Lead Opinion
A jury fоund defendants Gilbert Lee Durham and Edgar Leonard Robinson guilty of murder in the first degree. (Pen. Code, §§ 187, 189.) After a penalty trial the same jury fixed the punishment of Durham at life imprisonment and the punishment of Robinson at death, and sentences were rendered accordingly. Durham appeals from the judgment and from the denial of his motion for a new trial.
On October 16, 1966, about 4 a.m., Los Angeles Police Officers Treutlein and Du Puis, engaged in routine patrol duties, were driving westward on Pico Boulevard in a marked patrol car. They noticed a beige Thunderbird automobile travelling in the same direction in the lane nearest the curb; it bore Ohio license plates and was occupied by two male Negroes. As the Thunderbird proceeded down the boulevard it swerved slightly to the right a.t two intersecting streets as if making a right turn into them; on each occasion however it continued westbound on Pico. The officers followed the vehicle and at the same time radioed headquarters to ascertain if it had been stolen. Before their radio call was answered, the Thunderbird again made a slight swerving motion to the right
Defendant Durham, the driver of the Thunderbird, got out and walked back toward the patrol ear but his passenger, defendant Robinson, remained seated in the vehicle. The officers, who were in uniform, unsnapped the retaining straps on their holsters and alighted from the patrol car. Officer Treutlein asked Durham for his driver’s license and the latter produced what appeared to be a plastic credit card. Officer Du Puis asked Durham the name of his passenger; Durham in reply gave a short name. Officer Du Puis then went to the passenger side of the Thunderbird and, using the name which Durham had given him, asked Robinson to come to the rear where Durham and Officer Treutlein were standing.
Robinson complied, and Officer Du Puis asked him to raise his hands so as to check him for weapons.
Officer Treutlein then directed his attention to Durham, who was crouched on one knee with his hands half raised and his palms spread at about shoulder level. The officer ordered him not to move. Then, keeping Durham covered with the gun, he stepped to the passenger side of the patrol car and reported the shooting on his radio. At one point during the radio call Durham began to lower his hands and Officer Treutlein again commanded him to keep them raised. Durham obeyed. At this point Robinson, who was still in the same position, began to raise his gun toward Officer Treutlein; the
Officer Treutlein ordered both defendants to lie face down on the pavement. Within a few minutes other officers arrived and took them into custody. A search of Durham produced a knife and sheath from his coat pocket.
Eleven days later, on October 27, 1966, Officer Du Puis died as a proximate result of the gunshot wound inflicted upon him.
Evidence of the foregoing facts, the substantiality of which is not here disputed, was admitted at trial. There was also admitted, "over the strenuous objections of defendants, a considerable volume of evidence regarding the joint activities of defendants during some three weeks preceding the incident of October 16, 1966.
Neither Durham nor Robinson took the stand during the guilt phase or the penalty phase of the trial. We proceed to consider separately the contentions of each defendant on appeal.
Durham’s Appeal
Defendant Durham advances but two contentions. They reflect a fundamental misunderstanding of the prosecution’s theory of the case.
Durham first contends that the evidence is insufficient to sustain his conviction of first degree murder 1 ‘ under either of the two theories of conspiracy and aiding and abetting advanced by the prosecution, thereby denying Durham a fair trial.” In support of this point, he argues (1) that the evidence is insufficient to convict him under the prosecution’s “conspiracy theory” because any conspiracy to rob had terminated prior to October 16 and there is no substantial evidence to show a conspiracy to resist arrest on or before October 16; and (2) that the evidence is insufficient to convict him under the prosecution’s “aiding and abetting theory” because the only evidence introduced in support of this theory is that
We observe at the outset that the defendants were not charged with the crime of conspiracy; they were charged with murder. Durham was found guilty of that charged crime as a principal. Our Penal Code provides in relevant part: “All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . are principals. . . .’’ (Pen. Code, § 31.)
It is true that in presenting its ease the prosecution had recourse to the principles of conspiracy. However, this thesis, far from seeking to establish a basis of criminal liability separate and apart from that of aiding and abetting, was pursued for the purpose of demonstrating Durham’s intimate involvement in the continuing criminal enterprise which culminated in the shooting of Officer Du Puis.
In the instant case the prosecution, in support of its sole theory of guilt as to Durham, sought to show that he “instigated or advised the commission of the crime” in that he was a party to a compact of criminal conduct which included within its scope the forcible resistance of arrest and that he was also
This court, in rejecting this contention, held that the evidence was sufficient to support a finding that defendant was a member of a "combination or conspiracy”
In People v. Wheaton (1923)
Again, in People v. Lapierre (1928)
What we have said above renders unnecessary a consideration of Durham’s second and final contention, to wit, that the trial court erred when it refused to instruct the jury that before it could convict him of murder, it must agree unanimously on one or both of the “two theories” of guilt
Robinson’s Appeal
Defendant Robinson raises two contentions relating to the whole of the trial; he raises five contentions relating only to the penalty phase of the trial.
A. Contentions Relating to Both Phases of the Trial
Robinson first urges that it was error to admit over his objection evidence of the parole status and joint criminal activities of defendants during the approximately three weeks preceding the incident which resulted in the death of Officer Du Puis. (See fn. 4, ante, and accompanying text.) This contention relates to both phases of the trial; during the penalty phase the jury was properly instructed that in its determination as to penalty it should consider all evidence received “throughout the trial before this jury.” (CALJIC No 306.1 (New).)
We first consider the contention in question as it relates to the guilt phase of the trial. The relevant principles were fully stated by us in the recent cases of People v. Kelley (1967)
As we have indicated above (see fn. 4, ante), the evidence here in question was admitted against Robinson at the guilt phase of the trial only upon careful and thorough consideration by the court. It was concluded by the court that the evidence was relevant and material on the issues of premeditation, motive and intent ;
Defendant Robinson contends that the evidence of his participation in the othеr crimes and acts in question was not sufficient to warrant consideration of such evidence by the jury. Suffice it to say that our examination of the record convinces us that there was ample evidence in the record upon the basis of which the jury could reasonably find that Robinson had participated in such acts and crimes.
Defendant Robinson also contends that the evidence in question should not have been received because its probative value was slight in comparison to its prejudicial effect. In making this contention he overlooks the great probative value
The early case of People v. Woods (1905)
The case of People v. Bringhurst (1923)
The case of People v. Robillard (1960)
We hold that evidence of defendant Robinson’s parole status and his criminal activities in conjunction with Durham was of ample probative value to outweigh its prejudicial effeсt, and that it was properly admitted at the guilt phase of the trial.
Robinson additionally argues that the jury was improperly allowed to consider the evidence in question at the penalty phase of the trial. As we have pointed out (see fn. 15, ante) uncharged offenses must be proved beyond a reasonable doubt before the jury may consider them in its deliberations
Defendant Robinson’s second general contention relating to both phases of the trial is that he was denied his constitutional right to the assistance of counsel. Again, this contention is made in two parts.
It is first contended that his constitutional right to counsel was infringed when the court denied his pretrial motion to relieve retained counsel and to appoint other counsel or allow him to proceed in propria persona. In connection with this contention it appears that the indictment was returned on November 3, 1966; that Robinson was represented by the public defender at arraignment and thereafter obtained continuances as to plea in order that he might retain private counsel; that on November 23, 1966, the public defender was relieved as counsel and Robert Fitzpatrick, Esq. was substituted; that Mr. Fitzpatrick represented Robinson on the entry of his plea and on various pretrial motions; that on February 27, 1967, when the cause was called for trial, Mr. Fitzpatrick moved in •Robinson’s behalf that he (Fitzpatrick) be relieved as counsel of record and that new counsel be appointed or Robinson be • permitted to proceed in propria persona; that the sole reason . given for said requests was that Robinson and his retained counsel were in disagreement as to how the defense should be conducted in certain undisclosed particulars; and that all of said motions were denied after the court had consulted relevant authorities and had made the additional determination that Robinson was not competent to defend himself against a charge of murder in which a request for the death penalty was contemplated.
The sole authority cited by Robinson in support of his claim that the denial of these motions infringed his constitutional rights is People v. Crovedi (1966)
Robinson’s second argument urging denial of his right to counsel is grounded in the fact that his attorney called no witnesses in his behalf at the penalty phase of the trial.
We do not accept this suggestion. Allegations of representation so inadequate as to amount to constitutional defect must be supported by more than speculative arguments. (Cf. Adams v. United States ex rel. McCann (1942)
B. Contentions Relating Only to the Penalty Phase of the Trial
Robinson first contends that error occurred in the admission into evidence of certain testimony concerning a prior offense of sodomy committed by him in Ohio six years previous to the charged homicide. It is urged that the court erroneously refused to weigh the probative value of such testimony against its prejudicial effect prior to allowing its admission. It is further argued that the probative value of such testimony
It appears that the Ohio sodomy conviction to which the challenged testimony related was charged against Robinson as a prior conviction in the amended indictment; that the record of said conviction was before the court in connection with a pretrial motion to strike the prior; and that upon denial of that motion the prior was admitted by Robinson. It further appears that when the prosecution at the penalty phase commenced to offer testimony relating to the facts of the offense, defendant objected on the grounds that the record of conviction was available to the court and could be placed before the jury, that the offense had occurred at a time remote from that of the charged offense, and that the probative value of testimony outlining the facts of the offense was slight in comparison to its great prejudicial and inflammatory effect. The objection was overruled by the court in the following language: “Well, the jury is charged with the responsibility of making a determination as to the type of punishment to be imposed and receive no assistance from the court or counsel. It is in their sole discretion. That is the reason why evidence of complete background, history, and all the facts in aggravation and mitigation are properly to be considered by the jury. So, the objection is overruled. ’ ’
The testimony in question was given by the girl who had been the victim of the Ohio sodomy offense six years prior to the homicide. The girl was 13 years old at the time of trial; she had been seven at the time of the offense.
In the case of People v. Love, supra,
Applying these principles to the facts of the Love case, we observed that the evidence in question had no significant probative value because the basic facts of the shooting had been established at the guilt phase, and the pain experienced by the victim, even if considered relevant, had been more than adequately described in medical testimony before the jury. We concluded that “Both the phоtograph and the tape recording served primarily to inflame the passions of the jurors and both should have been excluded.” (
However, in People v. Bentley (1962)
In Talbot the trial court without objection at the penalty phase, received in evidence certain photographs of the deceased. It was contended for the first time on appeal that such photographs should have been excluded under the Love rationale. We rejected the contention, noting the absence of a proper objection and observing that the photographs “were not illustrative merely of pain” but “were used in connection with the autopsy surgeon’s testimony and helped clarify for the jury just what happened to the deceased.” (
In the instant case it is clear that defendant raised a timely and proper objection to the admission of the specific evidence in question on the ground that its probative value was outweighed by its prejudicial effect. Moreover, it would
Although we do not approve of the court’s refusal, upon proper objection, to examine and evaluate the proffered evidence in light of the standard enunciated in Love, it is clear that that refusal did not constitute error if the probative value of the evidence in fact outweighed its prejudicial effect and rendered its admission proper. We need not dwell upon the prejudicial effect of the evidence and its tendency to appeal to the jury’s sense of passion and outrage. On the other hand, it does appear that the evidence was of substantial probative benefit to the prosecution, for it showed the precise act which was the subject of the prior conviction (see fn. 22, ante) and conveyed to the jury an idea of the manner in which it was performed. Further, the probative value of such evidence was not of a purely cumulative nature, as was the case in Love, for there was in the record no other evidence dealing with the prior sodomy conviction. Finally, it is notable that here, as in People v. Bentley, supra,
Robinson next contends that CALJIC No. 306.1 (New),
Robinson contends that the trial court’s modification of a certain portion of CALJIC No. 11 (New) was erroneous. The portion in question informs the jury that it is not “to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” The instruction given, as modified by the court, informed the jury simply that it was not to be governed by public opinion or public feeling. The modification was properly made pursuant to our opinion in People v. Polk (1965) 63 Cal.2d 443, at p. 451 [
Robinson contends that sections 190 and 190.1 of the Penal Code are unconstitutional insofar as they permit the imposition of a sentence of death. This contention has been adequately treated by this court in In re Anderson and Saterfield,
Finally Robinson contends that the court acted in violation of Witherspoon v. Illinois (1968)
Defendant Durham’s attempted appeal from the order denying his motion for a new trial is dismissed. The judgments are affirmed.
Traynor, C. J., McComb, J., Peters, J., Mosk, J., and Burke, J., concurred.
Appendix
"The Court: Having in mind all of those questions do you know of
"Mrs. Rodgers: Yes, I do.
"The Court: Yes?
"Mrs. Rodgers: I don’t believe in capital punishment.
"The Court: When you say you don’t believe in capital punishment—
"Mrs. Rodgers: I mean I don’t go along with it, let’s put it that way.
"The Court: In answering the way you have, is it your statement that irrespective of the facts in the case, under no circumstances, should a verdict of guilty of murder in the first degree be azuived at by the jury, could you ever impose the death penalty?
"Mrs. Rodgers: No, sir.
"The Court: You never could under any circumstances ever impose the death penalty?
‘ ‘ Mrs. Rodgers : No, sir.
t (
"The Court: Is there anything that has been suggested in any of the questions that you feel we should have the benefit of with reference to your serving as a fair and impartial juror in this ease?
"Mr. Rios: Yes, sir.
"The Court: What is that, please?
‘ ‘ Mr. Rios : I do not favor the death penalty, sir.
"The Court: When you say you do nоt favor the death penalty, let me make this inquiry of you: Assuming that you heard the facts in this case and that the jury returned a verdict of guilty of murder in the first degree, then you were charged with the responsibility after the conclusion of the penalty phase of the ease to determine whether the punishment of death or life imprisonment be imposed, it is your position that under no eiz'cumstances, irrespective of what the facts of the case would be, that under no circumstances could you or would you impose the penalty of death.
"Mr. Rios: I don’t believe so.
'1 The Court : You would not under any circumstances ?
1 ‘ Mr. Rios : Under any circumstances.
"The Court: Irrespective of what the facts of the case might be?
"Mr. Rios: Yes.
"
"The Court: Mrs. Levin, having listened attentively to all of the questions that have been proposed to all of the prospective jurors, was anything suggested in those questions that you feel you would like to mention to us before questions by counsel?
"Mrs. Levin: Yes. I’m afraid my feeling about the death penalty is prejudiced.
"The Court: When you say you feel your feeling about the death penalty would prejudice you, would you be a little more specific? Do you have some opinions or rules with reference to the imposition of the death penalty?
"Mrs. Levin: Yes.
‘ ‘ The Court : And is your position such that should a verdict of guilty of murder in the first degree be arrived at by the jury, that under no circumstances could you conscientiously impose the death penalty?
"Mrs. Levin: I’m afraid so.
1 ‘ The Court : I’m sorry.
"Mrs. Levin: I’m afraid I could not impose the death penalty.
"The Court: You say that you are afraid you could not impose the death penalty. Assume that—let me ask you this question: Is it your position that irrespective of the facts that are developed in the ease that,
"Mbs. Levin: Yes.
‘ ‘ The Court : Irrespective of the facts in the case ?
‘ ‘ Mbs. Levin : Yes. ”
Notes
The order denying Durham’s motion for new trial being nonappealable (Pen. Code, § 1237, subd. 2; People v. Lessard (1962)
At trial Officer Treutlein testified that the area of Los Angeles wherein the events in question took place ‘ ‘ is a very high frequency crime area, and usually, during the hours of darkness, when we have a person that we are talking to, we usually give them a cursory search for weapons. ’ ’
A great portion of the testimony introduced by the prosecution, and all of the defense testimony, related to the medical treatment received by Officer Du Puis during the period between the date of injury and the date of death. This evidence bore upon the issue whether the gunshot wound was a proximate cause of the officer’s death. (Sеe People v. McGee (1947)
The evidence of defendants’ prior joint activities was the subject of a careful pretrial offer of proof by the prosecution, at which time defendants interposed objections and the court heard argument on the admissibility of the evidence. The court’s ruling covers some 20 pages of transcript and clearly reflects thorough deliberation on the matter. The court ruled that matters outlined by the prosecutor in his offer of proof could be referred to in his opening statement but that the question of admissibility of any evidence would be determined at the time it was sought to be introduced. It appears, however, that substantially all the matters mentioned in the opening statement pursuant to this ruling were established by competent evidence at the trial (with admonitions and instructions limiting its application where appropriate) in accordance with the reasoning of the court’s ruling on the offer of proof.
Durham makes no contentiоn that the evidence relating to the defendants’ activities prior to October 16, or any part of it, was erroneously admitted against him.
See also Penal Code section 971 which provides in relevant part: . [A]ll persons concerned in the commission of a crime, who by operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal. ’ ’
Conspiraey principles are often properly utilized in cases wherein the crime of conspiracy is not charged in the indictment or information. In some cases, for example, resort is had to such principles in order to render admissible against one defendant the statements of another defendant. (See, e.g., People v. Teale (1965)
As was pointed out in Villa, ‘ [o]ne may aid or abet in -the commission of a crime -.without having previously entered into a conspiracy to commit it.” (156 CaI.App.2d at p. 13.4.) Of course, one may also be a principal to crime without being physically present at the time , of actual commission. (See Pen. Code, § 31.)
Again we einphasizé.'that the resort, tó language of conspiracy in eases such as that under consideration does 'n’ot' i-éfér to' the crime of that name hut only to the fact of combination as' it 'has relevance to the question of aiding and abetting in the commission of the charged crime.
10 The rule requiring that a finding of fact be supported by “substantial” evidence, explicated in Estate of Bristol (1943)
The Lapierre case is also notable for the reason that it recognizes the function of conspiracy principles within a theory of guilt based on aiding and abetting. In response to defendant’s contention that she could not be guilty of the crime of conspiracy with her husband, we noted inter alia that ‘ ‘ this is not a prosecution for conspiracy, the existencе of the conspiracy showing only that appellant aided and abetted the commission of the crime.” (
The case of People v. Smith (1966)
In making this contention defendant Durham requests that we reconsider and overrule our decisions in People v. Chavez (1951)
The jury was also instructed that the evidence might be considered on the question whether "the defendants were members of a conspiracy to commit criminal offenses at the time of the homicide which contemplated resistance in case of attempts on the part of police officers to apprehend any or all of them, to the extent of taking human life if necessary. ” Whereas the matter of ‘ ‘ conspiracy ’ ’ was relevant as to defendant Durham on the issue of aiding and abetting the commission of the crime, it was relevant as to defendant Eobinson, who was alleged to have "directly commit [ted] the act constituting the offense” (Pen. Code, § 31), оn the issues of intent, premeditation, and motive. (See fn. 7, ante.)
In this regard we note that the jury was instructed at the conclusion of the guilt phase as follows: "I instruct you that the evidence that the defendants were on parole and that the defendants committed crimes other than the one of which they are accused and for which they are on trial may not be considered for any purpose unless proved beyond a reasonable doubt. ’ ’ This instruction, although requested by the prosecution, imposes a more stringent standard of proof than the law requires in the premises. Although a person charged with crime cannot be convicted thereof unless he is proved guilty beyond a reasonable doubt, other uncharged offenses introduced to show the existence of some element of the charged crime need only be proved by a preponderance of substantial evidence. (See People v. Lisenba (1939)
Robinson appears to argue that we should consider, the evidence .as to each unchargеd offense with a view to determining whether, as a 'matter of'law, it was proved beyond .a reasonable doubt. This.suggestion reveals a. misunderstanding as to the scope of our review upon appeal-.Although the penalty jury is to be instructed that" it must find' the '-uncharged offenses-beyond-a reasonable doubt (see-fn. 15, ante), our .- function -on appeal begins and ends with the determination ás -t.o whether substantial evidence was presented from which the jury could reasonably have found that defendant had committed the uncharged offenses. '
It is doubtful that defendant would have been entitled to appointed counsel in view of the fact that he had already succeeded in retaining one attorney. Therefore, the contemplated continuance would have had to allow time for defendant to secure other private counsel.
Robinson concedes that counsel conducted a spirited and able defense at the guilt phase of the trial. The jury was properly instructed that in the course of its deliberations as to penalty it was to consider “all of the evidence received here in court presented by the people and defendants throughout the trial before this jury.” (GALJIG No. 306.1 (New).)
Apparently the girl was brought from Ohio with her mother for the purpose of giving evidence on the 1960 оffense.
Our opinion in Bentley does not reveal whether defendant objected to the admission of the subject evidence at trial on the ground that its probative value was outweighed by its prejudicial effect.
The record of conviction apparently denominated the crime simply as “sodomy” and did not further identify the act within the various ' categories of acts which society has historically condemned as sodomiti■eal. Webster’s Third New International Dictionary (1961) defines “sodomy” as follows: “carnal copulation with a member of the same sex or with an animal or unnatural carnal copulation with a member of the opposite sex; specif: the pentration of the male organ into the mouth or anus of another—compare Bestiality, Buggery, Cunnilingus, Fellatio, Homosexuality, Pederasty.”
At oral argument defendant suggested for the first time that he was surprised by the testimony of the girl and should have been allowed time to produce defensive evidence on the matter. It appears, however, that defendant requested no continuance on the ground of surprise; therefore, he may not raise the issue at this time.
CALJIC No. 306.1 (New) provides in relevant part: . . It is the law of this state that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury. If you should fix the penalty as confinement for life, you will so indicate in your verdict. If you should fix the penalty as death, you will so indicate in your verdict. Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience and absolute discretion. That verdict must express the individual opinion of each juror. [Paragraph.] Beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed. ’ ’ (Italics added.)
Concurrence Opinion
I concur in the affirmance of the judgments as to guilt for the reasons stated in Justice Sullivan’s opinion. I concur in the affirmance of the judgment imposing the death penalty on Robinson under compulsion of the majority’s holding in In re Anderson (1968)
Peters, J., concurred.
The petition of appellant Robinson for a rehearing was denied February 19,1969.