People v. Nelson

• Citation: 2011 Daily Journal D.A.R. 1039,11 Cal. Daily Op. Serv. 868,246 P.3d 301,120 Cal.Rptr.3d 406,51 Cal.4th 198
• Decision Date: 20 January 2011
• Docket Number: No. S085193.,S085193.
• Parties: The PEOPLE, Plaintiff and Respondent,v.Bernard Albert NELSON, Defendant and Appellant.
• Court: United States State Supreme Court (California)

51 Cal.4th 198

246 P.3d 301

120 Cal.Rptr.3d 406

11 Cal. Daily Op. Serv. 868

2011 Daily Journal D.A.R. 1039

The PEOPLE, Plaintiff and Respondent,

v.Bernard Albert NELSON, Defendant and Appellant.

No. S085193.

Supreme Court of California

Jan. 20, 2011.

OPINION TEXT STARTS HERE Glen Nierny, under appointment by the Supreme Court, for Defendant and Appellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, John R. Gorey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.CORRIGAN, J.

[246 P.3d 306 , 51 Cal.4th 203]

A jury convicted defendant Bernard Albert Nelson of the first degree murder, robbery, and attempted carjacking of Richard Dunbar. It concluded, as a special circumstance, that the murder was committed in the course of the other two felonies. It also convicted him of robbing, inflicting great bodily injury upon, and attempting to murder Miguel Cortez. In addition, it found defendant guilty of attempting to murder Giovanni Boccanfuso, Charles Coleman, and “John Doe.” It found that Boccanfuso and Coleman were peace officers engaged in the performance of their duties when attacked, and that defendant personally used a firearm during the crimes. Defendant was sentenced to death.

This appeal is automatic. We affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Murder, Robbery and Attempted Carjacking of Richard Dunbar

a. Prosecution evidence

On the night of April 5, 1995, Richard Dunbar was murdered in front of the West Palms apartment complex on Alvern Street in Los Angeles. Christie Hervey heard the gunshots and told her son to call 911. From her balcony, she saw a man lying in the street, crying for help. Another man walked swiftly toward Hervey, coming within 40 feet of her.¹ He carried a gun and looked over his shoulder at the victim. The area was brightly lit; Hervey's view of the gunman was unobstructed. Two years later police showed Hervey six photographs. She picked defendant's photograph as that of the gunman. She identified defendant at the preliminary hearing and again, positively, at trial.

Lacourier Davis, a security guard, also heard the shots. He saw a man sitting on the ground with his back against a car, and blood flowing from a hole in his chest. The victim was identified as Mr. Dunbar by his sister and his roommate. He died of two fatal gunshot wounds, one passing through his lung and the other puncturing his aorta.

His roommate testified that Dunbar took his car keys when he left their Inglewood Avenue apartment that evening. While his new BMW was found at the crime scene, the keys were missing. Dunbar's other personal effects, including his driver's license, were found at the scene.

Guilt was established by defendant's admissions and by ballistics evidence connecting several events.

On a single night nine months before the murder, defendant and Frank Lewis committed a series of robberies. Lewis was fourteen years old; defendant an adult. Defendant gave Lewis a gun and drove around Hollywood looking for victims. He waited in the car while Lewis accosted the targets. One intended victim sprayed Mace at Lewis, who ran away. Defendant responded by slapping his young confederate. When the pair saw Lisa La Pierre in her parked car, defendant directed Lewis to steal her phone. Wanting to prove himself, Lewis shot La Pierre, then returned the gun to defendant. A .380–caliber cartridge casing was found at the crime scene. Ms. La Pierre survived the shooting. ² When Lewis testified at defendant's trial he was serving a California Youth Authority (now Division of Juvenile Justice) term for the attempted murder.

Seventeen months after the Dunbar murder, Los Angeles police responded to a report of gunshots at 9700 Glasgow Place. They encountered several members of the MoneySide Hustlers gang. One of the men fled, dropping a .380–caliber pistol. A ballistics expert testified that this discarded gun fired the cartridge casings recovered at the Dunbar and La Pierre crime scenes.

Glenn Johnson was one of the gang members at Glasgow Place. When police interviewed him after the incident, Johnson was out of custody, friendly, and cooperative. He told Detective Ronald Cade that defendant said he was “trying to carjack somebody and they wouldn't cooperate so he killed him.” Defendant gave the location of the killing as the West Palms apartment complex where Dunbar was murdered. Johnson saw defendant drop a .380–caliber pistol when he ran from Glasgow Place. Sometime before the Glasgow Place incident, defendant had loaned the gun to Johnson and told him to “be careful, there was some murders on the gun.”

Detective Cade told Johnson he might receive reward money, and later gave him $100. Cade did not intercede for Johnson on any cases. At trial, Johnson either denied, or said he could not recall, making the statements to Cade. Excerpts of the tape recorded interviews were admitted as prior inconsistent statements.

b. Defense evidence

Dr. Scott Fraser testified as a defense expert witness on eyewitness identification. According to Dr. Fraser, studies have shown that a number of factors affect one's ability to recognize faces. The following were among the factors he addressed.

Distance. There was conflicting evidence as to how close Ms. Hervey was to the gunman. She estimated 40 feet. Dr. Fraser's later measurements at the scene suggested 100 feet. Measurements taken by Detective Cade, who testified on rebuttal, suggested 75 feet. Measurements taken by a defense investigator, who testified on surrebuttal, were consistent with those of Dr. Fraser. The distance was significant because, according to Dr. Fraser, the ability to recognize even familiar faces “drops down to essentially nil” beyond 80 feet. For strange faces, “recognition accuracy drops off dramatically” beyond 50 feet.

Kinetic distortions. According to Dr. Fraser, it is difficult to maintain focus on a moving object: “[W]e jerk and jump ahead in order to try to keep up with it. And in those transitions of keeping up with it, there's no fixation. So less information is stored.” Hervey testified that defendant walked swiftly toward her while looking back at his victim.

Weapons focus. A weapon tends to distract attention. Hervey testified defendant was carrying a gun.

Time. Memory degrades over time; Hervey was first shown the photo lineup two years after the murder.

2. The Attempted Murder of Miguel Cortez

On the night of August 16, 1995, security guard Miguel Cortez was stationed at a fence enclosing two Hollywood nightclubs. He was grabbed from behind, but managed to get a look at his assailant's face. He identified defendant as the man who shot him four times, in the eye, cheek, stomach, and hand. Multiple surgeries were required to treat those injuries. Defendant took Mr. Cortez's pistol, a nine-millimeter Beretta, and his beeper, saying, “I took your shit.” Mr. Cortez identified defendant's photo from a group of six men. He also identified defendant at a preliminary hearing and at trial. A ballistics expert testified that the .380–caliber bullets and cartridge casings found at the scene of the Cortez shooting were fired by the pistol that defendant dropped at Glasgow Place, to the “exclusion of all others.”

In addition to being identified by Mr. Cortez, defendant made incriminating statements to Leonard Washington, a convicted bank robber. Defendant said he had shot someone to obtain a nine-millimeter Beretta and commit a bank robbery. Washington testified: “He told me in the exact words he had to gun somebody down to get it.” Defendant said he believed he “killed the guy.”

Washington told Detective Cade that defendant had loaned him the nine-millimeter, which Washington used in a drive-by shooting. After the shooting, Washington abandoned the car, and the pistol was found by the Inglewood police. When Washington admitted this, defendant replied, “No big deal, I smoked a security guard to get the gun.”

3. Attempted Murders of Police Officers and “John Doe”

Shortly after midnight on May 7, 1997, uniformed Los Angeles Police Officers Charles Coleman and Giovanni Boccanfuso were on patrol in a marked police car. They saw a Chevrolet Monte Carlo roll through a stop sign and pick up speed. Stolen cars were common in the vicinity, and Monte Carlos, in particular, were a frequent target. The officers pursued the Monte Carlo to check the license plate and determine whether it had been reported stolen.

As the Monte Carlo and trailing patrol car approached an intersection, a Jeep pulled away from the curb and drove through the intersection with its headlights off. Officer Coleman was concerned because “this was fairly typical behavior of somebody who is about to do a drive-by shooting.” However, it was the passenger in the Monte Carlo who did the shooting. He climbed out onto the open window frame, braced his arms on the roof, and aimed a pistol at the driver of the Jeep.³ Then, instead of firing at the Jeep, he pointed the pistol at the patrol car and fired four to six shots at the officers.

The Monte Carlo sped away with the patrol car in pursuit. When the Monte Carlo swerved at an intersection, defendant jumped or fell out, with a pistol in his hand. He tumbled three or four times and the gun slid across the pavement. Officer Boccanfuso chased him on foot, closing to within three feet of him, when defendant turned around. He pointed another pistol at the officer, but dropped it. An expended shell casing stuck in the chamber of this pistol prevented it from being fired. Defendant scaled a 10–foot wall and eluded Boccanfuso. He was caught an hour later at the registered address of the abandoned Monte Carlo. He had fresh abrasions on his elbows and one knee.

At trial, the officers identified defendant as the gunman. According to Officer Boccanfuso, they were no more than a car's length from defendant when he shot at...