People v. Warren

• Decision Date: 26 May 1988
• Citation: 247 Cal.Rptr. 172,45 Cal.3d 471,754 P.2d 218
• Court: California Supreme Court
• Parties: , 754 P.2d 218 The PEOPLE, Plaintiff and Respondent, v. Robert WARREN and Woodrow Warren, Defendants and Appellants. Crim. 21853.

Page 172

247 Cal.Rptr. 172

45 Cal.3d 471, 754 P.2d 218

The PEOPLE, Plaintiff and Respondent, v. Robert WARREN and Woodrow Warren, Defendants and Appellants.

Crim. 21853.

Supreme Court of California.

May 26, 1988.

Rehearing Denied July 28, 1988.

Howard W. Gillingham, North Hollywood, and Frank O. Bell, Jr., State Public Defender, under appointments by the Supreme Court, Monica Knox, Chief Asst. State Public Defender, and J. Courtney Shevelson, Deputy State Public Defender, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Susanne C. Wylie, Carol Wendelin Pollack, Gary R. Hahn and Thomas L. Willhite, Jr., Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

At the guilt phase of a capital trial under the 1978 death penalty law (Pen.Code, § 190.1 et seq.), defendants Robert Warren and Woodrow Warren were each convicted by a jury of the first degree murder of Homero Flores and Antonio Herrera (id., § 187) and the robbery of Flores, Herrera, and Angel Rebeles (id., § 211). As to each murder the jury found the following special circumstances for each defendant: felony murder-robbery (id., § 190.2, subd. (a)(17)(i)), and multiple murder (id., subd. (a)(3)). At the penalty phase the jury returned against each defendant a verdict of death. Judgment was entered accordingly. This appeal is automatic. (Id., § 1239, subd. (b).)

As we shall explain, we conclude that as to each defendant the judgment of guilt must be affirmed and all but one special circumstance finding must be upheld. We further conclude that as to each defendant the judgment of death must be reversed because the trial court delivered an unqualified "Briggs Instruction" in violation of People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430.

The evidence introduced at trial told the following tale. In the early morning hours of September 8, 1979, Herrera, Flores, and Rebeles were gathered outside Rebeles's home, drinking beer and listening to the radio in an automobile. Flores was seated in the car; the others were standing nearby. Rebeles saw three Black men walk past on the other side of the street, then return. Two of the men crossed the street toward Herrera, Flores, and Rebeles. One of the two, whom Rebeles identified in court as defendant Robert Warren, pointed a gun at Herrera and Rebeles and ordered them to lie down on the grass between the sidewalk and the street. The other man--who was never identified--pulled Flores from the car, pushed him down on the grass, and took his wallet. The third man, whom Rebeles identified at trial as defendant Woodrow Warren, then crossed the street toward the others. He tried unsuccessfully to start the car. He asked Flores for the keys; Flores said they were in the house.

While Robert was holding the gun, the unidentified robber took jackets from Herrera and Rebeles and 50 cents and house keys from Rebeles. The unidentified robber began to search Herrera. Herrera apparently rose to his haunches and began to twist from side to side to protect his pockets. Robert then asked, "Can I shoot?" Woodrow replied, "Yes," and Robert shot Herrera in the head. Flores began to rise and Robert shot him in the side. The robbers then fled. Flores and Herrera died from their wounds. Woodrow's palmprint and several unidentified prints were subsequently lifted from the driver's door of Flores's car.

Rebeles testified that he had seen the three robbers in the neighborhood twice within three days of the shooting. Woodrow is evidently an imposing individual--tall, muscular, and bald, with a tattoo of a revolver on his left bicep. Robert is apparently of average height and had braided black hair and a little beard.

There was considerable confusion and conflict in the testimony at trial. Three young men who were near the scene testified they heard shots and saw three Black males running away. Mark Sutton, Belinda Campbell, Steven Hicks, and Steven's sister Theresa Myles were gathered outside the house next to Rebeles's when the crime occurred. Sutton testified he saw two Black men walk by and approach the group next door; the shorter man carried a shiny object and told Campbell and Myles to drive away; Sutton and Steven Hicks went inside the house; as he was entering he heard a shot. Steven Hicks, who had been reluctant to testify, related a similar story on the stand. He was impeached, however, with prior statements he had made to the police: he had told them that he saw three men walk by, that one was bald and one was shorter than the others and was carrying a gun, and that the three ran away after the shots were fired. Myles testified she did not see anything, but heard a shot and drove off. She was impeached with prior statements she had made to the police: she had said she saw three men walk up the street and back; two of them crossed the street, the shorter carrying a gun; the third, who remained on the other side of the street, was large and muscular and also had a gun; she drove up the street, heard a shot, and saw the three men run past.

Rudolph (Rudy) Hicks, who was the 12-year-old brother of Steven Hicks and Myles, also testified, as did his friend, Jeffrey Pyles. Each claimed he had been in bed when the crime occurred, but had been told all about it by the other the next day. Both boys had discussed the crime with the police soon after it occurred. Rudy's version of the events paralleled that given by Rebeles in his testimony at trial and that given by Steven Hicks and Myles in their statements to the police. He testified he had seen the robbers many times at a liquor store in the neighborhood, and described one of the robbers as tall, well-muscled, weighing about 200 pounds, and having a gun tattooed on his left upper arm. But he also said he had gone inside when he saw the two robbers cross the street and had only heard, not seen, the shooting. To the police and to Pyles, however, he had stated that it was the taller, bald robber who had the gun and that that robber did the shooting from across the street. Pyles gave the police a description of the events similar to Rudy's, and testified at trial that everything he had told the police was either made up or was based on what Rudy had told him. The police officer who interviewed Pyles after the crime testified he had concluded Pyles had not been outside during the shootings.

Each defendant attempted to show that he was not involved in the crimes charged. Very soon after the event Rebeles had identified a mug shot of a man named Lamont Bell as the tall, muscular robber. Inconsistencies existed in the testimony of the witnesses concerning how many gunshots were fired and whether the robbers ran or drove away from the scene. Lulu Washington, who has a child by Woodrow, testified that on the night of the crime both defendants were at her home. She knew they were present all night because she was watching movies on television until dawn, with Woodrow asleep beside her in bed and Robert visible through the open bedroom door, asleep on the couch.

In rebuttal Rebeles testified that Bell was not one of the robbers, but Woodrow was. Bell testified he was nowhere near the scene of the crime on the night in question.

I. GUILT ISSUES

Defendants raise numerous challenges going to the issue of guilt. None, however, has merit.

A. Representative Jury

Both defendants contend they were denied their constitutional right to an impartial jury drawn from a fair cross-section of the community (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16) because the venire was compiled exclusively from voter registration lists, which purportedly contained a percentage of Blacks and Hispanics disproportionately lower than the percentage of these groups in the community.

In People v. Harris (1984) 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, we held that " 'In order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.' " (Id. at p. 50, 201 Cal.Rptr. 782, 679 P.2d 433, quoting Duren v. Missouri (1979) 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579.)

Defendants have satisfied the first prong of the Harris test: Blacks and Hispanics each constitute a cognizable group. ( People v. Harris, supra, 36 Cal.3d at p. 51, 201 Cal.Rptr. 782, 679 P.2d 433.)

Defendants fail, however, to satisfy the second prong. The data they offer to demonstrate disparity antedates the redrawing of jury districts ordered to remedy any significant disparity, and therefore must be rejected as outdated in the absence of a showing of continuing validity. Accordingly, defendants do not make out a prima facie case of a violation of the fair-cross-section requirement.

B. "Death-Qualified" Juries

Defendant Woodrow urges us to reexamine our holding in People v. Fields (1983) 35 Cal.3d 329, 342-353, 197 Cal.Rptr. 803, 673 P.2d 680 (plur. opn.), 374, 197 Cal.Rptr. 803, 673 P.2d 680 (Kaus, J., conc.), that the exclusion for cause at the guilt phase of jurors who could never vote for the death penalty does not violate a defendant's fair-cross-section rights. As we explained in People v. Rodriguez (1986) 42 Cal.3d 730, 748, 230 Cal.Rptr. 667, 726 P.2d 113, we find no reason to do so.

C. Access to the Law Library

Defendant Woodrow contends that the court erroneously denied him access to the jail law library. During a pretrial hearing he briefly asked the court to order the sheriffs to allow him use of the library. The court responded: "Well, I'm going to follow the established policies, and that is when the defendants are...