People v. Panah, S045504.

Decision Date14 March 2005
Docket NumberNo. S045504.,S045504.
Citation25 Cal.Rptr.3d 672,35 Cal.4th 395,107 P.3d 790
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Hooman Ashkan PANAH, Defendant and Appellant.

Robert R. Bryan, San Francisco, under appointment by the Court of Appeal, and Jill Culbert, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied February 27, 2006. See 126 S.Ct. 1432.

MORENO, J.

A jury convicted defendant Hooman Ashkan Panah of the first degree murder of eight-year-old Nicole Parker (Pen. Code, § 187), among other offenses, and found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission of the crimes of sodomy and lewd acts upon a child under the age of 14 (Pen.Code, § 190.2, subd. (a)(17)(D), (E)). The same jury subsequently set the penalty at death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).) We affirm the judgment.

I. FACTS
A. Procedural History

Defendant was charged in a seven-count indictment with the murder of Nicole Parker (Pen.Code, § 187)1 with the special circumstances that the murder occurred while defendant was engaged in the commission of the crimes of kidnapping, sodomy, lewd acts upon a child under 14, and oral copulation of a person under the age of 14 and more than 10 years younger than defendant. (§ 190.2, subd. (a)(17)(B), (D), (E), and (F).) He was further charged with kidnapping for child molesting (§ 207, subd. (b)); kidnapping a person under 14 years of age (§§ 207, subd. (a), 208, subd. (b)); sodomy by use of force (§ 286, subd. (c)); lewd acts upon a child under the age of 14 (§ 288, subd. (a)); penetration of genital or anal openings by a foreign object with a person under the age of 14 and more than 10 years younger than defendant (§ 289, subd. (j)); and oral copulation of a person under 14 years of age and more than 10 years younger than defendant (§ 288a, subd. (c).)

Defendant pled not guilty and denied the special circumstance allegations. Prior to commencement of the guilt phase of his trial, he also entered a plea of not guilty by reason of insanity. (§ 1016, subd. (6).)

After presentation of the prosecution's case, defendant moved for acquittal (§ 1118.1); his motion was granted as to the special circumstance allegation of kidnapping and as to the substantive counts alleging kidnapping and kidnapping for child molestation, but was otherwise denied. The jury convicted defendant of first degree murder and found true the special circumstance allegations that he committed the murder while engaged in the commission of the crimes of sodomy and lewd acts upon a child under the age of 14. The jury found not true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of the crime of oral copulation. Defendant was also convicted of sodomy by force, lewd acts upon a child under the age of 14, penetration of genital or anal openings by a foreign object with a person under 14 years of age, and oral copulation of a person under 14 years of age.

Defendant withdrew his plea of not guilty by reason of insanity. Following the penalty phase, the jury returned a verdict of death. Defendant's motion for a new trial (§ 1181) was denied and the trial court declined to modify the verdict of death (§ 190.4, subd. (e)). Defendant was sentenced to death on the murder count. On the remaining four counts, he was sentenced to eight years on each count, to run consecutively. These terms were stayed pursuant to section 654.

B. Guilt Phase Evidence
1. Prosecution Evidence

On the morning of Saturday, November 20, 1993, Lori Parker drove her eight-year-old daughter, Nicole, and her son, Casey, to the apartment of their father, Edward Parker, in Woodland Hills. Mr. Parker lived with the Parkers' other two children, Chad and Travis. Defendant, then 22, and his mother, Mehri Monfared, lived in the apartment across the courtyard from Mr. Parker's apartment. Defendant's mother was having a business meeting that morning with Ahmad Seihoon. When Mr. Seihoon arrived about 9:00 a.m., defendant was asleep in his bedroom upstairs.

Ms. Monfared left the apartment sometime before 11:00 a.m., as did Mr. Seihoon, but Seihoon had to return to the apartment for his keys and wallet. As Mr. Seihoon was leaving, he saw Nicole. She asked him if he lived in the apartment and if he was the father of the "boy with the long hair." He told her he was a friend of the family. Nicole stared at him and then ran across the courtyard into her father's apartment. Mr. Seihoon went back into defendant's apartment and called out to him in Farsi to lock the door.

Sometime after 11:00 a.m., Nicole asked her father for a glove and softball. As Mr. Parker walked back and forth between his apartment and the laundry room, he saw Nicole throwing the ball against the elevator. He told her to be inside the apartment by noon.

About 11:45 a.m., he came outside and called her. She did not respond, but he assumed she had heard him. Five minutes later, he went out again and called her. When she again failed to respond, he searched the apartment complex for her. About 12:30 p.m., he called Mrs. Parker and reported that Nicole was missing.

Afterwards, Mr. Parker began knocking on doors to see whether Nicole was playing inside a neighbor's apartment. He came to defendant's apartment. Defendant answered and stood in the doorway. Mr. Parker asked him whether he had seen Nicole and defendant answered "something like, oh, is she missing." Mr. Parker answered, "yeah. I can't find her," and went to the next door. Unable to locate her, he called the police.

While Mr. Parker waited for the police, defendant and other neighbors were standing around. They wanted to know if he had found Nicole. Defendant followed him down some stairs. He offered to drive down Ventura Boulevard with Mr. Parker looking for Nicole. Mr. Parker brushed him off, telling him the police were coming and would take care of it. Defendant was "very persistent," however, and kept "pushing," telling Mr. Parker, "let's go. Let's go." Mr. Parker told him, "no, no, no. Don't worry about it. Like just leave me alone." Eventually, he stopped paying attention to defendant, who left.

Los Angeles Police Department Officer Roger Mosset arrived about 1:15 p.m. He and Sergeant Melvin Patton set up a command post at the apartment complex. Officer Mosset obtained a description of Nicole from Mr. and Mrs. Parker and initiated a search of the apartment complex and the surrounding area. Officer Ruth Barnes and her partner, Officer Calderon, participated in a door-to-door search for Nicole. At defendant's apartment, Officer Barnes saw the television was on, but no one responded when she knocked, so she and Calderon left. Sometime later, Officer Barnes returned to the apartment and observed the television was off. A neighbor told her a young man lived there with his mother.

Defendant reported to work at Mervyn's department store about 3:00 p.m. Adele Bowen was the store manager. The day before, she and defendant had argued about his parking in an unauthorized area. Defendant had become loud and argumentative and called Ms. Bowen a "dictator." When defendant arrived for work, Bowen sought him out to resolve the argument. His responses were normal and he did not appear to be under the influence of drugs or alcohol.

Defendant's direct manager, Bruce Cousins, saw him about 3:15 p.m. According to Cousins, defendant was not as "up and cheery" as usual, but he did not appear to Cousins to be under the influence of alcohol or drugs. About 5:00 p.m., Rauni Campbell, a fellow employee who had dated defendant, saw him in the store. Sometime between 5:15 and 5:30 p.m., Mr. Cousins noticed that defendant was gone. Cousins searched for him, but he could not be found.

At the apartment complex, Sergeant Patton received information that Nicole had been seen talking with a man outside of defendant's apartment. Officer Barnes also told him that the television in defendant's apartment had been on and then turned off. After obtaining a key from the apartment manager, Patton and several other officers, including Barnes and Calderon, entered defendant's apartment to search for Nicole. After about 15 minutes, when they did not find her, Patton ended the search.

When Ms. Monfared returned to the apartment complex, she was stopped by police who showed her a picture of Nicole and asked her whether she knew the child. Ms. Monfared said she did not. An officer told her that defendant had been seen talking with Nicole, and asked her where he was. She said he was at work.

Officers Calderon and Barnes went to defendant's apartment and spoke to Ms. Monfared about talking to defendant. Ms. Monfared called him and gave the phone to Officer Barnes. Barnes asked defendant if he knew Nicole and he said, "vaguely," or "not really." Officer Barnes then asked him, "Do you know where she is?" Defendant answered, "No." Officer Barnes said, "Oh, because someone said that they had seen you with her earlier." Defendant replied, "No, I didn't see her."

Around 5:45 p.m., defendant called Bruce Cousins and told Cousins he was not in the store, would not be returning and loved everyone at Mervyn's. He said he could not come back "because some people that he knew [were] trying to get him in trouble and would I please inform his mother to get out of town." Cousins put him on hold to wait on customers. When he picked up the phone, defendant again asked Cousins to call his mother and "tell her that these people were after her and they were going to kill her, for her to get out of town." Cousins did not take defendant seriously...

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