), and Hubbard (Machuca's boyfriend).

a. Robbery and murder of Jose Avina (counts 1 & 2)

About 10:00 p.m. on July 5, 1991, in Monrovia, defendant was riding in codefendant Huber's car, following Derrick Colbert (defendant's brother-in-law) and Timmy Lane, who were in Lane's car. Lane's car bumped a red truck driven by Jose Avina, who pulled over and stopped. Defendant approached Avina and demanded the keys to the truck. Defendant then shot Avina once in the head with a 12-gauge sawed-off shotgun. The truck rolled onto a lawn in front of an apartment complex. Defendant pulled Avina's body from the truck, jumped into the driver's seat, and drove to Baldwin Park, where defendant and his companions removed stereo equipment from the truck. Defendant then drove the truck to Pomona and abandoned it. Defendant later put an amplifier from the truck into his own car, a brown 1983 Oldsmobile Cutlass.

Avina died from a shotgun blast to the left side of his face, which obliterated most of the left temporal and occipital lobes of his brain. Several copper-coated pellets or fragments were removed from his head.

b. Robbery and murder of Agustine Ramirez (counts 3 & 4)

Agustine Ramirez owned the Magic Mushroom restaurant in West Covina. His wife, Linda Ramirez, worked with him at the restaurant. Linda was friends with Sylvia Medina, who lived with her daughter Barbara Espinoza in apartment A of the Woodside Village Apartments, where defendant and his three codefendants were occupying apartment E. During July and August of 1991, Espinoza went on a few dates with defendant. One evening in early or mid-July, 1991, codefendant Machuca accompanied Sylvia Medina to the Magic Mushroom, where she stayed for over an hour.

On the morning of August 3, 1991, Agustine and Linda Ramirez drove to the restaurant in separate cars. About midnight, they decided to go home. Agustine walked Linda to her car in the alley behind the restaurant, then began walking to his car. Linda started her car and turned on the headlights. When Agustine was about 15 feet from Linda, a car occupied by defendant and driven by another person drove up to Agustine and stopped, blocking his way. Agustine talked to defendant. Linda noticed that defendant was holding an 18-inch shotgun. As Linda struggled to get out of her car, defendant shot Agustine once in the abdomen, then was driven away.

Agustine Ramirez was taken to a hospital, where he died from a single gunshot wound to his left abdomen. Stippling around the wound and on his left forearm indicated the shot was fired from a distance of about two feet. Thirteen copper-coated double-aught shotgun pellets were removed from his body. The next morning, five of Ramirez's credit cards were found near a dumpster on the grounds of the Edgewood Middle School in West Covina.

c. Kidnapping and robbery of Eugene Valdez (counts 5, 6 & 7)

Eugene Valdez worked as a salesman for a car dealership in the City of Industry. In late July or early August, 1991, Valdez bought a brown 1983 Oldsmobile Cutlass from the dealership. About 9:00 p.m. on August 9, 1991, Valdez left the dealership driving the Cutlass to return to his home in Victorville, about 70 miles away. After driving about 30 minutes, Valdez became sleepy and decided to stop and rest. He pulled into a restaurant parking lot, shut off the engine, locked the doors, and fell asleep.

About two hours later, Valdez awoke to find defendant and codefendant Hubbard banging on the car and yelling for him to open the door. They held a sawed-off shotgun between them. The two men forced Valdez to lie facedown on the backseat. Hubbard sat on top of Valdez's legs, holding the shotgun against Valdez's neck. Defendant sat in the driver's seat, chose a music station on the radio, and began driving.

As they were driving, Hubbard threatened several times to kill Valdez, but defendant urged him not to, saying, "Don't do it, we can use the car." Hubbard also asked defendant, "Why are you going this way?" Defendant replied, "I can get there just as fast." Hubbard hit Valdez with his fists, spit on him, and demanded his valuables and credit cards. Valdez surrendered his money, billfold, and watch.

Some 30 minutes later, Valdez felt the car climbing into the mountains. The car then pulled into a turnout near the Morris Dam, about 10 miles north of West Covina. Defendant and Hubbard got out of the car and ordered Valdez to get out as well. Valdez noticed that a second car occupied by a woman had pulled up beside his car.

The men ordered Valdez to walk toward the edge of the turnout, where the land dropped off steeply. Hubbard still held the shotgun. As Valdez walked toward the edge, he heard one man say to the other, "You shoot the mother fucker." Fearing he would be killed, Valdez threw himself over the precipice. As he did so, he heard a clicking sound as if a shotgun had misfired.

Valdez tumbled about 150 feet down a steep incline. He remained at the bottom of the slope for several minutes. When he was sure the kidnappers had left the area, he climbed up the slope and flagged down a passing motorist, who took him to a phone to call the police.

Defendant removed the front fenders, front grille and bumper, hood, and left rear taillight assembly from Valdez's car and installed them on his own brown 1983 Cutlass. He also put the battery, tires, car radio, and speaker covers from Valdez's car in or on his car. Defendant then abandoned Valdez's car in Baldwin Park, where it was found about six days after the kidnapping. Defendant's car still had the installed parts from Valdez's car when a Los Angeles County Sheriff's detective examined it on September 3, 1991, at an auto body shop in Rosemead to which it had recently been towed.

d. Thefts from Gary Huber (count 26)

Codefendant Huber's father, Gary Huber, lived in Baldwin Park. On the morning of August 13, 1991, Gary left home with...