State v. Barker
| Decision Date | 28 August 2001 |
| Citation | 111 Cal.Rptr.2d 403,91 Cal.App.4th 1166 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 4 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. VERNON LEROY BARKER, Defendant and Appellant. D034739 CERTIFIED FOR PARTIAL PUBLICATION <A HREF="#fr1-1" name="fn1-1">1 DIVISION ONE STATE OF CALIFORNIA Filed |
APPEAL from a judgment of the Superior Court of San Diego County, Michael B. Harris, Judge. Modified and affirmed.
Kimberly J. Grove for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Boustany and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Following his convictions of first degree murder and robbery, Vernon Leroy Barker appeals, asserting that the trial court (1) improperly instructed the jury they could convict him of murder based only upon his possession of property stolen from the victim and "slight" corroborating evidence, (2) erroneously failed to give the jury an instruction on the lesser included offense of theft, (3) prejudicially erred by instruction of the jury on their duty to deliberate, and (4) erroneously imposed a parole revocation fine. Finding the latter point only to have merit, we order the judgment modified to delete reference to the parole revocation fine and otherwise affirm the judgment.
John Simpson, a roller coaster enthusiast visiting from England, arrived with two friends at the Los Angeles airport on Saturday, February 13, 1999, where they were met by a fourth friend who lived in the Los Angeles area. At the Los Angeles airport Simpson rented a white Chevrolet Cavalier which he was scheduled to return to the San Diego airport one week later, on Saturday, February 20. Simpson arranged to meet his friends back in Los Angeles on the morning of Friday, February 19.
On Saturday night Simpson stayed in Castaic, on Sunday in Anaheim, and Monday and Tuesday Simpson stayed in San Diego motels. On Wednesday, February 17, 1999, at about 3:40 p.m. Simpson checked into the Rodeway Inn on Spring Street in La Mesa, where he had stayed on other occasions, and where he was scheduled to remain until Saturday. Sometime after 6:00 p.m. on the evening he came to the La Mesa motel, Simpson was seen by the motel manager standing near his car in the parking lot in the company of another, taller man. About 7:00 p.m. Simpson called his friend in Los Angeles, sounding "upbeat." On Thursday morning a maid arrived to clean Simpson's room, saw a partially covered man in bed, and left without cleaning the room or approaching the man in the bed. She did the same thing on Friday morning, February 19, when she again saw a man in bed when she opened the door.
On Friday morning, Simpson's friends waited for him in Los Angeles, as they had planned to go with him to Knott's Berry Farm that morning. About a half hour after the appointed time, one of his English friends called Simpson's room at the Rodeway Inn, but there was no answer. She called Simpson's room several more times, but when he did not answer, the two friends from England went to Knott's Berry Farm to look for Simpson, and asked their Los Angeles friend to contact San Diego police.
At about 2:20 p.m. that afternoon, a La Mesa police officer arrived at the Rodeway Inn to check on Simpson's welfare. The officer obtained a pass key, went to Simpson's room, knocked on the door and announced his presence, but received no response. When the officer then entered the room and turned on the light, he saw a suitcase on the floor with its contents scattered around, and a man lying on the bed with the lower half of his body covered with a sheet and a pillow case tied around his neck. The man appeared to be dead, and the officer called in a possible homicide.
Evidence technicians found Simpson's room in disarray. A toiletry bag was under a pile of clothing, and bottles of cologne, shampoo and lotions were in a heap next to the clothing. Three latent prints were recovered from the bathroom sink area, and one more latent print was recovered from the refrigerator. An autopsy determined Simpson had died from asphyxia caused by ligature strangulation (the pillow case tied around his neck), a process requiring at least five minutes of sustained pressure to cause death, although the victim would lose consciousness in about 30 seconds.
On Sunday, February 21, 1999, a sheriff's deputy on patrol in Lemon Grove saw a white sedan parked with the driver's window down. The deputy called in a check on the license plate and approached the car, in which Barker appeared to be asleep. The deputy roused Barker and asked him what he was doing, but before Barker could answer, the sheriff's dispatcher called for backup units to assist the deputy, as the license number of the car, Simpson's rental, had been entered in the system as a stolen vehicle involved in a homicide. Barker was arrested without incident.
The keys to Simpson's car were in the ignition. A pair of Simpson's tennis shoes were on the rear floor of the rental car, and a fanny pack which had belonged to Simpson, containing his credit cards and identification, was found under the driver's seat in which Barker had been asleep. Barker's left thumb print was on one of Simpson's credit cards. Barker's left palm print was one of the latent prints found in the bathroom sink area of Simpson's motel room.
On the evening of Wednesday, February 17, Barker, driving a late model white sedan, visited a friend of his in El Cajon, Carol Atherton. Barker told Atherton he was having financial problems, and a friend of his had loaned him three credit cards and given him the PIN numbers, but he had mixed them up. Atherton told Barker she would help him out, and between 11:45 and midnight that evening, Atherton made three attempts to withdraw cash at two different ATM's, but was unsuccessful.
The next morning Barker returned to Atherton's house, drove her daughter to school and gave the daughter $20 for lunch money. He then drove back to Atherton's house. Before leaving, Barker gave Atherton a pair of (Simpson's) ankle boots, saying they were too small for him and might fit her daughter. That evening Barker drove Atherton to visit a friend in Lemon Grove, and then they simply drove around.
While they drove around, Barker told Atherton the car they were in belonged to a man he had killed in a motel room on Spring Street. Barker described strangling the man with a pillowcase, saying he had never seen a man's face turn that black before.2 Barker told Atherton he had remained in the room some hours, and had worn gloves except when picking up some cologne bottles he had meant to bring with him in a bag, but which he had forgotten. Barker also told Atherton he had heard his victim talking on the telephone about being somewhere on Friday, and the car was "good" until then, because Barker had left his victim in the bed, partially covered. Before taking Atherton home, Barker said something like "I guess you've never been around a murderer before."
A friend of Atherton's daughter saw Barker at the Athertons with a late model white car. The boy asked Barker whose car it was, and Barker did not answer. The boy asked if the car was "hot," and Barker told him the car's owner was dead in a motel room. The boy exclaimed, "What?" Barker repeated that the owner of the car was dead in a motel room.
The boy asked Barker why he was driving the car, and Barker replied that the car and the motel room had been paid up for two more days. The boy later told his father what Barker had said. When interviewed by police, the boy initially denied knowing anything, but when asked if he would take a polygraph examination, which he refused, the boy disclosed what Barker had said to him.
Barker presented no evidence in his defense. In closing argument, however, in response to the prosecutor's argument that this was not a "what was it" but only a "who did it" type of case (that is, the prosecutor argued that Simpson had clearly been murdered in the course of a robbery, and the only question before the jury was the identity of the robber/murderer), Barker's counsel argued the credibility of the witnesses who had recounted Barker's admissions was in question, as was the validity of the palm print found in Simpson's room and its attribution to Barker, and that the only crime shown by the evidence was Barker's possession of a stolen car.
By amended information filed October 25, 1999, the District Attorney of San Diego County accused Barker in the first count of murder (Pen. Code,3 187, subd. (a)), and in a second count of robbery ( 211). It was further alleged the murder was committed during the course of the robbery ( 190.2, subd. (a)(17)), that Barker had used a deadly weapon ( 12022, subd. (b)(1)), and that Barker had served a prior prison term for burglary ( 667.5, subd. (b)), which also constituted a prior serious felony conviction ( 667, subd. (a)(1)) and a "strike" prior ( 667, subds. (b)-(i)).
Trial of the prior conviction allegations was bifurcated at Barker's request. Jury trial of the other charges began on October 25, 1999, and on October 29, 1999, the jury found Barker guilty of the charges, found the murder was of the first degree, and also found true the felony-murder special circumstance and the weapon use. Barker then admitted the truth of the prior conviction allegations.
On November 30, 1999, Barker was sentenced to a term of life in prison without possibility of parole, plus six years. Timely notice of appeal was filed.
Barker claims the trial court prejudicially erred in both giving and in failing to give certain jury instructions. The general rule is that in a...
To continue reading
Request your trial
-
People v. Barker
... ... 1.01, 2.00, 2.01), as well as the sufficiency of circumstantial evidence to prove specific intent or mental state (CALJIC No. 2.02). Other instructions cautioned the jury to "disregard any instruction which applies to facts determined by you not to exist." (CALJIC No. 17.31.) ... Even though we believe the use of CALJIC No. 2.15 with the crime of murder could cause some juror confusion ... ...
-
People v. Nesheiwat, No. G041581 (Cal. App. 5/27/2010)
...v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernández Ríos, supra, 151 Cal.App.4th 1154, 1156; People v. Barker (2001) 91 Cal.App.4th 1166, 1177.) III DISPOSITION The judgment is WE CONCUR. RYLAARSDAM, ACTING P. J. FYBEL, J. ...