People v. Vieira, No. S026040.

• Court: United States State Supreme Court (California)
• Writing for the Court: MORENO, J.
• Citation: 106 P.3d 990,35 Cal.4th 264,25 Cal.Rptr.3d 337
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard John VIEIRA, Defendant and Appellant.
• Docket Number: No. S026040.
• Decision Date: 07 March 2005

25 Cal.Rptr.3d 337
35 Cal.4th 264
106 P.3d 990

The PEOPLE, Plaintiff and Respondent,
v.
Richard John VIEIRA, Defendant and Appellant

No. S026040.

Supreme Court of California.

March 7, 2005.

As Modified on Denial of Rehearing May 26, 2005.¹

Certiorari Denied October 31, 2005.

25 Cal.Rptr.3d 341

Richard L. Rubin, Oakland, under appointment by the Supreme Court, for Defendant and Appellant

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson, John A. O'Sullivan, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied October 31, 2005. See 126 S.Ct. 562.

25 Cal.Rptr.3d 342

MORENO, J

A jury convicted defendant Richard John Vieira of four counts of murder (Pen.Code, § 187).² An enhancement for personal use of a deadly weapon was found true for each count. (§ 12022, subd. (b).) Defendant was also convicted of one count of conspiracy to commit murder. (§ 182.) The special circumstance of multiple murder was found true as to each count. (§ 190.2, subd. (a)(3).) At the penalty phase, the jury fixed the penalty for count one, the murder of Richard Ritchey, at life imprisonment without parole. For the three other murders and the conspiracy to commit murder, the jury returned a verdict of death. The trial court denied defendant's motion to modify the death verdict (§ 190.4, subd. (e)) and sentenced defendant to life imprisonment without parole on the first count and to death on the other four counts, with a one-year enhancement for each count, with the terms all to run consecutively.

Defendant's appeal is automatic. (§ 1239, subd. (b).) We reverse the death sentence as to the conspiracy to commit murder count and remand so that defendant may be resentenced to a term of 25 years to life imprisonment. We uphold defendant's death sentence as to the other three counts and in all other respects affirm the judgment.

I. FACTUAL BACKGROUND

A. Guilt Phase

At the time the murders took place in 1990, defendant lived at a location known as "the Camp" at 4150 Finney Road in Salida in Stanislaus County. The Camp consisted of a number of houses and trailers. Defendant lived in a trailer with codefendant David Beck, near a house occupied by codefendant Gerald Cruz and his wife. Codefendant Jason LaMarsh lived in another nearby trailer. Cruz was the acknowledged leader of this informal group. Beck was generally in charge of discipline. Everyone in the group pooled their money. Ron Willey was also associated with the group, but did not live at the Camp during the relevant time period. Defendant held a low status within the group. Michelle Evans,³ who was also involved in the group and was for a time LaMarsh's girlfriend, testified that defendant was a "slave" to the other members of the group, and was given such tasks as cooking, bathing Cruz's children, and undertaking various repairs. According to her testimony, defendant was beaten by Beck, at Cruz's order, for various deficiencies in his work. He was also given the task of guarding the camp late into the night, as well as often spending days doing construction work.

Cruz and Beck bought assault weapons and several camouflage masks and knives. Two weeks before the murders, they purchased a police-style baton.

One of the Camp residents, Franklin Raper, a man in his 50's, was known to be selling drugs from his trailer. The noise and other activities attendant upon drug sale and use, as well as hypodermic needles and other drug paraphernalia left by Mr. Raper's customers, became a concern to Cruz and other Camp residents. Also of concern was Raper's treatment of an elderly man named Jiggs. Raper used Jiggs's electricity to power his trailer, refused to compensate him for it, and threatened to kill Jiggs when the latter threatened to disconnect the former's power. Cruz, according to Evans's testimony, looked out for people in the Camp, and became upset by this behavior. He and others asked Raper to leave the Camp, but Raper initially refused.

25 Cal.Rptr.3d 343

Then began a series of confrontations between Raper and Cruz's group. Cruz and others pushed Raper's car across the street and set it on fire. Raper agreed to leave the Camp and had his trailer towed to 5223 Elm Street. But Raper returned soon after and destroyed a newly repaired fence near Cruz's house. Cruz had Raper arrested and taken to jail. Two weeks before the murders, Jason LaMarsh and others in the group got into a physical altercation with Raper at the latter's Elm Street residence, accusing him of stealing one of their guns, until others broke up the fight. Later the same evening, Dennis Colwell, one of the people present at the Elm Street residence during the fight, drove slowly by the Camp and was pursued by Cruz and other Camp residents. They dragged Colwell from the car and beat him, seeking to have him tell them what was going on at the Elm Street residence. Defendant watched as the beating took place

Michelle Evans's sister, Tanya, had lived at the Elm Street residence, but was evicted around the same time as Raper moved his trailer there. Raper lived in the residence and allowed others to stay there as a kind of "crash pad." The afternoon of the murders, Cruz asked Evans to prepare a diagram of the residence. Later that day, Cruz met with Beck, LaMarsh, Evans, Willey and defendant in LaMarsh's trailer. Cruz announced that the plan was to go over to the Elm Street residence "to do 'em and leave no witnesses." Cruz gave each person a plan of entry and an assignment. Evans's task was to enter the residence as a visitor, to account for all the people at the residence and attempt to move them into the living room, to open up the back window and then leave and wait in the car. LaMarsh was to enter with her. Beck was to come in through the back window. Cruz, Willey and defendant were supposed to come through the front door after Evans had completed her assignment. Cruz told the group that whoever "messed up" in carrying out their assignments would "join" the victims, and he looked directly at defendant when he made the statement.

Cruz then handed out weapons to be used. There were two baseball bats, a Kabar knife and an M-9 knife. Cruz took one of the knives, along with a police baton. Defendant was given a baseball bat and also had his own .22-caliber handgun. Before going to the Elm Street residence, defendant and Willey were seen swinging their bats and "dancing around" to hard rock music. Defendant and others put on camouflage masks.

The group then proceeded to the Elm Street residence just after midnight on May 21, 1990, driving over together in a Mercury Zephyr. Raper, Colwell, and two others present at the house at the time, Richard Ritchey and Darlene ("Emmie") Paris, were murdered. Donna Alvarez, who had been sleeping in one of the bedrooms when the attack began, managed to escape to a neighbor's house.

Ritchey ran through the front door and into the street. A neighbor (Earl Creekmore) and Evans testified that Willey and Cruz caught up to Ritchey and beat him. Cruz then slit his throat with his knife. Raper's and Colwell's throats were also slit and they had multiple wounds, including severe skull fractures inflicted by a baseball bat or police baton. In Raper's case, the top of the head was caved in and there were severe lacerations to the brain.

Defendant killed Emmie Paris. The day after the murder he told Evans that Paris began screaming and Cruz ordered him to shut her up. Defendant hit her with a baseball bat several times but did not succeed in silencing her. Cruz then handed him his knife and he stabbed her. When

25 Cal.Rptr.3d 344

this also failed, defendant grabbed Paris's hair and sawed at her throat till "it felt like her head was going to come off." Evans testified that he laughed when he told her this. According to Dr. Ernoehazy, who performed the autopsy for the coroner, Paris died from a slicing wound to the throat.

Two days later, in a conversation with his girlfriend, Mary Gardner, defendant admitted having been at the murder scene but denied killing anyone. He blamed LaMarsh for allowing Alvarez to escape, telling her that the plan had been to leave no witnesses. Gardner became upset because she knew three of the people who were killed and defendant said that they deserved to die, they had been "warned" and should not have been there.

Police investigating the crime scene found a baseball bat and Ka-bar knife with bloodstains matching those of the victims, as well as several masks that had been worn by the killers. Sheriff's detective Deckard, the principal investigator, questioned Donna Alvarez and from her description of one of the men she had seen, and with a help of passersby acquainted with LaMarsh, he was able to assemble a photographic lineup that included LaMarsh. Alvarez identified him as having been one of the assailants. Suspicion soon focused on the Camp residents. Evans was arrested, and in subsequent statements, implicated her codefendants. Defendant was initially interrogated and released the day after the murders, acknowledging that he knew the codefendants but denying he had any role in the murders and claiming he had been at the Oakdale Motel the night the homicides occurred. Two days later, defendant was arrested and further interrogated. He admitted he participated in planning the murders and that he was present at the murder scene. Initially during the interview, he stated that it had been his function to stand guard in the hall, but later in the interview he admitted that he had struck one of the victims in the legs several times with a baseball bat. Defendant stated that he "completely condoned" the murders.

The defense put on no witnesses disputing the role in the murders that Evans and others attributed to defendant. As will be explained below, the core of the defense was apparently...