People v. Manibusan

• Decision Date: 21 January 2014
• Docket Number: No. S094890.,S094890.
• Citation: 165 Cal.Rptr.3d 1,58 Cal.4th 40,314 P.3d 1
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Kekoa MANIBUSAN, Defendant and Appellant.

58 Cal.4th 40

314 P.3d 1

165 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Joseph Kekoa MANIBUSAN, Defendant and Appellant.

No. S094890.

Supreme Court of California

December 2, 2013.

Rehearing Denied January 21, 2014.^*

David S. Adams, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Alice B. Lustre and Alisha M. Carlile, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

A jury convicted defendant Joseph Kekoa Manibusan of two counts of first degree murder and one count each of attempted murder, aggravated mayhem, and second degree attempted robbery. It also found true special circumstance allegations of multiple murder, drive-by murder, and felony murder, and enhancement allegations of discharging a firearm from a vehicle causing great bodily injury or death, personal use of a firearm, and a prior juvenile conviction of assault with a deadly weapon causing great bodily injury. It returned a verdict of death for the two murder convictions. After denying the automatic application to modify the verdict (Pen.Code, § 190.4, subd. (e)), ¹ the trial court sentenced defendant to death for those murder convictions. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. Facts

Defendant's convictions arise mostly from events in Monterey County on the night of January 31, 1998, and the morning of February 1, 1998, during which Priya Mathews and Frances Olivo were shot dead and Jennifer Aninger was severely injured by a gunshot to the head.

A. Guilt Phase Evidence

Only the prosecution introduced evidence during the trial's guilt phase.

1. The 1998 Shootings

On January 30, 1998, defendant attended a party in Seaside with Norman Willover and Adam Tegerdal. They used methamphetamine and stayed awake together through the night and into the next day. Sometime in the late afternoon or early evening of January 31, they drove in Tegerdal's 1994 Mercury Cougar to a house in Marina, where Willover retrieved a backpack containing a gun. They also used a small additional amount of methamphetamine. Later that evening, they returned to Seaside and picked up Melissa Contreras near the house of Tim Frymire, where defendant and Contreras were staying. Contreras thought they were going to drink and hang out; she did not know anyone in the car had a gun.

As defendant drove the group to a gas station, he and Willover discussed robbing people. About the time the group arrived at the gas station, Contreras learned of the gun and heard defendant and Willover talk about using it to rob people. At defendant's direction, Contreras took over the car and drove the group around Seaside and Monterey until defendant and Willover, upon spotting a potential robbery victim, told Contreras to park near Jacks Park in Monterey. Defendant and Willover exited the car with the gun in their possession. They returned 10 to 15 minutes later, having found no one to rob.

Contreras drove the group away, but soon turned the driving over to defendant and entered the backseat. Defendant, after discussing with Willover the possibility of finding a victim at Monterey's wharf area, drove the group to Monterey's Municipal Wharf II. There, sometime after 11:00 p.m., defendant, Willover, and Tegerdal spotted Aninger and Mathews. After Tegerdal asked if the women were carrying purses, defendant made a U-turn at the end of the wharf so the group could circle back and observe them. He drove past the women and made another U-turn, putting the women on the passenger side of the car, where Willover, wearing a leather glove on one hand and a bandana over his face, was sitting. Defendant stopped the car five to 10 feet away. Willover stuck his head and hand out of the window and said, “give me your money” or “ give me the money.” The women did not respond. Willover then turned back into the car, toward its other occupants, and said “something like, these bitches are being assholes. They didn't hear me.” He then turned back toward the women, pointed his gun at them, and started firing. He fired numerous times, hitting Mathews in the back, the arm, and twice in the left thigh, and hitting Aninger once in the head and once in the upper arm. Mathews died from her wounds. Aninger survived, but sustained brain damage that resulted in an impaired ability to concentrate, memory loss, a lost sense of smell, and lost motor function in her left hand.

Immediately after the shooting, defendant made a U-turn and sped away. Willover said, “we couldn't leave witnesses,” and defendant “just kind of laughed” in response. Willover also “bragg[ed] about how long it [had been] since [he had] done that. He said it was like four years. He hasn't done that in four years, and it felt good and ... [defendant] needs to try it.” Defendant, Willover, and Tegerdal agreed they needed to change cars to avoid being caught. Defendant drove to Tegerdal's house in Salinas, where they exited the Cougar and entered Tegerdal's Chevrolet Monte Carlo. As Tegerdal drove away, Willover acted “happy,” “like he was proud of what he” had done. Defendant also seemed “happy,” “like he was proud of” Willover. They congratulated each other on the shooting, giving each other “props.” Defendant said “he wanted to have his turn.”

At some point, defendant took over the driving and headed back to Seaside. He and Willover discussed finding another victim. Defendant said he wanted “to try to show [Willover] up,” because Willover had already shot two people. In Seaside, defendant and Willover spotted Olivo standing at the corner of Fremont Boulevard and Amador Avenue. Willover asked defendant if he was going “to do her” or “do it to her” or “shoot her.” Defendant nodded, said “watch this,” drove around the block, and maneuvered the car so he was closest to Olivo. He stopped the car about eight feet away and silently gestured for Olivo to approach. Olivo approached and looked inside the car. As she did, defendant put his hand out of the window and began shooting. Olivo cried, “please don't,” but defendant continued shooting, firing eight or nine shots and hitting Olivo three times. One of the shots passed through her heart. She died of her injuries.

Defendant drove away, “laughing about” the shooting. Willover was “laughing with him.” They were “taking it like kind of a game.” Defendant became upset that he had not fired all of the bullets in the gun's clip. He saw an occupied car parked along the roadside and, stating that he “might as well get rid of the rest of the bullets,” fired the remaining bullets into it.

When the parked car's occupants began chasing defendant in their car, defendant drove to the Fort Ord home of family friends Anthony and Linda McGuiness, where his father was living. There, Willover and Tegerdal removed shell casings from the car. Awakened by the group's arrival, Anthony McGuiness came out of his bedroom and found the group seated in his living room. Defendant said his car had run out of gas and asked for a ride to a friend's house in Seaside. Anthony agreed and, following defendant's directions, drove defendant past the scene of the Olivo shooting and on to Tim Frymire's house in Seaside, where defendant was living.

Defendant arrived at Frymire's house about 3:00 a.m. Upon entering, he indicated he wanted to speak with Frymire privately. He seemed “real antsy” and “[k]ept looking out the window.” He started saying things Frymire “ didn't want to hear,” and asked Frymire if he still had the .22–caliber shells defendant had given him some months earlier. Frymire replied, “no,” and told defendant that, if he had a gun in his pants, he needed to take it outside. Defendant then briefly left the house. After returning, he continued to look out the windows. Frymire then asked defendant if he would “feel better about putting [the gun] somewhere else,” and offered to let defendant put the gun in the trunk of his car and give defendant the key. The two exited the house and defendant put a semi-automatic handgun in the trunk of Frymire's car. A few hours later, defendant left in the car with Frymire's nephew and another man. The latter two later returned in the car to Frymire's house, without defendant or the gun. That night, after returning to Frymire's house, defendant, with “a smile on his face,” repeatedly pointed alternatively at his chest and at the television as he watched a television news report about the shootings. A short time later, Frymire contacted Seaside police to report his suspicion that defendant had been involved in the shootings.

On February 4, 1998, Willover asked Joshua Riley to store at his house a dark-colored backpack containing a loaded .22–caliber semiautomatic handgun, some ammunition magazines, and several boxes of bullets. He told Riley the gun was “heated,” meaning it had been involved in some kind of trouble. That night, police went to Riley's residence, having learned from interviewing Willover about the gun's possible location. There, they recovered the backpack, a gun, ammunition clips, and some extra ammunition. Ballistics tests showed the gun matched bullets recovered at the scene of the shootings and from the victims' bodies. It was the same type of gun Frymire had earlier seen defendant place in the trunk of Frymire's car.

That same day, police arrested defendant at Frymire's house. A few days later, defendant called Frymire from prison and asked Frymire if he was “being true.” Frymire understood defendant to be asking whether he was keeping quiet and not “ratting him off.” Defendant made a similar call to Contreras.

2. The 1997 Robbery Attempt

On October 14, 1997, defendant and Tegerdal were driving around Monterey talking about their lack of money. At a shopping center, defendant got Tegerdal to stop the car, exited, ran up to a woman, and tried to take her purse. The woman,...