Defendant and Appellant. ) Super. Ct. No. BA109260
Defendant Kelvyn Rondell Banks was convicted by a jury in 1998 of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§§ 187, subd. (a), 664), one count of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)), one count of first degree residential robbery (§ 211), one count of first degree residential burglary (§ 459), and one count of attempted second degree robbery (§ 211). The jury also found true the special circumstances allegations of multiple murder, robbery murder, and burglary murder (§§ 190.2, subd. (a)(3), (l7)(A) & (G)); the allegations that defendant personally used a firearm in the commission of each offense (former § 12022.5, subd. (a)); and the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)). Defendant was acquitted of a third murder count related to the killing of Michael Haney in a separate incident.
The first penalty phase trial ended in a mistrial. After a penalty phase retrial, a jury returned a verdict of death in 1999. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), sentenced defendant on the noncapital counts and enhancements, and imposed a sentence of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) As explained below, the conviction on count 2 of willful, deliberate, and premeditated attempted murder must be reduced to attempted murder. In all other respects, we affirm the judgment.
Crimes against Charles Coleman and Latasha W.
Latasha W. testified that during the early morning hours of July 1, 1996, defendant raped her, shot her, and murdered Charles Coleman.
At 2:00 a.m., her friend Charles Coleman, a parapalegic confined to a wheelchair but able to drive, was driving her in his car to his house on Halldale Avenue in Los Angeles. Latasha W., who was 17 years old at the time, began taking shopping bags from the car to the house. As she was returning to the car, Latasha W. saw defendant and another man approach Coleman’s car from an alley around the corner of the street. Coleman appeared to know defendant and the other man. At Coleman’s request, defendant pulled Coleman and his wheelchair up the three or four steps that led to the house.
Once inside the house, defendant stood directly behind Coleman and pointed a gun at the back of his head. Defendant pulled the gun trigger twice, but the weapon did not discharge. Defendant pulled the trigger a third time, firing a single bullet into the back of Coleman’s head. The impact caused Coleman to fall to the floor from his wheelchair.
Defendant grabbed Latasha W.’s arm and forced her into Coleman’s bedroom where he demanded the location of Coleman’s money and drugs. Latasha W. responded that she did not know where Coleman stored his drugs, but that he kept his money in a hole inside his mattress. Defendant instructed Latasha W. to kneel in the corner of the bedroom; he then threw the mattress on top of her. From underneath the mattress, Latasha W. could hear the two men rummaging through the bedroom.
Defendant eventually removed the mattress. He then led Latasha W. by the arm to the laundry room, where he unbuckled his pants while holding his gun in his right hand. Defendant then ordered Latasha W. to get on her knees and, after placing the gun on top of the washing machine, forced her to orally copulate him. He then ripped her shorts, forced her onto her hands and knees, and raped her. After ordering Latasha W. to lie down on her back, defendant raped her a second time.
Defendant then took Latasha W. into the kitchen, where the second man was standing with a third man. Defendant kept Latasha W. in the kitchen while the other two men rummaged through the house. Defendant and his accomplices referred to one another as “Blood,” a term Latasha W. believed had gang significance. Although Latasha W. did not know if Coleman was a gang member at the time of his death, she was aware that he used to be affiliated with the Black Stone gang, a Bloods gang affiliate.
Latasha W. was led into the living room and forced to lie facedown on the floor. Using a telephone cord, the second man tied Latasha W.’s hands and legs. The men then searched the house for five to seven minutes until Latasha W. heard one of the men say they had found what they were looking for. The two accomplices exited the house, but defendant remained inside. Defendant shot Coleman again, striking him in the head. From a distance of approximately six feet, defendant shot at Latasha W. The bullet struck her ear as she lay facedown on the floor in the living room. Latasha W. remained motionless until she heard the three men drive away in Coleman’s car. After waiting several minutes, Latasha W. ran outside the house to seek help.
At trial, Latasha W. identified defendant as the person who shot Coleman and sexually assaulted and shot her.
Los Angeles Police Officer Martin Martinez
Los Angeles Police Officer Martin Martinez testified that around 3:00 a.m. on the morning of July 1, 1996, Latasha W. flagged him down in his patrol car on Slauson Avenue. Latasha W. told Officer Martinez that her friend had just been shot and that she had been raped and shot. She described the shooter as an African-American male who was approximately 27 years old, five feet nine inches tall, 180 pounds, and bald. She reported that the shooter was wearing a black jacket, a white T-shirt, and black or dark-colored shoes. The gun he was carrying was made of stainless steel.
Madeline Marini testified that on July 1, 1996, she performed a sexual assault examination on Latasha W. at California Hospital. Marini collected oral, vaginal, and rectal swab specimens from Latasha W. and drew a blood sample. Latasha W. had physical injuries that were indicative of sexual assault, including redness, abrasions, and small broken vessels in the vagina. Latasha W. described the rape suspect as five feet nine inches tall, 170 pounds, bald, and wearing black clothes.
Los Angeles Police Detective Sal LaBarbera
Los Angeles Police Detective Sal LaBarbera testified that on July 1, 1996, at about 3:30 a.m., he was notified of a homicide at 5835 South Halldale Avenue. LaBarbera responded to the crime scene with his partner, Officer Christopher Barling.
LaBarbera further testified that on August 7, 1996, he presented Latasha W. with a six-pack photographic array. As he was removing the six-pack from his binder and before he could place the photo array on the table, Latasha W. “blurted out that she already sees him, the person that she identified.” Latasha W. then selected defendant’s photograph and identified him as her and Coleman’s assailant.
Deputy Medical Examiner Pedro Ortiz
Deputy Medical Examiner Pedro Ortiz testified that he conducted an autopsy on Coleman’s body on July 3, 1996. Coleman had been shot twice. One bullet entered the back of his head, passed through the back of his skull, and exited through the center of his head. Soot deposits and evidence of gunpowder on the entrance wound suggested that this wound was made at close range. A second bullet entered the left side of his head above the left earlobe and exited through the right temple. This second wound was sustained from a distance of more than two feet.
Criminalist Michael Mastrocovo
Michael Mastrocovo, a criminalist employed by the Los Angeles Police Department, testified that he was responsible for analyzing sexual assault evidence for criminal court cases. He testified that he analyzed the items in Latasha W.’s rape kit and found sperm on all three vaginal slides, the vaginal aspirate, and the rectal swab and slide. Sperm was also detected in a stain on the crotch area of Latasha W.’s underwear. On April 30, 1997, Mastrocovo sent the vaginal swab samples from Latasha W.’s rape kit, along with blood samples drawn from Latasha W. and defendant, to Cellmark Diagnostics (Cellmark) for DNA analysis.
Dr. Robin Cotton
Dr. Robin Cotton, the director of Cellmark, testified that Cellmark conducted a DNA analysis of the vaginal swabs and blood samples submitted by Mastrocovo. The DNA from the sperm fraction of the swabs was compared to the DNA from defendant’s blood sample; the DNA matched at all nine loci tested, meaning that defendant could not be excluded as the donor of the sperm sample. Latasha W. could not be excluded as a match with the DNA in the nonsperm fraction, which is consistent with the swab having been taken from her. Dr. Cotton testified that the combination of allele types common in the sperm sample and defendant’s blood sample would occur in about one in 17 million people in the African-American population.
The parties stipulated that a tattoo on defendant’s left arm reads “HPB,” which stands for Harvard Park Bloods or Harvard Park Brims. The Harvard Park Brims are a Bloods gang affiliate operating in an area of Los Angeles roughly bounded by Slauson Avenue, Vermont Avenue, Gage Avenue, and Western Avenue. The word “Blood” is a term commonly used between members of Bloods gangs.
Crimes Against Charles Foster
Sandra Johnson and Yvonne McGill
Sandra Johnson and Yvonne McGill testified that on July 26, 1996, around 12:30 a.m., Johnson drove McGill and Charles Foster to the Home Savings Bank located on Vermont Avenue in Los Angeles. Johnson and McGill waited in the car while Foster went to the automated teller machine (ATM). McGill was watching Foster, who was fumbling around with some items, possibly looking for his ATM card.
From her side view mirror, Johnson saw a hooded man wearing a red bandana over his face approach the passenger side of the car. Because the man’s eyes were not concealed, Johnson could tell he was African-American and had brown eyes. McGill turned to look out the passenger side window and saw the man standing with a handgun pointed directly at her. She looked into his eyes and started screaming. Johnson started her car and drove away while the masked man looked at Foster standing about 12 feet away by the ATM. After driving a short distance, they heard two gunshots.
Johnson and McGill stopped a nearby police vehicle and reported that someone had shot their friend at the ATM. The police car responded to the bank followed by Johnson and McGill. When they arrived, Foster was dead, lying face-down in front of the ATM.
On August 27, 1996, McGill was shown a photographic six-pack and selected a photograph of defendant as having “eyes [that] look like the guy with the gun.” McGill testified at trial that defendant appeared to be the person whose eyes matched those of the man who killed Foster.
Detective Frank Weber
Detective Frank Weber testified that he responded to a crime scene at the Home Savings Bank on July 26, 1996 with his partner, Detective Paul Wright. Detective Weber recovered two firearm casings within five to 10 feet of Foster’s body. A Sizzler discount card was in the receipt slot of the ATM, which had sustained damage from a bullet strike. Two expended bullets were recovered: one inside the ATM and the other in an alley west of Vermont Avenue. An empty deposit envelope was clenched in Foster’s right hand beneath his body.
Detective Weber further testified that on July 29, 1996, he took statements from both Johnson and McGill. Johnson described the person who approached her car as an African-American male approximately five feet eight inches tall. He was wearing a red hoodie with a red scarf. McGill stated that the gunman had a red sweater wrapped around his head and was wearing a large black jacket. He was African-American and approximately five feet nine inches tall.
Dr. Eugene Carpenter, Jr.
Dr. Eugene Carpenter, Jr., a medical examiner working for the Department of Coroner of Los Angeles County, testified that he performed an autopsy on Foster’s body. Dr. Carpenter concluded that Foster had sustained two fatal gunshot wounds. The first bullet entered his right hand and exited the base of his right thumb; it then created a second entrance wound at his throat and exited near his neck on his left shoulder. The second bullet struck the back of Foster’s head and exited through his forehead.
Patricia Manzanares testified that she lived in a ground floor apartment adjacent to the Home Savings Bank parking lot. On the night of the Foster shooting, Manzanares saw two men pass by her window. One man stayed in front of the window in an alley while the other man, whom Manzanares later identified as defendant, walked toward the bank. Defendant was wearing a mask. Defendant approached Foster, who was using the ATM, and shot him. Defendant then returned to the alley near Manzanares’s apartment window and removed his mask. Manzanares was able to see his face. Defendant laughingly told the other man who had stayed by the window, “Oh shit” and “Goddamn.” The men left the area in a large green Cadillac with a white top.
Manzanares called the police. She described the shooter as an African-American male, 25 to 26 years old, about five feet six or seven inches tall, and about 190 pounds. He had a short “Afro” haircut, a chubby face, and some whiskers around his upper lip and chin. He was wearing a black-and-white checkered shirt, a heavy black jacket, black baggy jeans, and a red mask that extended below his collar.
On August 7, 1996, Manzanares was shown a single photographic six-pack and selected defendant’s photograph as depicting the man who shot Foster. She identified defendant’s photograph from the same six-pack again on August 21, 1996, and again before the grand jury on August 27, 1996. On February 18, 1997, Manzanares identified defendant as the gunman in a live lineup. Manzanares testified at trial that defendant was the person she saw shoot Foster.
Los Angeles Police Officer Marcelo Raffi
Los Angeles Police Officer Marcelo Raffi testified that on July 31, 1996, around 12:30 a.m., he and his partner were patrolling the area of Harvard Park near Vermont Avenue in a marked patrol car. Defendant was among a group of people walking southbound on Vermont Avenue. Defendant began running when he saw the police and was detained after a brief pursuit. Before he was stopped, Officer Raffi saw defendant drop an object on a pile of wood. Officer Raffi recovered a loaded bluesteel nine-millimeter semiautomatic handgun from the place defendant had dropped the object.
Officer Raffi arrested defendant. The report of defendant’s arrest indicated that defendant was five feet 10 inches tall and weighed 225 pounds. His booking photograph depicted him wearing a black or blue denim jacket that fell somewhere between his thighs and knees.
Detectives Paul Wright and Frank Weber
Detectives Paul Wright and Frank Weber testified that on August 21, 1996, they executed a search warrant at defendant’s residence at 1446 West 58th Place in Los Angeles, located about 50 yards from Coleman’s house and about one-half mile from the bank where Foster was murdered. They recovered an extra-large black jacket on the floor inside a bedroom closet. Officer Raffi identified the jacket as the same one defendant had been wearing on July 31, 1996, and Manzanares identified the jacket as the one worn by the man who shot Charles Foster. The police also recovered four red T-shirts and a pair of black jeans, two ammunition boxes containing live nine-millimeter bullets, and an empty ammunition box.
The parties entered several stipulations regarding the ballistics evidence. The nine-millimeter handgun Officer Raffi recovered was operable. The handgun fired both of the Speer cartridge casings and both of the bullets recovered from the Foster and Haney crime scenes. The handgun contained nine-millimeter rounds manufactured by CCI, Norenco, Federal, and Speer. The Speer cartridge casing in the handgun and the Speer cartridge casings from the Foster crime scene bore the same head stamp and shared the same caliber, brand, type, and material composition. One box of ammunition recovered from defendant’s residence was for Speer nine-millimeter ammunition; the Speer materials from the handgun and the Foster crime scene were commonly packaged in that type of box. The empty ammunition box recovered from defendant’s residence was for CCI ammunition, and the CCI cartridges found in the handgun were of the type commonly packaged in that type of box.
Defendant did not testify on his own behalf. However, he presented testimony from Los Angeles Police Officer Donna Shoates and Detective Sal LaBarbera.
Officer Shoates and her partner transported Latasha W. to California Hospital for the sexual assault examination on July 1, 1996. Officer Shoates testified that Latasha W. described the man who had attacked her as an African-American male who was bald, five feet nine inches tall, and about 175 pounds; he was wearing a large black jacket, a white T-shirt, and black pants. Latasha W. told Officer Shoates that the man who attacked her did not ejaculate and that Coleman was a gang member and known drug dealer.
Detective LaBarbera testified that on July 12, 1996, he showed Latasha W. a binder with over 100 photographs of Six Deuce Brims and Harvard Park Bloods gang members. Defendant’s photograph was not included in that binder. Latasha W. identified the photograph in position number 11, stating that the person depicted in that photograph “looked like” the person who attacked and shot her. On a copy of the page, Latasha W. circled the photograph in position number 11, initialed and dated it, and wrote “looks like him.” The man Latasha W. identified was in custody at the time of the incident.
Detective LaBarbera acknowledged that his report indicated defendant weighed 210 pounds, whereas Officer Raffi’s report indicated defendant weighed 225 pounds. On cross-examination, Detective LaBarbera testified that despite writing in his report that the gunman was “clean shaven, possible stubble,” Latasha W. actually described the gunman who raped her as having a mustache and a small goatee.
The defense also cross-examined various witnesses called by the prosecution, including Dr. Robin Cotton, Yvonne McGill, and Patricia Manzanares. Dr. Cotton testified on cross-examination that the Cellmark database used to compute the probability of a specific set of genes occurring in a member of the African-American population contained a sample of 100 African-Americans living across the United States; that the database did not account for inter-racial or mixed race ethnic groups; that the database included only samples from Caucasians, African-Americans, and Hispanics (not Asians or Native Americans); and that the true frequency of the combination of genes occurring in a given population could be 10 times greater or 10 times less than the estimated frequency. Dr. Cotton further testified that the Cellmark analysts who performed the DNA testing prepared two reports, one on June 2,1997, and one on June 30, 1997. In preparing the first report, Cellmark tested five loci and found that the DNA from the sperm sample and the DNA from defendant’s blood sample was identical at each locus tested. The probability that a member of the African-American population would have the same combination of alleles found in both the sperm sample and blood sample at each of the five loci would be one in 8,000. In preparing the second report, Cellmark tested an additional four loci and again found a perfect match between the sperm sample and defendant’s blood sample. The probability that a member of the African-American population would have the same combination of alleles found at each of the nine loci tested would be one in 17 million.
Yvonne McGill acknowledged on cross-examination that “most of [defendant’s] face was covered” when she saw him; that she had stated during her grand jury testimony that she had only gotten a “glimpse” of the gunman; and that she had told Officer Weber that the gunman had a dark complexion, whereas she would describe defendant as “[l]ight skinned.”
Patricia Manzanares acknowledged on cross-examination that the jacket worn by the gunman is common among African-American men in her neighborhood. She also acknowledged that she had previously described the gunman as five feet seven inches tall and wearing a black-and-white checkered shirt and a heavy black-and-white jacket.