People v. Penunuri, S095076

• Citation: 418 P.3d 263,5 Cal.5th 126,233 Cal.Rptr.3d 324
• Decision Date: 31 May 2018
• Docket Number: S095076
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard PENUNURI, Defendant and Appellant.

5 Cal.5th 126

418 P.3d 263

233 Cal.Rptr.3d 324

The PEOPLE, Plaintiff and Respondent,

v.Richard PENUNURI, Defendant and Appellant.

S095076

Supreme Court of California.

Filed May 31, 2018

Stephen M. Lathrop, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

LIU, J.

A jury convicted defendant Richard Penunuri of the first degree murder of Brian Molina, Michael Murillo, and Jaime Castillo ( Pen. Code, § 187, subd. (a) ; all statutory references are to this code unless otherwise specified) and conspiracy to commit the murder of Castillo (§ 182). He was also found guilty of the second degree robbery of Shawn Kreisher and Randy Cordero (§ 211) and assault with a firearm on Carlos Arias (§ 245). The jury found true the special circumstances of multiple murder (§ 190.2, subd. (a)(3) ) and witness murder (§ 190.2, subd. (a)(10) ). The jury also found true the enhancement that Penunuri personally used a firearm with respect to the robbery of Cordero, the assault with a firearm on Arias, and the murders of Molina and Murillo. (Former § 12022.5, subd. (a)(1).) At the penalty phase, the jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e) ) and sentenced Penunuri to death for the three murders.

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

I. FACTS

A. Guilt Phase

Penunuri was tried jointly with codefendants Joseph Castro, Jr., Arthur Bermudez, and Alfredo Tapia. Before the guilt phase began, Penunuri pleaded not guilty to all charges.

1. Prosecution Evidence

a. Ralphs Parking Lot Incident

Randy Cordero was driving Shawn Kreisher and David Bellman to the Ralphs market in Whittier on the night of October 23, 1997. The three men parked in the Ralphs parking lot, exited the vehicle, and began to walk toward the store. Several men exited a white Cadillac that was later found to be registered to Alejandro Delaloza. They approached Cordero, Kreisher, and Bellman.

A fight ensued, during which a man, wearing black gloves and holding a knife, punched Bellman. Another man, who was the largest member of the group and was wearing a large dark jacket, demanded money from Kreisher and Cordero. Kreisher gave the man $40 because he thought the man had a gun. Cordero refused, saying he had no money with him. Someone from the Cadillac group yelled, "Get his keys." Cordero returned to his car and pulled a baseball bat out of his trunk. A man then yelled, "Blast 'em" or "Blast his ass," and a man walked toward Cordero, Kreisher, and Bellman, pulled out a gun, and cocked the trigger. Cordero identified the gun as a nine-millimeter handgun. Cordero, Kreisher, and Bellman ran to a nearby intersection where several police officers were gathered and explained what had happened. When Cordero returned to his vehicle, his duffle bag was missing.

Kreisher identified Penunuri from a photographic display as the man who took his money and testified that the man who took his money was wearing a large black jacket with a hood. Cordero also testified that Penunuri was the man who took Kreisher's money and that he was the man who displayed a handgun. He further testified that Penunuri was wearing a long, bulky sports coat or jacket during the altercation. He also testified that Delaloza was the man who punched Bellman. Detective Greg Hamilton showed Cordero a couple of pairs of boxer shorts found at Delaloza's residence. Cordero identified the items as having been inside his duffle bag before it went missing.

Detective Mary Hanson interviewed Delaloza the day after the incident. According to Hanson's testimony, Delaloza said he and three friends had gone into the Whittier Ralphs parking lot to use a pay phone. Delaloza said that he came to the aid of a friend by hitting in the face one of the men his friend was fighting and that he saw one man pull out a baseball bat from his car. Eventually the three men Delaloza and his confederates had been fighting ran away, and Delaloza claimed some of his friends may have picked up some possessions that had dropped.

Freddie Becerra, a former member of the East Side Whittier Cole Street gang (sometimes referred to as the Cole Street gang), identified as fellow gang members Penunuri, Delaloza, and Jaime Castillo, as well as codefendants Joseph Castro, Jr., Arthur Bermudez, and Alfredo Tapia.

b. Hornell Street Incident

In the early hours of October 24, 1997, several hours after the Ralphs parking lot incident, Luke Bissonnette and Carlos Arias were sitting and eating in a car parked on Hornell Street near a house belonging to Luke's grandfather. Luke was a member of the East Side Whittier Cole Street gang. Luke got out of the car to smoke a cigarette and saw a white Cadillac approach and park on the street in front of his grandfather's house. Luke testified that Penunuri exited the car, walked toward him, called Luke "Youngster" (Luke's gang moniker), identified himself as an "East Sider," and said, "Get in the car." Luke ran from the driveway toward his grandfather's house and hid in the backyard. Shortly after, Luke heard his mother and Penunuri speaking outside but could not understand their conversation.

Roxanne Bissonnette, Luke's mother, testified that she spent the night of October 23 at her father's house on Hornell Street. Early in the morning of October 24, she heard some loud noises and looked outside. Through the window she saw a white Cadillac and "bodies or heads" crossing the front yard. When she opened the door, she saw Delaloza and Penunuri standing outside, with Penunuri wearing a dark jacket. Penunuri asked her if she had seen Arias and said he needed to talk to Arias and Luke. Roxanne Bissonnette warned Penunuri not to touch her son.

Luke testified that Delaloza was driving the white Cadillac and that Penunuri, Castillo, and an unidentified woman were passengers. He identified all four defendants in court and testified that he knew the three men as members of the Cole Street gang.

c. Goodhue Street Incident

After being denied entry to his grandfather's house, Luke returned to the front of the house and saw that everyone had left. He then ran to Laraine Martinez's house on Goodhue Street, where he was living at the time. When he arrived, he joined Arias, his sister Laura Bissonnette, Brian Molina, and Michael Murillo on the patio. Molina and Murillo were asleep when Luke arrived, and he did not speak to them. Arias told Luke that he "almost got killed" because "Richard Penunuri had pulled out a gun and put it to his head." After 20 minutes, Luke, Laura, and Arias went inside. Laraine Martinez, her son Eric Martinez, her daughter Monique Martinez, and Luke's brother Shane Bissonnette were already inside the house.

About 20 minutes later, Luke heard about 10 gunshots and looked outside through a window. Luke testified that he had "seen some figure running outside, and [his] first action [sic ] was, 'fucking Dozer.' " Dozer was Penunuri's gang moniker. Luke went to the patio and found Murillo unresponsive with three bullet holes in his body. He told his sister to call 911, then returned to the patio where he heard moaning. He found Molina with a gunshot wound

above the eye.

Laraine testified that she heard a noise, "like a backfire," as she was falling asleep. She looked through the window and saw "more shooting—or bullets and the flashes of light." She jumped up, ran outside, and called 911. She heard Luke and Shane Bissonnette yell the name Dozer.

Several neighbors on Goodhue Street witnessed the aftermath of the shooting. Matthew Walker, who looked out his window onto Goodhue Street after hearing gunshots, saw a white Cadillac that was not usually parked on the street and that appeared to be empty. Soon thereafter, he saw two men exit the backyard of Laraine's house and enter the Cadillac. The Cadillac then proceeded down Goodhue Street at a slow speed until it was no longer in sight. He did not get a clear look at the men. Two other neighbors testified to hearing gunshots and seeing an older-model white Cadillac driving away shortly thereafter.

Jaime Castillo lived with his uncle, Francisco Castillo, during this time. Francisco testified that he saw Jaime enter their house the morning of October 24 around 7:00 a.m., just as Francisco was leaving for work. Jaime had not spent the previous night at home. When Francisco entered his van to go to work, he found Penunuri asleep in his van and gave him a ride home.

d. Police Investigation

On the afternoon of October 24, Officer Jeff Piper executed a search warrant at Delaloza's residence and found a black jacket, a black long-sleeve sweatshirt with a hood, a dark blue long-sleeve sweatshirt with a hood, a small black knife with a belt clip, a pair of black cotton gloves, a plastic box of nine-millimeter ammunition with some bullets missing, keys to the white Cadillac parked in front of the residence, and some men's briefs and socks inside a trash can.

Later that day, Piper arrested Penunuri at his residence and seized a large black jacket from inside Penunuri's bedroom. Ruben Pozo, Penunuri's uncle, was present at the arrest. He spoke with Officer Terence McAllister, who testified that Pozo said Penunuri arrived home between 7:00 and 7:30 that morning. When Pozo testified at trial, he denied making this statement to McAllister and said he told McAllister that Penunuri was in their shared bedroom when he woke up around 5:30 a.m. for work that day.

Richard Catalani, a firearm examiner, testified that all 11 expended casings found at the Goodhue Street location were fired from the same nine-millimeter firearm. Catalani further testified that the expended casings matched the live ammunition found at Delaloza's house. He...