People v. Nelson

• Decision Date: 15 August 2016
• Docket Number: No. S048763.,S048763.
• Citation: 376 P.3d 1178,205 Cal.Rptr.3d 746,1 Cal.5th 513
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sergio Dujuan NELSON, Defendant and Appellant.

1 Cal.5th 513

376 P.3d 1178

205 Cal.Rptr.3d 746

The PEOPLE, Plaintiff and Respondent

v.Sergio Dujuan NELSON, Defendant and Appellant.

No. S048763.

Supreme Court of California

Aug. 15, 2016.

As Modified on Denial of Rehearing Sept. 21, 2016.

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and Nina Wilder, Deputy State Public Defenders, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Sharon E. Loughner and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

LIU, J.

Defendant Sergio Dujuan Nelson was convicted of the first degree murders of Robin Shirley and Lee Thompson. (Pen.Code, § 187 ; all undesignated statutory references are to this code.) The jury also found true the special circumstance allegations that Nelson committed multiple murders and that the murders were committed while lying in wait. (§ 190.2, subds. (a)(3), (a)(15).) It also found true firearm-use allegations. (Former § 12022.5, subd. (a).) The first jury was unable to reach a penalty verdict, and the trial court declared a mistrial. At the second penalty phase, the jury returned a verdict of death. The trial court denied Nelson's motions for a new trial (§ 1181) and for modification of the penalty verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal is automatic. (cal. const. art. VI, § 11 ; § 1239, subd. (b).) we reverse the judgment on the lying-in-wait special circumstance due to insufficiency of the evidence. We also reverse the penalty phase judgment due to the trial court's unwarranted intrusion into the jury's deliberative process and remand for retrial of the penalty phase. We otherwise affirm the judgment.

I. FACTS

A. Guilt Phase

1. Overview

On September 11, 1993, Nelson resigned from his job at Target after failing to receive a promotion. Shortly before 4:00 a.m. on October 2, 1993 he shot and killed Robin Shirley, the woman who received the promotion Nelson believed he had deserved, and Lee Thompson, a coworker who had defended Shirley when Nelson harassed her about her promotion. Nelson knew Shirley typically waited in the parking lot for the store to open. He rode to the Target parking lot on his bicycle, armed with a loaded gun. Shirley and Thompson were in the front seat of Thompson's car. Nelson parked his bicycle, approached the car on foot from behind and fired several shots into the car through an open rear window, then started to walk away before returning and firing again into the car. After shooting Shirley and Thompson, Nelson fled the scene on his bicycle, which he then abandoned when police chased him. In his closing argument, Nelson's attorney conceded Nelson had killed the victims but argued the shootings had not been deliberate and premeditated.

2. Prosecution Case

On May, 2, 1992, Nelson, then 17, was hired at the La Verne Target store on Foothill Boulevard near White Avenue as a member of the “push team” that unloaded trucks and stocked shelves. Alejandro Sandoval, the push team leader, testified Nelson was an excellent worker who took on additional responsibilities and occasionally filled in for Sandoval. Still, both Sandoval and his supervisor, Kristin Strickland, told Nelson he needed to improve his interpersonal skills, because Nelson was demanding of coworkers and inappropriately acted like a supervisor even when he was not in charge. Nelson seemed receptive to the advice and continued to work hard.

In the spring of 1993, Nelson's ex-girlfriend, Karen Horner, was hired at the Target store and joined the push team. (All undesignated calendar references are to 1993.) Nelson and Horner, a woman in her late 30's, had become romantically involved while Nelson was 16 and still in high school and had lived together from November 1991 until late 1992. After their relationship ended, Nelson and Horner remained friends. According to Horner, they continued to socialize and occasionally were intimate.

In June 1993 Sandoval was promoted and his position as push team leader became available. Both Nelson and Robin Shirley, a fellow push team member, applied for the job. Shirley and Nelson were “good friends at work,” and she occasionally gave him rides to work. Horner, who was jealous of Shirley, believed “something was going on” between Nelson and Shirley because they often socialized at work and Nelson had been to Shirley's home. Nelson told Horner that he wanted the promotion. Sandoval told Nelson he believed Nelson would be promoted. Nelson bragged to his coworkers that he was going to get the job and told other team members not to bother applying.

The day before the official announcement, Strickland told Nelson he would not be promoted. Nelson was upset that “people might make fun of him” and wanted to quit. Strickland encouraged him to stay, suggesting that he could be promoted in the future, but Nelson submitted a form indicating his intention to resign effective that day. Later that day he told Strickland he had changed his mind.

The next morning, Strickland announced over the loudspeaker that Shirley had received the promotion. Some members of the push team taunted Nelson over Shirley's promotion. After Shirley was promoted, Nelson would have nothing to do with her. His job performance declined; he kept to himself and was noticeably depressed. Horner told Nelson he should have received the promotion because he was “quicker” than Shirley and because Sandoval “pumped [him] up for it.” Soon after Shirley was promoted, Nelson told Sandoval that he was “mad” because he felt he had deserved the promotion and burst into tears.

In late August, Lee Thompson and his friend, Robert Comeau, began working at the Target store. Comeau testified that he, Thompson, and Shirley often spent time together during lunch and breaks. According to many of her coworkers, Shirley regularly arrived at work early and parked her truck in front of the Target store. Those workers testified that employees often gathered in the parking lot and sat together in their cars before work. They noted that it was not uncommon for Shirley and Thompson to be seated in one or the other's car before work. Comeau agreed that it was not uncommon for Thompson and Shirley to sit in a car together before the store opened, talking or listening to music, but he added that “[s]ometimes it was me and Robin or me and Lee or some other people.”

Soon after he started working at Target, Comeau was in the stockroom with Shirley and Thompson when Nelson joined them and angrily told Shirley that he deserved the promotion, not her. Thompson accused Nelson of harassing Shirley and told him to leave. Nelson left when Comeau approached him.

A few days later, Comeau heard a work radio “flick on and off” and then heard Thompson and someone else talking. Thompson sounded upset; it seemed like there was going to be a fight. Comeau approached and saw Thompson and Nelson a couple of feet apart facing each other. Comeau told Thompson not to fight and pushed him away from Nelson. Nelson told Thompson, “I will get you, I will get you back some day.”

The next day, September 11, Nelson received a warning notice from Strickland due to his disruptive comments about Shirley. Nelson signed the warning, but then resigned effective that day.

At approximately 3:40 a.m. on October 2, witness Richard Hart and an acquaintance were outside of a 7–Eleven store near the Target when Hart heard a sound similar to repeated gunfire coming from the front of the Target store. He looked toward Target and saw a “muzzle flash” where a man was standing next to a truck and a car; the truck belonged to Shirley and the car, a Plymouth, to Thompson's mother. Hart later identified the man as Nelson in a lineup and at trial. Nelson was clad in black clothing and wearing a black baseball cap. He appeared to be firing a gun into the Plymouth, but then stopped, turned around, and walked away. Hart heard a “gurgling” or “a rumbling” from the vicinity of the two vehicles. Nelson walked back to the car and fired again into it. Before Hart lost sight of him, Nelson appeared to adjust his pants or put something in them. Hart called 911.

La Verne Police Officer Larry Ross, the first responder, saw two people, Shirley and Thompson, in the Plymouth. He also observed the car's doors were closed, its front windows were up, and its rear windows were rolled about halfway down. The radio was on. The car keys were in the ignition, but the engine was off. Ross checked Shirley and Thompson for vital signs and concluded they were dead.

Shirley was seated in the front passenger seat with a bullet wound to her forehead. Her head was tilted slightly to the left, and she was slumped towards the center of the seat. Before Ross could photograph her position, her body slumped “down further and further.” She was fully clothed with her shoes and socks on. Her arms were bent and facing inward and her hands were closed and on her lap. Thompson was in the driver's seat, which was somewhat reclined, and he was slumped over. His bloodied head rested on the right floorboard. Thompson was also fully clothed except for his shoes, which were on the floor beneath the steering wheel.

Sergeant Carlton Williams was in his patrol car when he heard over the police radio that a thin black or Hispanic man wearing dark clothing who may have been involved in the Target shooting was heading toward White Avenue. He saw a male wearing dark clothing heading south on White Avenue on a bicycle and illuminated him with a spotlight. The bicyclist's physique was consistent with Nelson's. The bicyclist abruptly made a U–turn and quickly rode north. Williams pursued him until he abandoned the bicycle, ran across a dirt field, and disappeared into a commercial complex. Williams confiscated the bicycle. Williams testified that there were trees and brush...