People v. Robertson

• Decision Date: 23 February 1989
• Docket Number: No. S004608,C,S004608
• Citation: 767 P.2d 1109,48 Cal.3d 18,255 Cal.Rptr. 631
• Court: California Supreme Court
• Parties: , 767 P.2d 1109 The PEOPLE, Plaintiff and Respondent, v. Andrew Edward ROBERTSON, Defendant and Appellant. rim. 23538.

Page 631

255 Cal.Rptr. 631

48 Cal.3d 18, 767 P.2d 1109

The PEOPLE, Plaintiff and Respondent, v. Andrew Edward ROBERTSON, Defendant and Appellant.

No. S004608, Crim. 23538.

Supreme Court of California In Bank.

Feb. 23, 1989.

As Modified on Denial of Rehearing April 5, 1989.

Timothy J. Foley and Gail R. Weinheimer, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr., Rudolf Corona, Jr., John W. Carney and Maxine P. Cutler, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

PANELLI, Justice.

This is an automatic appeal from a judgment of death (Cal. Const., art. VI, § 11; Pen.Code, § 1239, subd. (b)) imposed under the 1977 death penalty law (former Pen.Code, §§ 190-190.6, Stats.1977, ch. 316, §§ 4-14, pp. 1256-1262, repealed by Prop. 7, Gen. Elec. (Nov. 7, 1978)) ¹ following retrial of the issue of penalty after an initial judgment of death was reversed in People v. Robertson (1982) 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 279 (hereinafter Robertson I ).

After trial a jury found defendant Andrew Edward Robertson guilty of two first degree murders and found true nine charged special circumstances. ² The jury fixed the penalty at death; the court entered judgment in accordance with the jury's verdicts and findings. On appeal we affirmed the judgment of guilt and the special circumstance findings, but reversed the judgment as to penalty. (Robertson I, supra, 33 Cal.3d at p. 60, 188 Cal.Rptr. 77, 655 P.2d 279.)

After retrial to the bench, the court fixed the penalty at death and entered judgment accordingly. This appeal followed.

As will appear, we affirm the judgment.

I. FACTS

Pursuant to a waiver of jury trial by the prosecution and the defense, retrial of the penalty phase was before the court as trier of fact. The judge on retrial was not the judge who had presided over the initial trial.

Before the court by stipulation of the parties were transcripts of prior testimony in this action. In the words we used in Robertson I, supra, 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 279, the prior testimony told the following tale.

"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 confessions, 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, ³% 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." (Robertson I, supra, 33 Cal.3d at pp. 31-32, 188 Cal.Rptr. 77, 655 P.2d 279.)

In its case-in-chief, the prosecution set out to show the penalty of death was appropriate for defendant. At the penalty phase of the initial trial the defense had attempted to demonstrate that defendant's culpability was reduced by mental disease or defect. In evident anticipation of the case it expected the defense to present here, the prosecution called several expert witnesses.

The prosecution experts--four psychiatrists and two psychologists--testified in sum as follows: defendant had a character or personality disorder, variously described as passive-aggressive or mixed character disorder with antisocial features and poor impulse control; he was emotionally immature and was of borderline or low average intelligence; he lacked insight and was concerned only for himself; he was sexually aggressive, received gratification from inflicting pain and had feelings of inadequacy; and as a child he had developed slowly and suffered emotional trauma. The prosecution experts were in conflict as to whether defendant was a mentally disordered sex offender; they were unanimous that defendant did not suffer from any mental disease or defect and was not affected by posttraumatic stress disorder.

As further evidence in aggravation of penalty, the prosecution introduced evidence of defendant's prior crimes. Ernest F. testified that one night in 1973, when he was a 19-year-old enlisted man in the Marine Corps, he went out drinking in Yuma, Arizona; at a bar he met a man who introduced himself as "Tex"; he and "Tex" went bar hopping; in the desert outside of Yuma, "Tex" attacked him, placing a knife to his neck and jabbing him with the weapon; "Tex" forced him to submit to oral copulation as he held the knife at his testicles and groin and jabbed; "Tex" repeatedly threatened to mutilate him and leave him in the desert and also threatened to kill him; he offered no resistance to the attack and soon managed to escape; he reported the incident to the police, but charges were never filed. At trial he stated defendant was the man he had known as "Tex."

Kim P. testified that one night in 1976 she was standing in a parking lot at a truck stop in Ontario, California; a man approached her from behind, put a knife to her throat and forced her into his automobile; a citizen's band radio was on; he drove her to a remote area where he compelled her to disrobe and then cut off her underpants with his knife; he told her he hated women and repeatedly said he was going to kill her; he beat her about the face, head, and breasts; he violated her with a Coca-Cola bottle until her vagina bled; he put lit cigarettes into her vagina and called her a "cry baby" when she complained of pain; he forced her to orally copulate him; he took a pair of underpants from her bag, saying they were for a collection he kept; when the citizen's band radio crackled, he became distracted and she fled; he cruised around the area for five or ten minutes shouting threats that he would kill her, but she made good her escape and reported the...