People v. Mickel

• Decision Date: 19 December 2016
• Docket Number: S133510
• Citation: 211 Cal.Rptr.3d 601,2 Cal.5th 181,385 P.3d 796
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew Hampton MICKEL, Defendant and Appellant.

2 Cal.5th 181

385 P.3d 796

211 Cal.Rptr.3d 601

The PEOPLE, Plaintiff and Respondent,

v.Andrew Hampton MICKEL, Defendant and Appellant.

S133510

Supreme Court of California

Filed December 19, 2016

Lawrence A. Gibbs, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

Cuéllar, J.

On April 5, 2005, a jury convicted defendant Andrew Hampton Mickel of the first degree murder of Officer David Mobilio (Pen. Code, § 187 ),¹ and also found that Mobilio was a peace officer killed while engaged in the performance of his duties (§ 190.2, subd. (a)(7)). Three days later, the jury returned a verdict of death. The trial court automatically reviewed the verdict (§ 190.4, subd. (e)), declined to modify it, and sentenced defendant to death.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

Defendant was a resident of Olympia, Washington. In October 2002, defendant purchased a Sig Sauer P229 .40-caliber handgun from Larry's Gun Shop in Olympia. Defendant also purchased several boxes of hollow-point bullets.

On November 17 of that year, a Tehama County deputy sheriff, while on duty, observed a maroon 1990 Ford Mustang with Washington state license plates. The deputy ran the plates through his patrol car computer because the vehicle "seemed out of place" and had "immediately turned" after the deputy pulled up in his patrol car behind the vehicle.

At about 6 p.m. the next evening, two witnesses drove to Red Bluff, California, located in Tehama County, for recreational off-road driving in the vicinity. The witnesses saw a maroon or red Ford Mustang parked off Breckenridge Road, approximately 300 to 400 yards from Warner's Petroleum in Red Bluff. The vehicle's front license plate was covered with a sheet secured with zipties, and the windows were fogged up. The two witnesses saw a person inside of the car, whom they described as looking startled and nervous. The Mustang remained parked when the two witnesses left the area approximately 20 minutes later.

On November 19, 2002, Red Bluff Police Officer David Mobilio was working patrol on the overnight shift. Around 1:27 a.m., Mobilio went to Warner's Petroleum to refuel his patrol car. Around 1:40 a.m., a dispatcher conducted a status check on Mobilio, but received no response. Another officer, Sergeant Ted Wiley, drove to Warner's Petroleum to check on Mobilio. Wiley observed a patrol car parked by the gas pumps and Mobilio lying face-down at the north end of the pumps. Wiley did not see anyone else in the vicinity. After calling for assistance, Wiley approached Mobilio's body and saw a large circular wound

to the back of the head. Next to Mobilio's body, Wiley saw an object that he thought was a piece of cardboard or paper that had some writing on it, as well as a drawing of a snake. The object, a homemade flag, had the phrase "This Is A Political Action. Don't Tread On Us" written below the image of a snake.

At 2 a.m., Red Bluff Fire Department Engineer Domenic Catona was dispatched to Warner's Petroleum. When Catona came closer to Officer Mobilio's body, he observed one bullet wound

to the back of the head and another bullet wound just below the shoulder blades. On the ground directly to the left of Mobilio's body, Catona saw a three-foot cloth. The paramedic who examined Mobilio pronounced him dead at the scene. An autopsy later revealed that Mobilio had been shot three times from a distance of at least three to four feet. The forensic pathologist opined that the final shot was to the back of Mobilio's head, while he was lying face-down on the ground.

Later the same day, around 1 p.m., Alice Lay—who lived on her ranch in southeastern Oregon—learned of a car wreck on the road near her ranch. Lay and her son, Wilson, went to flag the wreck, as the accident was on a blind curve. When they arrived at the wreck, the Lays saw defendant standing by a small fire near the overturned vehicle. The vehicle did not have any license plates on it, and defendant had a bloody face. Wilson also observed empty shell casings on the ground, which he believed appeared to be .40-caliber or 9-millimeter.

Defendant acted a "little bit nervous" and explained that he had been driving too quickly before the car rolled when he hit the bank of the curve. When Alice asked defendant about the missing license plates, defendant explained he had thrown them away because he was going to abandon the car. Defendant eventually located the plates. The Lays collected several of defendant's belongings that he insisted he was abandoning, including a gun case and a "brass catcher," which is designed to catch ejected rounds from a gun. Because defendant was injured, the Lays took him back to their home and called the police to report the wreck.

Deputy Tim Alexander from the Harney County Sherriff's Department in Burns, Oregon arrived and met with defendant. Defendant introduced himself as "Andrew McRae" and produced a Washington state driver's license. Defendant explained how the accident occurred and that he wanted to sign over the wrecked car and remaining belongings to the Lays. Alexander drove defendant to the wreck to investigate and take some photographs. Alexander observed the license plates leaning against the car, as well as tools on the ground. When Alexander searched defendant's backpack before driving defendant to the nearest town, Alexander found a loaded Sig Sauer .40-caliber handgun and a large quantity of ammunition. Alexander ran the handgun's serial number through dispatch, and the gun came back clean. After explaining to defendant that he could not take the weapon on public transportation, Alexander drove defendant to Burns.

On November 20, 2002, defendant purchased a bus ticket in Burns, and left the Sig Sauer handgun with an employee at the bus stop. Ballistics tests on the gun would later reveal that it was the weapon used to kill Officer Mobilio. Defendant then traveled to New Hampshire, where he was eventually arrested after he contacted the media to explain his actions.

During the investigation of the crime scene at Warner's Petroleum, investigators photographed and preserved tire and shoe impressions from the original crime scenes.² A senior forensic scientist, Michael Barnes, later compared photographs of defendant's vehicle and tires to the photographs of the tire impressions and concluded the size and pattern were the same. Barnes compared the shoes defendant was wearing at the time of his arrest to the shoe impressions from Warner's Petroleum and nearby Breckenridge Road.

Barnes opined that defendant's shoe made the impression from the Breckenridge scene, but could only conclude that the patterns were the same with respect to the impressions from Warner's Petroleum.

Following defendant's arrest in New Hampshire, law enforcement searched defendant's apartment in Olympia, Washington. They found additional ammunition, pieces of wire and cloth, and a "possible template" for the snake image on the cloth left at the scene. While the template for the snake image had unique edging that corresponded to the cloth flag found at Warner's Petroleum, it did not match the image in size.

The police obtained DNA swabs from wire attached to the cloth flag. A comparison of defendant's blood to samples taken from the DNA swabs of the flag revealed a mixture of DNA from two individuals, which an expert concluded was consistent with Mobilio as a minor contributor and defendant as a major contributor. Based on the odds of the major contributor's DNA appearing in unrelated individuals, the expert opined that it was very strong evidence that defendant was the major contributor.

Finally, the prosecution offered several inculpatory statements defendant had made in prior proceedings. These statements included: "Your Honor, I admit that I committed the act that resulted in Officer Mobilio's death," and "I have never denied that I killed Officer Mobilio, and I never intend to deny that. And it will become clear to the jury, both by myself and by the prosecution, that there is no question of that fact."

2. Defense

On January 30, 2003, defendant first appeared in Tehama County Superior Court, where he stated his desire to represent himself and requested that a public defender be appointed as co-counsel. The court appointed Attorney James Reichle, who represented defendant through the preliminary hearing. On December 8, 2003, the trial court granted defendant's motion for self-representation. While defendant made an opening statement, he did not put on a defense during the guilt phase. During his opening statement, defendant explained that he "did ambush and kill Officer David Mobilio" and that he "came forward" to "take [ ] responsibility for being the one who took Officer Mobilio's life." Defendant conceded that the prosecution would "have the facts [of the murder] right," but that "they won't have the right interpretation for what really happened."

Defendant cross-examined nine of the 26 prosecution witnesses, but did not call any witnesses of his own. Defendant had previously indicated his intent to put on a justification defense based on the "defense of liberty."

During an in camera proceeding, the trial court concluded that the defense was not legally cognizable and precluded defendant from introducing evidence in support of this proposed defense. Defendant responded by stating that he would "sit in silent protest during the guilt phase" and that he would "not speak or raise any issues until the penalty phase." Defendant gave a brief closing statement, stating that he would explain during the penalty phase why he had killed Officer Mobilio.

The jury deliberated for approximately 45 minutes before returning a verdict...