People v. Tapia

Citation30 Cal.Rptr.2d 851,25 Cal.App.4th 984
Decision Date08 June 1994
Docket NumberNo. F017223,F017223
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Robert Alan TAPIA, Defendant and Appellant.
OPINION

FRANSON, Presiding Justice (assigned). *

STATEMENT OF THE CASE

Following jury trial, appellant Robert Alan Tapia was convicted of first degree murder. (Pen.Code, § 187, subd. (a).) 1 The jury found true the special circumstance allegations that he committed the murder during the commission of a robbery and during the commission of a burglary and that he personally used a dangerous and deadly weapon. (§§ 211, 190.2, subd. (a)(17), 12022, subd. (b).) The jury also found appellant guilty of robbery, and found true the special allegation that he personally used a dangerous and deadly weapon in the commission of this crime, as well as convicting him of two counts of assault with force likely to cause great bodily injury, arson, and of the unlawful driving or taking of a vehicle. (§§ 211, 12022, subd. (b), 245, subd. (a)(1), 451, subd. (b); Veh.Code § 10851, subd. (a).) The jury fixed the penalty for the murder (count 1) at life imprisonment without possibility of parole.

Appellant was sentenced to life imprisonment without the possibility of parole on the murder to run consecutive to the determinate terms imposed on the remaining counts. On the remaining counts, appellant was sentenced to the additional terms of seven years imprisonment for the robbery (count 2), four years for each of the assaults (counts 3 & 4), eight years for the arson (count 5) and eight months for the vehicle theft (count 6). The term on count 6 was ordered to run consecutive to that imposed on count 5 and the terms on counts 2, 3 and 4 were ordered stayed.

Appellant raises four allegations of error. First, he contends the trial court improperly denied his "Wheeler " 2 motion. Next, he argues the court erred in admitting evidence of a plan to violently rob a man named "Tom." Finally, he avers the court erred in rejecting two defense instructions, the first of which addresses "proximate causation" in relation to felony murder while the latter asserts that "robbery was not proven unless the jury found that an intent to steal was the motive for the application of force."

We find merit in appellant's Wheeler argument and reverse the judgment with directions to conduct a new Wheeler hearing pursuant to the procedure outlined in People v. Gore (1993) 18 Cal.App.4th 692 at page 707, 22 Cal.Rptr.2d 435. Appellant's other contentions are rejected

STATEMENT OF FACTS
Introduction

It is undisputed that during the early morning hours of February 12, 1989, appellant killed Clyde Mayer by repeatedly striking him about the head with a firebrick and a log and that he stole Clyde's car and set his house on fire. It is also undisputed that he spent the money in Clyde's wallet and made purchases with Clyde's Mastercard. However, appellant claimed that he did not kill Clyde to facilitate the theft of Clyde's car and wallet. Rather, appellant told authorities he killed Clyde because he was angry with Clyde because he had sexually assaulted appellant earlier that morning.

A. The Prosecution
i. The victim, Clyde Mayer

Clyde Mayer was a 61-year-old semi-retired pharmacist. Clyde lived in Three Rivers on a five-acre ranch with his wife Jean, their adult daughter, Danielle Mayer, and Danielle's eighteen-month-old son, Austin. Clyde was five feet eight inches tall, within normal weight range and of normal muscle mass for a man his age. He was described by witnesses as "scrawny," "thin" or "slender." When not on his person, Clyde stored his wallet, pocket knife and keys in the top drawer of his dresser in the Mayers' bedroom. 3 He customarily slept in the nude.

The Mayers traveled extensively both inside and outside the United States. Clyde especially loved to go to Las Vegas. During their travels, he would often befriend young men, helping them to find jobs, giving them and their families money and clothes and sometimes even trying to secure legal residency for them in the United States. It was not uncommon for Clyde to travel alone or with a young man.

For over 30 years, Clyde picked up hitchhikers and occasionally brought them home. Sometimes, Clyde would pay them for performing maintenance jobs around the ranch. Clyde loved to drive and would drive long distances to help people.

ii. Clyde's relationship with the Tapia family

In relevant part, the Tapia family consists of appellant, his brothers, Michael and Mark, and their sister, Donna Yancy. During the summer of 1988, Michael was hitchhiking in Visalia and was picked up by Clyde. During the ride, Clyde asked Michael if he would like to go to Las Vegas with him. Michael agreed and shortly thereafter they went to Las Vegas together. Clyde paid for their food, lodging and entertainment. Through his relationship with Michael, Clyde met Mark. Clyde took Mark on a trip with Michael to his cabin about a week after he took Michael to Las Vegas. Michael was subsequently imprisoned and had no further contact with Clyde.

During the fall of 1988 Mark went to Clyde's house occasionally to help with projects around the ranch. Mark would eat with the Mayer family and sleep on their couch. Clyde bought Mark shoes and clothes. Clyde took Mark to Las Vegas on two occasions, paying for their food, lodging and entertainment and to Sacramento and the Fresno County Fair. By February of 1989, Mark had begun to "bother" Clyde, often calling collect and asking for "lots of favors."

Appellant was introduced to Clyde through his brothers. Prior to February 11, 1989, Clyde had taken appellant to a shopping mall and bought him a black shirt and had taken him out for a malt. Mark told appellant that Clyde had money.

iii. Appellant's activities prior to the homicide

In July of 1988, appellant met 16-year-old Melissa Wright. Melissa lives in Colorado but came to Lemoore, California, that summer to visit her friend, Annette Pena. Annette knew appellant and introduced him to Melissa during a three-way telephone call between appellant, Annette and Melissa. Appellant and Melissa became friends and shortly after Melissa returned to Colorado appellant began to telephone her and Bridgette Merrill, a friend of Melissa's, quite frequently. During these calls appellant spoke about going to Colorado and mentioned the possibility of moving there.

In January of 1989, appellant began talking more and more about going to Colorado to see Melissa and Bridgette. Although he was unemployed, he told them he would buy them clothes and jewelry. Appellant told Melissa he had an uncle who owned a car lot and would give him money and a car. He told them both he had money from work as a male model. During the early part of February 1989, appellant began calling the girls on a daily basis, sometimes even hourly. He frequently told them he was coming to Colorado with a car to buy them things.

Appellant had also been telephoning 14-year-old Cindy Graham during this period. During the week preceding the homicide he called her on Wednesday, Thursday and Friday. He told her he would come to visit her on Saturday in his uncle's car, that he had credit cards and would buy her $2,500 worth of merchandise, including Reebok brand athletic shoes for her 11-year-old cousin, Jason.

Appellant met Michael Henry (hereafter Henry) in late 1988. During the early part of February 1989, approximately one and a half weeks before Clyde's death, appellant ran into Henry at a Quickstop in Lemoore. Appellant told him he had met a man named Clyde Mayer who had a lot of money and credit cards and that his brother Mark was visiting him frequently. Appellant told Henry he and Mark were going to drown Clyde in the bathtub so appellant could take his money and credit cards and use his bank teller card. Appellant told Henry he knew the code necessary to access Clyde's account.

Three or four days prior to the homicide, appellant spoke with Roger Darnell, 4 who was living with the Tapia family at the time, about robbing a man named Tom because he wanted Tom's car to go to Colorado and see some girls. Appellant wanted Roger to talk to Tom while he crept up behind him and hit him on the head with a pipe. Appellant planned for them to tie up Tom, put him in the trunk of the car and then he and Roger would drive to Colorado. Appellant had a rusted pipe from a bicycle seat in his pants at the time he suggested the robbery to Roger. Roger told appellant he did not want to go through with this plan so appellant dropped the idea.

iv. The homicide

On February 10, 1989, appellant told Suzanne Garcia that he was going to stay at a friend's house in Three Rivers for the weekend. Also on that same day, Roger participated in a three-way telephone conversation between himself, Melissa and appellant during which he heard appellant tell Melissa "he was getting some money and a car, that he'd come up [to Colorado] to see her."

Later that day, appellant made a collect telephone call to Clyde and asked if he could come to his house to use his typewriter. Clyde agreed.

At approximately 7 p.m. on Saturday, February 11, 1989, Clyde drove to appellant's home to pick him up. When he arrived, appellant introduced Clyde to Roger and asked if Roger could come with them. Clyde told appellant he did not know Roger well enough so just appellant and Clyde drove back to Three Rivers. At the time appellant left with Clyde, he was wearing black Levi pants, an old pair of Reebok brand athletic shoes, a "button-up...

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