People v. Lucero

• Decision Date: 28 March 1988
• Citation: 245 Cal.Rptr. 185,750 P.2d 1342,44 Cal.3d 1006
• Court: California Supreme Court
• Parties: , 750 P.2d 1342 The PEOPLE, Plaintiff and Respondent, v. Phillip Louis LUCERO, Defendant and Appellant. Crim. 22504.

Page 185

245 Cal.Rptr. 185

44 Cal.3d 1006, 750 P.2d 1342

The PEOPLE, Plaintiff and Respondent, v. Phillip Louis LUCERO, Defendant and Appellant.

Crim. 22504.

Supreme Court of California In Bank.

March 28, 1988.

Rehearing Denied May 5, 1988.

Michael Satris, Bolinas, for defendant and appellant.

Jay Bloom, Office of the Atty. Gen., San Diego, for plaintiff and respondent.

BROUSSARD, Justice.

This case arises on an automatic appeal from a judgment of death imposed under the 1978 death penalty law. (Pen.Code, §§ 190.1-190.4.) ¹ Defendant, Phillip Louis Lucero, was convicted of two counts of first degree murder (§§ 187, 189) and one count of arson (§ 452, subd. (c)). A special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) was found true.

Defendant presents numerous claims of error regarding jury selection, the guilt phase and the penalty phase of his trial. We have concluded that although the judgment of guilt must be affirmed, the death verdict must be reversed due to error in the exclusion of mitigating evidence. The cause is therefore remanded for a new penalty trial in accordance with the views expressed in this opinion.

I. GUILT PHASE EVIDENCE

On April 12, 1980, seven-year-old Chris Hubbard and ten-year-old Teddy Engliman were playing at the Hubbard home in the town of Yucaipa in western San Bernardino County. Chris's father, Michael Hubbard, was working in the backyard garden. Sometime between 4 p.m. and 4:30 p.m. that afternoon, he gave the girls permission to go to the nearby I Street park to play on the swings.

At 4:30 or 4:45 p.m., Ruth Schultz heard defendant's goose cackling and looked out her dining room window. She saw two girls matching the description of Chris and Teddy standing at the back of defendant's lot between two fences. Defendant walked toward the girls and told them that the goose would not hurt them. The girls appeared to be coming into defendant's yard.

Shortly after 5:00, no more than 30 to 40 minutes after the girls had left for the park, Michael Hubbard became concerned by their failure to return. He and his wife made separate trips to the park but were unable to find the girls. About 5:30, Mrs. Hubbard called the San Bernardino County Sheriff's Department.

Sergeant Wallace Anton received a report of the missing girls from the sheriff's Yucaipa substation about 6 p.m. In order to coordinate the search, a temporary command post was set up at the I Street park almost directly across the street from defendant's house. Sergeant Anton assigned Deputies Charles Long and Hans Vander Veen to the search. Apparently at some point during the search one or more helicopters were employed.

About 7:15, Dolores Gwaltney heard defendant's car start up and drive down the street. She lived next door to defendant and was able to recognize the car because of its defective muffler. Ten minutes later she saw the car return to defendant's driveway. Three to five minutes later she saw defendant drive away in the car. Within minutes of the car's second departure, Mrs. Gwaltney saw a fire in the rear portion of defendant's house.

Deputy Long also noticed the fire as he reported to the search command post about 7:25. He radioed the California Department of Forestry and immediately began to fight the fire with a garden hose. He was joined shortly by Deputy Vander Veen and Sergeant Anton. Long and Vander Veen crawled into the burning house searching for anyone who might be inside. No one was found.

The Department of Forestry firefighters arrived at 7:37. Sergeant Anton immediately informed Fire Captain Charles Bryant of the missing girls and asked that the captain direct his men to search the burning house. Mrs. Gwaltney telephoned defendant at his parents' house. Defendant returned to the scene with his parents in their car.

When the fire was under control, the sheriff's officers returned to the command post across the street. The firefighters then alerted sheriff's deputies to a large blood stain on the carpet of defendant's living room. Several officers saw the bloodstain and questioned defendant. ² The firefighters and deputies also noticed a bloodstained bedsheet and pieces of broken glass in the living room. About the time the deputies were examining the bloodstain, the bodies of the two girls were found in a nearby dumpster wrapped in green trash bags.

Subsequent searches by homicide detectives and sheriff's criminologists verified that the stained carpet and bedsheet contained human blood. The pieces of glass came from a broken Pepsi bottle found in the living room. Additional bloodstains were discovered on the gate to defendant's front yard. Teddy Engliman's brown tennis shoes were found in the living room. A rope was lying in a doorway between the front porch and the living room. Green trash bags were discovered in the kitchen. Gasoline residue was found on the living room carpet and in the bedroom, where the fire is believed to have originated.

Searches of defendant's car revealed blood stains on the exterior portion of the car trunk, on the driver's outside door handle, and in the interior of the car and trunk. There was a puddle of still moist blood on the bottom of the trunk compartment.

At the time of his arrest defendant's T-shirt was spotted with blood. The bottom of his left sock was saturated with blood. Dried blood was observed on one of defendant's hands.

The girls' bodies had been removed from the dumpster by 11 p.m. on April 12 and autopsies were performed the next day. The autopsy performed on Teddy Engliman revealed that several of the bones in her head had been fractured and that some of her teeth had been knocked out. The pathologist concluded that the injuries had been caused by a minimum of two or three blows from a blunt object. The immediate cause of death was aspiration of the blood produced by her injuries.

The autopsy of Chris Hubbard revealed an abrasion on her neck. The pathologist determined ligature strangulation to be the cause of death. He also concluded that the necklace Chris was wearing could have been used in the strangulation. Under magnification the doctor discovered "fine abrasions or little scrapes" within a discolored area on Chris' wrists. Although he thought there could be other possibilities, the pathologist testified that the marks may indicate that the victim's wrists were tied together with some kind of rough twine or rope.

The doctor found no injuries which suggested the girls had been sexually molested. Tests of vaginal and anal swabs for traces of seminal fluid also proved negative.

When Teddy's body was removed from the trash bag numerous fragments of broken glass fell out. These fragments were later identified as coming from the same broken Pepsi bottle found in defendant's living room. The blood found on defendant's living room carpet, the bedsheet, the inner tube located in the trunk of his car and defendant's sock was tested and found to be of the same type as the blood taken from Teddy Engliman during the autopsy. (It did not match that of either Chris Hubbard or the defendant.) The plastic trash bags which had contained the bodies of the victims were found to be identical in color, thickness, size, packing folds and heat seals to the trash bags found in defendant's kitchen.

The minimal cross-examination conducted by defendant during the guilt phase focused on the impression of his emotional state formed by those having contact with him during the effort to extinguish the fire and immediately thereafter. All witnesses agreed that defendant appeared surprisingly indifferent and oddly subdued given the circumstances.

The defense called Deputy Ronald Durling as its only guilt phase witness. ³ Deputy Durling testified that defendant consented to the search of his house and car. Pursuant to a stipulation, the defense also read into evidence testimony which would have been given by defendant's wife had she been called as a witness. This testimony consisted of a statement that Mrs. Lucero left the house unexpectedly on the day of the murders and had no preexisting plan to be absent.

II. JURY SELECTION ISSUES

Exclusion of Prospective Jurors.

Defendant challenges the trial court's exclusion of prospective juror Roy Van Hoy.

The trial court initiated the examination of prospective juror Van Hoy:

"COURT: Do you or anyone close to you have such a conscientious opinion regarding the death penalty that such an opinion would make it impossible for you to vote for the imposition of the death penalty in any case, under any circumstances, and regardless of the nature of the evidence introduced during the trial and penalty phase?

"VAN HOY: I'm afraid I'm going to have to say yes to that.

"COURT: Your personal feelings about the death penalty are such that you cannot conceive of any circumstances, any evidence, or any case under which you could possibly ever vote for the death penalty. Is that a correct statement?

"VAN HOY: So long as we have jails to put em in, no I could not.

"COURT: You could not?

"VAN HOY: No, I could not.

"COURT: It's a matter of conscience and you could never under any circumstance vote for the imposition of the death penalty?

"VAN HOY: I feel like it would just be the same as me killing the guy himself [sic ].

"COURT: That's your--

"VAN HOY: That's my opinion.

"COURT: That's your conscientious opinion?

"VAN HOY: Yes, it is."

Although following this exchange defense counsel elicited testimony from Mr. Van Hoy that he could follow the law as given by the judge, upon reexamination by the court Mr. Van Hoy reiterated his position that he could not vote for the death penalty. We find no error on this record. Mr. Van Hoy repeatedly and unequivocally stated that under no circumstances could he vote for the death penalty in this case regardless of the evidence. (See Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21, 88 S.Ct. 1770, 1777 fn. 21, 20 L.Ed.2d 776; Wainwright v....