People v. Thomas

• Decision Date: 23 July 2012
• Docket Number: No. S067519.,S067519.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Keith Tyson THOMAS, Defendant and Appellant.

54 Cal.4th 908
281 P.3d 361
144 Cal.Rptr.3d 366
12 Cal. Daily Op. Serv. 8263
2012 Daily Journal D.A.R. 10,085

The PEOPLE, Plaintiff and Respondent,
v.
Keith Tyson THOMAS, Defendant and Appellant.

No. S067519.

Supreme Court of California

July 23, 2012.

[144 Cal.Rptr.3d 371]Superior Court, Alameda County; Alfred A. Delucchi, Judge.
David Joseph Macher, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Amy Haddix and Donna M. Provenzano, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

[281 P.3d 365]

[54 Cal.4th 914]A jury convicted defendant Keith Tyson Thomas of the first degree murder of Francia Young (Pen.Code, § 187, subd. (a)),¹ of kidnapping her for the purpose of robbery (§ 209, subd. (b)), of robbing her (§ 211), of forcibly raping her (§ 261, subd. (a)(2)), and of forcibly sodomizing her (§ 286, subd. (d)). As to each of these offenses, the jury found true sentence enhancement allegations that a principal was armed with a firearm (§§ 12022, subd. (a) & 12022.3, subd. (a)), and, as to the rape and sodomy charges, that defendant acted in concert with an accomplice, Henry Glover, Jr. (§§ 264.1, subd. (a) & 286, subd. (d)(1)), and that defendant kidnapped Young for the purpose of committing these sexual offenses (§ 667.8, subd. (a)). In conjunction with the murder verdict, the jury found true four special circumstance allegations: that the murder of Francia Young was committed during her kidnapping for the purpose of robbery (§ 190.2, subd. (a) (17)(ii)), robbery (§ 190.2, subd. (a)(17)(i)), rape (§ 190.2, subd. (a)(17) (iii)), and unlawful sodomy (§ 190.2, subd. (a)(17)(iv)). The jury found defendant did not personally use a firearm in committing these offenses against Young.

The jury also convicted defendant of robbing Sebrena Flennaugh (§ 211), assaulting two peace officers with an assault weapon (§ 245, subd. (d)(3)), and being a felon in

[281 P.3d 366]

possession of a firearm (§ 12021, subd. (a)). The jury found true the allegations that a principal was armed with a firearm during the Flennaugh robbery and the assaults on the police officers.

The jury returned a verdict of death for the murder of Young. The trial court [144 Cal.Rptr.3d 372]denied defendant's motion to modify the verdict (§ 190.4, subd. (e)), sentenced defendant to death, imposed a concurrent sentence of life with the possibility of parole for the kidnapping of Young, and stayed imposition of [54 Cal.4th 915]sentence on the remaining counts.² This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Factual Background A. Guilt Phase
1. Prosecution case

a. Crimes against Francia Young

In 1992, Francia Young, a 25–year–old African–American woman, lived with her mother in Oakland, California. Young worked in San Francisco as a computer analyst. She typically commuted to work by driving her car, a black Ford Mustang, to the MacArthur Bay Area Rapid Transit (BART) station, parking there, and taking the train to work. On December 8, 1992, Young left for work around 7 a.m. She was wearing a long raincoat and had with her a multicolored umbrella she had borrowed from her mother. Young usually returned home around 5:30 in the evening, but she did not come back that night.

About 6:00 p.m. on December 8, 1992, William Dials had just left the MacArthur BART station and was walking down an adjoining street when he heard a woman scream from the other side of the street. Dials looked in the direction of the scream and saw two African–American men and an African–American woman standing near a dark colored Mustang. The man on the driver side of the vehicle, who appeared to be heavier than the man on the passenger side, got into the car with the woman. The man on the passenger side stood outside the car with his hands on the roof, looking around. After a few moments, the heavier man and the woman got out of the car and went toward the trunk; the woman then got into the trunk and the man closed the lid. The two men got into the car and, after waiting a minute or two, drove away. Dials returned to the BART station and reported what he had seen to BART officials and later to the Oakland Police Department. At trial, Dials testified that the heavier of the two men resembled Henry Glover, Jr., in body shape, while the thinner man resembled defendant in build.

Beginning at 8:04 p.m., three successful withdrawals of $100 each from Young's bank account were made through an automated teller machine [54 Cal.4th 916](ATM) in Oakland. A fourth attempt to withdraw money from an ATM was unsuccessful because the maximum daily withdrawal limit had been reached.

At 8:30 that night, California Highway Patrol Officer Matthew Trezesniewski found Young's black Ford Mustang blocking the two right-hand lanes of eastbound Highway 580 near the Fruitvale exit. The abandoned car was damaged from striking a guardrail.

At 10:50 that night, two people tried to access Young's bank account through an ATM. The attempts were unsuccessful because the maximum daily withdrawal limit had been reached. A surveillance photograph taken during these attempts showed an individual resembling defendant standing[144 Cal.Rptr.3d 373]and holding an umbrella while another person attempted the withdrawal.

The next morning, December 9, 1992, Officer Ronald Andersen of the East Bay Regional Parks Department responded to a report of a dead body near a hiking trail in George Miller Regional Park in Point Richmond. There Andersen found a pile of woman's clothing approximately 25 feet from the trailhead, and Young's body approximately 250 feet farther up the trail. Her body was lying facedown, clothed only in a blazer.

[281 P.3d 367]

Her arms were tied behind her back with a scarf and her ankles were tied together with a pair of pantyhose, which had also been tied to a tree branch. A recently discarded condom wrapper was found several yards from the body.

Pathologist Charles Kikes performed the autopsy. Young had been killed by a single gunshot to her head. The gun had been fired into the back of her head while the muzzle of the weapon was in contact with her skin. The bullet passed through her brain and came out near her right jaw. Vaginal and anal swabs collected from the body by the pathologist indicated the presence of spermatozoa. Doctor Edward Blake performed genetic testing on the swabs with the polymerase chain reaction (PCR) typing process. The PCR results on both of the samples eliminated Henry Glover, Jr., as a possible donor, but not defendant. As to the vaginal sperm sample, Dr. Blake calculated the frequency of that genetic profile in the general population as less than 1 in 100,000 persons. Because of the more limited amount of genetic material in the anal swab, the frequency of the genetic profile that Dr. Blake obtained from that sample was 1 in 400.

b. Crimes against Sebrena Flennaugh

On the night of December 20, 1992, Sebrena Flennaugh, then eight or nine months pregnant, was in her apartment in Hayward, California, cooking dinner and talking on the telephone when she heard a knock on her door. A person outside asked if someone unknown to her lived in the apartment, and [54 Cal.4th 917]she replied, “No.” As she ended her telephone conversation, she heard someone begin kicking the door to the apartment. She dialed 911 on the telephone as the door's hinges gave way. Two men, whom she later identified as defendant and Henry Glover, Jr., entered the apartment; Glover pointed a rifle that looked like an AK–47 assault rifle at Flennaugh. As defendant grabbed the telephone from Flennaugh and disconnected the call, Glover began rummaging through Flennaugh's belongings. Defendant remained by the door as Glover went to other areas of the apartment, and he and defendant put various items into a duffle bag they had brought with them. Eventually Glover demanded to know where Flennaugh kept her money, and defendant hit her in the back of her head. After she told them there was money in her coat pocket, Glover took the money and, demanding more, punched Flennaugh in the face, bloodying her nose and knocking her to the floor.

At that point, two officers from the Hayward Police Department arrived in response to the disconnected 911 call and knocked on the door. After they announced their presence, Glover ran to the apartment's balcony while defendant remained inside. The officers, hearing the door to the balcony open, ran outside and saw Glover peeking over the edge of the balcony wall and pointing a rifle at them. Glover fired a shot that struck a wall within a foot of where the officers were standing. They fired back at Glover, but he jumped down from the balcony and, continuing to shoot at the officers, escaped.

[144 Cal.Rptr.3d 374]Meanwhile, defendant remained in the apartment and told Flennaugh not to tell the police he was involved in the robbery. When the two police officers returned to Flennaugh's apartment, defendant told them he was on a social visit to Flennaugh and like her was a victim of the attempted robbery. He said he did not know the robber. Flennaugh, who was visibly shaken and had trouble speaking, did not contradict defendant's story, and the police eventually let defendant leave. Flennaugh did not tell the police that defendant was one of the two robbers until a detective came back the next day to talk to her about the incident.

c. Investigation and defendant's confessions

Based on Flennaugh's description of the robber and other information, Detective Frank Daley of the Hayward Police Department surmised that the suspect with the gun was Henry Glover, Jr., and further determined that Glover was staying in a motel in Oakland. On December 23, 1992, Daley questioned Glover at the motel and ultimately arrested him for the Flennaugh robbery. Later that...