People v. Sanders

• Citation: 905 P.2d 420,11 Cal.4th 475,46 Cal.Rptr.2d 751
• Decision Date: 20 November 1995
• Docket Number: No. S004484,No. 22891,S004484,22891
• Court: United States State Supreme Court (California)
• Parties: , 12 Cal.4th 783C, 905 P.2d 420, 95 Cal. Daily Op. Serv. 8846, 95 Daily Journal D.A.R. 15,309 The PEOPLE, Plaintiff and Respondent, v. Ricardo Rene SANDERS, Defendant and Appellant. Crim.

Page 751

46 Cal.Rptr.2d 751

11 Cal.4th 475, 12 Cal.4th 783C, 905 P.2d 420,

95 Cal. Daily Op. Serv. 8846,

95 Daily Journal D.A.R. 15,309

The PEOPLE, Plaintiff and Respondent, v. Ricardo Rene SANDERS, Defendant and Appellant.

No. S004484.

Crim. No. 22891.

Supreme Court of California.

Nov. 20, 1995.

As Modified on Denial of Rehearing Jan. 30, 1996.

Fern M. Laethem, State Public Defender, Joel Kirshenbaum and Louis Marinus Wijsen, Deputy State Public Defenders, San Francisco, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Asst. Atty. Gen., Kristofer Jorstad, Kenneth C. Byrne, Susan Lee Frierson, Deputy Attys. Gen., Los Angeles, for respondent.

MOSK, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.).

On March 18, 1981, the District Attorney of Los Angeles County filed an information against defendant Ricardo Rene Sanders and Carletha Stewart and Franklin Freeman, Jr. in the superior court of that county, in connection with the robbery murders that became known as the "Bob's Big Boy murders."

Defendant was charged with the murder of David Burrell, Dita Agtani, and Ahmad Mushuk. (Pen.Code, § 187.) It was alleged for death eligibility, as to each murder, that he did so under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)). He was also charged with robbery (Pen.Code § 211), attempted robbery, (Pen.Code, §§ 664 and 211), and assault with a deadly weapon. (Pen.Code, § 245, subd. (a).) It was further alleged that, during the commission of each of these offenses, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and that, as to certain of these offenses he intentionally inflicted great bodily injury within the meaning of Penal Code section 12022.7. Finally, he was charged with conspiracy to commit robbery. (Pen.Code, §§ 182 and 211.)

Defendant pleaded not guilty to the charges and denied the allegations.

On December 7, 1981, after the death of victim Cesario Luna, the charge that defendant committed assault with a deadly weapon against Luna was dismissed and the district attorney filed a separate information, charging him with the murder of Luna (Pen.Code, § 187), under the special circumstances of multiple murder (id., § 190.2, subd. (a)(3)) and felony-murder robbery (id., § 190.2, subd. (a)(17)(i)). It was also alleged that, during the commission of the murder, he personally used a firearm, to wit, a shotgun, within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). The count was ordered consolidated into the previously filed case.

Defendant again pleaded not guilty to the charges and denied the allegations. Motions he made for change of venue were denied. His case was severed from that of his codefendants.

Trial was by jury. The panel returned verdicts finding defendant guilty as charged of the murders of Burrell, Agtani, Mushuk, and Luna; it also rendered a finding of true on the multiple-murder and felony-murder-robbery special circumstances. It found him guilty as charged of the counts of robbery, attempted robbery, and assault with a deadly weapon. It further found true the allegations that, as to all but one count, he personally used a firearm. Finally, it found him guilty of conspiracy.

The jury subsequently returned verdicts of death on the counts of murder. The trial court denied defendant's application to modify the verdicts. (Pen.Code, § 190.4, subd. (e).) It imposed sentences of death for the murders of David Burrell, Dita Agtani, Ahmad Mushuk, and also for the murder of Cesario Luna with the sentence of death. For the noncapital offenses, it imposed a total term of 13 years and 8 months to life in state prison, which it stayed, pending execution of the sentence of death. (Pen.Code, § 654.) ¹

As we shall explain, we conclude that the judgment should be affirmed.

I. FACTS

A. Guilt Phase

The People introduced evidence to the following effect.

In August 1980, Bruce Woods was riding in a car on La Cienega Boulevard in Los Angeles with a man named Connie and a woman called "Collie," whom he identified as Carletha Stewart. "Collie" asked if they wanted to make some money by robbing Bob's Big Boy, one of a chain of fast-food restaurants with that name. Connie replied "Are you crazy?" and the subject was dropped.

Jerry Lankford learned of a possible robbery of Bob's Big Boy in September 1980. One evening in September, as Lankford was standing on a street corner with friends, defendant drove up in a blue Cadillac. He parked and approached the group. He talked about "taking down" the Bob's Big Boy. Lankford, who worked at a Bob's Big Boy, told defendant that the robbery was not a good idea because there were probably off-duty police officers working there. Defendant disagreed, saying that he was "screwing" a waitress who had "cased" the restaurant. He then walked over to his car and opened the trunk, in which Lankford saw the stock of a shotgun wrapped in a blanket and shotgun shells.

In September 1980, Brenda Givens was employed as a waitress at Bob's Big Boy restaurant on La Cienega. On September 27, 1980, while visiting her boyfriend at the Los Angeles County jail, she saw Stewart with defendant and Franklin Freeman, Jr. Stewart said: "Good thing I seen you ... [b]ecause they gonna rob Bob's Big Boy tonight, and I don't want you hurt." That evening, Givens told two managers at Bob's Big Boy about the planned robbery. One of them, Rodell Mitchell, called the police. That evening, because of an apparently unrelated incident, the area was monitored by police from that time until 1:00 a.m.

About 10:00 p.m., Andre Gilcrest was at Stewart's home. She told him that "Frank and Ricky"--Franklin Freeman, Jr., and defendant--were planning to rob Bob's Big Boy that night and that she had told them how many managers worked at the restaurant, what time they closed, and where the money was kept. Between 11:30 p.m. and 12:30 a.m., Gilcrest and Stewart went to the Bob's Big Boy, where Stewart spoke to two waitresses and made a telephone call. They then returned to Stewart's home. Later that evening, Stewart called Givens at the Bob's Big Boy from her home and asked how long it would be until she "g[o]t out of there." She also asked how many employees were still inside the restaurant.

Stewart also called Freeman. She told Gilcrest that Freeman and defendant would pick her up for the robbery. Defendant drove up to Stewart's residence 20 minutes later with Freeman in the passenger seat. Gilcrest saw that defendant had a sawed-off shotgun; Freeman also had a shotgun. After defendant and Freeman left, Stewart explained that they planned to drive to the Bob's Big Boy.

When defendant and Freeman did not return after about an hour, Stewart went to the restaurant and knocked on the front door, but the manager did not let her in. After she returned home, she received a phone call from defendant explaining that they did not commit the robbery because the manager did not come out.

On December 13, 1980, about 9 p.m., Franklin's mother, Orasteen Freeman, saw Stewart, defendant, and two others at her home. A few hours later, at 2 a.m. on December 14, 1980, there were nine employees and two customers inside the Bob's Big Boy on La Cienega. The restaurant doors were locked. The night manager was Michael Malloy. The cook was Derwin Logan; the waitresses were Dionne Alicia Irvin, Evelyn Jackson, Rhonda Robinson, and Dita Agtani; the busboys were Cesario Luna and his son Ismael Luna; the cashier was Ahmad Mushuk. The customers were David Burrell and Tami Ellen Rogoway.

Malloy was in the office preparing to count the money from the cash register when Logan told him that the two remaining customers wanted to be let out. Malloy left the office and handed the keys to the restaurant door to Logan. Logan walked to the front door with Burrell and Rogoway. When Logan opened the door, defendant and another man, both armed with shotguns, forced Logan, Burrell, and Rogoway back into the restaurant. Defendant said "It's a jack. It's a stickup." He took the keys from Logan. The cashier came forward and asked: "Hey, what's going on?" The man with defendant stepped forward and hit Mushuk on the head with the butt of his shotgun; Mushuk fell to the floor. Irvin, Jackson, Agtani, Robinson, and Cesario Luna, who were at the counter area, were ordered to lie facedown on the floor. A few minutes later they were led to the kitchen area and again ordered to lie down on the floor.

Defendant took Malloy, Logan, Burrell, and Rogoway to the back of the restaurant and ordered them to lie facedown on the floor of the hallway outside the freezer. While they were on the floor, they heard the men checking the lunchroom, restroom, and lockers.

Defendant asked for the manager. Malloy stood up. Defendant walked him over to an electrical panel and asked "Where's the alarm?" Malloy pointed to the alarm. Defendant handed Malloy the keys and ordered him to open the door to the office. Inside the office, he asked: "Where's the safe?" Malloy pointed to the safe. After defendant ordered him to give him the money in the safe, Malloy placed approximately $1,300 in a box and slid it out the door. Some of the coins were wrapped in Bank of America coin wrappers.

Defendant told everyone to "get up off the floor ... We are going to the back. You're going to get hurt." Malloy, Logan, Burrell, and Rogoway stood up and went into the freezer, which other employees already occupied. Mushuk was lying on the floor unconscious.

Defendant said: "I want watches, wallets and jewelry." Malloy gathered items from everyone in the freezer, except Mushuk, in a bucket, which he handed to defendant. No one resisted the...