People v. Massie

Decision Date30 November 1998
Docket NumberNo. S010775,S010775
Citation79 Cal.Rptr.2d 816,967 P.2d 29,19 Cal.4th 550
CourtCalifornia Supreme Court
Parties, 967 P.2d 29, 98 Cal. Daily Op. Serv. 8717, 98 Daily Journal D.A.R. 12,109 The PEOPLE, Plaintiff and Respondent, v. Robert Lee MASSIE, Defendant and Appellant

Frederick D. Baker, under appointment by the Supreme Court, Kirk C. Jenkins and Sedgwick, Detert, Moran & Arnold, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Dane R. Gillette, Ronald S. Matthias, Gerald A. Engler and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, Justice.

In 1979, defendant Robert Lee Massie pleaded guilty, against the advice of counsel, to the murder (Pen.Code, § 187) 1 and robbery (§ 211) of Boris Naumoff, and he admitted special circumstance allegations of prior murder (§ 190.2, subd. (a)(2)) and robbery murder (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)). He also pleaded guilty to the robbery (§ 211) of Yasphine Khashan and George Shatara, assault with a deadly weapon (§ 245) on Charles Harris, and four counts of possession of a concealable firearm by a convicted felon (§ 12021). After a penalty trial at which defendant waived his right to a jury and represented himself, the trial court set the penalty at death.

In 1985, this court reversed defendant's death sentence, the convictions for the robbery and murder of Naumoff, and the two special circumstances, holding that defendant's guilty pleas to the murder and robbery charges were invalid because they were made against the advice of counsel, in violation of section 1018. (People v. Massie (1985) 40 Cal.3d 620, 221 Cal.Rptr. 140, 709 P.2d 1309 (Massie I ).) Section 1018 expressly prohibits a trial court from accepting a "plea of guilty of a felony for which the maximum sentence is death, or life imprisonment without the possibility of parole," when the plea is "without the consent of the defendant's counsel." At a retrial in which defendant was represented by counsel, a jury convicted defendant of the crimes against victim Naumoff and found true the two special circumstance allegations, and at the penalty phase the jury returned a verdict of death. Defendant's appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS
A. Guilt Phase--Prosecution's Case

On the morning of January 3, 1979, defendant entered the Twin Peaks Grocery in San Francisco, looked around, and left without buying anything. A short time later, he returned to the store and again departed without making a purchase. When he did this a third time, store proprietor Grant Ridgeway followed defendant out of the store. 2 Defendant walked one block to a Chevrolet Vega automobile that was parked with the engine running, got in, and drove away. Ridgeway observed the car's license plate and, having nothing to write with, asked a woman in a nearby house to write it down for him. She wrote down "119 GL," omitting one of the letters that Ridgeway had asked her to write down. Ridgeway later gave the piece of paper with the partial license number to the police.

Around 1:45 that afternoon, Kenneth Ross was at the Miraloma Liquor Store, not far from the Twin Peaks Grocery, when defendant entered. Boris Naumoff, who had owned the store for about 30 years, asked defendant, "Can I help you?" Defendant replied, "I'm just looking." He left five minutes later. Ten minutes thereafter, Ross also left the store. He saw defendant standing outside, making nervous, jerky movements and looking up and down the street.

At 3:45 p.m., Sandy Bateman-Collins walked into the Miraloma Liquor Store. Store owner Naumoff was standing behind the counter. He was handing money to a man, but was dropping some of the money on the floor. As the man began to leave, Naumoff followed after him, mumbling, "A guy can't make a living any more." Bateman-Collins then heard three quick shots, followed a few seconds later by a fourth shot. She ducked behind a counter.

Just before the shooting, Charles Harris, who was scheduled to work at the Miraloma Liquor Store that evening, had entered the store and saw store owner Naumoff talking to a man who Harris assumed was a customer. Sensing nothing amiss, Harris walked toward the back room. Hearing a scuffle, he turned and saw Naumoff and the man face-to-face, with Naumoff holding the man in a bear hug. As Harris started to walk towards them, he heard three quick shots, followed by a fourth. He felt a pain in his leg, saw that the man was holding a gun, and ran to the back room.

Outside the Miraloma Liquor Store, 13-year-old Duffy Aceret saw a man run from the liquor store with a gun in his hand. At a lineup several days later, Aceret identified defendant as the man he had seen.

San Francisco police officers, called to the scene, found Naumoff's body on the floor of the Miraloma Liquor Store. He had been shot once in the right chest and twice in the heart. Dr. Boyd Stephens, Chief Medical Examiner for the City of San Francisco, described the two shots to the heart as "near contact wounds," meaning that they had been fired inches from their target.

That evening, Laura Garnett-Young saw a car stop outside her San Francisco home. A man got out of the car and looked around; he doffed his shirt and jacket, put them in her garbage can, and drove away. Garnett-Young wrote down the license number of the car (119 TGL) and gave it to the police. The police retrieved a bloodstained shirt and jacket from Garnett-Young's garbage can. The blood type matched that of victim Naumoff.

The next evening, around 10:00, San Francisco Police Officer Michael Pearson was on patrol with Officer Jeffrey Morlock when he saw a Chevrolet Vega automobile with a license number (119 TJL) that nearly matched the ones given to the police by store owner Grant Ridgeway and by Laura Garnet-Young. The car's headlights were off. Officers Pearson and Morlock followed the car for about five minutes while awaiting the arrival of backup officers; the car took an erratic route, often changing direction. Pearson and Morlock stopped the car and arrested defendant, the sole occupant. They found a loaded .357-caliber revolver in his waistband and a cocked and loaded .380-caliber automatic pistol in his coat pocket. According to ballistics expert Richard Grzybowski, the four bullets and the four spent casings that the police had found at the Miraloma Liquor Store were fired from the pistol found in defendant's pocket.

Officers Pearson and Morlock took defendant to the San Francisco Hall of Justice, where he was interviewed, shortly before midnight, by San Francisco Police Inspectors Frank Falzon and Herman Clark. Inspector Falzon advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and asked if he wanted to make a statement. Defendant replied that he wanted some time to think it over. Half an hour later, he agreed to speak to the officers. Defendant said that he went to the liquor store, pulled a gun, and told the man behind the counter, "It's a holdup." The man gave him $20 or $30 but attacked him as he was trying to leave, so defendant shot him. Defendant claimed that he had been drunk and under the influence of cocaine at the time.

B. Guilt Phase--Defense Case

Defendant testified in his own defense. He admitted killing store owner Naumoff but denied that the killing occurred during a robbery. After buying liquor and cigarettes from Naumoff, defendant discovered that Naumoff had shortchanged him by $30. He went back into the store and confronted Naumoff, who muttered under his breath but gave him the correct change. As defendant started to leave the store, someone grabbed him in a bear hug and "slammed" him in the face. Defendant thought his attacker was a member of the Aryan Brotherhood, a prison gang. While struggling to escape, defendant pulled a pistol out of his jacket and fired without aiming. He acknowledged telling Inspectors Falzon and Clark that he had shot Naumoff during a robbery, but said he had done so only because he thought that if he told them what they wanted to hear, they would protect him from an attack by the Aryan Brotherhood by placing him in a separate cell.

To explain his fear of the Aryan Brotherhood, defendant offered evidence that while in prison he had been stabbed in the back in a gang-related assault possibly attributable to the Aryan Brotherhood, a dangerous gang that had killed many people. A former member of the Aryan Brotherhood testified that for years the gang had been trying to kill defendant, and prison officials testified that to protect defendant from gang attacks California prison authorities had transferred him at various times to Kansas, Nevada, and Washington to serve his sentence for a crime he had committed in California. Doctor Wesley Clark, a psychiatrist, explained that persons who have suffered violent trauma, such as the stabbing defendant had experienced in prison, often react with "hypervigilance" to situations that appear to be threatening; that is, they "become very agitated and violent."

To rebut defendant's testimony that the killing of store owner Naumoff did not occur during a robbery, the prosecution offered evidence that defendant had robbed two small markets in San Francisco not far from the store where Naumoff was killed. One of the robberies occurred the day before the Naumoff's murder and the other took place the morning of his death.

C. Prior Murder Special Circumstance

The parties stipulated that defendant had suffered a prior conviction for murder in 1965.

D. Penalty Phase--Prosecution's Case

Between January 7 and January 15, 1965, defendant committed a series of robberies and assaults in Los Angeles County. On the evening of January 7, Franklin Boller was getting out of his car in front of...

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