People v. Robertson

• Decision Date: 10 December 1982
• Docket Number: Cr. 21119,Cr. 20577,C
• Citation: 188 Cal.Rptr. 77,33 Cal.3d 21,655 P.2d 279
• Parties: , 655 P.2d 279 The PEOPLE, Plaintiff and Respondent, v. Andrew Edward ROBERTSON, Defendant and Appellant. In re Andrew Edward ROBERTSON on Habeas Corpus. r. 34455 and
• Court: California Supreme Court

Page 77

188 Cal.Rptr. 77

33 Cal.3d 21, 655 P.2d 279

The PEOPLE, Plaintiff and Respondent, v. Andrew Edward ROBERTSON, Defendant and Appellant In re Andrew Edward ROBERTSON on Habeas Corpus.

Cr. 20577, Cr. 34455 and Cr. 21119.

Supreme Court of California In Bank.

Dec. 10, 1982.

Rehearing Denied Jan. 19, 1983.

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Charles M. Sevilla, Chief Deputy State Public Defender, and Joseph Levine, Deputy State Public Defender, for defendant and appellant and petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield, Richard D. Garske, Jay M. Bloom and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Justice.

In this proceeding, prosecuted under the 1977 death penalty legislation (Stats.1977, ch. 316, §§ 4-14, pp. 1256-1262, former Pen.Code, §§ 190-190.6), ¹ defendant Andrew Edward Robertson was convicted of two counts of first degree murder and nine special circumstances. At the penalty phase, the jury fixed the punishment at death. His appeal to this court is automatic. (Cal.Const., art. VI, § 11; § 1239, subd. (b).)

I

This case arises out of the deaths of two women, Karen Ann Litzau and Kimberly Gloe, in October 1977. Shortly after his arrest, defendant gave a detailed, tape-recorded confession to both homicides, and then reenacted the killings on film at the scenes of the crimes. The tape-recorded and filmed confessions were admitted at trial. Complemented by additional evidence presented by the prosecution, the record discloses the following facts.

In the early morning hours--2 or 3 a.m.--of October 20, 1977, defendant stopped and picked up Karen Litzau as she was hitchhiking on a freeway on-ramp in San Bernardino. At first defendant only intended to give Litzau a ride but then, as the two were driving, decided to have sexual relations with her. When she refused, he put his right arm around her neck, pressed a knife to her throat and told her they were going to have intercourse.

After leaving the freeway and driving to a secluded area on a dirt road, defendant stopped the car. When Litzau began to call him names--"crazy, a son of a bitch, an asshole, everything in the book"--defendant began ripping off her clothes. Litzau asked defendant if he was going to kill her and he said "no."

Defendant then placed Litzau on the hood of his car, intending to have intercourse. When she started calling him names again, however, he "yanked her off the car and started stabbing her."

At one point in his confession, defendant stated that he only remembered stabbing Litzau twice and that "[m]y mind went blank. The next thing I knew I was on the freeway and I had blood on my hands." Immediately thereafter, however, defendant described the incident in considerable detail, recalling that he had cut Litzau's throat and stomach and had stabbed her repeatedly in the heart, back and vagina. In the course of his confession, defendant also admitted that at one point during the stabbing he stopped momentarily, thinking Litzau was dead, but when he discovered that she was still alive, he cut her throat.

Before leaving the scene, defendant tried to cut off a breast of Litzau's lifeless body but failed because his knife was too dull. He took several pairs of panties, a cosmetic case and an engraved cigarette lighter from her suitcase, urinated on the body and drove away. At different points in his confession defendant stated alternatively that he decided to kill Litzau when she "call[ed] [me] names" and "when she started saying that she was going to tell on me."

Litzau's body was found the next morning. An autopsy revealed more than 170 knife wounds over her entire body.

One night about a week and a half later, defendant picked up Kimberly Gloe as she was offering her services as a prostitute on a street in San Bernardino. After she entered the car, defendant pulled a knife and drove to a secluded area. He had brought his knife because he wanted sex. When Gloe told him that force was not necessary, he put the knife away. He stopped the car and they engaged in various sex acts.

Thereafter, Gloe told defendant that she "had a guy rape me before and I squealed on him, but they couldn't find him, and I might squeal on you, too." When defendant said "You wouldn't do that, would you?" she responded, "Yeah, I would." Gloe then got out of the car to get her clothes and clean herself off.

Defendant grabbed his knife, followed her out of the car and started stabbing her in the stomach. He remembered stabbing all over her body, cutting her throat and stomach, removing her intestines, cutting off her breasts, ² and stabbing her in the vagina, leaving his knife embedded there. He stated that he stabbed her in the vagina because "I wanted to do it the same way I did Karen." A subsequent autopsy revealed 120 separate stab and incisional wounds.

After Gloe was dead, defendant attempted to break her legs "[b]y standing and pulling on them" and then again urinated on the body. He left with her address book and her bra and panties. Asked if he had intended to kill Gloe when he first picked her up, defendant stated that "I didn't have any intention of killing her until she started saying she was going to snitch on me...."

A few days after Gloe's death, a woman who had seen Gloe get into defendant's car spotted the car parked in a gas station and notified the police, who traced the car to defendant and arrested him. At the time of his arrest, Litzau's cigarette lighter was found in his pocket. With defendant's consent, the officers searched his apartment and found Gloe's address book, Litzau's cosmetic case and--under his bed--numerous items of women's underwear, including several belonging to each of the victims.

In addition to presenting this extensive evidence linking defendant to the two deaths, the prosecution--as part of its case-in-chief--called Kim P. who testified about an incident in May 1976, more than a year before the Litzau and Gloe killings. Kim P. testified that late one night defendant abducted her from a truckstop, put a knife to her throat and threatened to kill her if she did anything "funny." She also said that he told her that he "had killed two others and that they hadn't found them yet ... hadn't found him yet."

After driving to an isolated area, defendant ordered her to disrobe; as she complied, defendant cut away her shirt and underclothes with his knife. Defendant then forced her to orally copulate him and masturbated her with a pop bottle, laughing when she cried out in pain and began to bleed. Kim P. stated that defendant scratched her breast with his knife, hit her on her chest and face with his fists and told her that he "liked hurting women because it turned him on." Defendant took her underclothes for his "collection," and also took identification cards from her wallet, warning her that he would find her and kill her if she told anyone of the incident. Kim P. finally escaped from defendant's car and as she fled she heard defendant threaten to kill her if she told anyone. ³

Defendant did not deny committing the killings, but attempted to present a diminished capacity defense, calling a number of lay witnesses--including his sister and a neighbor--who testified that from childhood defendant had been mentally slow and clumsy, and that when teased or disappointed, he would "fly off the handle." An attorney who had represented defendant in the criminal proceedings arising out of the Kim P. incident (see fn. 3, ante) testified that in his opinion defendant was a mentally disordered sex offender (MDSO) even though he had been found not to be one in the prior proceedings.

Dr. James Ramsaran, a psychiatrist who had reviewed defendant's taped confessions and a report of a 1954 neurological examination of defendant conducted by a Dr. Guy Hunt when defendant was nine years old, and who had also examined defendant one evening during the trial, testified on direct examination that in his opinion defendant had not premeditated either homicide, and that the killings were a reaction of rage and fury to Litzau's epithets and Gloe's statement that she would report him to the police. The doctor stated that his opinion was based in part on the fact that during his interview defendant told him that he did not recall the details of the killings. Dr. Ramsaran also testified that during his interview defendant had admitted 16 other rapes in 1976 and 1977 and that his eyes "lit up" as he described them. On cross-examination, the doctor conceded that it was quite possible that defendant had acted in a premeditated and deliberate manner in killing the victims and that if defendant was in fact capable of remembering the events of the killings in detail he might well change his opinion.

The defense also called Oren McEuen, a psychologist, who had conducted a number of therapy sessions with defendant in October 1977, during the period in which the two killings took place; the sessions were a condition of defendant's probation for the Kim P. incident. McEuen's testimony did not prove helpful to the defense, for he testified that in his opinion defendant could premeditate and deliberate the killings, and could also form the intent to rape, rob and kidnap the victims.

In rebuttal to the defendant's diminished capacity defense--such as it was--the prosecution called two psychiatrists, Dr. Gericke and Dr. Flanagan, who had examined defendant both in connection with the Kim P. incident and very shortly after his arrest for the Litzau and Gloe killings. Both doctors testified that in their opinion defendant suffered from no mental defect or diminished capacity, and could fully premeditate and deliberate the killings.

On the basis of the above evidence, the jury found defendant guilty of two counts of first degree murder and also found that nine of the...