The People v. Lomax

• Decision Date: 11 August 2010
• Docket Number: No. S057321.,S057321.
• Citation: 234 P.3d 377,49 Cal.4th 530,112 Cal.Rptr.3d 96
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent,v.Darrel Lee LOMAX, Defendant and Appellant.

49 Cal.4th 530

234 P.3d 377

112 Cal.Rptr.3d 96

The PEOPLE, Plaintiff and Respondent,v.Darrel Lee LOMAX, Defendant and Appellant.

No. S057321.

Supreme Court of California

July 1, 2010.

Rehearing Denied Aug. 11, 2010.

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Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Jay Colangelo and Jessica K. McGuire, Assistant State Public Defenders, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Joseph P. Lee and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

CORRIGAN, J.

A jury convicted defendant of two robberies, with a murder in the course of the second.¹ It found he had used a firearm in all the offenses and found true a robbery-murder special circumstance. ² BECAUSE THE JURY Set the penalty at death, this appeal is automatic. We affirm.

BACKGROUND

I. Guilt Phase

A. Robbery of James Edge

Around 1:30 a.m. on August 25, 1994, James Edge closed his laundromat in Long Beach and walked to his car. A couple drove into the parking lot, and the man asked if the laundromat was open. Edge said it would be at 6:00 a.m. As Edge got in his car, the man pushed a large black automatic handgun into Edge's ribs. The man said, “Give me all your money. Give me everything you got.” Edge complied, handing over approximately $200 in cash and other items. As the couple drove off in a green Ford, Edge noted the license plate number, which he reported to the police.

Shortly after the incident, Edge selected defendant's photograph from a photo lineup, saying he “looked like” the robber. He told the police he got a good look at the man and could recognize him if he saw him in person. Several months later, Edge identified defendant at a live lineup. At trial, Edge said he was “certain” defendant was the man who robbed him.

B. Robbery and Murder of Nasser Akbar

Angela Toler, an accomplice in the robbery-murder case, testified against defendant. She told the jury that on August 29, 1994, she went to the apartment of her friend and neighbor Ihesia Sullivan. Sullivan was there with defendant, whom Toler knew as Malik Hasan. In the afternoon, defendant asked Toler to “hook him up with a lick,” which meant to show him a place he could rob.

Around 10:30 or 11:00 p.m., Toler and defendant left in a rented Ford Taurus. Sullivan stayed home with her children. Toler had smoked phencyclidine (PCP) about six hours earlier. She testified that she was no longer under the influence of the drug when she and defendant looked for a place to rob.

Toler and defendant drove to a liquor store but left because it was too crowded. They drove next to the P & B Market on Fourth and Cherry Streets, parked around the corner, and walked into the store. Both were armed with semiautomatic handguns. Toler's was chrome plated and pink handled; defendant's was black. They entered the store and announced “[this is] a robbery.” Defendant stood across the counter from the clerk, Nasser Akbar. Akbar handed money to both defendant and Toler. When another employee emerged from the back of the store, Toler pointed her gun at him.

Akbar did not speak, reach for anything, or make any threatening gestures during this exchange. Nevertheless, after the money changed hands, defendant shot Akbar twice. As Akbar lay on the floor, defendant reached over the counter and shot him twice more. Defendant then shot the store's security camera. Toler testified that she did not fire her weapon during the incident. A total of $68 was stolen.

Private security guard Cleavon Knott had known Akbar for about two years. He came to the store regularly to give his friend security at closing time. Shortly after 11:00 p.m., Knott drove into the P & B Market parking lot and saw two people inside pointing semiautomatic handguns at Akbar. The man's gun was black, and the woman's was chrome. Akbar stood behind the counter, between two cash registers. Another clerk was farther back in the store. The woman picked up something from the counter, then “flinched.” At the same moment, Knott heard gunfire and saw the man shoot Akbar. The robber fired three rapid shots and, after the clerk fell, reached over the counter and fired another shot toward the ground. Knott saw the shooter rise and fire one more shot toward the back of the store, but he could not tell if anything was hit. Knott testified he was “positive” defendant was the person who repeatedly shot Akbar.

The couple fled the store and came within 16 feet of Knott. Knott recognized Toler because she lived across the street from his sister and Knott had seen her around town. He also recognized defendant as someone he had seen earlier in the day sitting outside Sullivan's apartment. He had seen defendant several times in the week before the murder. The couple ran around the corner. Knott started to follow, but instead entered the store. Inside, he saw a clerk crouching down by the freezer and Akbar lying facedown in a pool of blood. Knott immediately went to him. Akbar looked up and said, “Help me, friend.”

Long Beach Police Officer Ernest Armond was dispatched to the market. He entered to find Akbar lying behind the counter in a pool of blood. Akbar tried to talk, but Armond could not understand him. Paramedics were called, but Akbar expired before they arrived.

Armond and his partner examined the scene and spoke with witnesses. They saw a nine-millimeter shell casing, bullet fragments, and several broken liquor bottles near the security camera and on the floor near the blood pool. Crime scene investigators recovered four spent nine-millimeter shell casings from inside the store. No casings of any other caliber were found. Investigators also recovered two bullet fragments, one on the floor where the victim had fallen, and one on the countertop. No ballistic evidence was initially found near the security camera, which had apparently been hit by a bullet. Four or five days later, officers discovered a nine-millimeter shell casing in this area.

Security guard Knott reluctantly spoke to police at the scene. He did not see defendant and Toler get into a car, yet he told the officers the robbers had fled in a white Oldsmobile Cutlass. Later that night, police took Knott to a field show-up of defendant and Toler. Knott recognized them as the robbers but did not identify them. Knott testified that he lied because he did not want to be involved. He wanted no problems with defendant and Toler, who lived nearby. Knott knew that Toler was a member of a local gang, the Insane Crips. He feared for his own safety and that of his sister and her children. The next day, Knott came forward and told the police what he had seen. While still afraid, he had decided to cooperate because he knew Akbar and because “it was the right thing to do.” Knott did not ask for any assistance in exchange for his testimony, and the police offered none. However, several months later, the police helped Knott secure the dismissal of some outstanding traffic warrants. Knott asked for this help because he feared that, if arrested, he might encounter defendant in jail. Knott identified defendant in a live lineup.

After the shooting, Toler and defendant ran to their car and drove to Toler's house. Defendant went across the street to Sullivan's apartment. Toler joined them minutes later, after leaving her share of the robbery money at home. The three then left Sullivan's apartment and drove around “for no reason at all.”

Shortly after midnight, the police pulled them over for making an illegal lane change. Toler was driving, with Sullivan in the front passenger seat and defendant in the back. As Officer Timothy Everts approached the car, he saw that defendant, a black male with cornrow braids, matched the description of a robbery-murder suspect. Defendant's shoulders were moving and his hands were between his legs. The officers ordered the suspects to stand outside and searched them. Defendant was carrying $43.57. When Officer Everts looked inside the empty car, he saw a gun lying inside the map holder directly in front of where defendant had been sitting. The handle protruded so that a person could have grabbed the gun with ease. Defendant and the two women were arrested.

The car was the same one driven by the couple who had robbed James Edge. The gun recovered from the backseat was a Glock nine-millimeter semiautomatic. The police also found a chrome Lorcin .25-caliber semiautomatic wedged into a space next to the driver's seat. The Lorcin's pink grip protruded slightly above the front seats. Both weapons were loaded. The Glock's magazine contained 11 rounds of ammunition with another round in the chamber. Fully loaded, the Glock could hold 18 rounds. The Lorcin had one round in its chamber and five in the magazine, all .25-caliber. Fully loaded, the Lorcin could hold eight rounds. Semiautomatic handguns such as the Lorcin and Glock expel a shell casing every time they are fired. All of the shell casings recovered from the P & B Market were nine-millimeter. No usable fingerprints were detected on the guns, however, and no gunshot residue was found on defendant's or Toler's hands.

Detective William Collette and Detective Logan Wren interviewed Toler at the police station. Although Toler admitted using PCP earlier in the day and showed some signs of recent use, she was lucid and appeared to understand the questioning. The officers concluded she was no longer under the influence of the drug. Toler initially denied involvement in the robbery but changed her story after the...