People v. Lindberg

• Decision Date: 28 August 2008
• Docket Number: No. S066527.,S066527.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gunner Jay LINDBERG, Defendant and Appellant.

190 P.3d 664

82 Cal.Rptr.3d 323

45 Cal.4th 1

The PEOPLE, Plaintiff and Respondent, v. Gunner Jay LINDBERG, Defendant and Appellant.

No. S066527.

Supreme Court of California.

August 28, 2008.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Ronald F. Turner, Deputy State Public Defender, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda L. Cartwirght-Ladendorf and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

MORENO, J.

A jury found defendant Gunner Jay Lindberg guilty of the first degree murder (Pen. Code, § 187)¹ of Thien Minh Ly and found he personally used a knife (§ 12022, subd. (b)). The jury further found true special circumstance allegations that defendant committed murder in the attempted commission of robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and because of the victim's race, color, religion, nationality, or country of origin (§ 190.2, subd. (a)(16) ("hate-murder" special circumstance)).

At defendant's penalty trial, the jury returned a death verdict. The trial court denied defendant's motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment.

I. FACTS AND PROCEEDINGS

A. Prosecution Guilt Phase Case

1. The Murder of Thien Minh Ly

Defendant concedes that the prosecution proved he murdered Ly on the Tustin High School tennis courts on January 28, 1996.

The evidence showed that on January 28, 1996, between 8:30 and 9:00 p.m., Thien Minh Ly left his family's home in Tustin wearing his rollerblades and leaving behind his wallet and car keys. When Ly did not return home, his family telephoned the police the next day.

On the same morning, around 7:45 a.m., Frank Armenta, a groundskeeper at Tustin High School, noticed someone wearing rollerblades lying on one of the tennis courts. As he approached, Armenta noticed the person was not breathing and saw blood on his shirt and a cut on his neck. He asked two nearby school employees to call the police.

When the police responded, they found Ly dead. Next to Ly's body, they recovered a cap and a single key on a key ring. The key fit the locks at Ly's residence.

Ly had suffered multiple injuries. A pattern contusion (i.e., having "some pattern like linear marking") and abrasion comprising an area about five inches by four inches appeared on the right side of Ly's face, extending from his forehead to his right cheek and ear. A contusion and an abrasion appeared on the left side of Ly's forehead, and a contusion appeared on his mid-nose area and below his left eye. Redness was visible on his left cheek. Ly had suffered five and a half-inch and three and a half-inch slash wounds on the right and left sides of his neck, respectively. Each of these wounds had irregular edges, suggesting the perpetrator did not inflict a single wound, but probably cut and then extended the cut. The slash wounds to Ly's neck had been inflicted close in time to his death but not post mortem. Ly had suffered multiple deep stab wounds on the right and left sides of his chest that penetrated his internal organs, linear abraded areas that were consistent with being caused by the pulling of a knife from a deep penetrating wound, stab wounds on his right upper arm, a stab wound in his abdominal area, and an abrasion on his right hand. Some of the chest wounds penetrated through the body. Ly had suffered about 22 wounds to his chest and abdominal areas, some inflicted from the front and some from the back. Each wound had been inflicted by a single-bladed knife or sharp object with a blade about an inch to an inch and a quarter in width. The maximum depth of penetration was about four and one-half inches. Ly had been stabbed about 14 times in the heart. The multiple stab wounds that perforated Ly's heart, both lungs, diaphragm, liver, duodenum, and kidney had caused Ly to bleed to death.

2. Defendant's Confession to Ly's Murder

Walter Ray Dulaney IV, also known as Robert Dulaney, testified he was defendant's cousin and friend and had known defendant all his life. Dulaney previously had been convicted of first degree assault and burglary and, at the time he testified, was in custody in Missouri for shooting at someone. Sometime during the five years before trial, Dulaney, defendant, and defendant's brother Jerry² formed a gang called the Insane Criminal Posse (ICP). In 1995, primarily at defendant's urging, the gang became involved in the white power movement. By "white power," Dulaney meant that Whites were superior to all other races. He said defendant shared this view. Dulaney, who was part Japanese, did not consider himself to be any race other than "American."

On February 29, 1996, Dulaney, who was living in Alamogordo, New Mexico, received a handwritten letter from defendant dated February 23, 1996 (the February 23d letter). Defendant had addressed the letter to "Dear Bro, ex-con 2/11 Rob" and stated in relevant part: "Oh, I killed a jap a while ago. I stabbed him to death at tustin High school I walked up to him Dominic was with me and I seen this guy Roller blading and I had a knife. We walked in the tennis court where he was I walked up to him, Dominic was right there. I walked right up to [unintelligible] him and he was scared I looked at him and said, `oh, I thought I knew you' and he got happy that he wasn't gona get jumped. then I hit him with one of my mother fuckers and he feel on the ground and he said in a very low voice `what the fuck' and `you can have whatever I got.' I have nothing only a key. You can have it' then I said `you got a car,' oh I pulled the knife out a butcher knife! and he said `no' then I put the knife to his throught and asked him `Do you have a car.' And he grabed my hand that I had the knife in and looked at me, trying to get a discription of me so I stomped on his head 3 times and each time said `stop looking at me' then he was kinda knocked out Dazzed then I stabbed him in the side about 7 or 8 times he rolled over a little so I stabbed his back about 18 or 19 times then he layed flat and I slit one side of his throught on his jugular vain. Oh, the sounds the guy was making were like uhhh then Dominic said, `do it again' and I said `I already did, Dude' `ya, do it again' so I cut his other juggular vain, and Dominic said `kill him do it again.' I said, `he's already dead' Dominic said, `stab him in the heart.' So I stabbed him about 20 to 21 times in the heart and we took off. ... [T]hen I wanted to go back and look, so we did and he was dieing just then taking in some bloody gasps of [illegible] air so I nudged his face with my shoe a few times then I told Dominic to kick him, so he kicked the fuck out of his face and he still has blood on his shoes all over [smiley face] then I ditched the knife, after whiping it clean onto the side of the I5 freeway [smiley face] here's the clippings from the news paper and we were on all the news channels 2/11 Insane Loc in having a ball in tustin wish you were here. ..." (Errors in original.)

After Dulaney read the letter, his wife gave it to his mother and stepfather, who then gave the letter to Alamogordo police, all of which occurred on the same day. Alamogordo police brought the letter to the attention of the Orange County District Attorney's Office and Tustin police.

The next day, March 1, 1996, Dulaney spoke by telephone to defendant who told him the murder "gave [him] a rush," "like a high. Better than a drug." Defendant told Dulaney that he "killed the Jap," that he "slit his throat and stabbed him a whole bunch of times," and that he "couldn't stop." Defendant told Dulaney he killed Ly "for racial movement [sic]."

On March 5, 1996, Tustin Police Detectives Todd Bullock and Bruce Williams interviewed Dulaney about the letter he had received from defendant. Dulaney denied he had spoken with defendant since he had received the letter because he did not want defendant to be in more trouble than he already was. When Detective Bullock asked Dulaney how defendant felt about Asians, Dulaney said he did not know, as they never talked about it.

Dulaney later moved to Missouri with his wife. Sometime in the early part of 1997, while living in Missouri, Dulaney was shot in the stomach by somebody who yelled, "You want to put your cousin on death row, here is death row." Dulaney did not seek medical help, but pulled the bullet from his stomach himself using tweezers and a lug wrench as he had been trained to do in the "Young Marines."³ Dulaney did not report the gunshot wound to police because, at that time, he did not want to violate the conditions of his parole and return to prison.

On April 11, 1997, Dulaney telephoned Carl Waddell, an investigator with the Orange County District Attorney's Office, and informed the investigator that defendant had told him the murder was racially motivated. On April 24, 1997, Investigator Waddell and Tustin Police Detective Thomas Tarpley interviewed Dulaney in Missouri.⁴ Dulaney repeated that defendant said the murder had been committed for "the racial movement." Dulaney said he had not previously told the police about his telephone conversation with defendant because he was afraid and did not want to snitch on defendant any more than he had. Dulaney told Investigator Waddell that "when he [Dulaney] testified that he was a dead man."

Sometime before he telephoned Waddell on April 11, 1997, Dulaney received a letter from defendant while defendant was in custody awaiting trial in this case. In the letter, defendant wrote that Dulaney's parents were "2/11," meaning they were dead because they had turned defendant in. Dulaney and defendant also used the term "2/11" to mean "armed robbery"...