People v. Perry
| Decision Date | 24 April 2006 |
| Docket Number | No. S055474.,S055474. |
| Citation | 132 P.3d 235,42 Cal.Rptr.3d 30,38 Cal.4th 302 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Clifton PERRY, Defendant and Appellant. |
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Alison Pease and Ronald F. Turner, Deputy State Public Defenders, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
In May 1996, a jury found defendant Clifton Perry and codefendant Leon Noble guilty of the murder (Pen.Code, § 187)1 and second degree robbery (§§ 211, 212.5, subd.(c)) of Saeed Nasser. The jury also found that defendant, but not Noble, personally used a firearm during the commission of the crimes. It further found, as a special circumstance, that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)). After a penalty trial, the jury returned a verdict of death for defendant, and life imprisonment without the possibility of parole for Noble.2
The trial court denied defendant's motion for modification of the verdict, and it sentenced defendant to death for the murder of Saeed Nasser. On the robbery conviction, the trial court sentenced defendant to the upper term of five years' imprisonment, with a consecutive five-year term for the personal use of a firearm.
Defendant's appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment and penalty.
About noon on July 9, 1995, defendant and Paul LeBlanc arrived at the home of Elisa Padilla. They joined Padilla, Shaundra Stephens, and Henry Pridgett in drinking alcohol and smoking marijuana. Later that afternoon codefendant Noble paged defendant, after which defendant and LeBlanc picked up Noble at his step-mother's house. When they returned to Padilla's house, Noble asked defendant if he wanted to get some money; defendant said he was "down" for that. Pridgett overheard defendant, Noble, and LeBlanc discussing a store robbery, and heard LeBlanc say, "don't do that." Defendant asked Stephens to buy some gloves and red bandanas. She did so.
Noble suggested that they use his stepmother's car for the crime. Defendant and Noble left in defendant's car but returned in the stepmother's car. Defendant then asked LeBlanc, who had defendant's gun, to return it to him. LeBlanc gave defendant the gun, which was loaded and wrapped in a white sock.
At about 9:30 p.m. on July 9, 1995, 16-year-old Sami Nasser was working at the cash register of the Stop and Shop Market in Hanford in Kings County. Sami's uncle Abdul Nasser and two customers, Alfonso Garcia and William Jones, were also in the store. Sami's other uncle, 47-year-old Saeed Nasser, the store's owner, was in a back room.
Sami saw a man run into the store, climb over the counter, and demand money. The man wore a bandana, concealing his face; Sami thought the man was Black from the way he spoke. The man struck Sami with what Sami thought was a gun. Sami was not seriously injured, but he dropped to the floor behind the counter to avoid further injury. As he fell behind the counter, Sami heard two gunshots. He began crawling toward the door to the back room. He heard several more shots, and his Uncle Saeed said "oh, no" or something like that. When Sami looked out from behind the counter, he saw Saeed lying wounded on the floor. Sami called the police from a telephone behind the store and asked for an ambulance. When he returned to the front room, everyone was gone except Saeed.
The two customers, Jones and Garcia, testified that two Black men entered the store and demanded money. Their faces were covered with bandanas. Garcia said the man at the cash register hit Sami with a gun, and then fired two shots. As Garcia ran from the store, he heard four or five more shots.
According to Jones, the man at the cash register hit Sami with his hand, not a gun; the other man had a gun wrapped in a white cloth. Jones saw Saeed grab one of the men and strike him. As Jones fled to the back room with Abdul Nasser, he heard two gunshots, then three more.3
Beatrice Cruz, who lived across the street from the Stop and Shop Market, heard gunshots. She saw two Black men run out of the store and around a corner. The taller of the two men had his hair in French braids. A car took off going away from the market. After asking someone in her house to call the police, Cruz went to the store. She entered the store just before the police arrived, and saw Saeed Nasser lying wounded on the floor.
Saeed Nasser had three bullet wounds in the abdomen. He died from loss of blood a few hours after the shooting. The police discovered fragments of five bullets in the store; a sixth bullet was lodged in Saeed's body.
When defendant and Noble returned to Padilla's house, defendant told Henry Pridgett "I just got my blast on," meaning that he had shot somebody. He took off a red bandana and asked Pridgett to burn it. After doing so, Pridgett saw defendant and Noble counting money.
Defendant told Paul LeBlanc that someone "had tried to rush him" and that defendant then "shot him." He asked LeBlanc to dispose of some empty gun shells. Later, defendant turned on the television news and saw a description of the Stop and Shop Market robbery that identified the suspects as two Hispanic males. According to Pridgett, after hearing this, Noble and defendant shook hands and were saying, "Yeah, that was smooth."
On July 15, 1995, police searched behind Padilla's home and found burned clothing, including gloves and a red bandana, on top of a woodpile. Under the wood they found a .357-caliber Ruger revolver, wrapped in a shirt. The bullets recovered from the robbery matched bullets test fired from the revolver.
Noting the testimony of Beatrice Cruz that one robber had his hair in French braids, defendant called Rubi White, a cosmetologist, to testify that neither defendant nor Noble had hair long enough to braid. The prosecutor showed White a picture of defendant taken shortly after the murder. She said defendant's hair was longer then but still too short to braid.
Sami Nasser testified that victim Saeed had a wife and six children in Yemen. He sent them several thousand dollars every two or three months. Saeed had been in the United States about 29 years and was planning to apply for citizenship.
The prosecution played the tape of a statement defendant gave the police. In that statement, defendant said he had been in Saeed's store 100 to 200 times, and considered Sami a friend. He said Saeed was a nice guy who "looked after" defendant and would cash defendant's checks even when defendant had no identification with him.
The parties stipulated as follows: On October 22, 1975, defendant was found in juvenile court to have committed two counts of assault with a deadly weapon; on March 7, 1986, he was found in juvenile court to have committed attempted robbery and assault with a deadly weapon; on October 17, 1989, he was convicted of battery; and on June 6, 1990, he was convicted of robbery with the use of a firearm.
Defendant's wife, Ernestine Perry, testified that during their three-year marriage defendant had never physically abused her. Miguel Herrera, Ernestine's father, testified that defendant had worked for him in his dairy construction businesses, and was a good and responsible employee.
Richard Dubois, a retired California Youth Authority counselor, considered defendant "way above the norm in terms of his willingness to cooperate and his ability to do what was asked of him." Dubois said defendant would not be a threat to other inmates or staff in an institutional setting.
Defendant testified on his own behalf at the penalty trial and described the robbery and murder. He said that he decided to commit a robbery because he needed money. He was armed with a gun he got from LeBlanc. Codefendant Noble did not have a gun.
Defendant wore a baseball cap and a red bandana during the robbery. He saw Noble use his right hand to hit Sami, who fell to the floor. When someone came up behind defendant and tried to grab him, defendant spun in a circle and started shooting.
Defendant then described his childhood and adolescence. During defendant's childhood, his father was in prison. The Department of Social Services regularly took defendant from his mother, a heroin user, because she beat him, but later returned him to her custody.
When defendant was nine or ten years old, the family moved to South Central Los Angeles. Defendant joined a gang called the "59 East Side Crips" for protection against being beaten by older boys.
Defendant spent most of his adolescence at the California Youth Authority, where he attended school. After he was paroled, he entered Fresno City College. While in Fresno, defendant performed CPR on a child drowning victim, and he received a letter of appreciation from the emergency medical services. About two weeks later, however, defendant committed an armed robbery; he received a 26-month sentence, which he served at Soledad State Prison. Defendant explained he had a gun for protection because he had been shot twice. He thought he was shot at frequently because he had a reputation for never backing down.
On May 9, 1996, during the guilt phase of defendant's capital trial, the bailiff told the trial court that two jurors (Juror No. 7 and Alternate Juror No. 6)...
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