People v. Walker
| Decision Date | 27 December 1988 |
| Docket Number | C,No. S004350,S004350 |
| Citation | 47 Cal.3d 605,765 P.2d 70,253 Cal.Rptr. 863 |
| Court | California Supreme Court |
| Parties | , 765 P.2d 70 The PEOPLE, Plaintiff and Respondent, v. Marvin Pete WALKER, Jr., Defendant and Appellant. rim. 21707. |
Ronald W. Rose, Mark A. Arnold, Carleen R. Arlidge and Rose & Arnold, for defendant and appellant.
Jean R. Sternberg as, amicus curiae on behalf of defendant and appellant.
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart, C.K. Thompson, Jr., Dane R. Gillette and Kristofer Jorstad, Deputy Attys. Gen., for plaintiff and respondent.
Defendant Marvin Pete Walker, Jr., was convicted of first degree murder and other crimes stemming from two separate incidents joined for purposes of trial. In the first incident, during commission of a liquor store robbery, three people were shot, including a 15-year-old boy, Joseph Vasquez, who died as a result. In connection therewith defendant was convicted of the first degree murder of Vasquez (Pen.Code, § 187); 1 two counts of assault with intent to commit murder upon Andy Zamora and Jerry Romero ( § 217); and robbery of Romero ( § 211). The jury found that defendant personally used a firearm in the commission of each offense. ( § 12022.5.) One special circumstance under the 1978 death penalty law ( § 190.1 et seq.) was found true: that the murder was committed while defendant was engaged in the commission or attempted commission of robbery. ( § 190.2, subd. (a)(17)(i).)
In the second incident, also during the commission of a robbery, defendant sexually molested, beat and twice shot a young woman, Rose Olveda, in the head. She survived. In connection therewith defendant was convicted of assault with intent to commit murder ( § 217) and robbery ( § 211) with personal use of a firearm in the commission of each offense ( § 12022.5), and theft of Olveda's vehicle. (Veh.Code, § 10851.)
The jury fixed the penalty at death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We filed an initial opinion in this case on December 31, 1985, affirming the judgment of guilt and reversing penalty. Thereafter, we granted a rehearing when it became clear that the People had not been afforded a full and fair opportunity to address, brief and argue the merits of one of the penalty phase errors upon which reversal was predicated. We subsequently authorized the California Appellate Project to file an amicus curiae brief on defendant's behalf. We shall address the various claims of guilt and penalty phase error raised by defendant as well as amicus curiae. For the reasons set forth hereafter, we affirm the judgment in its entirety.
Near closing time on August 6, 1979, defendant, accompanied by a second man, entered Dan's Bottle Shop in San Jose. Present were co-owner Jerry Romero and two young employees, Joe Vasquez and Andy Zamora, who was mentally retarded. Defendant drew a handgun from his waistband, announced that it was a holdup, warned Romero not to do anything or he would be shot, then marched the three into the back room. He ordered Romero to open the safe. Romero, fearing defendant would become enraged if he found the small amount of petty cash kept in the safe, replied that he did not have the combination. Defendant responded by grabbing a claw hammer and exclaiming, "If you don't open the safe I'm going to hit you with the hammer." The second robber told defendant to "wait a minute" and asked for Romero's wallet. After unsuccessfully searching the wallet for the combination, he told defendant, "He doesn't know it, just forget it." Defendant's companion returned the wallet to Romero.
At that moment the bell on the front door sounded, indicating that a customer had entered the store. Defendant ordered Vasquez to wait on the customer, warning that if he made any "funny moves" he would be shot. Defendant climbed on top of the storage shelves to watch Vasquez, who waited on the customer and returned to the back room.
Defendant and his companion next ordered the group to the front of the store. Defendant opened the cash register and removed approximately $150. His companion said, Defendant replied, "No. We're not going to leave any witnesses."
Defendant again marched Romero, Vasquez and Zamora into the back room at gunpoint. As they entered, Romero observed defendant hand the gun to his companion. Romero testified that throughout the ordeal the second robber, who "had a very boyish look to his face," exhibited no violent behavior; At no time did Romero observe the second robber pointing or brandishing the weapon. Defendant then hit Romero across the forehead with a full wine bottle. As Romero fell to the floor, defendant struck him again over the head with a second full bottle of wine. Romero lay on the floor, holding his breath and pretending to be dead. Defendant took Romero's wallet from his back pocket, then felt Romero's back and said, "We don't have to worry about this guy any more."
Defendant walked toward Vasquez and Zamora and ordered them to "Get on your knees." The two youths complied. Romero, still conscious, testified he heard the boys crying and pleading for their lives. Three shots were then fired in rapid succession. Neither Romero nor Zamora directly observed who fired the shots. Joe Vasquez died of a .32 caliber gunshot wound which entered his forehead and exited through the back of his head. Andy Zamora was also shot in the head but survived. Romero was shot in the abdomen; the bullet ricocheted off his hip and traveled through several major organs, lodging in his chest.
As defendant and his companion fled, Romero heard the customer bell go off and the sound of a bottle breaking in the front of the store. 2 He got up, saw the two boys lying in pools of blood, went to the rear door which opens into the parking lot, and saw defendant getting into a car in which the second robber was already seated. A resident of an adjacent apartment testified he heard gunshots and then saw two Black men leave the liquor store and get into what appeared to be a rust or tan-colored Chevy Nova with heavy oxidation. The witness identified a picture of defendant's car as being of the same body style, color and condition of the robbers' vehicle.
Both Romero and Zamora positively identified defendant at trial; Romero had previously identified him at a physical lineup. Another witness, William Cisco, testified that at a party in late September 1979, he had heard defendant talking about his involvement in a robbery. Defendant said that during the robbery "some punk got in the way," and so he "took him out of the game." Defendant had a gun tucked in his waistband at the time he made the statement.
Late in the evening of September 5, 1979, defendant entered a medical building in San Jose and pointed a gun at 20-year-old Rose Olveda, who was working late. Although he was wearing a ski mask, Olveda positively identified defendant as her assailant at a physical lineup and at trial. Defendant ordered Olveda to open the safe. She replied that there was no safe. He then ordered her into the back room where he demanded her money and car keys. She handed him $11 and the keys. He told her to lie down so he could tie her up, but he could find nothing with which to tie her. He ordered her to stand up, ripped open her blouse, and touched her breasts. He then began pistol-whipping her about the head, striking her an estimated 12 times before she was able to momentarily break away and run for the door. Defendant pulled her back and continued beating her, injuring her back and fracturing her neck. Olveda finally fell to the floor, pretending to be unconscious. Defendant then shot her twice in the head--once through the left ear; the bullet traveling through her head and jaw and lodging in her neck, and once through the left eye; the bullet traveling downward and lodging in her throat. Although she miraculously survived, Olveda lost her left eye and the hearing in her ear as a result of the attack.
Within five hours after the assault upon Olveda, the police located her car parked in a carport less than a block from defendant's sister's residence where he sometimes stayed.
During 1979, Officer Evan ("Danny") MacIvor was operating a "sting" operation in an undercover capacity in San Jose. MacIvor fronted as a businessman who purchased stolen property. On September 26, 1979, defendant contacted MacIvor and sold him a .32 caliber semiautomatic pistol, telling MacIvor that the gun belonged to him. After arranging to meet with defendant again on September 28, MacIvor turned the gun over to the police department crime lab. Joe Vasquez had died from a .32 caliber gunshot wound to the head. Through comparison with the spent .32 caliber bullet casings recovered at both the liquor store and the office in which Olveda was attacked, a criminalist was able to positively identify the gun as the weapon used in the murder of Vasquez and the shootings of Romero, Zamora and Olveda.
When MacIvor and defendant met again on September 28, MacIvor told defendant that the gun did not work. Defendant responded that the gun did indeed work and had made a lot of money for him in the last six months. Defendant also told MacIvor to be careful not to get caught with the gun because it "had done a murder." When asked what he meant, defendant replied that the gun originally belonged to a friend who had killed someone with it, and that the friend was now serving time in Soledad prison.
When the two next met on October 2, MacIvor secretly recorded their...
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