P. v. Morrison
Filed 3/13/09 P. v. Morrison CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE MORRISON et al., Defendants and Appellants. | F052296 (Super. Ct. No. 1063489) OPINION |
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant David Wayne Morrison.
Kyle Gee, under appointment by the court of Appeal, for Defendant and Appellant Anthony Lawrence Martinez.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant David Anthony Silva.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a series of violent home-invasion robberies, David Wayne Morrison, Anthony Lawrence Martinez, and David Anthony Silva (Morrison, Martinez, and Silva, respectively; collectively, defendants) were charged, by amended indictment filed in Stanislaus County Superior Court, with 19 counts of residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang (Pen. Code,[1] 186.22, subd. (b)(1), 212.5, subd. (a), 213, 12022.53, subd. (b); counts 1, 2, 3, 5, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 24, 25, 32, 33, 34); two counts of attempted residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (b); counts 6, 7); one count of attempted residential robbery in concert, involving the personal discharge of a firearm and personal infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 31); three counts of sexual penetration with a foreign object, involving the personal use of a firearm and tying or binding of the victim, and committed against more than one victim ( 289, subd. (a)(1), 667.61, subds. (a) & (e), 12022.53, subd. (b); counts 4, 28, 29); four counts of assault by means of force likely to produce great bodily injury, committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 245, subd. (a)(1); counts 8, 9, 14, 35); two counts of assault with a firearm, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 245, subd. (a)(2), 12022.5, subd. (a); count 20, 23); three counts of kidnapping for robbery, involving the personal use of a firearm ( 209, subd. (b), 12022.53, subd. (b); counts 22, 26, 27); one count of attempted premeditated murder, involving the personal discharge of a firearm and infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 187, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 30); two counts of attempted murder of a peace officer, involving the personal discharge of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 187, 664, subd. (e), 12022.53, subd. (c); counts 36, 37); and one count of conspiracy to commit first degree robbery ( 182, 212.5, subd. (a); count 38). In addition, Silva was charged with being a convicted felon in possession of a firearm ( 12021, subd. (a); count 39), and was alleged to have been previously convicted of a serious felony ( 667, subds. (a)) that was also a strike (id., subd. (d)), and for which he served a prison term ( 667.5, subd. (b)).
Near the outset of trial, Silva pled no contest to count 39. A jury subsequently convicted appellants of all charged offenses, but reached differing verdicts, or were unable to reach verdicts, on the various enhancement allegations, as follows:
Martinez: The jury found the firearm use allegation true with respect to counts 15, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 16, 17, 18, 19, and 20. The jury found true the firearm discharge and great bodily injury allegations with respect to counts 30 and 31, as well as the premeditation allegation with respect to count 30, but not true the firearm discharge allegations with respect to counts 36 and 37. The jury also found true the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.
Morrison: The jury found the firearm use allegation true with respect to counts 1, 5, 6, 7, 12, 13, 15, 18, 19, 20, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 2, 3, 4, 10, 11, 16, 17, 21, 22, and 23. The jury found not true the firearm discharge and great bodily injury allegations, and reached no verdict on the premeditation allegation, with respect to count 30; found not true the firearm discharge and great bodily injury allegations with respect to count 31; found not true the firearm discharge allegations with respect to counts 36 and 37; and found true the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.
Silva: The jury found the firearm use allegation true with respect to counts 2, 3, 4, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, and 34, but failed to reach a verdict on the allegation with respect to counts 1, 5, 6, 7, 10, and 11. The jury further found true the firearm discharge allegations with respect to counts 30, 31, 36, and 37; the great bodily injury allegations with respect to counts 30 and 31; the premeditation allegation with respect to count 30; and the tying or binding and multiple victims allegations with respect to counts 4, 28, and 29.
A mistrial was declared with respect to the allegations as to which the jury could not reach a verdict. Following a bifurcated court trial, Silvas prior conviction and prison term allegations were found to be true, but the criminal street gang allegations were found not true with respect to all counts and all defendants. Upon defendants motion for a new trial, the trial court found insufficient evidence to sustain the jurys true findings, as to Silva and Morrison, with respect to the firearm enhancements on counts 18, 19, and 20.
Each defendant was sentenced to prison for a determinate term exceeding 100 years in length plus multiple consecutive life terms, and was ordered to pay restitution and various fees and fines. All filed timely notices of appeal and now raise numerous claims of trial and sentencing error.[2] For the reasons that follow, we will modify the judgment as to each defendant and remand for resentencing.
FACTS
Shortly after midnight on May 25, 2003, Keyes resident Jimmy Lasater awoke to discover two men standing inside his house, about four feet from him, with guns pointed at his head. One gun looked like a chrome or light-colored snub-nose .38 revolver. The men were wearing ski masks, dark jackets, and what appeared to be leather gloves. They threw Lasaters pajama bottoms at him and told him to put them over his face, then pushed him to the floor and tied his hands behind his back with a rope that had been in one of the bedrooms. The pair then took everything out of Lasaters pockets and began ransacking the house. While this was going on, Lasater could hear two male voices. There was also a third robber in his bedroom, but, because this person whispered, Lasater could not determine whether the individual was male or female.
The robbers asked Lasater where his guns were, and one wanted to know which key went to the safe in Lasaters bedroom. They took the cash from Lasaters wallet, $6,000 to $10,000 from the safe, all of Lasaters approximately 10 firearms, and various
the person who asked about the key to the safe later asked about the keys to Lasaters Camaro, the vehicle was not taken. At some point, the robbers called Lasater by his first name, and said they were not going to bother his cars, because he was cooperating and they knew he was going to hand them on down to his grandchildren.[3]
Lasater estimated the intruders were in his house about an hour and a half to two hours. He did not recognize them or anything about their voices, except that they sounded Hispanic to him. Authorities recovered one of his guns, a Browning nine-millimeter semiautomatic, following the arrests in this case.
In June 2003, P.S. and his wife, Jane Doe One, owned two businesses in Turlock. At approximately 12:30 a.m. on June 26, the two were asleep in their Turlock residence when they were awakened by a loud noise and the sound of glass. Upon getting out of bed, Jane Doe One discovered that the living room door was broken in two, and there were footsteps and four or five flashlight beams coming toward her. She and P.S. tried to close and lock the bedroom door, but the intruders broke through. All were dressed in ski masks, dark clothing and gloves. Ones gun was touching Jane Doe Ones forehead. She believed there were four or five intruders, all with guns and flashlights; P.S. believed there were two hands and two guns, one of which was silver-colored and did not have a cylinder.
Two people came into the bedroom. One briefly shined the flashlight in Jane Doe Ones eyes, blinding her, and told her to look away. She complied, and was told to get down on the floor. When she did so, one of the intruders tied her hands with cords cut from electrical appliances in the bedroom, while another intruder tied her legs at the ankles. At one point, she was touched on her side with a sharp object. The first intruder took her diamond wedding ring from her finger.
P.S. was also told to get down on the ground, which he did. Electrical cords were used to tie his hands behind his back and bind his legs near the ankles. One of the intruders said, You know why were here. The voices were male, but P.S. could not see anyone because a blanket was thrown over his upper body. He could hear things being taken out of the dressers, as well as people going in and out of the room. Although he never actually saw anyone, he heard two male voices in the bedroom, as well as footsteps elsewhere in the house. He did not notice anything unusual about the voices, but Jane Doe One believed the intruders possibly were African-American. She based this on their accents and voices, as she saw no skin.
After perhaps 10 or 15 minutes, someone pressed down on P.S. with a knee and showed him a bank deposit bag for one of the businesses, wanting to know what it was. Shortly after, something was pushed down against P.S.s cheek, causing him to scream in pain. He was then asked where the receipts and valuables were. P.S. answered, but the intruder kept pressing the object against his left eye area and causing him to scream. When the man asked why he should stop doing what he was doing, P.S. insisted he had told the truth about all the places he had money.
After some time passed during which the intruder apparently moved away from P.S., one of the assailants returned and pulled down the boxer shorts P.S. was wearing. Someone grabbed his penis, held the sharp object against it, and threatened to cut it off. When P.S. screamed, he was told to be quiet or the children would wake up. Then the person stopped and said, Your wife is so beautiful. Let me see how much you love your wife.
Jane Doe One, who had had her head covered with a towel or other heavy material, could hear the exchange between the intruder and her husband. The intruder then came to her, pulled off her pajamas, and began touching her hips. She struggled; he held her down with his leg and penetrated her vagina twice with his finger. After he stopped touching her, he said she was beautiful. He then returned to P.S. and again demanded money. While this was going on, Jane Doe One could hear another person in the room, taking things from the closet.
All told, the intruders were in the home approximately an hour to an hour and a half. They ransacked the house, cutting open furniture and pulling up part of the rug. They took jewelry, identification, credit cards, a digital camcorder, approximately $2,000 in cash, and one of the couples cars. They cut the home telephone line and took the couples cell phones.
Authorities found footprints in the orchard across the street from the residence, and tire marks going eastbound. The couples vehicle was found later that morning about a quarter to a half mile east of the residence. The couples camcorder was recovered from Silvas residence after the arrests in this case, and he was shown on the videotape it contained.
At approximately 4:30 a.m. on July 15, 2003, four intruders, each with a flashlight and two with guns, broke through the front door of the Modesto residence shared by Ramon Mechuca, Francisco Hernandez, and Jose Hernandez. One of the guns was pointed toward Mechucas forehead; it was black and the front part was kind of squarish. Francisco Hernandez tried to escape through a window, but one of the
rabbed him and threatened to kill him if he did not get down on the floor and pay attention. Mechuca, who was facedown on an air mattress, had his wrists and ankles bound almost immediately with black plastic ties. A blanket was pulled over his head. Francisco Hernandez was also tied up and placed next to Mechuca, and his head was covered with the same blanket.
One of the intruders, who spoke broken Spanish to Mechuca and the Hernandezes, demanded to know where the money and drugs were. When Mechuca said they had no drugs, the intruder threatened to start cutting them and then said some things in English, which Mechuca did not understand, to another person. Mechuca told them where his wallet was; they took the approximately $38 it contained and a silver ring Mechuca was wearing, and broke the mens cell phone. They also beat Francisco Hernandez, causing the blanket to come off Mechucas head and allowing him to see Morrisons now-uncovered face.[4] Morrison said, He saw my face, and Lets kill him. The blanket was placed over Mechuca again, and he was hit in the head and kicked in the ribs. He pretended to be unconscious so the intruders would not strike him anymore. Mechuca suffered injuries to his left ear. Francisco Hernandez was beaten with a frying pan and sustained facial injuries. The intruders overturned the couch onto Mechucas and Francisco Hernandezs backs and jumped up and down on it while laughing. After the intruders removed the couch from the men, they left with Jose Hernandez, and Mechuca could hear shouts as they beat him.
The intruders remained in the house for about an hour to an hour and 45 minutes. After they left, Mechuca dragged himself to Jose Hernandezs room. Jose Hernandez, whose hands and feet were bound, was covered with a bloody pillowcase and said he was choking. Mechuca, who was still bound hand and foot, used his mouth to remove the covering. He then saw that Jose Hernandez was full of blood and bleeding from his head. An ambulance subsequently took Jose Hernandez to the hospital.
Around 7:00 a.m. on July 21, 2003, Christine Baker and her husband, Richard, were working in the walnut orchard surrounding their house in Delhi when they saw a small, magenta-colored car go up and down the road two or three times. When the Bakers reentered the house at 8:00 a.m., two men, each with a gun, told them to get on the floor. When they complied, kitchen aprons were put over their heads, and their wrists and ankles were bound with black plastic straps.
The intruders were dressed all in black and were wearing black ski masks. At least one was wearing what appeared to be unscuffed, black lace-up boots with ridged soles. The intruders said that if the Bakers cooperated and stayed quiet, they would not be hurt. Although their tone was polite, they constantly demanded the location of the Bakers money, safe (which the Bakers did not have), and other valuables.
The intruders remained in the house for 45 minutes to an hour after the Bakers returned from the orchard. They ransacked the premises, cut the telephone lines, took slightly more than $1,000 in cash, as well as jewelry and coins, and also took the couples car. After they left, the Bakers discovered that one of their bedroom windows was open wider than it had been when they went to the orchard that morning, and the screen was on the bed.
Later that day, the Bakers car was found in an orchard about three miles from their house. Other vehicle tracks less than 10 feet away ran along a canal bank on the edge of the orchard and appeared to go northbound. Authorities recovered some of the couples belongings following the arrests in this case.
A little before 2:00 a.m. on July 24, 2003, Cynthia and William Gibbs were in the master bedroom of their Turlock home when they heard a loud crash and breaking glass. As the couple exited the room, they were confronted by at least two people who shined flashlights in their eyes, said they were the Turlock police, and ordered them to the ground. It appeared to Ms. Gibbs that they were wearing dark clothing. At some point during the incident, she saw a black boot that looked like a motorcycle or heavy work boot.
When Ms. Gibbs said they were not the police and told them to get out of her house, the intruders pushed the couple to the floor. At that point, someone was sitting on Ms. Gibbss head and her chin was on the floor. Someone turned on the lights, and she saw a dark handgun with no cylinder lying near her face.
As Ms. Gibbs lay facedown, a person bound her hands behind her back with a black zip tie that was pulled extremely tight. When he moved off her head and went to bind her feet, she called out to her children to call 911. The person then punched her and knocked her head to the ground. A gun was put to Gibbss temple, and he was told that if his wife did not get quiet, things could get really, really bad. The hand holding the gun was wearing what looked like a gray garden glove; the gun had a dark barrel and looked like an automatic. Gibbs also saw a gray shoe, with the material of the upper portion in a cross-weave pattern. Ms. Gibbs did not say anything else, and the person finished binding her ankles and put a house dress over her head. Gibbs was also bound at the wrists and ankles with zip ties, and a towel was placed over his head.
During the incident, Ms. Gibbs heard three voices, all of which she believed were male.[5] Sometimes the intruders referred to one another by a racially derogatory term. Despite the use of the epithet, the intruders did not sound African-American to Ms. Gibbs. Because of how they sounded and the racial slur, however, Gibbs thought at least some of them might be. He heard three different male voices. One seemed to be the leader, one seemed to be in charge of enforcement, and the third kept lookout. One was very polite when addressing him.
The Gibbses ran a business from an office on their property, and the intruders wanted to know where Gibbs kept the money he paid his employees. The leader used a knife to unbind him, and he was escorted out to the office, which was off of the garage. His head remained covered. Once inside the office, he was placed in front of the safe and told to open it, which he did. A coin collection and .25-caliber Derringer were taken from the safe. Gibbs was then escorted back to his previous location in the house, but this time, his hands and feet were bound with duct tape. When Gibbs could not figure out how to put his hands, the intruder he believed to be the leader told him to put them together like he was praying.
At some point, one of the intruders entered the room of the Gibbses daughter. This person shined a flashlight in her face and demanded to know who lived in the house and whether she had a cell phone. He had a gun that was a dark grayish color, with an overall length of six to eight inches. She thought it may have been a revolver. He pointed it directly at her head. Later, she was able to see that he was wearing a black ski mask, black jeans with a silver clip on the right front pocket, a long-sleeved black shirt, and black combat-style boots.
The Gibbses daughter was restrained by the use of black zip ties around her wrists and ankles. One person took her by the arm and walked her to her brothers bedroom and put a blanket over her and her brothers heads. Her brother, who was also bound with zip ties, saw that the person who restrained him had a clip for a knife in his right pocket. The young man heard three male voices that sounded African-American. He had the impression that one, who spoke in more of a whisper, was the leader.
The intruders remained in the home for at least two to two and a half hours. Before they left, they put socks in the Gibbses mouths and wrapped duct tape around their heads. They also disabled the telephones. They ransacked the place and took jewelry, a gun, other items, and the familys car. It was recovered later that day a short distance away. Three distinct shoe print patterns were found in the dirt by the car, one coming from the drivers side and two coming from the passenger side. The length of the strides was consistent with someone running. The shoe impressions appeared to be fresh, and led along a house to where it appeared, from tire tracks, that another vehicle had parked. Similar shoe impressions were found in front of the Gibbs residence. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions, and most likely were the source of one of the impressions.
Ms. Gibbs sustained a cut mouth and bruises from being punched. In addition, she had ligature marks on her wrists and ankles, numbness in her hands that lasted about six weeks, and numbness in her legs that did not last as long. Authorities recovered some of the familys belongings following the arrests in this case.
In August 2003, F.G. resided in Merced with her husband, Z.M., and son. She had a small business selling jewelry to people in their homes. She kept the jewelry in a safe in her kitchen. In late July, Morrison had twice come to the house to ask about a car F.G. had for sale.
Around 3:30 a.m. on August 4, F.G. and her visiting sister were asleep in the master bedroom when someone entered through the bedroom window. F.G., who saw only one person, screamed for her husband, who was sleeping in the living room. The intruder, who had a gun pointed at her face, told her in English to lie on the floor. The women obeyed and the intruder bound them at the wrists with black plastic.
When Z.M. heard his wife scream, he ran toward the bedroom. He saw two subjects, both of whom were armed and carrying flashlights. One had a black semiautomatic; the other, a chrome revolver with a long barrel. The one with the semiautomatic pointed it at Z.M., causing him to back out of the bedroom. The intruder followed him out and told him to get on the ground. This man was wearing some type of black sweater, a ski mask with holes for the eyes but not the mouth, and what looked like work boots or hiking boots with soles that were not very thick. A short time later, the other man also came out of the bedroom and pointed his gun at Z.M. This man was wearing a ski mask and black clothing. One of the intruders told Z.M., in English, that if the police arrived, the intruders would kill everyone.
The intruders placed Z.M. facedown and bound his wrists and ankles with black plastic bands. At some point, a small bed sheet was thrown over his head. One of the intruders took a gold ring off Z.M.s finger. One of them placed his knee on Z.M.s back, pressed a knife blade to the back of his neck, and demanded money. Z.M. responded that they had no money in the house because they had been burglarized three months earlier. The intruder began cutting Z.M.s neck and threatened to kill him.
At some point, a third intruder with a gun entered the house. F.G. saw that the shoes of one intruder had a black, U-shaped design on top, toward the toe. She and Z.M. both heard at least one use a racial slur when talking to another. Based on the eye color and skin tones Z.M. had been able to see, as well as the ones terminology, Z.M. formed the opinion that two of the intruders were Hispanic and one was African-American. The African-American was the one with the silver revolver.
F.G. heard one of the intruders talking on what she believed was a cell phone. The man asked, in broken Spanish, which one was the woman who was going to open the safe. F.G. recognized the voice that replied on the cell phone and described her as being that of a former boyfriend who knew where she lived and about her jewelry business. A short time later, she was taken to the kitchen and struck in the face, whereupon she opened the safe. Her face was then covered with a towel. After the intruders went through the safe, F.G. ended up in the living room, where her breasts and vagina were touched over her clothing. Someone tried to rip off her shorts, but desisted when she struggled and yelled.
The intruders were in the house for about 30 minutes. They ransacked it, cut the telephone lines, and took everything of value, including the jewelry F.G. had had in the safe, which was worth $80,000 to $100,000. Authorities recovered some of the jewelry following the arrests in this case. Also recovered was some of the jewelry that had been taken in the earlier burglary, which had occurred when no one was home.
In August 2003, Renae Frye and William Cozine lived in Turlock. They sold small statuary and yard ornaments, some of which were kept in their front yard.
Around 12:45 a.m. on August 7, three men, wearing ski masks with openings for the eyes and lips, dark clothes, gloves, and black footwear, walked through the open front door with guns drawn and ordered the couple to the floor.[6] When they complied, Frye was told to put her hands behind her like she was praying. The intruders tied their wrists and ankles with large black zip ties, and covered Fryes face with a towel she had had on her hair and Cozines head with a blanket that had been on the couch. They pepper-sprayed Fryes small dog when it became aggressive, and demanded to know where the drugs were. The couple, who had no drugs, told the intruders they were at the wrong house. The men then started asking for big money.[7] After Cozine replied that it was in the bank, one of the intruders had Frye open the safe.
Frye neither heard a car arrive at the residence before the robbery nor leave the residence afterward. The only voices she heard during the incident were male. Although she was so frightened that she could not tell whether any of the voices had what might be termed an ethnic accent, for some reasons she thought the intruders were Spanish. The intruders were polite when addressing her and Cozine, but called each other slang and racially derogatory names.
The intruders were in the house for 45 minutes to an hour, during which time they ransacked the premises and cut the main telephone line. They took jewelry, $8,000 to $12,000 in cash that was kept in various locations throughout the house, and the couples cell phones.[8] Authorities recovered the cell phones following the arrests in this case.
In August 2003, Vicki and Kenneth Myers resided in Delhi. Although the couple owned a Laundromat and a ministorage facility in town, neither was operated out of their home.
At around 3:00 a.m. on August 11, at least three men broke open the front door to the house. At least two had guns; all were wearing dark clothing and had their heads covered. Two shined flashlights in the couples faces, and one put a gun to Myerss face.
The intruders immediately told Ms. Myers to put her hands behind her back like she was praying. When one of her small dogs became aggressive, the intruders sprayed something at it and it fled. The intruders then covered Ms. Myerss head with her bedspread and used black zip ties to bind her wrists and ankles. Two of the intruders took hold of Myers and told him to turn over on his stomach and put his hands behind his back like he was praying. One struck him in the back of the head a couple of times with what felt like a fist, while the other restrained his wrists and ankles with black zip ties. His head was then covered with his blankets. Myers was able to see that at least one of the intruders was wearing black lace-up boots, while one had a black and green camouflage scarf wrapped around his face and a black baseball-type cap with the bill facing backwards. At some point, Myers observed that another was wearing a white tennis shoe with a black stripe and a red stripe running horizontally the length of the side of the shoe.
The intruders asked where the jewelry, money, and valuables were. They also wanted information about the couples businesses, and threatened to hurt the Myerses daughter, whom they knew lived at the ministorage facility. They also appeared to know the receipts for the ministorage were deposited on Mondays.
At one point, one of the intruders cut Ms. Myerss finger to the bone, apparently accidentally, when repositioning her bound hands. One of the intruders threw the blanket off of her body, leaving her head covered, then jerked her panties as if he was going to pull them down. He stopped, however, and covered her back up.
Myers could hear the intruders ransacking the bedroom. When they found the safe in the closet, they put Myers on his knees, put a gun to the back of his head, and clicked the gun twice. He told his wife that they were going to kill him and that he loved her; she begged them not to do it. They then forced Myers to open the safe, after which one of them kicked Myers in the back a few times with what felt like a boot. The man kicking Myers told him, Just remember that all black people arent bad. Although the intruders referred to one by a racial slur when addressing each other, they did not sound African-American to the couple.
The intruders remained in the house for approximately 45 minutes. They cut the telephone lines to the residence, and took jewelry, money, a rifle and a side-by-side Browning 12-gauge shotgun, and a cell phone. It was subsequently discovered that someone apparently had parked in the orchard beyond the fence near the southwest corner of the property. There were a number of shoe prints in the area. Very shortly after the incident ended, Myers saw a car driving across the back of the property on the frontage road. Because it was still dark out, he could not ascertain its color or identify it in any way.
The following day, Ms. Myers saw a newspaper article about another home invasion. Anyone with information was asked to call Detective Campbell of the Stanislaus County Sheriffs Department. Ms. Myers called the number given to inform Campbell that such things were also occurring in Merced County. Authorities recovered some of the Myerses belongings following the arrests in this case.
In August 2003, Steve Christy resided in Hughson. He managed Modesto Farmers Market and 16 acres of grapes adjacent to his property. His house had an alarm system, but it was not connected to the sheriffs department or other agency.
At approximately 4:30 a.m. on August 11, he was awakened by what sounded like an explosion and the alarm going off. As he ran toward the front door, he saw three people who had broken down the door and were entering the house. The intruders each shined a flashlight in his eyes and pointed a gun at his head and told him to turn off the alarm. The intruders all wore dark or black coveralls, dark masks with holes for the eyes and mouths, and plain dark gloves. One was wearing white tennis shoes with a little bit of blue on them.
Once Christy turned off the alarm, the three ordered him back into the bedroom, told him to put his palms together, restrained his wrists with a plastic zip tie so tightly that his hands began to swell, and placed him facedown on the floor next to the bed. A towel was placed over his head.
Christy did not hear the intruders talk to each other. Instead, one particular intruder did all the talking to Christy. This man spoke politely in a low tone of voice, and asked where the money was. When Christy told him, he asked for the safe. When Christy truthfully responded several times that he did not have one, a foot or a hand was placed on the back of his neck, something was pointed at the back of his head, and the intruder again asked where the safe was and said he would blow [Christys] brains out. Christy heard a click from the gun behind his head, then the intruder who was talking to him told him to get up. They then went out to Christys shop, which was about 100 feet from the main house.
Once inside the shop, the one intruder again asked the location of the safe. Someone started looking through the shop, while another intruder struck Christy near his right kidney with what felt like a fist, knocking him unconscious. When he regained his senses, one of the intruders helped him back into the house.
All told, the intruders were at the house around an hour to an hour and a half. They ransacked the premises, cut the telephone line to the house, and took jewelry belonging to Christys late wife, about $300 from his wallet and $990 in cash that had come from the farmers market, a Browning 12-gauge shotgun and a .38-caliber revolver, and some other items.
Boots seized from Silva could not be excluded as the source of a shoe print found on the dirt road leading from the house next to the Christy residence. Authorities recovered Christys shotgun and some of his other belongings following the arrests in this case.
Counts 24-29 August 12-13, 2003
In August 2003, Jane Doe Two, her husband M.J., and their two children, T. and M., both of whom were young adults, resided Ceres.[9] The family owned two businesses, one in Oakdale and the other a limousine service that they ran from an office situated between their house and shop.
At approximately 3:30 a.m. on August 12 or 13,[10]M. was in the family room, awake, when he heard the outside door in his bedroom open, then saw some flashlights and three people. He pretended to be asleep, but one of the intruders came over to him, said he had been watching and knew he was not asleep, and told him to get up. M. was then struck on the back of his head with something hard and went to the floor.
Another intruder, who had a gun and was dressed all in black, went to the master bedroom, where Jane Doe Two and M.J. were sleeping. Jane Doe Two, who was dressed in her bra and underwear, was awakened by the intruder shining a flashlight in her eyes and telling the couple to get out of bed. When M.J. turned, the man hit him over the head with a gun, drawing blood, and then put the weapon to M.J.s head. Towels were placed over the couples heads, and they were led to the room where M. was. As she passed the room of T., who was seven and a half months pregnant, Jane Doe Two looked in and saw another intruder, also dressed completely in black, getting the young woman out of bed. This person had a flashlight and a gun. All told, there were three intruders in the home; all wore black boots and full masks over their heads. The masks had eye holes.[11] Jane Doe Two heard only male voices.
Once in the living room, Jane Doe Two sat down on the floor. Her son was going to the floor as a man hit him on the head with a handgun. The intruders then threw a blanket over him. M.J. was also in the living room, and then T. was brought in. T. lay on the floor as she was told, then a gun was placed to her temple and she was told that if she moved, the intruder who used a racial slur in referring to her would shoot her.[12] A blanket was placed over her head and her wrists and ankles were bound with phone cord wire. M. was also bound with some sort of wire at the ankles and wrists. During the incident, T. saw two guns, both handguns. M. also saw two guns, at least one of which was a handgun.
Jane Doe Two was situated facedown on the living room floor. She was bound at the wrists and ankles with telephone cords and her head was covered. Someone ripped two rings from her fingers. Although Jane Doe Two was unsure whether this person was wearing gloves, she believed, based on his accent, that the man who was with her most of the night was Hispanic. One of the intruders, who was wearing gloves, took M.J.s wedding ring.
M.J. was facedown on the floor. His wrists were bound with electrical cords from appliances in the house and his head was covered with something. One of the intruders wanted to know the location of the money and valuables. Someone held a gun to M.J.s head and said they would blow it off if he did not tell them where everything was. M.J. heard the gun click several times while it was held to the back of his head. M.J. took them to the bedroom and showed them where the jewelry and guns were. The intruder then returned M.J. to the other room and laid him back down. At some point, one of the intruders said the family did not grow up like he did and were not raised on chitlings. M.J. also heard what sounded to him like gang talk. When the intruders walked past him, they kicked him in the head three times and once in the side. At least one was wearing black boots.
The Hispanic-sounding man told Jane Doe Two that her story about where the money was at had better match her husbands. He untied her and took her to open the safe, which was in the weight room. He then took her to the office, where a money box was kept. At some point, another intruder joined them. Jane Doe Two opened the money box, which contained $34, whereupon the intruder she believed was Hispanic cut off her underwear and undid her bra. She fell to the floor and he started asking her questions about whether she had ever cheated on her husband and how old her children were. Hoping they would leave, she told them that she had a limousine driver who was due. She could tell, from the tones of voice, that they were angry she had no money. Although she no longer had a towel over her head, she did not look at the intruders because she was afraid if she did so, they would kill her.
The intruders took Jane Doe Two back into the living room. The Hispanic one started rubbing her breasts and asking if they were real. Next, he tied her back up, facedown, although he did not retie her feet. He then stuck the gun in her vagina and told her husband he would blow her up if M.J. did not tell him where the money was. Jane Doe Two screamed, and the intruder removed the gun from her vagina and put it toward her posterior, although the gun did not actually penetrate her anus. He then untied her again and stood her up. He told M.J. that he was going to take her with him, and he put her over his shoulders and carried her outside.
The Hispanic intruder took Jane Doe Two to the deck, where there was a hot tub. From things he said to her, such as accusing her of being prejudiced, she believed he was trying to make her think he was African-American. He wanted to know where the money was and twice stuck her head underwater in the hot tub.
While this was going on, M.J. was brought out to the hot tub. He had been kicked in the head a few times and was bleeding.[13] The intruders demanded to know where more money was at, but there was no more money. One intruder held him by the back of his neck and tried to dunk him, but M.J. resisted. He then let his head be dunked in order to avoid a beating. M.J. managed to free his hands and straighten up, but one of the intruders punched him in the side of the face and the intruder who was with Jane Doe Two pointed what looked like it might be a black nine-millimeter semiautomatic at M.J.s face. M.J. capitulated and his hands were retied. At one point, an intruder grabbed M.J.s head, which was bleeding, and asked Jane Doe Two, Is this your husband? She was screaming and crying and said yes. An intruder dunked Jane Doe Twos head one more time, then the couple was taken back into the house.
Jane Doe Two was not retied. Her head was shoved down into the love seat so that her naked posterior stuck up in the air. Every time she tried to sit down, an intruder would put her back up. At one point, two of the intruders were laughing and one of them pantomimed having intercourse with her. A dildo was thrown at her, and the Hispanic intruder told her to use it. When she did not want to touch it, the two intruders moved her into T.s room, where they placed her on the bed, face up. One of them put a pillow over her face. They encouraged her to use the dildo on herself, then one of them inserted it into her vagina himself and moved it in and out. At the same time, the first one fondled her genitals with his hand. She was crying hysterically; when the intruders told her to shut up, she told them that she could not breathe. When the intruder placed the dildo against her posterior, she said that there was something wrong with her. They stopped at that point and tied her up in the living room again.
At some point after the hot tub incident, one of the intruders received what sounded like a call on a cell phone. He spoke to someone, but Jane Doe Two could not tell what he said because she was crying. When the intruders left, they used the back door, which was in Ms room. All told, they were in the house some 45 minutes to an hour, during which time they ransacked the familys belongings. They disabled the telephones and took jewelry, $34 in cash, a shotgun, a .22-caliber rifle, two handguns, and a knife. Authorities recovered some of these items following the arrests in this case.
The family subsequently received medical treatment for their injuries. Jane Doe Two was somewhat disoriented and sustained bruises on her arms, legs, and ankles. She also experienced some vaginal bleeding. T.s wrists were injured by the cords being wrapped around them. M. suffered a minor concussion and received either staples or stitches to close his head wound. M.J. sustained injuries to his face and head that required stitches and left a permanent scar.
Several sets of footprints were found along the canal bank. Boots seized from Silva could not be excluded as the source of some of the prints. Boots seized from Martinez could not be excluded as the source of another of the prints. In addition, one print appeared to be of a tennis shoe type, with a heel that appeared to be split, somewhat like a horseshoe.
At approximately 1:20 a.m. on August 15, 2003, Marcos Renteria was asleep in his Ceres residence when he was awakened by a loud noise coming from the attached garage. Renteria arose and managed to partially dial 911 on his cell phone, but before he could complete the call, someone kicked down the door to the bedroom. Renteria saw two intruders, both with guns drawn on him and with flashlights. One gun was shiny, probably chrome, and square. Renteria did not think it was a revolver. The intruders were wearing dark clothing, black combat boots, and had handkerchiefs covering the lower halves of their faces.
When the intruders entered, they turned on the bedroom light and started yelling at Renteria in English to get down. Both voices were male. One of them demanded to know who he was calling, then grabbed the phone and threw it on the ground. When Renteria said they could have anything, one of them said, Anything? One then hit him over the head with a metal flashlight and both began punching him. A burning liquid was sprayed at his face, and he was struck with a flashlight more than once. One of the intruders put the square gun to his head, and Renteria grabbed it and tried to wrest it from the mans hand. He almost succeeded, as the intruder was wearing gloves that were a little too big for him. At some point, one intruders mask came off or Renteria pulled it off. It was Martinez. The other intruder said, Shoot him, Bro.
Although bleeding heavily, Renteria fled to the garage. He pushed the button to raise the car door and managed to lift it a bit, but the intruders caught up to him and started punching him again. The intruders pushed Renteria back inside the house, but he managed to evade them and dive underneath the garage door. He then started running to his shop, which was 150 to 200 feet away. Renteria could tell the intruders were following him, then he heard shooting. Several shots struck him, then some of his workers came to his aid. Renteria saw some lights moving away from the house, toward the canal. It appeared the intruders were running with their flashlights. Renteria estimated they had been on the premises about an hour. To his knowledge, nothing was taken from the house.
Renteria was shot four times. His injuries required prompt medical attention and surgical repair to prevent loss of limb or death. Subsequent DNA testing showed his blood on Silvas boots. In addition, Silvas boots could not be excluded as the source of a shoe print found at the scene.
Counts 32-35 September 10, 2003
In September 2003, Homer Garza, Sr., resided in Denair, with his wife Virginia, 14-year-old daughter Melissa, and 23-year-old son Homero, Jr.[14] Garza, a farm manager, had an office at his residence, as well as one at his work site. An alarm system that was connected to a security company and the sheriffs department had been installed at the house on September 9.
At approximately 2:20 a.m. on September 10, Garza got up to see his wife off to work and to check on some water he had running in his orchard. Everything seemed fine. Around 3:30 a.m., he was asleep when the houses alarm went off. Thinking there was a problem with the installation, he was hurrying to turn off the alarm, the control panel for which was by the front door, when three men entered the house by breaking open the dead-bolted front door. One held a shotgun to Garzas head and said that if he did not quickly turn off the alarm, the intruder would blow [his] brains out. The intruder repeated this and banged Garzas head with the butt of the shotgun multiple times. Garza was able to tell the intruders were wearing masks, but could not make out what kind because the individual with the shotgun also was shining a flashlight in his face.
Garza managed to turn off the alarm. The intruder, who was wearing gloves that felt like latex, grabbed him, took him into the living room, and told him to drop to the floor and put his hands together behind his back, as if he was praying. Garzas hands and ankles were restrained with black plastic ties and his head was covered with one of his wifes shirts.
As one of the intruders ran down the hallway toward the childrens rooms, another one put his foot to Garzas neck, applied pressure, and asked him where the money was. The shoe felt heavy. The intruder told Garza that his son was in blood, and that if he loved his son, he would tell where the money was. Garza said there was money in his wallet in the laundry room. The intruder then asked where the clavo was. In the Spanish culture, clavo is a slang term that means stash.[15] Garza understood it to mean money or jewelry, and he told the intruder that he did not know what he was talking about. The intruder then got angry and kicked Garza in the side of the face.
Meanwhile, Homero was awakened when his locked bedroom door was kicked in. What appeared to be a shotgun and a flashlight were pointed at him by a person wearing what looked like black military boots and black pants with pockets on the side. He could hear the alarm in the background. It went off after 15 to 25 seconds. Homero was told to lie facedown on his stomach and put his hands behind his back in a praying position. He complied, but, due to his size, the intruder had trouble holding his hands together, so another person came and helped. Homeros wrists and ankles were restrained with black zip ties and a blanket was thrown over him. He could hear three male voices. The intruders spoke in English, except that Homero, who understood Spanish, heard the Spanish slang term ese four or five times when one intruder addressed another. The two intruders in his room used the term and seemed to have Hispanic accents.
Homero heard one of the intruders tell his sister to get up and then to get on the ground. He then heard what sounded like someone being struck. Although he did not hear his sister make any sound, he yelled out not to hurt her, that she was only 14.[16] The intruders repeatedly asked Homero where the money was; when he insisted there was no cash in the house, he was kicked a few times in the back of his head with something that felt sturdy, like a boot. The intruders said that if he was lying, his father was going to get hurt worse, and that Homero should look at him, that he was bleeding all over. Homero knew they were lying, because he could hear his father and had not heard him being struck or asking not to be hit.
Eventually, one of the intruders asked Garza how to turn off the front lights. Garza told him the location of the switch, then heard a car nearby that sounded like its muffler was torn up. The car was leaving. The incident lasted 30 to 50 minutes, during which the house was ransacked and the telephones disabled. The intruders took a number of items, including jewelry, CDs, money, and a video camera. Authorities recovered some of the items following the arrests in this case.
Garza suffered cuts and bruises to his head and face from being kicked and struck with the gun butt. He also had bloody marks on his ankles from having his feet tightly bound. Melissa sustained a facial abrasion and marks on her wrists and ankles. Homero had marks on his wrists and ankles that were visible for about a month. None of the family sought medical attention.
Shoe prints were found between the residence and the road. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions. Boots subsequently seized from Martinez could not be excluded as the source of other of the impressions. There were tire tracks in the orchard near the house that appeared to go from Swanson Road, into the orchard, and then out onto the road again. The shoe prints led toward the area where the tire prints were found.
Counts 36-37 September 10, 2003
Early on the morning of September 10, 2003, Stanislaus County Sheriffs Detective Nuno was assigned to be part of the arrest team, if residential robbery suspects, who were under surveillance, committed a robbery. Sergeant Allen, who was the team supervisor, was with Nuno in one vehicle, while the rest of the SWAT team and a couple of other detectives were in other vehicles. Nuno and Allen were in an unmarked car that was equipped with lights and a siren. Nuno was driving.
At approximately 4:30 a.m., Nuno and Allen were at the staging area in Hughson, when they received information that the individuals were believed to have committed a residential robbery in the area.[17] The surveillance team reported the suspects location; Nuno had previously been informed that the suspect vehicle was brownish or golden and had the words Cold Pimpn on the back.
Nuno and Allen, who were in the lead vehicle, and the rest of the arrest team moved to intercept the suspects. Once the team was in position, Nuno activated his lights and siren. The suspect vehicle slowed down as if it was going to stop, but then accelerated. A pursuit ensued that covered seven to 10 miles and lasted approximately 10 minutes.
Nuno followed the vehicle from a rural area into a residential neighborhood in Turlock. There, the car slowed down and began making turns. The rear doors opened a couple of times, then, in the vicinity of 550 Angelus, near Angelus and Spruce, the vehicle slowed almost to a stop. Nuno slowed down as well, and pulled toward the drivers side passenger area of the vehicle. The right rear door opened completely, and Martinez got out. He was wearing black clothing, a black beanie-type hat, black boots, and a bandolier, and had a shotgun in his hand. As he turned toward Nuno and Allen, the shotgun also turned in their direction. Allen opened his door, stepped half out of the car, which was still moving, and fired several shots at him. Because Allen was behind the door of the car and the window was not rolled down, he fired through the window, which shattered. The shots also damaged the vehicles outside mirror. The Cold Pimpn vehicle was about 10 to 15 feet in front and to the right of his and Nunos position at that point. As Martinez ran toward a residence on the south side of Angelus, Allen reacquired the target, stood up, and fired again. He was standing behind the door of his and Nunos car, which was now slightly rolling away from him.
Immediately after Allen fired the second time, he and Nuno heard loud booms, which Allen believed to be gunfire. They were coming from the suspect vehicle, toward Allen. Allen had stepped out of the car in which he had been riding, and was standing right next to it. He was still somewhat in the doorway, with the car moving away from him. When he first heard the gunshots, Nunos car had not completely cleared his position. The suspect vehicle was still in front of Nunos car, approximately four to five car lengths away. The lower drivers side portion of Nunos windshield broke, and he realized he was being shot at. Glass from the windshield cut his left cheek, and the bullet, which struck the drivers side door frame, was probably inches from his face. Nuno heard several booms. Allen heard two or three shots. Nuno was not sure which shot hit the windshield, but it was neither the first nor the last.
As this was going on, the suspect vehicle started to move. Nuno accelerated to catch up to it, and Allen followed Martinez.[18] At the intersection of Angelus and Spruce, approximately 100 yards from where Martinez had exited the vehicle, the two passenger side doors opened. As the car was either completely stopped or moving slowly, Morrison got out of the rear passenger side. Nuno did not see anything in his hands. Silva got out of the front passenger side. He was dressed in dark clothing and holding a chrome-colored handgun.
Because Silva was holding a firearm, Nuno positioned his car at an angle and began to shoot at him through the broken-out passenger window. He could not tell whether any of his shots struck Silva, who disappeared into the darkness, as did Morrison. Having lost sight of them, Nuno came around the drivers side of the suspect vehicle, at which point he saw the driver exit. It was Fouse. Nuno gave chase as she ran into a yard across the street, then took her into custody without further resistance.
Fouse w
