People v. Nelson

Defendant Sergio Dujuan Nelson was convicted of the first degree murders of Robin Shirley and Lee Thompson. (Pen. Code, § 187; all undesig-nated statutory references are to this code.) The jury also found true the special circumstance allegations that Nelson committed multiple murders and that the murders were committed while lying in wait. (§ 190.2, subd. (a)(3), (15).) It also found true firearm-use allegations. (Former § 12022.5, subd. (a).) The first jury was unable to reach a penalty verdict, and the trial court declared a mistrial. At the second penalty phase, the jury returned a verdict of death. The trial court denied Nelson’s motions for a new trial (§ 1181) and for modification of the penalty verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, §11; Pen. Code, § 1239, subd. (b).) We reverse the judgment on the lying-in-wait special circumstance due to insufficiency of the evidence. We *522 also reverse the penalty phase judgment due to the trial court’s unwarranted intrusion into the jury’s deliberative process and remand for retrial of the penalty phase. We otherwise affirm the judgment.

I. FACTS

A.…

Concurring and Dissenting.—I concur in the judgment, but dissent with regard to the lying-in-wait issue. (Maj. opn., ante, at pp. 549-552.) The murder in this case was an ambush, unlike the murder in People v. Carter (2005) 36 Cal.4th 1215 [ 32 Cal.Rptr.3d 838 , 117 P.3d 544 ], the only case on which the majority relies to reach its contrary conclusion. In Carter , the defendant broke through the victim’s front door. (Id. at p. 1261.) Here, defendant snuck up on his victims from behind as they sat unsuspecting in the front seats of a car, and shot them through an open rear passenger window. These facts are nothing like those in Carter .

The majority does not question the sufficiency of the evidence that defendant concealed his purpose and perpetrated a surprise attack on his unsuspecting victims from a position of advantage. It finds the evidence lacking only as to the “substantial period of watching and waiting” element of the lying-in-wait special circumstance. (People v. Morales (1989) 48 Cal.3d 527, 557 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ].) It reasons that because the evidence did not establish whether defendant arrived at the scene before his victims, it cannot be said there…

I. FACTS

A. Guilt Phase 1. Overview On September 11, 1993, Nelson resigned from his job at Target after failing to receive a promotion. Shortly before 4:00 a.m. on October 2, 1993 he shot and killed Robin Shirley, the woman who received the promotion Nelson believed he had deserved, and Lee Thompson, a coworker who had defended Shirley when Nelson harassed her about her promotion. Nelson knew Shirley typically waited in the parking lot for the store to open. He rode to the Target parking lot on his bicycle, armed with a loaded gun. Shirley and Thompson were in the front seat of Thompson‘s car. Nelson parked his bicycle, approached the car on foot from behind and fired several shots into the car through an open rear window, then started to walk away before returning and firing additional shots into the car. After shooting Shirley and Thompson, Nelson fled the scene on his bicycle, which he then abandoned when police chased him. In his closing argument, Nelson‘s attorney conceded Nelson had killed the victims but argued the shootings had not been deliberate and premeditated. 2. Prosecution Case On May, 2, 1992, Nelson, then 17, was hired at the La Verne Target store on Foothill…