People v. Virgil, S047867.

• Citation: 51 Cal.4th 1210,253 P.3d 553,126 Cal.Rptr.3d 465
• Decision Date: 24 August 2011
• Docket Number: No. S047867.,S047867.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent,v.Lester Wayne VIRGIL, Defendant and Appellant.

51 Cal.4th 1210
253 P.3d 553
126 Cal.Rptr.3d 465
11 Cal. Daily Op. Serv. 8214
2011 Daily Journal D.A.R. 9824

The PEOPLE, Plaintiff and Respondent,
v.
Lester Wayne VIRGIL, Defendant and Appellant.

No. S047867.

Supreme Court of California

June 30, 2011.Rehearing Denied Aug. 24, 2011.

[126 Cal.Rptr.3d 484] Manuel J. Baglanis, under appointment by the Supreme Court, and Meredith L. Fahn for Defendant and Appellant.Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, Erika D. Jackson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.CORRIGAN, J.

[253 P.3d 570 , 51 Cal.4th 1225]

A jury convicted defendant Lester Wayne Virgil of murdering 22–year–old Soy Sung Lao during a doughnut shop robbery.¹ The jury also convicted defendant of two other robberies, both committed with a knife and one accompanied by an assault with force likely to produce great bodily injury, and found true a robbery/murder special circumstance.² Because the penalty was set at death, this appeal is automatic. We affirm the judgment.

[51 Cal.4th 1226] BACKGROUND I. Guilt PhaseA. Robbery of Beatriz Addo

On the morning of October 13, 1992, Beatriz Addo was working alone at the LaBargain Grocery, which she owned with her husband. The store was located in an alley near the intersection of Van Ness Avenue and West El Segundo Boulevard, in Gardena. Sometime between 10:00 and 11:00 a.m., Addo was talking with a neighbor when defendant rode up on a bicycle. He parked outside, walked in, and asked if either woman wanted to buy the bike. When they declined, he asked about a brand of shaving cream. Although Addo [126 Cal.Rptr.3d 485] said they did not carry the brand, defendant searched the store's shelves for it. He then asked if Addo could give him a job. Addo promised to check with her husband, and defendant wrote down the name “Robert William,” a telephone number, and the address “1202 Denker, Apt. # 10.” He left, and the visiting neighbor left soon thereafter.

About five minutes later, Addo was alone. Defendant returned and walked toward the display shelves. Defendant then grabbed Addo from behind and pushed her toward the bathroom. Addo felt something pricking her in the back. Defendant ordered her to sit on the toilet, but instead she knelt to pray. Defendant left, closing the door behind him. Addo heard the ring of the cash register opening. After about 10 minutes of silence, Addo emerged to find the telephone line had been cut and the cash register left open. Approximately $60 had been taken, along with an envelope containing $600 in rent money, which had been stored underneath the register. Addo had small cuts and scratches on her back but did not require medical attention.

Addo described the robber as a Black man of average weight, with short hair and two to three days' growth of beard. He wore long dark pants and a black T-shirt. In June 1993, Addo picked defendant's picture from a six-photo lineup, and in October 1993, she identified him in a live lineup. She also identified him at both the preliminary hearing and trial.

B. Robbery and Murder of Soy Sung Lao

Around 3:40 in the afternoon on October 24, 1992, Los Angeles County Park Police Sergeant Donald Tiller and his partner went to the Donut King for coffee. The small, family-owned shop was located in a strip mall near the LaBargain Grocery. While his partner waited in the patrol car, Tiller went inside and ordered from Soy Sung Lao, who was working behind the counter. Ms. Lao

[253 P.3d 571]

was the only employee in the shop, and defendant the only customer. [51 Cal.4th 1227] Defendant sat at a table with a white styrofoam cup and an orange gym bag nearby. Sergeant Tiller observed defendant during the three minutes he spoke with Ms. Lao at the counter. It seemed unusual that defendant stared fixedly out the window and would not look in his direction. In the sergeant's experience, people usually looked at him when he was in uniform. Defendant was wearing a dark jacket, a dark “Malcolm X” cap, and dark jeans. He appeared to be about six feet tall, 165 to 170 pounds, with “kind of a straggly beard.”

Lavette Gilmore worked at a hair salon in the same strip mall. Around 3:30 or 4:00 p.m. on October 24, 1992, she went to the doughnut shop and saw defendant sitting in the window with a small coffee cup and a bag. He wore a cap and a black shirt with red on it and drew Gilmore's attention because he looked “rugged.” He was thin and unkempt, with long hair. He slouched and would not return Gilmore's gaze. Gilmore stayed in the shop talking for 20 or 25 minutes. She and Sergeant Tiller left at the same time. Gilmore expressed concern to Tiller that defendant looked “funny.”

Debra Tomiyasu had an appointment at Gilmore's hair salon that afternoon. She left around 3:40 p.m. and walked into the Donut King. She noticed an orange duffel bag and a black Malcolm X cap on one of the customer tables but saw no one in the shop. Tomiyasu yelled out “hello” two or three times, to no response. A minute or two later, Deandre Harrison walked in. The two waited a few minutes more, calling for service. Harrison walked in and out of the shop's front door several times to trigger its buzzer. They then heard a [126 Cal.Rptr.3d 486] series of muffled, high-pitched screams. As the screams grew louder, defendant emerged from the back of the store and walked straight to the cash register, which was partially open. He took the money inside, walked out the front door, and ran across the parking lot. A woman staggered out from the back of the store, covered in blood. Still screaming, she held a blood-soaked white cloth to her neck. She took a few steps, then collapsed. No one else emerged from the back. No sounds indicated anyone else was in the store.

Tomiyasu followed defendant and chased him across the parking lot, screaming for help. Meanwhile, Harrison ran to another shop and called 911. After Tomiyasu lost sight of defendant, she also attempted to call the police, but they arrived before she had time to dial. Other than defendant and the bleeding woman, Tomiyasu and Harrison saw no one else in the shop, and no one else left after defendant fled.

Ella Ford was picking up dry cleaning at the strip mall when she heard a woman screaming from the Donut King. She dismissed the screams as the sound of children playing. Defendant ran out of the doughnut shop and almost knocked her down. She noticed he was holding something close to his [51 Cal.4th 1228] body in his left hand. Ford turned away but looked back at defendant after someone yelled, “he stabbed her.” She eventually lost sight of defendant as he ran down the street.

Felipe Santoyo was working at a fish market in the strip mall when he heard the commotion. A crying woman said, “she's bleeding.” Santoyo ran to the doughnut shop, where several people had gathered. He saw Lao, whom he knew, lying on the floor, “bleeding a lot.” He went to her and placed some bags under her head “so she didn't feel on the floor.” Santoyo was soon joined by Lavette Gilmore and Trina Simmons, who had run to the shop from Gilmore's salon when they learned of the stabbing. Lao's eyes were open and she was asking for help. She managed to give her family's phone number before she lost consciousness. Santoyo left to call Lao's family.

Gardena Police Officers Blane Schmidt and Jody Schnabl were the first authorities to arrive at the scene. Paramedics arrived minutes later. They transported Lao to a hospital, but her condition deteriorated rapidly in the ambulance and she never regained consciousness.

After the paramedics left, Officer Schmidt interviewed Simmons, Harrison, and Tomiyasu. Tomiyasu described defendant as having a round face, dark skin, a “scraggly” beard and mustache, a “wild-like appearance to his

[253 P.3d 572]

eyes,” and dark smudges on his face. His hair was very short, and he appeared to be in his late 20's or early 30's. Defendant looked like a homeless or transient person because he was very thin, with a drawn face and wild-eyed look. He wore blue jeans, dark shoes, and a black T-shirt with an outline of Africa on the front. Harrison also remembered that defendant wore blue jeans and a black T-shirt with Africa depicted in red, yellow, and green. He was tall and thin, with medium-brown, dirty skin and a “rough, ruggish” beard and mustache. Ella Ford gave a similar description. She said defendant was a little over six feet tall, 150 pounds, with a full beard, and wearing jeans, tennis shoes, and a black T-shirt with “African colors.” Twice that evening, the police asked Tomiyasu to view suspects they had detained, but she did not make a positive identification of either.

At the crime scene, police officers found the cash register drawer open but with no bills in the tray. A blood trail extended from the restroom to where Lao had fallen. Behind the closed door of the restroom,[126 Cal.Rptr.3d 487] a large blood pool was oozing into the drain. Blood was smeared on the inside doorknob and doorjamb. A knotted towel and a pair of women's shoes lay on the floor. Police officers never discovered a murder weapon. At one of the tables in the dining area, someone had left an open gym bag, a baseball cap, a styrofoam cup, and a pair of shoelaces. The gym bag contained several raffle tickets. Defendant's latent palm print was lifted from the table. Although other latent fingerprints were recovered, none could be matched to defendant.

[51 Cal.4th 1229] Lao was stabbed 30 times with a single-edged blade approximately five-eighths of an inch wide and five to six inches long. Her hands and arms showed multiple defensive wounds. Two stab wounds pierced the rib cage and sliced completely through her liver, causing massive abdominal bleeding. Another stab wound to the chest collapsed a lung. Forensic evidence established that...