People v. Tuilaepa

• Decision Date: 28 December 1992
• Docket Number: No. CR26420,No. S004786,S004786,CR26420
• Citation: 842 P.2d 1142,4 Cal.4th 569,15 Cal.Rptr.2d 382
• Court: California Supreme Court
• Parties: , 842 P.2d 1142 The PEOPLE, Plaintiff and Respondent, v. Paul Palalaua TUILAEPA, Defendant and Appellant. Crim.

Page 382

15 Cal.Rptr.2d 382

4 Cal.4th 569, 842 P.2d 1142

The PEOPLE, Plaintiff and Respondent, v. Paul Palalaua TUILAEPA, Defendant and Appellant.

No. S004786.

Crim. No. CR26420.

Supreme Court of California In Bank.

Dec. 28, 1992.

Rehearing Denied March 10, 1993.

Howard W. Gillingham, North Hollywood, under appointment by the Supreme Court, and Allison Wilensky, Los Angeles, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., William T. Harter, Susan Lee Frierson and Patrick T. Brooks, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

A jury convicted defendant Paul Palalaua Tuilaepa of the first degree murder and attempted robbery of Melvin Whiddon. (Pen.Code, § 187, subd. (a), 211/664.) ¹ Defendant was also convicted of six counts of robbery (Lee Malstrom, Russell Knapp, Gary Grose, Larry Swanson, Debra Tomassini, and Bruce Monroe) and of two counts of assault with a firearm (Kelvin Whiddon and Kenneth Boone). ( §§ 211, 245, subd. (a)(2).) An allegation that defendant personally used a rifle in the commission or attempted commission of each of the foregoing offenses was found true. ( §§ 12022.5, 1203.06, subd. (a)(1).) An allegation that defendant inflicted great bodily injury in committing one of the robberies (Bruce Monroe) and both of the assaults (Kelvin Whiddon and Kenneth Boone) was also found true. ( § 12022.7.) Finally, the jury found true a special circumstance that the murder of Melvin Whiddon occurred during the commission of a robbery. ( § 190.2, subd. (a)(17)(i).)

Following a penalty trial, the jury sentenced defendant to death and the trial court denied the automatic motion to modify the verdict. ( § 190.4, subd. (e).) This appeal is automatic. ( § 1239, subd. (b).)

We find no prejudicial error at the guilt or penalty phases of defendant's trial. The judgment will be affirmed in its entirety.

I. GUILT PHASE EVIDENCE

The crimes occurred at 5:30 p.m. on October 6, 1986, at the Wander Inn Bar in Long Beach. Eight surviving victims were called as witnesses for the prosecution at trial. Viewed as a whole, their eyewitness testimony established the following sequence of events:

A small crowd had gathered to watch Monday night football on television. The front and rear doors were open, and daylight streamed in. The interior lights were on, including those located directly above the bar.

Defendant and another man entered the establishment. ² Defendant wore a dark jacket and the other man wore a long dark coat. Both men also apparently wore hairnets and "khaki" clothes of some sort. All eight eyewitnesses noticed that defendant was carrying a rifle, and many of them recognized it as a .22-caliber weapon. No one actually saw a weapon in the hands of the other man but--based on the testimony of one witness described below--it appears he was carrying a firearm under his coat.

Defendant and his partner approached the bartender, who was standing at the cash register behind the bar with his back to the room. The bartender heard some shouting and turned around. Defendant pointed the rifle in his face and demanded money--"everything" in the register. The bartender, Malstrom, pulled the tray out of the register and set it and the cash on the bar. Defendant and his partner stuffed the money into their pockets.

The pair then split up and began robbing patrons at the bar. Defendant, who was still holding the rifle, moved down the bar to Malstrom's left and confronted three victims. Specifically, defendant took money belonging to Knapp that was lying on the bar in front of him. Defendant then pushed Grose and grabbed his money from the bar and took his wallet. Defendant also pushed Swanson and took his wallet.

Meanwhile, defendant's accomplice took money and a wallet from two victims on the opposite side of the bar--Tomassini and Monroe. When the accomplice reached the end of the bar on his side of the room (i.e., to the bartender's right), he encountered twin brothers Melvin and Kelvin Whiddon. The accomplice pushed Melvin from behind, demanded money, and reached for his wallet. Melvin spun around on his stool and started fighting with the robber. At some point, Melvin knocked the accomplice to the ground.

There was no dispute among witnesses that defendant walked towards the scuffle and, holding the rifle at hip or waist level, shot Melvin in the neck.

Defendant then swung the rifle in Kelvin's direction. Kelvin dropped to the floor and tried to hide behind a post, but was shot by defendant in the chest.

Defendant then turned the rifle in the direction of Monroe's wife. Monroe jumped in front of her and was shot by defendant in the abdomen.

Another patron, Boone, testified that after defendant started shooting, the accomplice stood up and "a couple flashes"--presumably gunshots--came from underneath the accomplice's coat. Both robbers then ran past Boone towards the rear door. Before exiting the bar, defendant aimed the gun at Boone, smiled, and shot him in the neck.

The first shooting victim, Melvin, died at the scene. The autopsy physician described the nature of Melvin's injuries at trial. The other three gunshot victims--Kelvin, Monroe, and Boone--testified about the serious and, in some cases, permanent physical injury they sustained.

All eight eyewitnesses positively identified defendant at trial and at the preliminary hearing. Each testified that they clearly saw defendant's face from a few inches to a few feet away. Almost everyone had consumed only part of a beer or other alcoholic beverage, and no one had consumed more than one and a half beers.

Of course, not everyone saw, remembered, or described exactly the same details at trial. For example, Knapp positively identified defendant as the man holding the rifle but never saw a second robber. All other witnesses saw both men, but most of them did not get a good look at defendant's accomplice. Tomassini was able to describe what both men were wearing in the greatest detail, and she was the only person who mentioned the khaki clothes and hairnets. In contrast, Malstrom thought defendant might have been wearing a "watchcap," and he did not notice anything on the other robber's head. In addition, while Tomassini believed the incident lasted 10 to 15 minutes, all other witnesses estimated that it lasted 5 minutes or less. As noted, only Boone suggested that defendant's accomplice was armed.

The prosecution also introduced the testimony of Police Officer Pavek who arrived at the scene shortly after the robbery. He testified that the bar was "in shambles," that there were bloodstains on the floor, and that three casings and two expended bullets from a .22-caliber weapon were found inside. Other details about the investigation were not presented at trial.

The defense presented no evidence at the guilt phase.

II. PENALTY PHASE EVIDENCE

A. Prosecution Case

The prosecution presented evidence of several prior crimes and misdeeds by defendant. None were adjudicated, and all occurred while defendant was in custody, primarily with the California Youth Authority (CYA). Defendant's objections to this evidence will be discussed later in the opinion.

1. Assault--1982. Sam Fong, a CYA counselor, testified that in May 1982, he witnessed a fistfight between defendant and another ward, Gages. Fong restrained defendant with a chokehold, and another counselor pulled Gages aside. Gages sat down and began "tending to his wounds." When Fong eased his chokehold, defendant lunged at Gages but was quickly subdued again by Fong. Defendant threatened to "get" Gages and "the Northerners," and ordered a nearby comrade to get a knife.

Fong explained that rival gangs from the "North and South" populated the facility, and that Gages was from the North and defendant was from the South. Fong also noted that even though wards were prohibited from possessing knives, they were sometimes made or smuggled inside. A search revealed no knife in the possession of defendant or his comrade. However, the fight between defendant and Gages violated institutional rules and was reported.

2. Threats--1982. In July 1982, Debra Heron worked as a counselor at a maximum security CYA facility. Heron testified that defendant became verbally abusive when she patrolled the hall outside his cell two different nights. His remarks consisted of sexual taunts and death threats (e.g., "[I'm] going to fuck [you] in [your] fat white ass, bitch" and "rape [you] and [you will] like it" and "kill you [and] your Momma, too"). During one of the episodes, defendant threw a liquid substance against a screened area of the cell--"tomatoes and possibly water or urine or something of that nature." Cell doors were locked on both occasions. Heron did not believe she was in imminent danger, but defendant's remarks violated institutional rules and were reported.

3. Weapons possession--1984. CYA counselor Lester Kushner testified that in October 1984, he noticed the "remains of some broken razors" in defendant's cell or on the floor nearby. Institutional rules precluded wards from possessing more than one razor and from removing the blade. A search revealed two razor blades and two other intact razors on defendant's person. "[O]ther contraband indicating gang-related type items" and several batteries taped together were also found in defendant's cell. Kushner explained that the latter item, "a battery pack," was typically held in the hand and used as a punching or striking device. Defendant was the sole occupant of the cell in which the foregoing items were found. Possession of them violated institutional rules and was reported.

4. Threat--1984. CYA employee Gregory Bron testified that in November 1984, defendant attended class wearing pants in which the seams had been cut. Bron escorted defendant to his quarters, confiscated the pants, and told defendant he would be issued a new...