People v. Visciotti, S004597

CourtUnited States State Supreme Court (California)
Citation2 Cal.4th 1,825 P.2d 388,5 Cal.Rptr.2d 495
Decision Date12 March 1992
Docket NumberNo. S004597,S004597
Parties, 825 P.2d 388 The PEOPLE, Plaintiff and Respondent, v. John Louis VISCIOTTI, Defendant and Appellant.

Page 495

5 Cal.Rptr.2d 495
2 Cal.4th 1, 825 P.2d 388
The PEOPLE, Plaintiff and Respondent,
John Louis VISCIOTTI, Defendant and Appellant.
No. S004597.
Supreme Court of California.
March 12, 1992.
Rehearing Denied April 29, 1992.

Page 505

[825 P.2d 398] [2 Cal.4th 27] Timothy J. Foley, San Francisco, and Richard Schwartzberg, Santa Ana, under appointments by the Supreme Court, and Roger Agajanian, Fullerton, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White and Richard B. Igelhart, Chief Asst. Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., Michael D. Wellington, Frederick R. Millar, Jr., Robert M. Foster, Rudolf Corona, Jr., and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

Defendant was convicted by a jury in the Orange County Superior Court of the November 8, 1982, first degree murder (Pen.Code, [2 Cal.4th 28] §§ 189, 187) 1 of Timothy Dykstra (count I); attempted murder (§§ 664/187) of Michael Wolbert (count II); and robbery (§ 211) of those victims (count III). The jury also found that the murder was committed under the special circumstance of murder in the commission of robbery (§ 190.2, subd. (a)(17)(i)), and that defendant had personally used a firearm in the commission of the offenses (§ 12022.5). The same jury found that the killing of Dykstra was intentional and returned a penalty verdict of death.

After denying defendant's automatic application for modification of the penalty (§ 190.4), the judge imposed a sentence of death for the murder, a consecutive term of nine years with a two-year enhancement for the attempted murder, and a stayed [825 P.2d 399]

Page 506

(§ 654) term of one year with an eight-month enhancement for the robbery.

This appeal is automatic. (§ 1239, subd. (b).)

Having concluded that no prejudicial error affected the determination of guilt or penalty, we shall affirm the judgment in its entirety.


A. The Prosecution Case.

The evidence, based in major part on the testimony of Michael Wolbert, and on defendant's confessions, established the following.

Defendant and Brian Hefner, both of whom had been employed as burglar alarm salesmen by Global Wholesalers in Garden Grove, and who shared a motel room, were fired by their employer on November 8, 1982. Because their final paychecks were insufficient to cover future rent, they devised a plan to rob fellow employees who were also to be paid on that date. The pair waited in the company parking lot until another group of employees, among whom were Dykstra and Wolbert, returned from their shifts. They invited Dykstra and Wolbert to join them at a party which, they claimed, was to be held at the home of friends in the Anaheim Hills area.

Dykstra and Wolbert agreed to go to the party. They did not know defendant and Hefner well, however, and were cautious. They insisted on driving in Wolbert's car. They also removed most of their cash from their wallets and hid it behind the dashboard of their car. After leaving defendant's car at an apartment complex, the four drove to a remote area on Santiago Canyon Road where defendant asked Wolbert to stop so that defendant could relieve himself. It was then between 7 and 9 p.m.

[2 Cal.4th 29] All four men left the car, Dykstra getting out first to permit defendant to leave. After the other three men left the car, Wolbert saw a gun in defendant's waistband. Wolbert then left the car and when he next looked at defendant saw that defendant and Dykstra were standing face-to-face about two feet apart, with defendant holding the gun pointed at Dykstra. Defendant demanded the victims' wallets. Wolbert told him where the money was hidden. Dykstra and Wolbert then stayed on an embankment, several feet apart, while Hefner searched for the money.

Defendant moved over to stand by Wolbert, who asked defendant to let them go, told him to take the car and the money, and assured him that he would not identify him. When Hefner left the car, defendant moved back toward Dykstra who was sitting down. Defendant then raised the gun in one hand and shot Dykstra from a distance of about three or four feet. The bullet passed through the pericardial sac, grazing Dykstra's heart, and entered his right upper lung, causing death by exsanguination, i.e., blood loss.

After defendant shot Dykstra, Wolbert stood up and stepped back. Defendant approached Wolbert, who was backing up, raised the gun in both hands, and shot Wolbert three times. Wolbert was struck first in the torso and fell down. Defendant came closer and from a distance of about three feet shot Wolbert in the left shoulder. As defendant began to walk away Wolbert got up and began to approach defendant. Defendant turned, held the gun close to Wolbert's head and shot him in the left eye, at which point Wolbert fell down again. Wolbert saw defendant pull the hammer of the gun back before each shot.

In spite of his life-threatening wounds, Wolbert did not lose consciousness. He heard defendant and Hefner get into the car and drive back down the road. He was later able to attract the attention of passersby who summoned aid. He identified his assailants as fellow employees at Global Wholesalers. Dykstra was dead when paramedics arrived. Wolbert was transported to the hospital where he underwent surgery. On the following morning, he identified both defendant and Hefner in a photographic lineup, identifying defendant as the person who had shot him and Dykstra. 2

Page 507

[825 P.2d 400] Defendant and Hefner were arrested as they left their motel room about 9 a.m. on the morning after the robbery and murder. The murder weapon, a .22-caliber single action revolver which still held six expended shell cases in the cylinder, was found hidden in a space behind the bathroom sink. Defendant confessed his involvement and, at the request of the investigating[2 Cal.4th 30] officers, participated in a videotaped reenactment of those events that had taken place in Santiago Canyon.

Analysis of a sample of defendant's blood, taken at approximately noon on November 9, 1982, revealed no alcohol, amphetamines, opiates, barbiturates, or phencyclidine (PCP). Cocaine and benzoylecgonine, a metabolite of cocaine, were present, however. 3

B. The Defense Case.

Defendant attempted to establish that his actions on November 8, 1982, were the product of, or influenced by, his ingestion of drugs and that he did not intend to kill Timothy Dykstra. At the time of the offenses defendant was 25 years old. 4 He testified that he had used drugs since the age of 12, among them marijuana, barbiturates, amphetamines, cocaine, PCP, LSD, and heroin. He had first been arrested on a drug-related charge in 1975 when he sold "speed" to an undercover agent. In 1981 he was found guilty of vandalism after becoming involved in a fight while drinking. He had been committed to the Youth Authority after three escapes from county juvenile facilities.

In 1978, he pleaded guilty to a charge of assault with a deadly weapon, and was sentenced to state prison. On the night of the stabbing incident that led to that conviction he had used marijuana and PCP. That incident occurred in the same motel at which he was living when arrested on November 9, 1982. It was, he testified, a hangout for drug addicts and prostitutes. 5

Brian Hefner had owned both a .22-caliber rifle and the revolver, but defendant persuaded him to pawn the rifle to obtain money with which to buy cocaine. Hefner refused to pawn the revolver, but defendant was not aware that Hefner had the revolver with him on November 8, 1982, when the [2 Cal.4th 31] pairdecided to find someone to rob. They had abandoned a plan to obtain money by selling sugar as cocaine, and Hefner had suggested that they find someone to go with them to buy cocaine, take the victims' money under that pretense, and "just split." They invited Dykstra and Wolbert to a party at which there would be girls and cocaine, but were unsuccessful in an attempt to get Dykstra and Wolbert to provide money with which to buy cocaine. Defendant and Hefner then decided to simply take them somewhere and take their money. Defendant alone decided where to take the victims and gave Wolbert directions to Santiago Canyon, which was an area to which he had been when committed to a county boys ranch.

Hefner's car was left at an apartment complex in the hope that Dykstra and Wolbert would believe that defendant and Hefner

Page 508

[825 P.2d 401] lived in that complex. They went to Santiago Canyon so that defendant and Hefner would have time to get away before their victims made it back to town to look for them at the apartment complex. Defendant's intent was only to take the victims' money, not to kill them.

When Hefner told defendant at the Global Wholesalers warehouse that he had brought the gun to protect himself in case anything went wrong, defendant told him to leave it. Hefner put the gun behind the heater in his car. Defendant did not know that Hefner brought the gun with him when the pair transferred to Wolbert's Camaro for the drive to Santiago Canyon.

Defendant testified that he did have to relieve himself when he asked that the car stop. He had planned to take Dykstra and Wolbert farther back in the canyon so that it would take them a long time to come back out. When the car stopped, Hefner got out behind defendant, handed the gun to him, and said, "let's take their money now." Defendant took the gun, held it on the victims, but, he claimed, it was Hefner who demanded their money. After Hefner had gathered up the money, defendant began to back up to get into the car to leave. The victims had not resisted. Wolbert told him to go ahead and take the car, just leave.

At that point, however, Hefner said: "Don't let them go because they'll tell," and yelled at defendant to shoot them. Defendant testified that he did not know what happened then except that he started shooting. He shot until the...

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