People v. Stankewitz, S004602

• Court: United States State Supreme Court (California)
• Writing for the Court: ARABIAN; LUCAS; MOSK
• Citation: 793 P.2d 23,270 Cal.Rptr. 817,51 Cal.3d 72
• Parties: , 793 P.2d 23 The PEOPLE, Plaintiff and Respondent, v. Douglas Ray STANKEWITZ, Defendant and Appellant. o. 23430.
• Docket Number: No. S004602,Cr. N,S004602
• Decision Date: 05 July 1990

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270 Cal.Rptr. 817 51 Cal.3d 72, 793 P.2d 23 The PEOPLE, Plaintiff and Respondent,
v.
Douglas Ray STANKEWITZ, Defendant and Appellant. No. S004602. Cr. No. 23430. Supreme Court of California,
In Bank. July 5, 1990.
Rehearing Denied Aug. 29, 1990.

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[51 Cal.3d 80] [793 P.2d 28] Robert A. Seligson, under appointment by the Supreme Court, Piedmont, and John P. Ward, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Michael T. Garcia, George Hendrickson, Jane Lamborn, Thomas Y. Shigemoto and Robert D. Marshall, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

ARABIAN, Justice.

In People v. Stankewitz (1982) 32 Cal.3d 80, 184 Cal.Rptr. 611, 648 P.2d 578 (Stankewitz I ), this court reversed defendant's judgment of conviction and sentence of death because of errors relating to defendant's ability to cooperate with and assist the attorney appointed to represent him.

Defendant was retried. At the second trial defendant was accorded both a competency hearing pursuant to Penal Code section 1368 ¹ and a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) to determine whether there was a conflict between defendant and the public defender who had been appointed to represent defendant. The court [51 Cal.3d 81] found such a conflict, relieved the public defender and appointed private counsel. Defendant was found competent to stand trial. Thereafter, the jury convicted defendant of the first degree murder of Theresa Greybeal (§ 187), and also found defendant guilty of robbery (§ 211) and kidnapping (§ 207). The jury further found that defendant had personally used a firearm during the commission of the offenses. (§ 12022.5.) In addition, the jury found true the special circumstance allegations that the murder was willful, deliberate and premeditated and was committed by defendant during the commission of a robbery and a kidnapping. (Former § 190.2, subd. (c)(3)(i), (ii).) Following the penalty trial, the jury returned a verdict of death. Appeal is automatic. (§ 1239, subd. (b).)

I. FACTS

A. Guilt Phase

On the evening of February 7, 1978, defendant, then 19 years old, left Sacramento driving a white Oldsmobile. He was headed for Fresno. In his company were his mother and brother, an older man named J.C., and three young companions, Marlin Lewis, Tina Topping and fourteen-year-old Billy B.

The group reached Manteca about 1 a.m. on February 8, and stopped at a 7-Eleven store to buy oil for the car. Manteca police observed the car irregularly parked and ran a check on the license plate. Information was received indicating that the car had been stolen. ² Several officers then approached the car and frisked several of the occupants. One of the passengers who identified herself as "Tina Lewis" stated that the car had been borrowed from her uncle in Sacramento. Based on that information the officers contacted Sacramento police, but were unable to determine whether the car had in fact been stolen. The

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[793 P.2d 29] officers asked the group to follow them to the police station. Another attempt was made to contact the vehicle's owner without success. After about an hour and a half, they were allowed to leave, but the vehicle was impounded. Before departing, the group obtained directions to the local bus depot.

The bus depot was not open when they arrived so they waited in a nearby donut shop. After several hours, defendant, Tina Topping, Marlin Lewis and Billy B. decided to hitchhike. Defendant's mother and brother and J.C. remained at the station. Defendant and his three companions succeeded in hitchhiking as far as Modesto. Unable to get a ride any farther, the four [51 Cal.3d 82] walked to a nearby Kmart, where defendant announced that they were "going to look around for a car." Defendant and Tina Topping proceeded to look for a car--apparently to steal--in the parking lot; Billy eventually went inside the Kmart. When he exited, he saw Topping pointing toward a woman walking to her parked car. Defendant, Marlin Lewis and Topping followed the woman; as she opened her car door, Topping pushed her inside and entered the car herself. Marlin Lewis then jumped in the backseat and opened the passenger side door, admitting defendant. Topping honked the car horn. Billy, in response, started to walk back toward the store; Topping shouted "come on" and Billy reversed field, ran to the car and got in the back seat with Marlin Lewis. In the meantime, defendant had produced a pistol, and Marlin Lewis produced a knife.

They exited the Kmart parking lot, Tina Topping driving, the victim--Theresa Greybeal--seated on the console, and defendant seated next to her in the passenger seat; Billy B. and Marlin Lewis were seated in the back. The group proceeded to the freeway and turned south toward Fresno.

Once on the freeway, Ms. Greybeal stated that none of this would have happened if she had her dog with her. Defendant responded by pulling out his gun and stating, "This would have took care of your dog." After several miles, Tina Topping asked Ms. Greybeal for money and Ms. Greybeal took $32 from her purse and handed it to Marlin Lewis. She also gave Topping her wristwatch, with the comment that she could put in an insurance claim for the loss.

When the group arrived in Fresno they drove directly to a bar called the "Joy and Joy." Tina Topping went into the bar and returned after a few minutes with a woman named Christina Menchaca. Menchaca joined the group, now totalling six, and they drove around the corner to the Olympic Hotel. Topping and Menchaca went into the hotel. A few minutes later they returned to get defendant and all three then reentered the hotel. Several minutes later defendant returned to retrieve the pistol from Marlin Lewis. Shortly thereafter, defendant, Topping and Menchaca returned to the car. They appeared to be moving more slowly; their eyes were glassy.

Tina Topping then suggested they go to Calwa to "pick up," a slang expression meaning to obtain heroin. They drove to Calwa, stopping near a house with a white picket fence. Topping told everyone to get out, she did not want a lot of company when they went to "pick up." Several of the group exited the car, including Billy B., Marlin Lewis, defendant and the victim, Ms. Greybeal. Billy asked the victim for a cigarette; she gave him one and took one for herself. After two or three minutes, Topping told Billy to get back in the car. Billy reentered the car along with Marlin Lewis. [51 Cal.3d 83] From inside the car, Billy saw defendant walk toward Ms. Greybeal, who was standing five or six feet away. Ms. Greybeal was facing away from the car. Defendant raised the gun in his left hand, braced it with his right hand, and shot her once in the head from a distance of about one foot. Ms. Greybeal fell to the ground, fatally wounded.

Defendant returned to the car and said, "Did I drop her or did I drop her?" Marlin Lewis responded, "You dropped her." Both were giggling. As the car pulled away, defendant cautioned Tina Topping to drive slowly so they would not get caught. Marlin Lewis observed that the victim's

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[793 P.2d 30] purse was not in the car and concluded, "we made a bad mistake."

After returning to Fresno, the group drove to the Seven Seas Bar and Christina Menchaca went inside to try to sell the victim's watch. Defendant asked her to try to get $60 for it. While Menchaca and Marlin Lewis were inside the bar, two police officers approached the car. Tina Topping told Billy B. to give a false name. He did so and after some brief questioning the officers left. Menchaca returned saying that she had not succeeded in selling the watch and defendant suggested they move on and try to sell it in Clovis.

Defendant's efforts to sell the watch, however, were also unsuccessful. In Clovis a girl informed Billy that his mother had filed a missing person's report on him. Billy asked to be driven home to Pinedale.

When he arrived home, Billy B. began to cry and told his mother what had happened. His mother called the police and an investigator came to the house and took a statement from Billy. Later that evening, Fresno police apprehended defendant, Tina Topping and Marlin Lewis, still in possession of the victim's car. The pistol that had been used to kill Ms. Greybeal was found in the car. Her watch was recovered from the jacket of Christina Menchaca, who was arrested nearby.

The foregoing account of the murder came primarily from Billy B. Other witnesses corroborated various portions of the testimony. Ms. Greybeal's father confirmed that she had left his residence on the evening of the murder to pick up some cigarettes at the Kmart; she was driving her father's car, the vehicle in which defendant was later apprehended. He also testified that the victim owned two dogs. The officers who arrested defendant were called as witnesses, as well the officers who found the victim's body and examined the crime scene. A ballistics expert confirmed that the victim had been shot from a distance of six to twelve inches; an expended shell case found in the vicinity of the body was determined to have been fired from the gun recovered from the victim's car. The victim's handbag and an unlit cigarette were also found near the body. The coroner who performed the [51 Cal.3d 84] confirmed that the victim had been killed by a single gunshot wound to the neck, severing the spinal cord and causing immediate paralysis and death.

Also introduced at the guilt phase were five yellow sheets of paper seized from defendant's cell during a routine search for contraband. The handwriting on the papers was identified as defendant's. The papers contained narrative scripts for Tina Topping, Marlin Lewis and Christina Menchaca indicating how the kidnapping, robbery and homicide had supposedly occurred....