People v. Scott, S010334

• Citation: 939 P.2d 354,15 Cal.4th 1188,65 Cal.Rptr.2d 240
• Decision Date: 14 July 1997
• Docket Number: No. S010334,S010334
• Court: United States State Supreme Court (California)
• Parties: , 939 P.2d 354, 97 Cal. Daily Op. Serv. 5574, 97 Daily Journal D.A.R. 8931 The PEOPLE, Plaintiff and Respondent, v. James Robert SCOTT, Defendant and Appellant.

Page 240

65 Cal.Rptr.2d 240

15 Cal.4th 1188, 939 P.2d 354, 97 Cal. Daily Op. Serv. 5574,

97 Daily Journal D.A.R. 8931

The PEOPLE, Plaintiff and Respondent, v. James Robert SCOTT, Defendant and Appellant.

No. S010334.

Supreme Court of California.

July 14, 1997.

Rehearing Denied Sept. 3, 1997.

John W. Clark, under appointment by the Supreme Court, Mary E. Arand, Anne S. Parsons and Clark & Arand, San Jose, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey, Robert S. Henry, Arthur H. Auerbach and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, Justice.

Defendant assaulted and raped Wanda Jensen in her home, then set her on fire. While she yet lived, he pleaded guilty to her rape and attempted murder. Later, she died of complications from her burns. A new information, as amended, charged defendant with her murder under the special circumstances of rape and burglary murder. Defendant waived a jury trial. After a guilt trial, the court found defendant guilty of first degree murder, found the special circumstance allegations true, and found that defendant intended to kill Jensen and used a deadly weapon. After a penalty trial, the court returned a verdict of death. It denied defendant's automatic motion to modify the verdict and sentenced him to death. This appeal is automatic. We affirm.

I. FACTS

A. Guilt Phase

On April 22, 1986, Wanda Jensen lived in an apartment in Palmdale with her five-year-old daughter. Around 2 a.m. that morning, defendant entered Jensen's apartment with socks over his hands, placed a screwdriver against her side, said he wanted to have sex with her, and threatened harm to her daughter if she refused. He hit her with a baseball bat she kept in the bedroom for protection, raped her, then beat and choked her into unconsciousness on her bed. He set the bed on fire and left. Jensen's daughter, asleep in an adjoining bedroom, awakened when a smoke alarm sounded. She went to her mother's room, saw the fire, and pulled at her mother. Jensen, badly burned, picked up her daughter and carried her to the nearby apartment of a friend, who called for assistance.

Jensen had suffered burns over 35 percent of her body. A Los Angeles County deputy sheriff described her appearance at the hospital: "She was extremely burned. It appeared that her nightgown had caught on fire on the right side of her body, and the flames, the burning appeared to go from very, very bad on the right side across her front, lessening to the left side. Her hair was singed off. Her facial hair was burned off. Her nipples were bubbled. She lifted her arm up, and her skin hung off like rags." Although in pain, Jensen was able to tell investigators what had happened and describe her assailant. She told her friend that the assailant had said he was "Rerun's brother Tony." Jensen's vagina contained semen.

After waiving his rights, defendant confessed in two statements to separate investigators. His account of what occurred was generally consistent with Jensen's. He said he had used a pack of matches from his pocket to light the bed covers. When the first investigator asked him if he had set the fire "to get rid of the girl and to destroy the evidence," defendant "lowered his head and he said, 'Yes.' " At that point, defendant glared at the investigator and said "he was now Tony and that Tony had taken charge of James' body, and he said he had to destroy the girl because she was a shit bomb...." Before the second confession, defendant signed the waiver card with the name, "Tony Adman." When questioned about the signature, he changed it to his true name. He told both investigators that he was "Tony" and that "James was a wimp."

Glenn Johnson, known as "Rerun," testified that shortly before the crime, defendant came to his home. He gave defendant some socks, and they "smoked some cocaine." Defendant "was getting high." Although he denied it at trial, Johnson said previously that defendant had asked him for a screwdriver and gloves, and that he gave defendant a screwdriver but had no gloves. Defendant told the police that, before the crime, he purchased some cocaine and "did a couple lines of coke."

Jensen died on February 25, 1987, of "acute pneumonia due to hypoxic encephalopathy which was a result of thermal burns." The pathologist testified that the burns caused her ultimate death.

Dr. Marvin Ginsburg testified for the defense that Jensen received negligent medical treatment and would not have died had the treatment been competent. Dr. Ginsburg focused largely on two cardiac arrests Jensen suffered on April 28, 1986, that contributed to her eventual death, and that he believed could have been avoided with competent treatment. In rebuttal, Dr. Bruce Zawacki testified for the prosecution that, whatever deficiencies there may have been in Jensen's medical treatment, the burns "set in motion a chain of events that ultimately led to this arrest, and without the burn, there would have been no arrest...."

After hearing the guilt testimony, the court found that Jensen "would probably have survived ... in the absence of what [it] would find to be ordinary medical negligence," but it did "not find that ordinary medical negligence to be a superseding cause in this case. It is a contributing cause to the death of Wanda Jensen and does not relieve [defendant] of responsibility for her death."

B. Penalty Phase

The parties stipulated that defendant pleaded guilty in 1983 to assault with a deadly weapon and, on June 24, 1986, in a different case, pleaded guilty to rape with use of a knife and infliction of great bodily injury. The prosecution presented evidence of the circumstances of both crimes. In 1983, defendant assaulted Paula H. with a knife in her house and said he was going to rape and kill her. She grabbed the knife, and they struggled. She managed to escape only after defendant cut and bit her. On April 1, 1986, three weeks before the assault on Jensen, defendant assaulted Violet H. in her Palmdale home with a knife and his fists, raped her, and choked her into unconsciousness.

The defense presented some of Paula H.'s testimony at the 1983 preliminary hearing of that prosecution and a psychological evaluation of defendant prepared in conjunction with that prosecution.

II. DISCUSSION

A. Guilt Phase Issues

1. Double Jeopardy

Before Jensen died, the prosecution charged defendant with noncapital crimes arising from her assault. On June 24, 1986, pursuant to a negotiated plea, he pleaded guilty to raping and attempting to murder Jensen and to charges related to the crimes against Violet H. The court sentenced him to prison for 42 years for all the charges. When Jensen died several months later, defendant was charged with her murder. Defendant argues that the second prosecution violated his constitutional and statutory rights against double jeopardy. Because defendant did not enter a plea of once in jeopardy, the issue is "technically" not cognizable on appeal. (People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1, 55 Cal.Rptr.2d 347, 919 P.2d 1280; see People v. Belcher (1974) 11 Cal.3d 91, 96, 113 Cal.Rptr. 1, 520 P.2d 385.) However, because defendant contends his attorney was ineffective, we must consider whether the contention has merit. (Marshall, supra, at p. 824, fn. 1, 55 Cal.Rptr.2d 347, 919 P.2d 1280; Belcher, supra, at p. 96, 113 Cal.Rptr. 1, 520 P.2d 385.) It does not.

Both the United States and California Constitutions provide that a person may not twice be placed in jeopardy for the same offense. (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707; People v. Saunders (1993) 5 Cal.4th 580, 592-593, 20 Cal.Rptr.2d 638, 853 P.2d 1093.) The court's acceptance of a guilty plea is the equivalent of a conviction and bars a later prosecution for the same offense. (People v. Bivens (1991) 231 Cal.App.3d 653, 659, 282 Cal.Rptr. 438.) Defendant argues that the attempted murder charge to which he pleaded guilty and the later murder charge were the " 'same offence' " under the prevailing test. (See United States v. Dixon (1993) 509 U.S. 688, 696-697, 113 S.Ct. 2849, 2855-2857, 125 L.Ed.2d 556.) However, even if that argument is correct, an exception to traditional double jeopardy analysis applies when, as here, the prosecution is unable to proceed on the more serious charge at the outset because a fact necessary to sustain that charge--here the victim's death--had not yet occurred. Defendant could not be placed in jeopardy for the murder charge until the victim died.

In Diaz v. United States (1912) 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, the defendant was charged with assault and battery, tried, and found guilty. When the victim later died, the prosecutor brought a homicide charge against the defendant. The United States Supreme Court affirmed a conviction for that charge. "The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense." (Id. at p. 449, 32 S.Ct. at p. 251, italics added.)

The high court has since repeatedly recognized that, "when application of our traditional double jeopardy analysis would bar a subsequent prosecution, '[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States [, supra, 223 U.S. at pp. 448-449, 32 S.Ct. at pp. 251]; Ashe v. Swenson [ (1970) 397 U.S. 436, 453, fn. 7, 90 S.Ct. 1189, 1199, fn. 7, 25 L.Ed.2d 469 ...