THE PEOPLE, Plаintiff and Respondent, v. CEDRIC WAYNE SCOTT, Defendant and Appellant.
No. B020765
Second Dist., Div. Seven
Apr. 24, 1991.
229 Cal. App. 3d 707
Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Nancy Gaynor and Kent Barkhurst, Deputy State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, Robert Carl Schneider and Donald J. Oeser, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.—We hold that People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] does not prohibit a defendant from being charged with malice-aforethought-murder in violation of
PROCEDURAL AND FACTUAL BACKGROUND
By information appellant2 was charged with four counts of murder, firearm enhancements (
Since appellant makes no general insufficiency of evidence claim3 and because the issues are essentially legal, we synopsize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
In April 1984 Travis Clark, his common law wife Rebecca Hood, her son Derrick Hood, and a friend, Larry Simmons were living in Mr. Clark‘s house on 4th Avenue in Los Angeles. Mr. Clark, in charge of a cocaine operation, sold drugs from his fortified residence, a “rock cocaine house.” During the last few days of April, Mr. Clark‘s niece, Marcia Cook, also stayed at his house.
On April 28, in the afternoon, “Petey,”4 one of Mr. Clark‘s cocaine sellers, arrived at the house. He identified himself, Mr. Clark authorized his admittance, and someone unlocked the iron-barred front door. Petey was allowed to enter Mr. Clark‘s bedroom where he repaid money to Mr. Clark, redeemed his Magnum handgun, and left.
Late the next evening, April 29, Petey returned to the house with appellant. Marcia Cook answered the door, informed her uncle, obtained his permission to admit them, unlocked the iron front door, seated appellant in the living room and allowed Petey into Mr. Clark‘s bedroom. Petey said a friend had a .38-caliber pistol for sale and Mr. Clark said he was interеsted but would have to see it. Petey said he would return with it. Petey and appellant left.
About 15 minutes later Marcia Cook again heard a knock on the front door. She answered it and saw Petey and appellant. She told Mr. Clark, and after his approval, unlocked the iron door and began pushing it open when a third person suddenly appeared from the side of the house, put a gun to her head and told her to be quiet. The gun was the one Petey had redeemed the day before.
Petey and the man with the gun entered the house while appellant, who had his hand under his jacket, told Marcia Cook that he had a gun and if she moved she was dead. She didn‘t believe he had a gun and pushed him over the porch railing and fled.
Some minutes later, both Marcia Cook and a next door neighbor of Mr. Clark heard multiple gunshots in the Clark house.
Larry Simmons was shot twice in the chest. He lay bleeding in the dining room and soon died.
Derrick Hood lay facedown in the hallway, hands above his head, fingers interlaced, fatally shot once in the top of the head.
Travis Clark lay facedown in the master bedroom, hands above his head, fingers partly interlaced, fatally shot once near the top of his head.
Rebecca Hood lay near her husband; she had been shot twice, with each bullet causing two wounds, at least one—entering her brain—fatal.
CONTENTIONS
Appellant contends:
1. “The first degree murder convictions must be reversed because appellant was tried fоr first degree felony-murder, an offense codified in
2. The trial court erred in failing to instruct the jury that to convict appellant of first degree murder they must unanimously agree on the “theory” of first degree murder.
3. The trial court‘s instructions erroneously allowed the jury to “presume” malice aforethought.
4. “There was insufficient evidence of the intent to kill requisite to the special circumstances allegation.”
DISCUSSION
1. Appellant contends “the first degree murder convictions must be reversed because appellant was tried for first degree felony murder, an offense codified in
Each of the four counts of murder charged appellant in the same language: “The said . . . Cedric Scott [is] accused . . . of the crime of MURDER, in violation of
The court instructed on, and the prosecutor argued, both theories of first degree murder: premeditated murder and felony (robbery) murder.
Appellant does not claim that the accusatory pleading violated statutory requirements or prosecutorial custоm. Clearly it complied with
Nor does appellant challenge pre-September 1, 1983, California decisional law that “[a]n accusatory pleading charging murder in the short form prescribed by
What appellant does contend is that on September 1, 1983, People v. Dillon, supra, 34 Cal.3d 441 changed the single crime of murder into two separate crimes of murder. One crime was malice-aforethought-murder, a violation of
Based upon this premise appellant argues that he either was or may have been charged only with malice murder (
Appellant‘s argument has been made before. In People v. Watkins (1987) 195 Cal.App.3d 258, 265 [240 Cal.Rptr. 626] defendant “contend[ed] that since the case of People v. Dillon . . a defendant may no longer be convicted of felony murder, a violation of
Watkins rejected the argument. It observed that “[t]he proposition that a defendant may be convicted of felony murder even though the information charges murder with malice can be traced back to People v. Witt (1915) 170 Cal. 104 [148 P. 928].” (People v. Watkins, supra, 195 Cal.App.3d at p. 265.)
Watkins held that the following Dillon language did not overrule Witt: “With respect to any homicide resulting from the commission of or attempt
As correctly noted by Watkins, Dillon did not purport to “reinterpret”
But Dillon neither stated nor, as appellant incorrectly urges, implied that felony murder, henceforth, was a different crime than it had been nor that it was a new crime. If, as Dillon stated, felony murder was a different “kind” of murder than malice murder (and therefore they were “not the ‘same’ crimes“) it was still murder. We have found no suggestion in Dillon, and appellant fails to cite any, that this kind of murder, felony murder, codified since 1872, now requires charging language different than that prescribed for 56 years.8 As Watkins holds, “[w]hether murder is committed with malice, or in the context of felony murder, the crime committed is still murder. And while identification of the statute violated is advisable, it is not required. [Citation.] Therefore, an information charging murder is sufficient to charge either а violation of
Carlos v. Superior Court (1983) 35 Cal.3d 131, 138 [197 Cal.Rptr. 79, 672 P.2d 862] overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115 [240 Cal.Rptr. 585, 742 P.2d 1306] stated, “the felony-murder rule in California serves two purposes. First, whenever a killing occurs as a direct causal result of the commission or attempt to commit a felony inherently dangerous to human life, the rule classifies the killing as murder instead of manslaughter. [Citations.] It thus dispenses with the need to prove malice aforethought. (People v. Dillon (1983) 34 Cal.3d 441, 472-476.) Second, whenever the felony is one listed in
Even more telling is People v. Guerra (1985) 40 Cal.3d 377 [220 Cal.Rptr. 374, 708 P.2d 1252] where the prosecutor also relied on two separate first degree murder theories: malice aforethought with premeditation and felony (robbery) murder. Guerra contended the trial court erred in not requiring the jury to unanimously agree on their theory of first degree murder. This contention is fundamental to appellant‘s position that, post-Dillon, malice murder and felony murder are separate and distinct crimes.
In rejecting this contention, Justice Mosk (Dillon‘s author) stated, “It is settled, however, that ‘in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.’ [Citation.] Defendant provides no compelling reason or authority that would require us to depart from this rule, and we decline to do so.” (Id. at p. 386.)
An argument analagous to appellant‘s ”Dillon argument” was made in People v. Thomas (1987) 43 Cal.3d 818 [239 Cal.Rptr. 307, 740 P.2d 419]. Thomas was charged with “the crime of . . violation of SECTION 192.1 . . .” and it was alleged he “‘did wilfully, unlawfully, and with/o[ut] malice aforethought kill [the victim]’ . . . .” (Id. at p. 824.) Thomas contended that he was charged with voluntary manslaughter and by being convicted of involuntary manslaughter was denied his due process right to fair notice of the charges against him.
The California Supreme Court unanimously rejected Thomas‘s contention. People v. Thomas made “clear that a valid accusatory pleading need
Thomas also instructively addressed, although in dictum, the pleading requirements of murder: “However, it has long been the law in this state that an accusatory pleading charging murder need not specify degree or the manner in which the murder was committed. (In re Walker (1974) 10 Cal.3d 764, 781 [112 Cal.Rptr. 177, 518 P.2d 1129]; People v. Risenhoover (1968) 70 Cal.2d 39, 50 [73 Cal.Rptr. 533, 447 P.2d 925], cert. den. Risenhoover v. California (1969) 396 U.S. 857 [24 L.Ed.2d 108, 90 S.Ct. 123].) Thus, even where the People intend to rely on a felony-murder theory, the underlying felony need not be pleaded in the information. (Walker, supra.) Neither is it necessary to specifically plead the charged murder was wilful, deliberate, and premeditated. (People v. Mendez (1945) 27 Cal.2d 20, 23 [161 P.2d 129].) So long as the information adequately alleges murder, the evidence adduced at the preliminary hearing will adequately inform the defendant of the prosecution‘s theory regarding the manner and degree of killing. ([People v. Roberts, (1953)] 40 Cal.2d at p. 486.)” (People v. Thomas, supra, 43 Cal.3d at p. 829, fn. 5.)
Appellant‘s secondary argument is that even if an accusatory pleading, such as the instant one, generally provides notice of felony murder, it fails to do so when “there was no evidence of robbery or attempted robbery at the preliminary hearing,” “the felony-murder concept was not raised at voir dire,” there was “little of such evidence at the trial,” and the prosecutor‘s “belated request” for such jury instructions was objected to by appellant. Appellant relies upon Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234.
As People v. Crawford (1990) 224 Cal.App.3d 1, 7 [273 Cal.Rptr. 472] observed, “the Attorney General [in Sheppard] argued its murder pleading practice afforded the defendant adequate notice, but conceded the prosecutor‘s conduct ‘affirmatively misled the defendant, denying him an effective opportunity to prepare a defense.‘”
Crawford not only found Sheppard not binding (“[lower federal court decisions are not binding, but are ‘persuasive‘]“) (224 Cal.App.3d at p. 8) but inconsistent with People v. Murtishaw (1981) 29 Cal.3d 733, 751, foot-
We agree with Crawford that Sheppard cannot be squared with binding California Supreme Court authority (e.g., People v. Murtishaw, supra, 29 Cal.3d 733, 751, fn. 11; People v. Thomas, supra, 43 Cal.3d 818, 829, fn. 5; People v. Witt (1915) 170 Cal. 104 [148 P. 928]). We also conclude that Sheppard is factually distinguishable.
At the preliminary hearing, where appellant was represented by the same two attorneys who represented him at trial, there was substantial evidence of robbery-murder. Marcia Cook testified that shortly before the murders she had seen in the victims’ house both a $3,000 оr $5,000 check and a .357 Magnum handgun. Detective Lemos testified that after the murders neither item was found in the house. He also testified that although there was narcotics paraphernalia to prepare and package cocaine for sale, there was no cocaine found in the victims’ house.
Additionally, prior to trial, the court informed prospective jurors that felony murder might be involved. The court stated, “Go back to the idea of first degree murder. I said that one type is a planned, premeditated, deliberated upon murder.
“Another type of first degree murder is the murder that occurs in the course of certain criminal acts and they are defined in the law. Among those would be a murder that occurs in the course of rape, a murder that occurs in the course of a robbery, and a murder that occurs in the course of a burglary.”
No counsel objected to the court‘s remarks or suggested the remarks were inapplicable to the instant case.
Almost immediately after the trial began, and while the prosecutor was still examining his first witness, the prosecutor expressly stated his intention to rely upon a felony-murder theory. He stated, “It‘s the People‘s version of this that, first of all, there was a conspiracy to commit a robbery and there was an attempted robbery, and the fact that there is a—what appears to be a checbook [sic] near his head is of some relevance to show that attempted robbery.”
Defense counsel expressed neither objection nor surprise.
During trial there was substantial evidence of robbery (circumstantial evidence that both handguns and narcotics had been stolen). Rather than
We conclude that appellant‘s contention is not well taken.
2. Appellant contends the trial court erred in failing to instruct the jury that to convict appellant of first degree murder they must unanimously agree on the “theory” of first degree murder.
This contention, based upon the same premise as appellant‘s first contention, was expressly rejected by the California Supremе Court two years after Dillon: ” in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder . . . .” (People v. Guerra, supra, 40 Cal.3d 377, 386.)
3. Appellant contends the trial court‘s instructions erroneously allowed the jury to “presume” malice aforethought.
Appellant does not literally contend that the trial court instructed the jury they might “presume” malice aforethought. The trial court gave the standard CALJIC instructions on murder (CALJIC No. 8.10 (1983 revision)), malice aforethought (CALJIC No. 8.11 (1983 revision)), deliberate and premeditated murder (CALJIC No. 8.20 (1979 revision)), first degree felony murder (CALJIC No. 8.21), and first degree felony murder aider and abettor (CALJIC No. 8.27 (1984 revision)). Appellant makes no complaint about any of these instructions.
Rather, appellant‘s contention, a reconfiguration of his ”Dillon argument,” is that by rejecting his earlier arguments we “must read Guerra to ‘reaffirm’ that felony-murder is not an offense separate from [malice] murder and that first degree felony murder is codified by
As we have earlier explained, we reject appellant‘s ”Dillon argument” and find this reconfiguration of it no more persuasive. Dillon made clear that malice aforethought is not an element of felony murder. Guerra did not retreat from that conclusion. We find no error in the trial court‘s murder instructions.
4. Appellant contends “there was insufficient evidence of the intent to kill requisite to the special circumstances allegation.”
As appellant concedes, the trial court anticipated People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306] and appropriately instructed the jury that with rеspect to the special circumstance allegations they must find appellant “intended to aid in a killing.”
Appellant contends the record lacks substantial evidence of such intent.
In considering this contention we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)
A reasonable trier of fact could have found the following. Appellant, Petey, and two other persons planned to rob Travis Clark and to kill him and whomever else was present in his house at the time of the robbery. To effect the plan, Petey redeemed his Magnum handgun from Clark the day before the robbery. On the scheduled robbery day, Petey brought appellant with him to Clark‘s house 15-30 minutes before the robbery. Appellant was thus able to familiarize himself with the interior of the house, while Petey was inside Clark‘s bedroom, and to note who besides Clark was present. Meanwhile Petey created a ruse, that he would return with a .38-caliber gun for sale, to ensure that he and his accomplices would be readily admitted.
Around midnight, when Petey and appellant returned, they made no effort to hide their identity from Marcia Cook, who had seen them both only a short time ago, from Travis Clark, who of course knew Petey well, or from anyone else inside the residence. As part of the plan, as soon as Marcia Cook had unlocked the iron front door and was pushing it open, the third accomplice suddenly appeared and pointed a gun to Marcia Cook‘s head, a gun Petey had redeemed the day before.
The perpetrators had determined to kill Clark because they knew he could identify them, he would want revenge, and he would have to take revenge to remain a viable cocaine dealer, and he had the means to take revenge.
When Larry Simmons appeared in the front room he was fatally shot twice. When Derrick Hood entered the hallway he was ordered to lie facedown with his hands behind his head. He was shot in the head. Travis Clark
The perpetrators removed two of Clark‘s guns from their holsters, took Mr. Clark‘s pouch in which he kept another gun, his wallet, and other possessions, and may also have taken cocaine. They then departed through the ajar front door. Two of them entered a waiting blue and white, two-door Monte Carlo and left. The third ran down the street.
We find substantial evidence appellant intended to aid in the killing of the four victims.
DISPOSITION
The judgment is affirmed.
Lillie, P. J., concurred.
JOHNSON, J.—I respectfully dissent in order to register my concern the formal charge against appellant appears constitutionally insufficient to support a felony-murder conviction. As an additional and independent ground for dissenting, I am concerned there was an absence of any timely, reasonable notice appellant was being prosecuted for this crime. Either of these failures constitutes a denial of appellant‘s due process rights and requires reversal.
I. THE FAILURE TO CHARGE DEFENDANT WITH A FELONY OR WITH FELONY MURDER
It is clear a state has the right to establish forms of pleading to be observed in its own courts, provided the guaranties of the federal Constitution involving the protection of life, liberty, and property are obeyed. (Ex Parte Reggel (1885) 114 U.S. 642, 651 [29 L.Ed. 250, 253, 5 S.Ct. 1148]; People v. Covington (1934) 1 Cal.2d 316 [34 P.2d 1019]; People v. Robinson (1930) 107 Cal.App. 211 [290 P. 470].) Thus, the California Legislature is free to charge a defendant of a crime in the “short form,” without technical averments, in “substantially” the language of the
Counterbalanced against the state‘s freedom to interpose its own pleading standards, however, is the constitutional requisite that the pleading
The constitutional necessity of notice was aptly set forth in People v. Jones (1990) 51 Cal.3d 294 [270 Cal.Rptr. 611, 792 P.2d 643]. There, the California Supreme Court elucidated these concepts by stating: “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ (
The People‘s argument that appellant received the constitutionally mandated notice of the felony-murder charge in this action, despite the absence of either a charge of felony murder or an underlying felony, is twofold. First, relying on People v. Watkins (1987) 195 Cal.App.3d 258 [240 Cal.Rptr. 627], the People assert that the Watkins reasoning, which is based upon its own interpretation of People v. Witt (1915) 170 Cal. 104 [148 P. 928], supports the proposition a defendant may be convicted of felony murder when the information only charges murder with malice.
But Watkins erroneously interprets, and unconstitutionally expands the Witt holding. The Witt decision is limited. It determined only that the trial court did not err in instructing the jury that where the killing is done in the perpetration or attempt to perpetrate one of the felonies specified in
The instant case would be a different one if the People had initially charged appellant with the underlying felony and with malice aforethought
The prosecution attempts to remedy this flaw by coupling Witt/Watkins with the decision in People v. Dillon, supra, 34 Cal.3d 441. They argue, and the majority holds, that Dillon does not attempt to characterize felony murder and malice aforethought murder as two separate crimes. Therefore, because of the purported identity of these two crimes, appellant was sufficiently on notice of the felony-murder charge despite its absence in the information.
But the language of the Dillon decision suggests otherwise. The court noted: “. . . (T)he two kinds of first degree murder in this state differ in a fundamental respect: in the case of deliberate and premeditated murder with malice aforethought, the defendant‘s state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt; in the case оf first degree felony murder it is entirely irrelevant and need not be proven at all.” (34 Cal.3d at pp. 476-477, italics added.) Thus, malice is no longer presumed; it is simply not an element of the crime of felony murder. Meanwhile, in felony murder the prosecution must prove an element not required for malice aforethought murder, i.e., that the murder arose out of the commission of a felony of a certain sort.
The constitutional challenge the Supreme Court faced in Dillon was based upon the holding set forth in In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068]. Winship ruled that an accused is protected against conviction “except upon proof of every fact necessary to constitute the crime with which he is charged.” It held no element of a
While Dillon correctly suggests felony murder and malice aforethought murder can both be murder in the first degree, their similarity ceases there. As stated in Dillon, the two crimes are fundamentally different: malice aforethought murder requires an examination of defendant‘s state of mind for the presence of malice, felony murder does not.
Neither Dillon nor Witt nor Watkins, then, stands for the proposition that notice is given of potential liability for another crime where, as here, the crimes instructed on contain an element different from that included in the crime charged. Because of the elemental differences between malice aforethought murder and felony murder, a defendant must necessarily modify the position he takes with regard to defenses interposed, witnesses called, questions asked, objections made and overall posturing of his case. Thus, he will assuredly be prejudiced by the absence of a charge in the information notifying him as to which of these two distinct crimes the prosecution intends to pursue. Just as the prosecution would not present a malice aforethought murder charge to the jury in the same fashion as a felony murder, neither would defendant present his defense in the same way. Deprived of adequate notice, a defendant will be forced to “shoot from the hip,” and, as such, will be denied the opportunity to present his best defense. This result is not only intrinsically unfair, but as discussed above, clearly unconstitutional.
II. THE FAILURE TO PROVIDE TIMELY, ACTUAL NOTICE OF THE FELONY-MURDER CHARGE
As a second and independent reason for dissenting in this case, I am concerned the prosecution gave untimely actual notice it was intending to attempt to convict appellant of felony murder. Even if the failure to charge felony murder in the information did not deny appellant due process, the failure to apprise him in any way of the intent to base liability on that crime—rather than malice aforethought murder—until the trial itself deprived him of the opportunity to prepare a defense to this entirely different basis of liability. As pointed out in Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, error of this nature is so fundamental as to be reversible per se.
While Sheppard v. Rees is not controlling law in this jurisdiction, it is entitled to great weight (Central Bank v. Superior Court (1973) 30 Cal.App.3d 962 [106 Cal.Rptr. 912]). I find it persuasive as well, particularly given the similarity in the timing of notice.
In Sheppard, as here, defendant was charged only with one count of murder under
The defendant‘s argument in Sheppard was similar to the one raised at bar, that is, because neither felony murder nor an underlying felony was charged, he did not receive adequate notice to prepare a proper defense to felony murder.
The main question before the Sheppard court was not whether there was adequate notice, since it was clear, and the state ultimately conceded, that there was not. Sheppard premised its finding on that threshold issue on the decision in Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 571. In that case the Ninth Circuit had held “A person‘s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence . . . .” (Quoting In re Oliver (1948) 333 U.S. 257, 273 [92 L.Ed. 682, 694, 68 S.Ct. 499].) The failure to give actual notice of the intent to seek to convict defendant of felony murder until late in the trial deprived Sheppard of that basic right.
The Sheppard court focused most of its attention on the question of whether the harmless error rule applied to this denial of due process. It held that despite Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065], the harmless error rule did not apply, since the constitutional error in Sheppard was of a fundamental nature. The court stated:
“A trial cannot be fair unless the nature of the charges are adequately made known to him or her in a timely fashion. . . . Here, the prosecutor ‘ambushed’ the defense with a theory of culpability after the evidence was already in (and) after both sides had rested . . . . This new theory then appeared in the form of unexpected jury instructions permitting the jury to convict on a theory that was neither subject to adversarial testing, nor
Sheppard is precisely on point, and its rationale is even more persuasive here since, as appellant suggests, the case at bar gave even less notice of a felony-murder charge than did the facts in Sheppard. Here, there was virtually no evidence of robbery at appellant‘s preliminary hearing, and very weak evidence of robbery brought out at trial that the victim‘s guns were missing. Further, the prosecution first expressly mentioned its reliance upon a felony-murder charge after its initial jury instruction discussion with appellant‘s counsel and the court. This mention came after both sides had rested and far too late for appellant to counter the charge before the jury. It is precisely this sort of “back door” notice against which the due process clause protects.
The People attempt to claim appellant had notice of the intent to charge felony murder early in the trial proceedings because the prosecutor mentioned the definition of felony murder during voir dire of the jury. However, read in context it is clear the prosecutor was only mentioning felony murder in the course of explaining the concept of malice aforethought. A reasonable defendant or reasonable defense lawyer listening to this explanation during voir dire would not anticipate the prosecution was planning on seeking a conviction for felony murder instead of or in addition to malice aforethought murder. (This even assumes that notice of such a fundamental shift in charges whiсh comes as late as jury voir dire provides a defendant with his due process right to prepare and present a defense to the new offense.)
Contrary to the majority‘s representations, when the prosecution does not notify the defendant of a charge until immediately before trial, evidence supplied at trial of that charge will not, post facto, serve as notification. (In re Hess (1955) 45 Cal.2d 171 [288 P.2d 5]; In re Carlos S. (1979) 94 Cal.App.3d 377, 380 [156 Cal.Rptr. 442], and cases cited therein.) In any event, because of the prosecution‘s failure to notify defendant of the felony-murder charge until late in the trial, defendant was misled to his prejudice and prevented from preparing an effective defense (People v. Lohbauer (1981) 29 Cal.3d 364, 370 [173 Cal.Rptr. 453, 627 P.2d 183]). He was, therefore, unconstitutionally deprived of a fair trial.
For the reasons discussed above, and because еrror of this fundamental nature cannot be harmless (Sheppard v. Rees, supra, 909 F.2d 1234), I would reverse the conviction.
Appellant‘s petition for review by the Supreme Court was denied August 1, 1991. Mosk, J., was of the opinion that the petition should be granted.