Metropolitan News-Enterprise


Friday, February 3, 2012


Page 1


Supreme Court Tosses Death Sentence, Cites Instructional Errors




The California Supreme Court yesterday tossed out the death sentence of an Anaheim pimp convicted of killing a prostitute, citing an erroneous jury instruction.

The justices voted unanimously to affirm Gary Galen Brents’ convictions for first degree murder, kidnapping, and felonious assault. They were also unanimous in throwing out the death sentence, but held, 6-1, that the penalty phase could be retried.

Dissenting Justice Kathryn M. Werdegar argued that there was insufficient evidence to prove that Brents had an intent to kidnap 26-year-old Kelly Ann Gordon, independent of the intent to kill her. While such an “independent felonious purpose” is not an element of kidnapping or felony murder, it was an element of the kidnap-murder special circumstance when Gordon was killed in 1995.

The law was changed by the passage of Proposition 18 in 1998.

An Orange Superior Court jury convicted Brents in 2000, after hearing evidence that he placed Gordon in the trunk of a Cadillac, drove to an abandoned industrial area near Lakewood, then opened the trunk, doused the victim with gasoline, closed the trunk, doused the car with gasoline, and set it on fire. Brents, according to testimony, had a dispute with Gordon over some money she was supposed to pay him from an amphetamine sale.

Standard Instruction

Judge John J. Ryan gave a standard instruction, CALJIC No. 8.81.17, on proof of a felony-murder special circumstance. The standard form of the instruction includes several places where the name of the underlying felony must be filled in.

In most of those places, Ryan inserted kidnapping as the underlying felony. But at one point—for reasons the high court said were not clear—he inserted an erroneous reference to assault, so that jurors were told they could find the special circumstance true if the defendant committed the murder “in order to carry out or advance the commission of the crime of assault by force likely to produce great bodily injury or to facilitate the escape therefrom or to avoid detection.”

Jurors found the kidnap-murder allegation true, but deadlocked on another special circumstance allegation, murder by torture, which was dismissed.

Substantial Evidence

The defense argued on appeal that the kidnap special circumstance should be thrown out, for lack of substantial evidence of an independent felonious purpose. But Justice Joyce L. Kennard said there was enough evidence for jurors to infer that Brents kidnapped Gordon first, then decided to kill her at some point on the 16-mile drive; that he kidnapped her with intent to obtain gasoline and later decided to use the gasoline to kill her; or that he formed the intent to kill first, but later decided to drive around with her in the trunk in order to terrorize her.

The law, Kennard explained, requires that the felonious purpose be independent of the intent to kill, but not necessarily that it exist before the intent to kill is formed.   

As for the instructional error, prosecutors argued that it was harmless beyond a reasonable doubt, but Kennard concluded otherwise.

“The instruction is supposed to refer to the same target crime throughout (here, kidnapping),” the justice explained, so the reference to assault had to have confused the jury, particularly since they asked for a clarification of the instruction before reaching their verdict. Given that the evidence of independent purpose was only “minimally sufficient” to meet the substantial evidence test, Kennard added, there was a reasonable possibility there would have been no death verdict had the jury been properly instructed.

Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Ming Chin, Carol Corrigan, and Goodwin H. Liu joined in the opinion.

Werdegar, in her partial dissent, wrote:

“In my view, the evidence, as opposed to speculation and conjecture, admits only the conclusion that defendant transported the victim to another location simply to kill her, viz., the kidnapping was in furtherance of the killing. To uphold the sufficiency of the evidence to support the special circumstance finding in this case is to stretch the principle of deferential review of a jury verdict to the point of meaninglessness.”

Also yesterday, the high court unanimously upheld the death sentence for Marchand Elliott, convicted of the 1988 murder of Patrick Rooney, 35. The armored car guard was shot once in the head as while walking to his vehicle after making a cash pickup at a market on Lakewood Boulevard in Bellflower.

The court rejected the contention that Los Angeles Superior Court Judge Robert W. Armstrong, who subsequently retired, should have interrupted the trial and held a competence hearing when the defendant—who, the judge stated on the record, had not been disruptive to that point—began throwing apples in the courtroom.

One of the apples was thrown at the bench but did not hit the judge, but two of them hit jurors. Elliot also made a vulgar comment about the court proceedings, and was temporarily removed from the courtroom and had his hands shackled to the chair when he returned.

  Kennard, writing for the high court, noted that defense counsel never suggested that the defendant was unable to assist in his defense. His outburst, she said, “was evidence that he was angry and upset, and perhaps that he was wished to interrupt the proceedings, but it was not evidence sufficient to require the trial court to conduct a mental competency hearing.”

Attorneys who argued in the Supreme Court  were Michael B. McPartland of Palm Desert for the defendant and Deputy Attorney General Robin Derman for the state in the Brents appeal, and Richard B. Mazer of San Francisco and Deputy Attorney General James William Bilderback in the Elliot appeal.

The cases are People v. Brents, 12 S.O.S. 484, and People v. Elliot, 12 S.O.S. 492.


Copyright 2012, Metropolitan News Company