People v. Loker

• Decision Date: 28 July 2008
• Docket Number: No. S045060.,S045060.
• Citation: 44 Cal.4th 691,188 P.3d 580,80 Cal.Rptr.3d 630
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Keith Thomas LOKER, Defendant and Appellant.

188 P.3d 580

80 Cal.Rptr.3d 630

44 Cal.4th 691

The PEOPLE, Plaintiff and Respondent, v. Keith Thomas LOKER, Defendant and Appellant.

No. S045060.

Supreme Court of California.

July 28, 2008.

Lynn S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, and Arnold Erickson, 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, Holly D. Wilkens, Holley Hoffman and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

CORRIGAN, J.

Defendant Keith Thomas Loker was convicted of four counts of robbery, two counts of first degree murder, and one count each of attempted murder, assault with a deadly weapon, and second degree commercial burglary.¹ The jury also found true allegations of robbery-murder, burglary-murder, and multiple-murder as special circumstances, along with personal use of a firearm and infliction of great bodily injury.² It returned a judgment of death; we affirm.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

Defendant did not contest the facts of the crimes. His postarrest statements were consistent with the prosecution's evidence.

On November 23, 1991, at approximately 1:00 a.m., defendant entered an adult bookstore in Fontana. He was armed with a handgun and began firing rapidly. He shot customer Jose Lopez several times, but Lopez "played dead" and survived. A bullet struck Jennifer Widmer in the head, but did not penetrate her skull.³ The cashier, Randall Paul, pulled Widmer to the floor. Defendant shot Paul five times. When Paul reached for a gun, defendant fired again. Paul died from his wounds. Defendant went to the back of the store and killed Richard Bodine by shooting him five times. He took the wallets of Lopez and Bodine.

At defendant's order, Widmer gave him the contents of the cash register. Other than when she had trouble turning off a radio, defendant was calm. He did not stumble, slur his speech, or otherwise appear intoxicated. Defendant asked Widmer to describe him. When she said he was 23 years old, he told her "16." Defendant told Widmer to wait ten minutes and call 911. He said he would be watching and would kill her if she left. Defendant took some merchandise on his way out of the store.

Four days later, defendant was arrested in Arizona after a high-speed chase. He was driving a white Chevrolet pickup truck. The murder weapon and items taken from the bookstore were later found in a Toyota Camry in Arizona. The victims' wallets were recovered from a different Arizona location.

Defendant described the murders and robberies to the police. He had selected the store because of its isolated location. He had gone into the store earlier in the evening, but did not have his gun. When asked what "possessed" him to commit the crimes, he responded, "Strictly drinking, you know. It wasn't me." He had consumed three beers before his first visit to the store, and three more before returning. He had been drinking a six-pack a day for three months.

2. Defense

Defendant conceded responsibility and presented no evidence.⁴ During closing argument defense counsel contended his client was guilty of second degree murder or involuntary manslaughter, but not first degree murder, because he had acted on impulse without premeditation. He argued that the killings occurred during a commercial burglary, making them second degree murders, rather than during a robbery, which would elevate them to first degree murder. Counsel told the jury that if defendant's intoxication prevented him from forming the mental states required for robbery, burglary, or murder, he was guilty only of involuntary manslaughter. Counsel also claimed the jury could find that the robbery and burglary were incidental to the murders, and thus did not support the robbery and burglary special circumstances.

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence of crimes committed by defendant before and after the bookstore offenses. The day before the murders, defendant robbed Frank Kim, an Arcadia store owner. Defendant put a gun to Kim's back, covered his mouth, and threatened to shoot him if he did not "shut up." He took Kim's keys, Toyota Camry, and cash.

After the bookstore crimes, defendant drove Kim's Camry to Arizona. On the evening after the killings, he left a note for his mother that said, "Pray for me. I am in a lot of trouble. I'll call later." The next day, he met with his cousin Tim Daulton and described the bookstore crimes. Daulton contacted the police.

The day after the murders, defendant robbed a convenience store in Flagstaff, Arizona. Julie H. was the cashier. Barry H., her husband, was in the back of the store. At gunpoint, defendant forced Julie to open the cash register. He removed approximately $300. Defendant was calm, steady of speech and gait, and did not smell of alcohol. When a customer entered the store, he had Julie hide until the customer left. Defendant took a handgun from under the register.

He then went to the back of the store, where he encountered Barry H., forced him to kneel down, and shot him in the back of the head. Barry survived, but was legally blind for six months. His hearing was still impaired at the time of trial.

Defendant calmly told Julie, "You'll go with me or you'll die here," calling her "bitch." He handcuffed her with plastic ties and put her in Kim's stolen car. Julie begged for her life, telling defendant she had three young children who needed their parents, and assuring him she would not tell anyone. Defendant said that if she did not keep quiet he would shoot her. He drove to a remote location, blindfolded Julie, and walked her to the back of the car. He undressed her, threatened to shoot her, then raped her.

Defendant dressed Julie, put her back in the car, and started driving. At some point, the blindfold came off. When a police car passed in the opposite direction, defendant said, "They're onto me." Julie began talking about her children again, and started to pray. Defendant said, "I can't let you go because you can identify me now," and admitted shooting her husband. When Julie said defendant had ruined his whole life, defendant responded that the world was going to end in eight years anyway.

They passed more police cars going in the opposite direction. Ultimately, defendant pulled over and ordered Julie out of the car, saying, "I think there's going to be a shootout." After he drove away, Julie was rescued by passersby. She reported the Camry's license number to the police. Defendant abandoned the car at a gas station.

Three days later, one of defendant's cousins saw him driving a pickup truck and contacted the police. Defendant led a number of officers on a high-speed chase for about 40 minutes. At times he swerved at police cars, but did not hit any. He waved to news media filming the chase, which ended in a collision. Defendant told the police about the Kim robbery and the crimes against Julie and Barry H Julie visited defendant in jail, not "for him," but to ask him about HIV and to face her own fear. Defendant wrote Julie one or two letters of apology while incarcerated. On one envelope he wrote something like, "You have to have a few clouds in your life to enjoy the rainbows."

The parties stipulated that defendant pled guilty in Arizona to sexual intercourse while using or exhibiting a deadly or dangerous instrument, premeditated attempted murder, armed robbery, and five counts of aggravated assault.⁵

2. Defense evidence

Defendant called 36 witnesses. Their testimony focused primarily on his upbringing in a religious cult, exposure to his parents' volatile relationship, rejection by his father, unrecognized emotional needs and hyperactivity, and remorse for his crimes.

Defendant was born in 1971 in Prescott, Arizona, and lived with his family in a trailer park. The park residents were members of the Branham Prophecy or Message Church, followers of Brother Branham, whom they believed to be a prophet. Defendant's mother was from the Daulton family; his father was a Loker. The two families constituted a significant portion of the approximately 120 residents of the park.⁶

Leo Mercer, a self-proclaimed minister, ran the park. After Brother Branham's death in 1965, Mercer gradually became more authoritative, employing various forms of punishment. He would ostracize people from the community and separate families. Children were beaten for minor infractions like talking during a march or not tying their shoes. Mercer would punish girls by cutting their hair, and force boys to wear girls' clothing. There was also evidence that Mercer sexually abused children.

Marietta Loker, defendant's mother, moved to the park in 1962 with her husband Jerry Johnson and sons Danny and Mark. Mercer did not like Jerry and set out to destroy the marriage. The next year Jerry divorced Marietta, and she eventually married Roger Loker, defendant's father. Mercer forced Danny and Mark to live with different families for about three years. Shortly before defendant's birth, the elder boys left the park to live with their father.

Roger Loker was perceived as homosexual by church members. He was beaten so that he would have marital relations with Marietta, leading to the conception of defendant and his older sister Hannah. When defendant was between 18 and 30 months old, Marietta would leave him at home alone for an hour at a time to run errands for Mercer. Defendant did not speak, except perhaps to say "mama," until he was three years old. Mercer ordered Marietta to whip and slap him because "he was being stubborn." She did so once for several hours, but could not bring herself to do it again. Other than this incident, there was no specific testimony that defendant was physically abused while in the...