THE PEOPLE, Plaintiff and Respondent, v. LAMBERT GEORGE CHAMBERS, Defendant and Appellant.
Crim. No. 21484
First Dist., Div. Two
Oct. 8, 1982.
136 Cal. App. 3d 444
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Neil Rosenbaum, Deputy State Public Defender, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Gloria F. DeHart and Ronald D. Smetana, Deputy Attorneys General, for Plaintiff and Respondent.
GRODIN, P. J.-Appellant was found guilty by a jury of first degree murder (
Appellant raises numerous issues on appeal. He contends that the trial court committed prejudicial error in admitting hearsay statements of the deceased victim, in denying his motion for acquittal for insufficient evidence of rape, and in failing to instruct the jury on lesser included offenses of rape. He also challenges the constitutionality of the felony-murder rule, and of the statute applied to sentence him to life imprisonment without the possibility of parole. We will consider each of these contentions in turn.
On Monday evening, December 4, 1978, Ms. T., a young woman 20 years old, was killed in her apartment where she lived alone. She died from abdominal wounds inflicted with a kitchen paring knife. Her partially disrobed body was discovered the next morning. She had been sexually assaulted. Appellant was arrested on December 6, 1978, and charged with her murder and rape.
The day she was killed, Ms. T. had left work at about 6 p.m. and drove to her parents’ home. Her mother and sister were there. She ate supper and left about an hour after she arrived. When asked why she was in a hurry to go home, she said she was expecting the defendant to come to her apartment.
Sometime between 7 and 8 p.m. Ms. T.‘s ex-boyfriend called her. She terminated their conversation when someone knocked at the door.
When Ms. T. failed to appear for work the next day her employer called her family. Her brother and sister went to her apartment. The door was ajar and she was dead on the living room floor. She was lying on her back, legs spread, with her pants bunched up at her feet, and her shirt above her breasts. On the floor beside her was a small knife. There were no identifiable fingerprints on the knife. It was later discovered that several things were missing from the apartment: a television set, a clock radio, an iron, and Ms. T.‘s purse.
The first police officer on the scene observed no sign of forced entry to the apartment or of ransacking inside. Only the kitchen silverware drawer was open.
An autopsy was performed by a forensic pathologist who found that two abdominal knife wounds inflicted with great force resulted in Ms. T.‘s death within minutes after their infliction, and within one to two hours from the time of her meal with her mother and sister. Other wounds and bruises in the front of the neck occurred shortly before or during the fatal knifing. There had also been a massive blow to the back of her head during the course of the same violent incident.
There was also medical evidence that Ms. T. had been sexually assaulted shortly before she was stabbed. The autopsy revealed a bruise of the right labia majora and the left labia minora (at the entry to the vagina). The bruise marks were a little longer than an inch in their greater dimension. The pathologist opined that the bruising occurred at
Police questioned Ms. T.‘s sister who told them that Ms. T. said she was expecting appellant to come to her apartment the evening she was killed. Officers were alerted to be on the lookout for him. On December 6 he was spotted by an officer who recognized him. The officer observed appellant‘s vehicle proceeding toward him, made a U-turn to go after appellant and then observed that appellant was speeding, clocking him at 70 miles per hour in a 25-mile-per-hour zone. The officer caught up to him when his vehicle made a sharp turn and an abrupt stop.
Appellant was subsequently arrested and his car impounded and searched. Inside, the police found car stereo equipment and a store receipt for its purchase.
Next the police went to the home of appellant‘s 18-year-old girl friend where his family told them he had been staying. The girl friend was granted immunity in return for testimony against appellant. At trial she testified that on Monday, December 4, appellant left the apartment at 7:30 p.m. and did not say where he was going or when he would be back. He returned a couple hours later with fresh scratches on the left side of his lip and neck. From his car he retrieved the purse which he told her he had “snatched . . . from a girl.” He suggested they use the credit card and she practice the signature. The following morning he brought in the television, clock radio, and iron saying they were his and that he got them from his mother‘s house. Later they purchased the stereo equipment with the credit card.
On cross-examination the girl friend conceded that when police first interviewed her she told them that appellant had brought the television set, clock radio, and iron to her house the morning before Ms. T. was killed. The inmate who shared a county jail cell with appellant while appellant was in custody awaiting trial testified that appellant said he had gone out with Ms. T. either the night she was killed or the night before, that she had given him all the items later found at his girl friend‘s apartment, and that Ms. T. was with him when he bought the stereo.
The defense was presented primarily through the testimony of appellant. In December 1978 he was 21 years old. He met Ms. T. a year earlier when they were college students and they had a romantic
That evening (Sunday) he did go to Ms. T.‘s apartment. They had a drink and went for a ride and she told him she could not pay the $250 but suggested he use her credit card to buy something for himself. On the return to her apartment she lent him her iron and told him to keep her television set and clock radio as collateral in case he was unable to buy something with the credit card.
Thereafter he returned to his friend‘s apartment after arranging with Ms. T. to return Monday evening with the card and collateral and with some other items she had asked him to purchase for her. After he got home that same Sunday night he called Ms. T. to ask her about the credit card. She told him it was in her purse and that the purse was in his car. Appellant left everything in the car overnight.
On Monday he brought all the items into his friend‘s house. He tried to use the credit card during the day on Monday, but the stores would not accept it. Then he gave his friend a ride, washed his car, got something to eat, and went to the gym to play basketball. He called Ms. T. from the gym sometime between 7:15 and 8 p.m. to tell her he was unable to purchase the things with the card. She suggested he have a girl friend use it pretending to be her. She also said her boyfriend was mad at her and appellant should bring the items to her on Friday.
After playing basketball, appellant returned to his girl friend‘s house and left again a little later. He showed his girl friend the purse. He told her he got it from a “girl,” that they should use the credit card the next day, and that he was going to return it. The next day, Tuesday, December 5, they purchased the stereo but the stores would not accept the card for the other items requested by Ms. T.
On Wednesday, December 6, he was driving and saw the police officer. He was not going over 45 miles per hour. He was headed for his parents’ house but when he saw the officer he turned off to go back to his friend‘s house. He said he never saw Ms. T. the night she was killed.
A. Hearsay statements of the deceased victim.
Evidence of the victim‘s statements to her mother and her sister, that she was going home early the evening she was killed because she was expecting appellant, was admitted over appellant‘s hearsay objection. Appellant contends that the court‘s ruling was error, and that the error requires reversal.
The trial court admitted the evidence on the authority of People v. Alcalde (1944) 24 Cal.2d 177 [148 P.2d 627], in which the Supreme Court held that two statements by the deceased victim that she was going out to dinner that evening with the defendant, came within the “state of mind‘’ exception to the hearsay rule: “It was a declaration of intent to do an act in the future, offered as evidence that the deceased had the intent she declared and that the intent was probably carried out, namely, that she intended to and did go out that night with a man named ‘Frank.‘” (24 Cal.2d at p. 185.) After examining authorities from this and other jurisdictions, the court stated the “[e]lements essential to admissibility” of such statements as being “that the declaration must tend to prove the declarant‘s intention, at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case.” (24 Cal.2d at p. 187.) Finding the first two conditions to have been met, the court stated, as to the third: “Unquestionably the deceased‘s statement of her intent and the logical inference to be drawn therefrom, namely, that she was with the defendant that night, were relevant to the issue of the guilt of the defendant.” (24 Cal.2d at p. 188.)
Appellant contends that Alcalde was incorrectly decided, and that we need not follow it, because it has been superseded by contrary provisions of the Evidence Code.1 In criticizing the majority holding in Alcalde, appellant is in good company. Justice Traynor, dissenting in that case,
Such criticism, however meritorious, does not relieve us of the responsibility for following Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal. Rptr. 321, 369 P.2d 937]), and appellant‘s proposition that Alcalde has been superseded by the Evidence Code is subject to considerable question. The Evidence Code was the product of a study and report by the California Law Revision Commission, and the commission, in recommending the adoption of what is now Evidence Code section 1250,2 commented: “Section 1250 also makes a statement of then existing state of mind admissible to ‘prove or explain acts or conduct of the declarant.’ Thus, a statement of the declarant‘s intent to do certain acts is admissible to prove that he did those acts. People v. Alcalde 24 Cal.2d 177, 148 P.2d 627 (1944).” (7 Cal. Law Revision Com. Rep. (1965) p. 1235.) The commission‘s comments were ultimately approved by the Assembly Committee on Judiciary and adopted as the comment to Evidence Code section 1250. (See 29B West‘s Ann. Evid. Code (1966 ed.) § 1250, p. 271.) If the Legislature intended to
We do not decide that question, however, because it appears from the record that the disputed evidence, assuming it was erroneously admitted, was cumulative of appellant‘s own testimony and therefore harmless. Appellant testified that on Sunday night he arranged with Ms. T. to return to her apartment on Monday night with the credit card and other items. It was not until after she had returned home from her mother and sister‘s house after work Monday evening that he said he called to tell her he was unable to use the card. Appellant thus admitted the truth of the inference from the hearsay statements to which he objects: that at the time the statements were made, both the victim and appellant anticipated that he would visit her at her apartment that night. Appellant does not suggest that but for the admission of Ms. T.‘s hearsay statement he would not have taken the stand, nor, judging from the nature of the balance of the prosecution‘s case, does that seem at all likely. Assuming the putative error to be of federal constitutional dimensions (cf. Ohio v. Roberts (1980) 448 U.S. 56, 65-66 [65 L.Ed.2d 597, 607-608, 100 S.Ct. 2531]), our review of the record convinces us that it was harmless beyond reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].)
B. Sufficiency of the evidence of rape.
Appellant contends that the evidence was insufficient to support a finding that he, or anyone, committed an “act of sexual intercourse” with the victim, and thus insufficient to prove that element of rape3 beyond a reasonable doubt. While conceding that Ms. T. was the victim of a sexual assault, and that in the course of the assault her vagina was penetrated by something, he argues that the evidence was insufficient to establish that it was penetrated by a penis.4 He points to the absence of semen deposits, foreign pubic hairs, or trauma to her vagina, thighs, or
Our duty, as to this contention, is to “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].)
The evidence of rape may be summarized as follows. Ms. T. was home alone. She had arranged to meet with appellant, a young man her age with whom she had been romantically involved in the past. She was found dead the next day on her back, on the floor of her living room. Her sweater and bra were both pushed above her breasts. Her pants and underpants were removed from one leg and bunched up around the foot of the other. Her legs were spread. There was no evidence that she had been dragged. (Cf. People v. Craig (1957) 49 Cal.2d 313 [316 P.2d 947].)
There was also evidence of actual penetration. Among other wounds she had two bruises on her labia. The pathologist testified in detail about the bruises. He found one on the right labia majora, and one on the left labia minora. Each bruise was approximately two centimeters in length and was caused by a fairly smooth-surfaced instrument. The bruising was consistent with a human penis.
There was no evidence of any foreign object present which would account for the bruising. There was no other evidence which affirmatively tended to negate a finding of rape. The labial bruises were caused at about the same time as the bruises around the neck which were consistent with a hand, and about 10 minutes prior to the abdominal stabbing which quickly resulted in death. There had also been stabbing around the front of the neck and chest. There was evidence that Ms. T. resisted her assailant by scratching the left side of his face with her fingernails.
Various cases cited by appellant are all distinguishable from this case in material respects. In some there was no proof of penetration at all, at the relevant time, or with an instrumentality consistent with a penis.5 In
In any event, other cases are of limited relevance because each case necessarily depends upon its own facts. Moreover, what the pathologist can say from a laboratory examination is more limited than what a reasonable trier of fact may find beyond any reasonable doubt, after considering the evidence as a whole. The trial court here recognized this in denying appellant‘s motion for acquittal on the rape count: “So we have got the bruising around the vaginal area; we got the bruising occurring by an instrumentality, at least evidence indicates an instrumentality, which is a smooth surface. We have it occurring about the same time as all the other events contributing to her death, and then we have the additional evidence about her position, plus the array or disarray of her clothing. I think the totality of all that evidence is sufficient to allow that count to go to the jury, and I am going to allow it.” We agree with the trial court that the evidence in this case when viewed as a whole is such that a reasonable trier of fact could find appellant guilty of rape beyond a reasonable doubt.7
C. Failure to instruct sua sponte on lesser included offenses of rape.
Appellant contends that even if the evidence was sufficient to prove rape, the trial court committed reversible error in failing to
An instruction relating to a lesser included offense is required only where the evidence is susceptible to an interpretation which, if accepted by the trier of fact, would render the defendant guilty of the lesser included offense rather than the specifically charged offense. (People v. Morales (1975) 49 Cal.App.3d 134, 139-140 [122 Cal.Rptr. 804]; Hopper v. Evans (1982) 456 U.S. 605, 610 [72 L.Ed.2d 367, 372, 102 S.Ct. 2049]; Witkin, Cal. Criminal Procedure (1978 pocket supp.) § 480A.) Where there is no substantial evidence to support the lesser offense so that the defendant is either guilty as charged or not guilty at all, it is not proper to instruct on the lesser included offense. (People v. Wickersham (1982) 32 Cal.3d 307, 323-325 [185 Cal.Rptr. 436, 650 P.2d 311]; People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal. Rptr. 1, 518 P.2d 913]; People v. Avalos (1979) 98 Cal.App.3d 701, 718-719 [159 Cal.Rptr. 736]; People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Berry (1976) 18 Cal.3d 509, 519 [134 Cal.Rptr. 415, 556 P.2d 777]; People v. Wall (1979) 95 Cal.App.3d 978, 989-990 [157 Cal.Rptr. 587].) “Supposition or speculation is not an appropriate basis for instructions since it is not evidence.” (People v. Strawder (1973) 34 Cal.App.3d 370, 380 [108 Cal.Rptr. 901].)
Here the record is clear that there was a completed sexual assault, and appellant so concedes in his brief. The only issues were the nature of the instrumentality used and the identity of the assailant. Thus, instructions on assault, battery, or assault with intent to rape were not required.
At trial, the entire thrust of the defense was alibi. (See People v. Medina (1978) 78 Cal.App.3d 1000, 1006 [144 Cal.Rptr. 581].) “The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.” (People v. Wade (1959) 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116]; see also People v. Ibarra (1982) 134 Cal.App.3d 413, 419 [184 Cal.Rptr. 639].) We decline the invitation to impose such a burden on the trial court here.
D. The trial court‘s authority under Penal Code section 1385 to strike the special circumstances.
The jury found appellant guilty of murder in the first degree, and found the special circumstance alleged-that he murdered his victim during the commission or attempted commission of rape-to be true. Accordingly, the trial court proceeded to sentence appellant to life
After the trial of this case, the California Supreme Court handed down its decision in People v. Williams (1981) 30 Cal.3d 470 [179 Cal.Rptr. 443, 637 P.2d 1029], holding that trial courts have the authority under
In our view, a remand is appropriate in this case as well. At the time of appellant‘s sentencing, it had not been established that sentencing courts had discretion in Penal Code section 190.2 cases. (See, e.g., Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-443 [134 Cal.Rptr. 650, 556 P.2d 1101]; cf. People v. Tanner (1979) 24 Cal.3d 514, 520 [156 Cal.Rptr. 450, 596 P.2d 328].) Under those circumstances, and in the absence of any suggestion in the record that the trial court exercised its discretion, the usual presumption that the trial court considered the various alternatives and acted correctly-a presumption which the People urge upon us as grounds for refusal to remand-can have no logical application. Given the nature of the appellant‘s interest at stake, the relatively minor inconvenience to the state in requiring reconsideration in accordance with Williams, supra, 30 Cal.3d 470, is a small price to pay for assuring that his arguments are
E. The constitutionality of Penal Code section 190.2.
Appellant contends that mandatory punishment of life without possibility of parole without regard to mitigating factors is cruel and unusual punishment in violation of the California Constitution.10 He does not contend, however, that life imprisonment without parole is unconstitutional in every case of murder. Finally, he concedes that if on remand the trial court exercises its powers under Williams to strike the special circumstance, this would obviate the constitutional questions in his case. Because of this possibility, we do not reach his constitutional arguments now.11
The case is remanded to the trial court for exercise of the court‘s discretion to determine whether or not there is a basis for dismissing the finding of special circumstances, and for further sentencing proceedings if and as required after the ruling on that issue. In all other respects, the judgment is affirmed.
Smith, J., concurred.
ROUSE, J., Concurring and Dissenting. -I concur in the majority opinion to the extent that it affirms defendant‘s conviction of first degree murder, rape and conspiracy to commit credit card forgery. I respectfully dissent, however, from the majority‘s order remanding this case to the trial court
Unlike the facts which constituted the basis for a similar order of remand by the California Supreme Court in People v. Williams (1981) 30 Cal.3d 470, I find nothing in the record before us which suggests that the trial court expressed any doubt or reluctance about the propriety of imposing a life sentence without possibility of parole upon this defendant.1 Certainly, the facts of this brutal crime fully warrant the imposition of such a penalty.
Notwithstanding the majority‘s statement of neutrality on the question, I firmly believe that, under the circumstances, a trial court will interpret the order of remand, coming from a higher court, as a strong suggestion that it should reduce the penalty by striking the jury‘s finding of special circumstances. In my opinion, such an order, in this instance, is highly inappropriate.
I would affirm the judgment and sentence in its entirety.
A petition for a rehearing was denied November 5, 1982, and the opinion was modified to read as printed above. Appellant‘s petition for a hearing by the Supreme Court was denied December 22, 1982.