People v. Myers

• Decision Date: 02 January 1987
• Citation: 43 Cal.3d 250,233 Cal.Rptr. 264,729 P.2d 698
• Court: California Supreme Court
• Parties: , 729 P.2d 698 The PEOPLE, Plaintiff and Respondent, v. Venson Lane MYERS, Defendant and Appellant. Crim. 21991.

Page 264

233 Cal.Rptr. 264

43 Cal.3d 250, 729 P.2d 698

The PEOPLE, Plaintiff and Respondent, v. Venson Lane MYERS, Defendant and Appellant.

Crim. 21991.

Supreme Court of California,

In Bank.

Jan. 2, 1987.

Rehearing Denied April 2, 1987.

[43 Cal.3d 255] [729 P.2d 700]

Page 265

Frank O. Bell, Jr., Public Defender, under appointment by the Supreme Court, Donald L.A. Kerson and Michael Tanaka, Deputy Public Defenders, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William R. Weisman, Thomas L. Willhite, Jr., and John R. Gorey, Deputy Attys. Gen., for plaintiff and respondent.

GRODIN, Justice.

In January 1979, defendant Venson Lane Myers, along with several accomplices, committed two armed robberies of liquor stores, three weeks apart. During the second robbery, defendant shot both the store clerk and a patron, killing the patron. On the basis of these two incidents, a jury convicted defendant of one count of first degree murder (Pen.Code, §§ 187, 189), ¹ one count of assault with intent to commit murder (§ 217), and three counts of robbery (§ 211); allegations of firearm use (§§ 12022.5, 1203.06) and great bodily injury (§ 12022.7) were also sustained. In addition, the jury found true one special circumstance allegation: that the murder was committed during the commission of a robbery. (§ 190.2, subd. (a)(17)(i).) At the initial penalty phase proceeding, the jury was unable to agree on penalty; a new jury was empaneled, and after a second penalty trial, the new jury returned a sentence of death. The matter is before us on automatic appeal. (§ 1239.)

Defendant raises only a single challenge to the guilt/special circumstance phase of the trial, contending that the trial court erred in failing to grant his motion for mistrial based on the procedure used in selecting the jury panel. Defendant's jury challenge was directed at the county's use of voter registration lists as the single source for jury panels, and was similar to a challenge that was recently before this court in People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433. Defendant contends that under Harris his conviction must be reversed. We conclude, however, by [43 Cal.3d 256] analogy to a decision of the United States Supreme Court involving a comparable challenge to a well-established jury selection procedure, that Harris should not be applied retroactively to invalidate convictions returned by juries that were selected and empaneled before the Harris decision was rendered. Accordingly, we affirm the judgment of guilt and the special circumstance finding.

At the penalty phase of the proceedings, however, the jury was given several instructions which may have seriously misled it both (1) as to the matters it should properly consider in determining sentence, and (2) even more fundamentally, as to the very nature of its ultimate task at the penalty

Page 266

phase. Under existing authorities, these errors clearly compel the reversal of the penalty judgment and a remand for a new penalty phase proceeding

I.

We briefly review the evidence presented at the guilt/special circumstance and penalty phases of the trial.

A. Guilt/Special Circumstance Phase Evidence.

1. The La Verne Incident.

Cynthia Lopez, employed as a clerk at the El Rancho Seco Liquor Store in La [729 P.2d 701] Verne, testified that on January 7, 1979, about 7:20 p.m., three men--later identified as defendant, Michael Myers (defendant's brother), and Ivan Hill--entered the store. Lopez looked up as defendant pointed a shotgun at her and ordered her to the ground. ²

Michael Myers and Hill went behind the counter and attempted to open the cash register. When they were unable to do so, defendant ordered Lopez to get up and open it. She complied. Defendant then told the others to take the money out of the register. After they did so, the three ran from the store, defendant pointing the shotgun at Lopez as he left. Approximately $190 was taken during the incident.

Lopez testified that defendant did not appear to be intoxicated during the incident; he did not stagger and there was nothing unusual about his speech. No defense evidence was presented to contradict Lopez's testimony.

[43 Cal.3d 257] 2. The Glendora Incident.

According to the statement which defendant gave to the police after his arrest, defendant, Hill and Michael Benton drove by the B & J Liquor store in Glendora in the evening hours of January 23, 1979. They saw a long-haired clerk, whom they mistook for a woman, sitting in the store watching television, and decided to rob the store. After entering and discovering that the clerk was a man, however, they abandoned their robbery plan because he was tall and they did not have a gun. They bought a few items and left.

The next day, defendant borrowed a .22 caliber revolver from Angela Bryce, a friend, telling her that he needed it because somebody had "jumped" him. Later that evening, defendant, Hill, and Benton returned to the B & J Liquor store. They drove by four times before parking and leaving the car. As they approached the store, they decided not to enter because there was a customer inside and they did not want any witnesses. They reentered their car, drove around, came back and waited in the car. Finally, they decided to go into the store even though a customer was still inside.

When the three entered, Keith Hunt, the clerk, was sitting on a stepladder eating, while Thomas Leavall, the customer, was in another area of the store. Hunt testified to the events that occurred thereafter.

Immediately after entering the store, Benton and Hill jumped over the counter and went to the cash register while defendant drew the revolver and told Hunt to freeze. When Hill was unable to open the cash register, Hunt opened the register at Hill's direction. Defendant then approached Leavall, and ordered him to get down on the floor. After Leavall complied, defendant took his wallet.

Defendant then ordered Hunt to lie down on the floor and to throw his wallet on the ground. According to Hunt, after defendant picked up the wallet, defendant took aim at Hunt's head. As Hunt ducked, he heard a pop and then a click and then felt "a sensation in [his] head." He rolled over onto his side and played dead.

Twenty to thirty seconds later, Hunt heard another pop in the area where Leavall

Page 267

had been. He next heard the running of feet and the click of the buzzer near the door. He opened his eyes and saw that he was bleeding. Hunt went over to the cash register, tripped the silent alarm, examined Leavall briefly and went to the bar next door for help. Eventually the police were called

Leavall died a few weeks later from a gunshot wound to the head. Hunt survived, but required surgery on his jaw.

[43 Cal.3d 258] The police investigation produced abundant evidence tying defendant to the Glendora crimes. The police obtained the gun which defendant had returned to Angela [729 P.2d 702] Bryce after the shootings; bullet fragments removed from Leavall and Hunt were identified as having been fired by that gun. A search of defendant's bedroom, pursuant to a warrant, uncovered Hunt's and Leavall's wallets.

After his arrest, defendant admitted the shooting to the police but told them that the gun had gone off accidentally as he was reaching for Hunt's wallet. After that, he said, he had to shoot the other man. In addition, defendant's brother, Michael, told the police that shortly after the incident, he overheard defendant say that he had "just shot two white dudes in the head."

3. The Defense.

Defendant presented a diminished capacity defense with respect to the Glendora offenses. Benton, one of the accomplices in the Glendora incident, testified that he was with defendant from 9 or 10 a.m. on the day of the incident. He stated that during that day, defendant drank several cans of Old English Malt Liquor and smoked two or three PCP cigarettes, lighting the last one around 5 p.m. Benton testified that defendant was acting unusual around the time of the robbery and shootings, in that his head was bowed and he kept grabbing his head. Although defendant did not testify at trial, in his statement to the police, which had been introduced by the prosecution and thus was before the jury, defendant said that on the day in question, he drank four cans of malt liquor and had been "mentally drunk," not knowing half the time where he was.

Dr. Bernd Schulze, a clinical pharmacist at the Los Angeles County Drug Information Center, testified to the effects of PCP ingestion. Along with two colleagues, Schulze had conducted a study of approximately 1,000 PCP-related admissions to the Los Angeles County Medical Center Jail Ward. He found that there was no single typical effect produced by PCP ingestion. PCP commonly produced various types of bizarre behavior, including violent behavior.

4. Rebuttal.

The prosecution produced several witnesses to rebut the contention that defendant had been suffering from the effects of PCP and alcohol on the night of the incident. Hunt, the store clerk, testified that at no time in the liquor store did defendant slur his words or stagger. Jennifer Moller and Dody Allen, two bystanders who saw defendant and two others run out of [43 Cal.3d 259] the liquor store, testified that defendant was running fast and not stumbling or weaving as the three ran to Hill's car. Finally, Wayne Reed, who was at Angela Bryce's house when defendant returned the gun on the night of the incident, testified that defendant appeared normal.

5. Verdict.

After considering the foregoing evidence, the jury convicted defendant of all the charged crimes and enhancements, and found true the robbery-murder special circumstance allegation.

B. Penalty Phase Evidence.

1. Prosecution's Evidence.

After the initial penalty trial, the jury deliberated for five days but was unable to agree on sentence. Pursuant to the provisions of the 197...