People v. Lucky

Decision Date16 May 1988
Citation247 Cal.Rptr. 1,45 Cal.3d 259,753 P.2d 1052
CourtCalifornia Supreme Court
Parties, 753 P.2d 1052 The PEOPLE, Plaintiff and Respondent, v. Darnell LUCKY, Defendant and Appellant. Crim. 22572.

Karl Phaler, San Diego, and Frank O. Bell, Jr., State Public Defender, San Francisco, under appointments by the Supreme Court, Monica Knox, Chief Asst. State Public Defender, and Jill Ishida, Deputy State Public Defender, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz, John R. Gorey, Gary R. Hahn, Susanne C. Wylie, Andrew D. Amerson, William R. Weisman and Susan D. Martynec, Deputy Attys. Gen., for plaintiff and respondent.

EAGLESON, Justice.

This case arose under the 1978 death penalty initiative, now codified as Penal Code sections 190-190.5. (All statutory references are to the Penal Code unless otherwise indicated.) Defendant was convicted under this statute of two counts of first degree murder and attempted robbery with two special circumstances attaching to each count--murder during the commission of attempted robbery and multiple murder. In addition, defendant was also convicted of six other robbery charges, stemming from three additional incidents which were separate from but related to the principal episode and which were consolidated with the murder charges for purposes of trial.

Following defendant's convictions at the guilt phase, the jury fixed the penalty at death. The appeal to this court is automatic. The appellate record discloses no prejudicial error in the proceedings below. We will therefore affirm the judgment in its entirety. 1

I. SUMMARY OF FACTS AND PROCEEDINGS.
(A) The Radio Shack Incident.

On January 5, 1981, Robert Randolph and Dwight Ingram were working at a Radio Shack store in Los Angeles. Defendant and a male companion entered the store, and defendant walked directly to the rear. His companion pointed a gun at Ingram and informed him that this was a robbery. After being warned not to move or have his head blown off, Ingram removed money from a drawer and placed it along with his personal cash into a Radio Shack bag. Meanwhile, defendant entered the rear office with a four-inch knife in his hand and ordered Randolph to get under his desk. After binding the hands of the two employees, the robbers left, taking the day's receipts and several stereo items.

Later that evening, two Los Angeles police officers on a routine patrol on Ventura Boulevard observed defendant and his companion, Brown, walking along the street and noticed that Brown appeared to be carrying a gun.

The officers turned into a parking lot and saw Brown, whom they detained and patted down, without finding a gun. They subsequently observed an interior light on in an orange Vega parked in the lot about 50 feet away. They went over to the car and saw defendant lying on the front seat. In the vehicle, the officers observed various items taken in the Radio Shack robbery. The following day, the two Radio Shack employees identified defendant in separate photographic lineups.

(B) The West Side Robberies and Murders.

On the afternoon of January 20, 1981, Jack Krim and Christian Brugman were working at M and B Jewelers on West Third Street in Los Angeles. Defendant rang the outside bell and Krim buzzed him into the store through two security doors.

Defendant asked Krim, who was at the front jewelry counter, whether he bought gold. At the same time, he removed a gold chain from around his neck and placed it on the counter. As he turned to weigh the chain on his scale, Krim felt something at his back and heard defendant say, "Where's the cash?" Turning around, Krim saw defendant pointing a gun at him.

Krim told defendant that he did not have any cash and begged him not to shoot. Defendant pulled the top of his small automatic backwards, and the gun clicked. Krim then grabbed his hand and forced it so the gun pointed away. The two wrestled, while defendant repeatedly screamed, "Where is the cash?"

Defendant then forced a struggling Krim into the back office, where he opened the safe. He removed some envelopes containing precious stones and ran out of the shop through the back door. Videotape cameras recorded most of the activity which had occurred and the tapes were later introduced as evidence; in addition, both Krim and Brugman later identified defendant through a photo lineup.

Earlier that afternoon, defendant had met John Darryl Jones and Austin Willis. He told them he wanted to "make some money," and offered them $10 worth of gas if they would drive him. The three then drove together to the area of Third and Fairfax in a Cadillac belonging to Jones' brother. After they parked, defendant got out and took the gold chain with him.

After about 10 minutes, Jones and Willis saw defendant running towards them. In his hands he was carrying the gold chain, some white envelopes and the gun. Defendant seemed very agitated. He told them he had robbed a jewelry store and that he had not wanted to leave anyone alive but that the gun had malfunctioned. The three then left the area in the car, as defendant worked on his gun, finally throwing it on the floor.

The trio next stopped at a Rolls Royce repair facility. Defendant asked the others to help him rob the place, but the attempt failed when both Jones and Willis lost their nerve and left. Jones then drove to the vicinity of Wilshire and Saltair and parked.

Defendant exited the car, with the gold chain in his hand and the gun in his back pocket, and walked around the corner on Wilshire without stating his intentions. Jones and Willis also got out of the car, and Jones began urinating on the side of a building. Shortly thereafter, they both heard gunshots, and Jones could see the sweater worn by defendant through the back door of the O and T Jewelry Store. Jones and Willis soon heard glass breaking and saw defendant leave the store through a broken window.

Two passersby also witnessed the scene at the O and T Jewelry store and both testified at trial. Their testimony confirmed Jones' and Willis' description of the events, and at least one tentatively identified defendant as the man seen running from the store.

According to the testimony of Jones and Willis, defendant emerged from the store window and ran back to the car with the gun in his hand, but without the gold chain. Jones drove away quickly, and shortly thereafter defendant threw the gun out through the sun roof of the car. He then told them that he had shot two people, not wanting to leave anyone to identify him.

Diran Odel, co-owner of O and T Jewelry store, died of a gunshot wound to the head. He had another wound in his arm. Kegam Toran, Odel's partner, also died of a gunshot wound to the head.

Later in the evening of January 20, the murder weapon was found on the sidewalk at Texas and Saltair. The bullets recovered from the two victims were identified as having been fired from this gun. Defendant's gold chain was found on the premises of O and T Jewelry (the store did not carry this type of chain). In addition, a latent print on the countertop at O and T Jewelry was subsequently identified as defendant's.

Austin Willis was arrested early the next morning, January 21, following surveillance of the Cadillac. John Darryl Jones was arrested a short time later. Examination of the clothing which the two had worn did not reveal any fragments of glass. Willis and Jones were kept apart and interviewed separately. Both identified defendant as the murderer.

Nearly three months later, defendant was apprehended following the armed robbery of a Beverly Hills motoring accessories store. Items stolen in this robbery and a small handgun were recovered. At the preliminary hearing on these Beverly Hills charges, several employees of the auto parts store positively identified defendant as one of the robbers who had wielded a gun.

(C) Procedural History.

Informations in the three consolidated cases (amended to include two allegations of prior convictions) were filed on October 8, 1981. The 10-count informations charged the Radio Shack robbery as count 1; the robbery at M and B Jewelers as count 2; the attempted robberies and murders at O and T Jewelry as counts 3 through 6; and the Beverly Hills robbery of 4 persons at the auto parts store as counts 7 through 10. In addition, defendant was charged with three allegations of firearm use and one allegation of knife use in connection with the various robbery charges.

On January 6, 1982, defendant (represented by Attorney Brian Braff) waived his rights to a jury trial and submitted counts 7 through 10 of the consolidated information (the Beverly Hills incident) on the transcript of the preliminary hearing. Five days later, the court found him guilty of four counts of robbery in the Beverly Hills incident, finding a firearm use allegation true as to one count. Sentencing on these charges was delayed pending completion of his trial on the other charges. Subsequently, Attorney Curtis Shaw became the sole representative for defendant.

After a disagreement between the defendant and Shaw over trial tactics, defendant's mother considered retaining private counsel. Attorney Shaw had wanted to use a psychological defense which would have included evidence of defendant's history of drug abuse, but defendant refused to permit this. After they reached an agreement not to go forward with such a defense, defendant decided to retain Shaw as his attorney and the case was set for trial.

(D) Guilt Trial.

The evidentiary portion of defendant's guilt trial lasted five days. The prosecution presented considerable evidence concerning the Radio Shack robbery, the robbery at M and B Jewelers, and the attempted robberies and murders at O and T Jewelry. As noted above, eyewitnesses positively identified defendant regarding his participation in all three incidents.

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