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People v. Mayfield1/2/1997
dered the tests useful only for determining the range of travel of gunpowder particles and not the range at which the particles would damage or penetrate human skin. Although the test showed that particles could travel as far as 48 inches, he remained of the view that the maximum distance at which they would damage or penetrate human skin was 18 to 24 inches. Gunpowder particles that are deposited on human skin without damaging or penetrating the skin are easily wiped away.
Dr. Root, the pathologist, further testified that the abrasions on the left side of Sergeant Wolfley's face that apparently resulted from his fall onto pavement after being shot could have covered over and concealed gunpowder stippling, but in that event he would have expected to find stippling in the areas close to the wound on which there were no such abrasions. He therefore remained of the opinion that the fatal shot had been fired from "beyond the gunpowder range" of the weapon. In his opinion, the absence of stippling on defense counsel's forearm after the test firing at 18 inches did not necessarily mean that 18 inches was beyond the range at which stippling would occur. Most of the particles would strike within a tight circle around the bullet's point of impact. Only a few particles would be dispersed to the forearm, and those few could have been filtered out by the arm hairs. He explained the appearance of stippling on the arm after the test firing at 12 inches on the basis that the particles were traveling at a higher velocity and in greater concentration.
D. Prior Convictions
The information's allegations that defendant had suffered two prior felony convictions were bifurcated and tried to the court after the jury had returned its guilt phase verdicts on the substantive offenses. Based on certified court records, the trial court found true the allegations that defendant had been convicted of grand theft from the person (§ 487, former subd. (3) [now subd. (c)]) as a felony on August 30, 1977, and that he had been convicted of the felony offense of robbery (§ 211) on August 19, 1982.
E. Penalty Phase
The parties stipulated that in June 1977, defendant used a knife to rob 15-year-old Thomas Glore of $4, the robbery occurring near a high school during the lunch hour. The parties also stipulated that in October 1981, defendant stole merchandise from a department store and, when confronted by a store security agent in the parking lot, pointed a gun at the security guard to make good his escape.
Mark Fister testified for the prosecution that on the night of March 2-3 of 1986 (the same night that Sergeant Wolfley was killed), he was working as the clerk in a 7-Eleven market in Rialto when a man entered the store and robbed him. The man approached the counter with a small bag of sunflower seeds and tendered some money, but when Fister opened the register the man drew a knife, cut Fister on the hand, and instructed Fister to give him all the money. The knife was a kitchen carving knife with a wooden handle and an eightto nine-inch blade. The man left the store with the money from the register and rode away on a 10-speed bicycle.
Fister made an in-court identification of defendant as the man who committed the robbery, but he also said that he had thought the robber was shorter than himself (Fister testified he is six feet one inch), of average build, and "not muscular." Fister admitted that at the time of the offense he had estimated the robber's height to be 5 feet 10 or 11 inches (whereas defendant's height was 6 feet 3 inches), he had estimated the robber's weight as 115 to 120 pounds (whereas defendant's weight was 180 to 185 pounds), and he had reported
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