People v. Scully

• Decision Date: 24 May 2021
• Docket Number: S062259
• Citation: 11 Cal.5th 542,486 P.3d 1029,278 Cal.Rptr.3d 792
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Walter SCULLY, Defendant and Appellant.
• Court: California Supreme Court

11 Cal.5th 542

486 P.3d 1029

278 Cal.Rptr.3d 792

The PEOPLE, Plaintiff and Respondent,

v.Robert Walter SCULLY, Defendant and Appellant.

S062259

Supreme Court of California.

May 24, 2021

As Modified on Denial of Rehearing July 21, 2021

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Margot Garey and Valerie Hriciga, Deputy State Public Defenders, for Defendant and Appellant.

Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Glenn R. Pruden and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Cantil-Sakauye, C. J.

A jury convicted defendant Robert Walter Scully of the first degree murder and robbery of Sonoma County Deputy Sheriff Frank Trejo. ( Pen. Code, §§ 187, 211.)¹ The jury found true the special circumstance allegations that defendant committed the murder for the purpose of avoiding arrest (§ 190.2, subd. (a)(5)) and while engaged in the commission of a robbery (§ 190.2, subd. (a)(17)), and that defendant intentionally killed a peace officer engaged in the performance of his duties (§ 190.2, subd. (a)(7)). The jury also convicted defendant of the possession of a short-barreled shotgun (former § 12020, subd. (a)), possession of a firearm as a convicted felon (former § 12021, subd. (a)(1)), burglary (§ 459), assault with a firearm (§ 245, subd. (a)(2)), and six counts of false imprisonment (§§ 210.5, 236). It found true the allegations that defendant was armed with and personally used a firearm in the commission of each of the offenses. (Former §§ 12022, subd. (a)(1), 12022.5.) It also found true that defendant suffered three prior strike convictions (§ 1170.12), seven prior serious felony convictions (§§ 667, subd. (a), 1192.7, subd. (c)), and had served three prior prison terms (§§ 667.5, subds. (a) & (b)).

Following a penalty trial, the jury returned a verdict of death. The trial court denied defendant's motion for a new trial and application to modify the judgment, and sentenced defendant to death. This appeal is automatic. ( § 1239, subd. (b).)

We conclude defendant's claims of error lack merit, and therefore affirm his convictions and death judgment. We remand the matter for resentencing to strike a three-year prior prison term enhancement and otherwise affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Guilt Phase Evidence

1. Prosecution evidence

a. Murder of Deputy Frank Trejo

On March 29, 1995, at approximately 11:30 p.m., Deputy Trejo informed dispatch that he was stopping a suspicious truck in the Santa Rosa Saddlery (Saddlery) parking lot. Brenda Moore was driving the truck; defendant was in the passenger seat. At 11:36 p.m., dispatch communicated with another deputy to check the status of Deputy Trejo. Shortly thereafter, the first officer arrived at the Saddlery parking lot and found Deputy Trejo dead in front of his patrol car, lying facedown on his stomach in a pool of blood. The deputy's arms were positioned above his head, his fists were clenched, and his legs were pointed straight back. The deputy's gun belt, weapon, radio, and flashlight were missing. His patrol car headlights were off, and the vehicle spotlight was on and turned toward the highway.

Several people witnessed the events leading to the shooting of Deputy Trejo. Jesus Alejandro Ramirez Gutierrez (Ramirez),² Onesimo Guerrero Tavarez (Guerrero), Oscar Gustavo Aguilar Lopez (Aguilar), Rhonda Robbins, and Kellie Jones were in the R & S Bar parking lot when they noticed a sheriff's patrol car parked behind a green pickup truck in the adjacent lot. They saw defendant pointing a shotgun at Deputy Trejo while Moore removed the deputy's radio and gun belt from him. Moore reached inside the deputy's patrol car, turned off the headlights, and moved the spotlight toward the sky. Several of the witnesses observed the deputy kneel down on the ground with his arms raised. Robbins and Jones saw defendant shoot Deputy Trejo in the face at a close range. Ramirez, Guerrero, and Aguilar also heard a gunshot; Ramirez noticed a flash come from defendant's weapon, and saw the deputy's body jump. They watched as defendant and Moore quickly returned to the pickup truck and drove away.

Early the next morning, police officers located Moore's truck abandoned in a church parking lot in Santa Rosa. In a marshy area between Moore's truck and where defendant was later apprehended, police collected a police radio, gun belt, and flashlight belonging to Deputy Trejo.

Forensic pathologist Dr. Ervin Jindrich performed the autopsy on Deputy Trejo. He determined the cause of death was a single gunshot wound to the head. Dr. Jindrich could not state with certainty the exact position of Deputy Trejo's body in relation to the shooter, but he was able to conclude that the deputy more or less faced the barrel of the shotgun. The large defect in the deputy's head indicated that he was shot at close range. Numerous pellets from the shotgun shell were embedded in Deputy Trejo's head, and one pellet had penetrated the distal shoulder. Dr. Jindrich opined that the single pellet in the shoulder could have occurred if the deputy's arm was elevated above his head. Brain tissue was found on the back of the deputy's left hand, indicating that his hand was in front of his body and parallel to his shoulders when shot.

Criminologist Richard Waller testified that a shot cup, the plastic component of a shotgun shell, was recovered from the deputy's body during his autopsy. Waller determined the shot cup was fired from defendant's sawed-off shotgun. He also concluded that the distance from the muzzle of the gun to Deputy Trejo was approximately nine to 10 feet. He further resolved that the blood spatters on the deputy's clothing were consistent with high velocity impact spatter. Scuff marks on the toe area of the deputy's boots indicated that there was force coming from the heel toward the front toe area. Given the muzzle-to-target distance, the presence of brain matter and glass fragments on the deputy's body and clothing, and the location of the blood spatters, Waller concluded that the deputy was not in a prone position when he was shot.

b. Crimes at Frank Cooper and Yolanda King's residence

At approximately 1:30 a.m. on March 30, 1995, hours after the killing of Deputy Trejo, defendant and Moore entered the Santa Rosa home of Frank Cooper and his fiancée, Yolanda King.³ The couple and their family — Yolanda's son Jeremy, daughter Karen, and Karen's toddler son and infant daughter — were asleep. Frank was awakened by the sound of the back door being kicked in. He left his bedroom to check on the noise and was confronted by defendant, who pointed a shotgun at Frank's head and shouted at him to get down on his knees or he would "blow [his] goddamn head off." Yolanda, who was still in their bedroom, asked Frank to comply. At defendant's direction, Frank awakened his family and gathered them in Karen's bedroom. Defendant repeatedly told them not to use the phone or look out the window, or someone would "get hurt."

Defendant was armed with a sawed-off shotgun and a pistol. He unloaded the pistol, placed the bullets in socks, and tucked the socks into his waistband. Moore went downstairs to make a phone call.⁴ The Cooper/King family remained in Karen's bedroom for approximately five hours. At 6:30 a.m., defendant allowed Frank to leave the bedroom to make coffee. Frank told defendant that Jeremy had a medical appointment at 7:30 a.m. and suspicions would arise if they did not appear at the appointed time. Defendant permitted Frank and Jeremy to leave, but warned Frank that the rest of the family was still at the house and if anything went wrong, defendant would kill them.

Upon leaving his home, Frank was stopped by law enforcement blocking the road. He was able to bypass the police officers and reach his ex-wife's house, where he telephoned his son and ultimately contacted the police. Per police instructions, Frank called his house and told defendant that he had run out of gas and needed Yolanda to bring a gasoline can and money to a location in downtown Santa Rosa. Defendant allowed Yolanda to leave, but he would not permit her to take Karen's children outside. Following several telephone calls from a police hostage negotiator and assurance that they would not be harmed, defendant and Moore surrendered and were arrested.

During a search of the Cooper/King residence, evidence specialists found a sawed-off shotgun bearing defendant's right palm print and Deputy Trejo's revolver and speed loader. Specialists also recovered from the field surrounding the residence a pair of brown boots and a maroon backpack containing some clothing, a handkerchief, sunglasses, and a black purse with Moore's driver's license.

c. Conspiracy to commit robbery and attempted robbery of Marian Wilson

Marian Wilson and Sung Won Kim owned Sushi Hana, a restaurant in Sebastopol. On March 30, 1995, Wilson read about the shooting of Deputy Trejo in the newspaper. She recognized the description of the pickup truck and suspects from an incident that had occurred near her restaurant the previous evening.

On March 29, 1995, Wilson and Kim closed Sushi Hana at around 9:00 p.m. and proceeded to clean the restaurant and close out the cash register. Wilson left to go shopping at the nearby Safeway at approximately 10:00 p.m. On the drive back to Sushi Hana, Wilson observed a green pickup truck parked around the corner from the restaurant with defendant and Moore seated inside. Wilson parked across the street from Sushi Hana and went inside to collect the briefcase that contained the day's receipts and mail. As she returned to her car, she noticed the same green pickup truck was now parked directly in front of her vehicle. As Wilson hurried to her car, defendant and Moore got out of the truck and walked toward her. Wilson got into her vehicle and circled the block; upon her...