People v. Smith

• Decision Date: 08 May 2003
• Docket Number: No. S028339.,S028339.
• Citation: 30 Cal.4th 581,134 Cal.Rptr.2d 1,68 P.3d 302
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Calvin SMITH, Defendant and Appellant.

134 Cal.Rptr.2d 1

30 Cal.4th 581

68 P.3d 302

The PEOPLE, Plaintiff and Respondent, v. Gregory Calvin SMITH, Defendant and Appellant.

No. S028339.

Supreme Court of California.

May 8, 2003.

As Modified on Denial of Rehearing July 16, 2003.¹

Certiorari Denied January 26, 2004.

William M. Goodman, San Francisco, under appointment by the Supreme Court; Topel & Goodman, Ligi Coleen Yee and Jeremy D. Blank, San Jose, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Dane R. Gillette and Lisa H. Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied January 26, 2004. See 124 S.Ct. 1169.

CHIN, J.

A jury convicted defendant Gregory Calvin Smith of murdering (Pen.Code, § 187),² raping (§ 261), and kidnapping (§ 207, subd. (a)) Ai Toyoshima, an exchange student from Japan. It found the murder to be in the first degree and under the special circumstances of rape murder and kidnap murder, and that defendant kidnapped the victim for the purpose of rape. (§§ 190.2, subd. (a)(17), 667.8, subd. (a).) The jury also convicted defendant of other crimes committed the same day against other victims, specifically, attempted robbery (§§ 211, 664), first degree burglary (§§ 459, 460), and two counts of felony false imprisonment (§§ 236, 237). As to all counts, it found that defendant personally used a firearm. (§ 12022.5, subd. (a).) The jury found defendant not guilty of sodomy and found not true the related special circumstance allegation of sodomy murder. (§§ 190.2, subd. (a)(17), 286, subd. (c).)

After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

On June 16, 1989, Ai Toyoshima, a Japanese student who had come to the United States to learn English, went to a movie with some friends, including her boyfriend, Mitsuhiro Fukumoto, another exchange student. She and Fukumoto then went to a park in Los Gatos and, that evening, got on a bus to go home. Defendant entered the bus at the same time. Around 9:00 p.m., Fukumoto got off at his stop, leaving Toyoshima on the bus. Toyoshima got off near an elementary school in San Jose. Defendant followed her. Defendant accosted Toyoshima and forced her at gunpoint to go to the elementary school, where he raped her. While raping her, he shot her in the chest with a Raven Arms .25-caliber semiautomatic pistol.

After shooting Toyoshima, defendant attempted to steal a car parked in front of a nearby liquor store. The store owner, John Ajlouni, tried to stop him. Defendant pointed a gun at Ajlouni, told him to go back into the store, then entered the car. A San Jose police car drove onto the parking lot. Ajlouni told the officers that defendant was trying to rob him and he had a gun. Defendant got out of the car and ran. One of the officers chased him, but he got away.

After fleeing the liquor store, defendant entered the home of Roy and Jean Gritter. He pointed a gun at Roy and said, "I shot someone. I can also shoot you." He said he was looking for a "safe place" inside a home. He stayed for hours, forcing the Gritters to remain at gunpoint. About half an hour after entering the home, defendant made a telephone call to Hilda Ang, the victim's host parent while she was staying in the United States. Ang was concerned because Toyoshima was late coming home. Defendant told Ang, "You know that park down the way from your house, she's there," and hung up. He left the Gritters' house sometime that night.

Ang called the police after receiving the telephone call. A short time later, the police found Toyoshima lying on her back in the school yard, conscious but partially paralyzed. She was dressed but wearing no underwear. She was pale, wet, and cold. It appeared the sprinklers had gone on automatically, drenching her. Paramedics took her to the hospital where, despite emergency medical treatment, she died the next morning.

The cause of death was a gunshot wound to the chest. Delay in treatment and hypothermia caused by her getting wet contributed to her death. The bullet had passed through a lung, perforated the left subclavian artery and vein, fractured a vertebra, and partially severed the spinal cord, paralyzing her lower body. Sperm was found on vaginal and anal swabs. There was no other physical evidence of forcible sodomy. Some evidence indicated the vaginal swab may have contaminated the anal swab.

Following defendant's arrest two months later on unrelated charges, he confessed to these events to two sheriffs deputies who were with him in a holding cell while waiting for a lineup. He said he was confessing because it was "eating [him] up inside." He also said he "didn't mean to kill her," and he was "trying to rape her" when "he shot her accidentally." He said the "girl was struggling with him as he was trying to rape her," and that "he grabbed her by the throat and started choking her." She stopped struggling, so he put the gun down. He started penetrating her. As he did so, she reached for the gun and a struggle ensued. She tried to kick him in the groin but missed. In the process, the gun discharged. Defendant started to run away but soon returned. The girl was still alive. She asked him to write down a telephone number so he could call for help. He said he did not want to touch anything because he did not want to leave fingerprints, but if she told him the number he would memorize it. She told him a number and, after he "dressed her," he ran away.

Defendant told about his trying to take the car at the liquor store and then entering the couple's house. In the house, he called the number the girl had given him and told the person at the other end that "the girl was bleeding in the park and they should call an ambulance." Eventually, he left the house and managed to elude the police and make his way home, arriving around 3:00 a.m. Defendant said he was not a "violent person," but that rape was a "power trip" for him and that "the power is what got him excited."

Defendant showed the police where he had hidden Toyoshima's underpants in some juniper bushes near the school. The police recovered the underpants, which contained semen. Defendant also described where he had disposed of the gun after he left the Gritters' house. Using this information, the police found the weapon, with the safety on, in a woodshed about two blocks from the Gritters' house. Ballistics testing established that a shell casing found at the scene of the shooting came from that gun, and the bullet from the body could have been fired from the gun. A firearms expert testified that the trigger pull on the gun was about five and one-half pounds, and the gun was fired between 12 and 15 inches from the body.

In defendant's home in San Jose, the police found a knife, a .38-caliber doublebarrel derringer, and some ammunition that did not fit the derringer or the gun used to shoot Toyoshima.

2. Defense Evidence

The defense presented expert testimony relating to the sodomy charge of which the jury acquitted defendant, including that there might have been "contamination from the vagina to the anus." It also presented evidence of police interviews with the Gritters. In addition, defendant testified.

Defendant testified that he had an "evil nature," a portion of himself that he did not like but that had "gotten out of control." "There's a part of me stronger at times, and sometimes I overcome it, but it's there." He sometimes had a "strong battle, and I needed help to defeat it." "[A]fter trying to defeat it for such a long period of time and losing, sometimes winning, and always do [sic] what the urge led me to do, sometimes I would beat myself, but sometimes I wouldn't, and after losing the battle [that] night, ... I attacked Ai Toyoshima."

Defendant said he went outside that evening "to look for a girl," not necessarily to rape her but to see "whatever the situation presents." "[A] strange, funny urge came over me to, like, just go outside and see what happens." He took a gun that was loaded, he said, with only one bullet. He took it to intimidate or scare, but not actually to shoot. He chose that gun because it was small and easy to conceal. He owned another gun for which he had no ammunition, but he did not take that one. He "noticed Ai Toyoshima that night in a vulnerable situation, and all of a sudden that evil urge, almost like adrenaline[,] kicked in" and drove him to follow her. "The urge was so strong and it overcame me, my better judgment." He showed the gun to Toyoshima, but only to scare her. He took her to the park and raped her, holding the gun in his hand. At one point she reached for the gun and kicked at him, and the gun discharged. Defendant denied sodomizing or intending to shoot or kill her.

Defendant admitted trying to take the car to make his escape but said he did not intend to deprive the owner of it permanently. He said he intended to "get rid of the car" as soon as he was safe. He also admitted entering the Gritters' home. He said he was looking for a place to hide. From the house, he called the telephone number that Toyoshima had given him, which he had memorized.

Defendant testified that when he was arrested two months later on a different incident, he confessed freely to these crimes. He wanted to "take the responsibility" for what he had done and also to be stopped from doing "something crazy again," since he could not stop himself. So he gave himself "up on a silver platter." He "told the officers that I wanted to clear my conscience. I wanted to come clean and [say] that I was sorry for what I had done and that it was an accident. The murder part." He wanted "the truth to be known."

B. Penalty Phase

1. Prosecution Evide...