People v. Lucero

At 4:30 or 4:45 p.m., Ruth Schultz heard defendant’s goose cackling and looked out her dining room window. She saw two girls matching the description of Chris and Teddy standing at the back of defendant’s lot between two fences. Defendant walked toward the girls and told them that the goose would not hurt them. The girls appeared to be coming into defendant’s yard.

Shortly after 5:00, no more than 30 to 40 minutes after the girls had left for the park, Michael Hubbard became concerned by their failure to return. He and his wife made separate trips to the park but were unable to find the girls. About 5:30, Mrs. Hubbard called the San Bernardino County SheriiF’s Department.

Sergeant Wallace Anton received a report of the missing girls from the sheriff’s Yucaipa substation about 6 p.m. In order to coordinate the search, a temporary command post was set up at the I Street park almost directly across the street from defendant’s house. Sergeant Anton assigned Deputies Charles Long and Hans Vander Veen to the search. Apparently at some point during the search one or more helicopters were employed.

About 7:15 p.m., Dolores Gwaltney heard defendant’s car start up and drive down the street. She lived next door to defendant and was able to recognize the car because of its defective muffler. Ten minutes later she saw the car return to defendant’s driveway. Three to five minutes later she saw defendant drive away in the car. Within minutes of the car’s second departure, Mrs. Gwaltney saw a fire in the rear portion of defendant’s house.

Deputy Long also noticed the fire as he reported to the search command post about 7:25 p.m. He radioed the California Department of Forestry and immediately began to fight the fire with a garden hose. He was joined shortly by Deputy Vander Veen and Sergeant Anton. Long and Vander Veen crawled into the burning house searching for anyone who might be inside. No one was found.

The Department of Forestry firefighters arrived at 7:37. Sergeant Anton immediately informed Fire Captain Charles Bryant of the missing girls and asked that the captain direct his men to search the burning house. Mrs. Gwaltney telephoned defendant at his parents’ house. Defendant returned to the scene with his parents in their car.

Exclusion of Prospective Jurors.

Defendant challenges the trial court’s exclusion of prospective juror Roy Van Hoy.

The trial court initiated the examination of prospective juror Van Hoy:

“Court: Do you or anyone close to you have such a conscientious opinion regarding the death penalty that such an opinion would make it impossible for you to vote for the imposition of the death penalty in any case, under any circumstances, and regardless of the nature of the evidence introduced during the trial and penalty phase?

“Van Hoy: I’m afraid I’m going to have to say yes to that.

“Court: Your personal feelings about the death penalty are such that you cannot conceive of any circumstances, any evidence, or any case under which you could possibly ever vote for the death penalty. Is that a correct statement?

“Van Hoy: So long as we have jails to put em in, no I could not.

“Court: You could not?

“Van Hoy: No, I could not.

“Court: It’s a matter of conscience and you could never under any circumstance vote for the imposition of the death penalty?

“Van Hoy: I feel like it would just be the same as me killing the guy himself [sz'c],

“Court: That’s your —

“Van Hoy: That’s my opinion.

“Court: That’s your conscientious opinion?

“Van Hoy: Yes, it is.”

Defendant concedes that fire and police officials may remain at the scene to investigate the causes of a fire once it has been extinguished, even though a warrant may be required to return to the property for subsequent investigations. (Michigan v. Tyler (1978) 436 U.S. 499 , 510 [ 56 L.Ed.2d 486 , 499, 98 S.Ct. 1942 ].) He claims, however, that the officers were interested in evidence related to the missing girls and were not really conducting an arson investigation. We conclude, however, that the perceived danger to the missing children would still justify a warrantless entry and search.

A long-recognized exception to the warrant requirement exists when “exigent circumstances” make necessary the conduct of a warrantless search. “ ‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” (People v. Ramey (1976) 16 Cal.3d 263 , 276 [ 127 Cal.Rptr. 629 , 545 P.2d 1333 ], cert. den. sub nom., California v. Ramey (1976) 429 U.S. 929 [ 50 L.Ed.2d 299 , 97 S.Ct. 335 ].)

We believe the search for the missing girls justified the officers’ brief entries into the house. We must consider the facts as known to the officers. Two young girls are missing. A fire of unknown origin ignites in a house directly across the street from the park where the girls had gone to play. The girls, their bodies, or clues to their location might be somewhere in the burning house. Thus, when the firefighters first arrived at the scene, Sergeant Anton advised Captain Bryant of the missing children and asked him to order his men into the burning house with oxygen equipment to look for the girls.

The report of the bloodstain was another unusual circumstance adding weight to the suspicion that the house and the missing girls might be connected. The presence of blood also suggested that the children were in serious danger. At the time of Anton’s entry the body of one of the girls had just been found, making it likely that the second girl was in imminent danger and making discovery of her location even more urgent.

Whether the officers were primarily interested in finding a lead to the missing girls or in investigating the fire is irrelevant. Either purpose would have justified their brief warrantless entries. In combination, these circum

The later entry of Detective Swanlund presents a different situation. Swanlund was a homicide detective called after the first body had been found. He was not concerned with the arson investigation and had not been involved in the search for the missing girls. He was presumably interested in any evidence related to the murdered girl. When he arrived at the house the area had been secured and defendant was already at the sheriff’s department substation.

Although no exigent circumstances justified Swanlund’s warrantless entry, his observations were of no significance. Within 30 minutes of his arrival, homicide detectives and sheriff’s criminologists arrived to conduct a full-scale search of defendant’s house and car with defendant’s consent. The consensual searches provided an independent basis to seize the challenged evidence. It should also be emphasized that Swanlund (or for that matter, Long, Rumple and Anton) did not testify at trial as to the observations he made during his brief entry into defendant’s house. We conclude that the trial court properly denied defendant’s suppression motion.

B. Sufficiency of the Evidence of Premeditation and Deliberation.

The only theory of first degree murder presented to the jury was that of premeditated murder. Although the trial court properly instructed the jury in this regard, defendant contends that the evidence presented at trial is insufficient as a matter of law to support a finding of premeditation.

In People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ], we identified three categories of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity; (2) facts suggesting motive; and (3) facts about the manner of killing which suggest a preconceived design. Although the evidence presented at defendant’s trial was not particularly strong on any one of the Anderson factors, the record reveals at least some evidence in each category. When considered in combination, and viewed in a light most favorable to the prosecution (Jackson v. Virginia (1979) 443 U.S. 307 , 319 [ 61 L.Ed.2d 560 , 573, 99 S.Ct. 2781 ]), this evidence is sufficient to support the jury’s finding of premeditated murder.

The most substantial evidence of premeditation related to planning activity, “the most important prong of the Anderson test.” (People v. Alcala

At 16, a withdrawn and unhappy teenager, defendant lied about his age and, with his father’s assistance, joined the army. Defendant completed three tours of combat in Vietnam. He received a Purple Heart and the Combat Infantry Badge, which is awarded to soldiers exceeding a specified amount of time in combat.

Defendant’s psychological portrait was drawn by Dr. Edward Conolley. Defendant has serious psychological problems arising from his childhood experiences and his experiences in Vietnam. He suffers from severe emotional problems as a result of his difficult childhood. These emotional problems, combined with his young age and low-normal intelligence level, made him especially vulnerable to the stresses of combat. As a result of his combat experiences, defendant manifests definite symptoms of posttraumatic stress syndrome dating back to 1969. The doctor described these symptoms in detail: (1) reexperiencing two traumatic incidents in recurrent flashbacks; (2) emotional isolation and detachment both in Vietnam and in civilian life; (3) reenlistment and repeated volunteering for combat tours because of an inability to adjust to life outside of the combat zone; (4) sleep disturbance; (5) survivor guilt, focusing on a cousin killed in combat; (6) memory impairment and an inability to concentrate; and (7) avoidance of any activity or discussion which might arouse memories of Vietnam.

The doctor testified that in his opinion defendant was “quite psychologically impaired” on the day of the murders. He was unable to think clearly, to perceive reality or to react appropriately to that reality. Posttraumatic stress disorder played a significant role in defendant’s psychological functioning and the conduct which ultimately led to the murders. In the doctor’s opinion a set of circumstances occurred on the day of the murders which caused a flashback to a military setting and resulted in an explosive survival outburst.

The initial disruption was the departure of defendant’s wife and child for an extended stay with her sister. Because of his troubled marriage, defendant interpreted his wife’s unexpected departure as possibly signifying the end of his marriage. The next significant occurrence was the cackling goose. In Vietnam, agitated animals often signaled the approach of unfriendly

The United States Supreme Court decision in Skipper v. South Carolina (1986) 476 U.S. 1 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ] is directly in point. Skipper sought to introduce testimony of two jailers and one “regular visitor” to the jail to show that he had made a good adjustment to jail life; the trial court ruled the evidence irrelevant. The court described the question before it as “whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment.” (P. 4 [90 L.Ed.2d at p. 6, 106 S.Ct. at p. 1671].) It concluded that “[i]t can hardly be disputed that it did. . . . [The state does not dispute] that the jury could have drawn favorable inferences from this testimony regarding petitioner’s character and his probable future conduct if sentenced to prison. Although it is true that any such inferences would not relate specifically to petitioner’s culpability for the crime he committed [citation], there is no question but that such inferences would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death.’ Lockett, supra, at 604 .” (Ibid.)

After finding constitutional error, the court in Skipper reviewed the record and concluded that “it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.” (Supra, 476 U.S. at p. 8 [90 L.Ed.2d at p. 9, 106 S.Ct. at p. 1673].)

The Attorney General seeks to distinguish Skipper on several theories. First, he points out that Skipper’s witnesses, unlike Lucero’s, did not expressly forecast future behavior, but recounted Skipper’s past good behavior as a basis for inferring future behavior. The United States Supreme Court in Skipper, however, rejected a similar distinction as “elusive,” and added that in any case a rule which would bar evidence offered “for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars . . . would not pass muster under

We agree with the Valle analysis: there is a significant difference between an inference which a juror may or may not draw and a direct expression of expert opinion. The expert’s authority and experience may persuade the jurors to a conclusion they would not reach on their own.

B. Exclusion of Testimony Relating to Posttraumatic Stress Syndrome.

Defendant also offered the testimony of Thomas Wulbrecht, a Vietnam veteran with various degrees in psychology and social work. Wulbrecht is currently director of a “program of readjustment counseling” for Vietnam veterans at Pettis Veterans Hospital in Southern California. He has specialized training in the diagnosis and treatment of posttraumatic stress syndrome, particularly in Vietnam veterans. Based on a three-and-one-half-hour examination of defendant, Wulbrecht was prepared to testify that Lucero suffered from strong symptoms of this disorder dating back to 1969. Wulbrecht did not discuss with Lucero the circumstances of the murders. When asked if certain circumstances occurring on the day of the killings could have precipitated the violence, Wulbrecht opined that it was “probable” that the delayed stress disorder caused defendant to commit the murders.

The prosecutor objected to the proffered testimony on the ground that it was not relevant to any of the statutory factors since it did not relate to the circumstances of the crime. He argued that Wulbrecht had not discussed the murders with Lucero and could not say with certainty that the mental condition precipitated the killings. Defense counsel responded that Lucero’s mental condition was relevant as mitigating evidence since “the whole person, is in issue in these proceedings. . . . This had nothing to do with the commission of the crime. It has to do with the totality of the personality of this individual.”

The court described its ruling for the record: “[F]or the record ... I would like to point out that the basis of my ruling is not that this witness is not qualified to testify that Mr. Lucero suffers from post-traumatic stress syndrome. I have previously ruled that he is qualified to render that opinion. What I am ruling is that the opinion, standing alone, is not relevant to the issues which are to be presented to the jury in these proceedings. I am ruling that it does not relate by sheer speculation to the activities of that day. [fl] This witness has candidly testified that without additional information he cannot render an opinion as to whether or not the traumatic stress syndrome, in his opinion, which in his opinion Mr. Lucero suffers from, was a factor in the deaths of the little girls.”

The theory of the prosecutor’s objection and the reasoning of the court in sustaining that objection were clearly inconsistent with the United States Supreme Court’s decisions in Lockett v. Ohio, supra, 438 U.S. 586 , Eddings v. Oklahoma, supra, 455 U.S. 104 , and Skipper v. South Carolina, supra, 476 U.S. 1 , as well as the analogous authority of this court. Defendant was entitled to have the jury consider his psychological disorder as a factor in mitigation whether or not the mental condition caused him to commit the crimes. Even assuming the court could have properly excluded an opinion by Wulbrecht with regard to the probability that the disorder precipitated the killings, the court should have at a minimum accepted defendant’s offer to limit that testimony to a description of his mental condition.

We cannot uphold exclusion of Wulbrecht’s testimony as merely cumulative of Conolley’s, nor rely on that argument to consider the exclusion harmless. First, there is, as the prosecution evidence demonstrated, considerable debate about whether the Vietnam posttraumatic stress syndrome does in fact exist; in this setting, it could be argued that evidence from a second expert on the existence of the syndrome should not be deemed cumulative. Second, a similar point can be made about the defense claim that, assuming such a syndrome exists, it is possible reliably to diagnose a given person as suffering from the syndrome. As the prosecution suggested,

Phillip Louis Lucero never had a brush with the law. He was industrious and family oriented, despite a childhood environment that was far from exemplary. Then we taught Phillip Louis Lucero to kill, and sent him to war. As his patriotic duty, he killed our enemies efficiently. Unfortunately, after returning home he irrationally killed again, this time two innocent children. There is macabre irony in the fact that the society on whose behalf Lucero took an undetermined number of lives is now seeking to take his life.

In the early days of this republic, Justice Johnson of the United States Supreme Court cautioned that “War strips man of his social nature; it demands of him the suppression of those sympathies which claim man for a brother; and accustoms the ear of humanity to hear with indifference, perhaps exultation, ‘that [human beings] have been slain.’ ” (The Rapid (1814) 12 U.S. (8 Cranch) 155, 161 [ 3 L.Ed. 520 , 522].) And after the Second World War Justice Murphy of the high court reminded us that “War breeds atrocities. From the earliest conflicts of recorded history to the global struggles of modem times inhumanities, lust and pillage have been the inevitable by-products of man’s resort to force and arms.” (In re Yamashita (1946) 327 U.S. 1 , 29 [ 90 L.Ed. 499 , 517, 66 S.Ct. 340 ] (dis. opn.).)

Lucero spent seven and a half years in the army, beginning at the age of sixteen. Much of that service was in combat in Vietnam, for which he was awarded the Combat Infantry Badge and a Purple Heart. The record shows that his combat duty was performed effectively. He was promoted to E-4 rank (corporal), and despite one disciplinary reproval, was ultimately promoted to E-5 rank and won a Unit Citation Award. He completed three tours of duty in Vietnam, and was into his fourth tour when he left the army.

According to the evidence, Lucero suffered two particularly traumatic war experiences that now haunt him day and night as “intrusive recollections.” In the first incident he encountered a Vietnamese dressed in civilian clothes and holding a grenade; fearing attack, he shot and killed the man, only to discover later that his victim was a friendly soldier out of uniform. In the other incident he retrieved rotting corpses from the battlefield, some of which were actually falling apart from decomposition.

According to the examining forensic psychologist, Lucero thereafter exhibited classic symptoms of post-traumatic stress disorder based on his combat experiences in Vietnam. The honking of the goose brought back

We will never know precisely what impelled a tormented mind to act. We do know that the killings were utterly incomprehensible. No sexual acts were involved, nor were the other common motivations for murder: robbery, kidnapping, personal animus.

I concede as a general proposition that the law cannot countenance domestic violence by Vietnam veterans, even though many unfortunately still suffer from their agonizing experiences.

I do believe, however, that this defendant deserves compassion from a society that in the first instance taught him to kill. His conviction of murder in the first degree should be upheld, but he does not deserve death at the hands of the society he faithfully served.

On three occasions over the past years I have urged my colleagues to employ the statutory powers vested in this court to reduce a sentence. (People v. Mabry (1969) 71 Cal.2d 430 , 446-458 [ 78 Cal.Rptr. 655 , 455 P.2d 759 ] (dis. opns. by Mosk, J. and Peters, J.); People v. Holt (1984) 37 Cal.3d 436 , 462 [ 208 Cal.Rptr. 547 , 690 P.2d 1207 ] (dis. opn. of Mosk, J.); People v. Coleman (1985) 38 Cal.3d 69 , 98 [ 211 Cal.Rptr. 102 , 695 P.2d 189 ] (dis. opn. of Mosk, J.).) This is a particularly appealing case for such action.

The offense was heinous, there is sufficient evidence for conviction, and the judgment of guilt is properly affirmed by the majority. I also agree that there were prejudicial errors in the penalty phase. Thus the issue is whether this defendant deserves a potential death sentence after retrial of the penalty phase ordered by the majority.

This crime took place in July 1980, nearly eight years ago. The evidence has undoubtedly grown stale and memories of witnesses have become dim. A retrial of any aspect of a case this old may be difficult, perhaps futile, presenting impossible demands on the administration of justice.

Therefore, to serve the ends of justice, I would exercise our statutory authority not to require retrial of the penalty phase but to reduce the judgment to a conviction of first degree murder without special circumstances and to remand for resentencing.

The authority of this court to reduce a judgment in a criminal case is contained in Penal Code section 1260, which provides that on appeal the

There is also authority vested in appellate courts by Penal Code section 1181, subdivision 7. It provides that a trial court may modify a verdict “by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed. ” (Italics added.)

In People v. Jackson (1955) 44 Cal.2d 511 [ 282 P.2d 898 ], this court found serious errors and misconduct committed by the trial court and the prosecutor, but since the overwhelming weight of credible evidence established guilt, the judgment was reversed with directions to reduce a death penalty to life imprisonment. The majority relied on the miscarriage of justice section of the California Constitution (then § 4½, now § 13, of art. VI).

In a number of cases our predecessors on this court have avoided exercise of the statutory power clearly given us by section 1260, but they have never provided a convincing rationale for doing so; rather they appear to have adopted a convenient summary rejection of that responsibility. (See, e.g., People v. Howk (1961) 56 Cal.2d 687 , 700 [ 16 Cal.Rptr. 370 , 365 P.2d 426 ]; People v. Linden (1959) 52 Cal.2d 1 , 26 [ 338 P.2d 397 ]; People v. Green (1956) 47 Cal.2d 209 , 235 [ 302 P.2d 307 ]; People v. Carmen (1954) 43 Cal.2d 342 , 351 [ 273 P.2d 521 ]; People v. Dessauer (1952) 38 Cal.2d 547 , 555 [ 241 P.2d 238 ]; People v. Thomas (1951) 37 Cal.2d 74 , 77-78 [ 230 P.2d 351 ].) Consistent with our explicit statutory power, I would overrule the portions of the foregoing decisions that declare this court may not reduce the punishment imposed in a criminal case.

For these reasons I would modify the judgment to eliminate the special circumstances and the death penalty, affirm as modified, and remand for resentencing.

Appellant’s petition for a rehearing was denied May 5, 1988. Mosk, J., was of the opinion that the petition should be granted.