*1 No. 22357. Dec. [Crim. 1985.] PEOPLE,
THE Plaintiff and Respondent, SILBERTSON,
STEVEN CLARK Defendant and Appellant.
Counsel Court, under Tinsley, Jimmie E. appointment by Defendant Supreme Appellant. General, de Kamp, Van James Attorney McNally, K. T. Edmund John D. Dubois, Susan Rankin McMurray, Bunting Lisa Lewis Deputy General, for Plaintiff and Attorneys Respondent.
Opinion KAUS, Defendant Steven Clark Silbertson from a appeals judgment J.* under Code, death imposed (Pen. death law penalty of et § murder of 24, for the Watkins on June 1979. September seq.)1 convicted 1981, 187) him of (§ a first degree murder jury robbery A circumstance was allegation that the murder (§211). committed 190.2, (§ true, robbery (a)(17)(i)) a subd. found to be that defendant a firearm in used the commission both felo- allegation 12022.5). The returned a nies-(§ jury verdict of death. as to and set judgment aside the guilt robbery-murder
We affirm
spe-
under Carlos
Superior
Court
I.
A. Prosecution Case wife, Donna, January
Defendant and were married Ran- 18-year-old few off her with days relationship after Donna had broken Watkins, money had inherited some Defendant dy eventual victim. Using father and accident settlement. Donna had received an automobile funds, and other states. to Texas
these embarked on a honeymoon couple marriage After a week Donna realized that honeymooning, father, Donna flew to mistake. On the her home to visit pretext going Fresno, where Modesto then went spent Randy. two She nights *4 in she received a call to him rejoin from defendant. She decided telephone there, Mississippi; honeymoon. two resumed their to defendant that had while in Modes- Admitting she been active sexually to, Donna told him that it had been with old named Richard.2 boyfriend killed, her Between return to Randy couple defendant and time was about Donna “cared argued repeatedly knowing that Randy—defendant about him. her California to re- lot” Donna desire to return to expressed her kindle with Randy. relationship first
The settled in Reno in March Donna worked at a market 1979. couple then at a The 7-Eleven store. Defendant remained two unemployed. on defendant’s primarily money they grandmother. lived received from to in Mo- the Silbertsons drove Modesto. While April driving desto, defendant into rearview mirror and noticed glanced Randy driving car, Court, car behind in asked Randy’s Randy in a them. Paul a passenger ask Donna about a he beside the so that he could tape to Silbertsons pull up to her.3 told Paul loaned Donna denied defendant having tape had an obscene Randy gesture his “own damned Paul and made mind business.” followed Randy’s in kind. Defendant the Silbertsons who toward responded ensued, Paul to hall and told to out. A Randy get fistfight a pool car was fight aid Donna off and returned just to drove Randy. joining com- the glove hand him the knife in Defendant asked Donna to ending. left, Reno. eventually returning and the She refused couple partment. were Silbertsons the rent due—the the latter of June part 1979—with By had and she financial remained unemployed difficulties: experiencing trial, Vaughn Detective Fred told Modesto Police several occasions before Donna 2On to that Randy, she also testified nights with she defendant about the two had told hearing. preliminary at the effect Randy and defendant. of the between 3Paul Court aware ill-will been On fired. June Reno about robbing defendant talked to Donna 7-Eleven store.4 She said it.” in the “there was no could do Later way discussed day, they the Modesto 7-Eleven possibility robbing Coffee Road. He asked her who when the were made and deposits night made usually them. Donna had worked Modesto 7-Eleven at the prior had, her marriage fact, in She met there. knew either or his Kalbach, Darrell partner, would be but she making night deposit, did not know who would be doing that week. discussion During Reno, defendant asked where the and stated that he deposit would made kill going it.5 person making
The Silbertsons left Reno between and 5:30 on June 24. Before p.m. Donna—at leaving, defendant’s him a mask and request—made stocking Stockton, him pair bought gloves. On the way test-fired a .32 caliber pistol which he had a week earlier acquired and which he was belt. carrying Stockton, couple stopped Silbertson, at the (Chuck) home Louis brother.6
defendant’s Defendant told his brother and Henry Grant that he rob and kill the going person making night the Modesto deposit *5 He asked him, 7-Eleven. Grant to but accompany Grant declined. truck, Modesto, In defendant’s pickup drove on couple to arriving America, late in evening.7 They at the Bank where stopped they 10 or for waited minutes. As there was no defendant activity, suggested drive by store, they that 7-Eleven store. On at the saw arriving they in car. leaving Randy followed him to the Wells Bank.8 They Fargo told car, Donna that he Defendant was to into going get have him Randy’s else, somewhere and drive then kill him.9 possibility robbing appears only testimony. 4The Reno in store Donna’s Defendant penalty phase at the that never any robbery.
testified there was mention of such a is testimony many 5This account based on the trial respects of Donna. It differs in from gave at example, she other times. previously Vaughn accounts For she had told Detective became driving she first aware that a to crime was be committed while from Stockton Modesto, not while Vaughn still Reno. had to She had also told testified nighttime. examination that she and preliminary defendant did not leave Reno until testified, however, stop 6Chuck he did see all defendant Donna at their way on the in Stockton Modesto. Modesto, 7While the record does not reveal we infer the exact time of arrival from chronology of midnight. events that it p.m. overall must have been between 10 originally specified night 8Donna had belief Bank of America in the mistaken that the fact, Bank; deposit night Fargo would be made there. In deposits were made at the Wells adjacent Fargo occurred in the lot the murder to the Wells Bank. her, bank, initially “Tonight testified that arriving 9Donna defendant told before at the going get even night you you I am with what done She have to me.” later testified made had been on an that this statement earlier occasion. bank, truck, over to Randy’s Near the walked defendant out of got car, and gloves the mask and entered on the he had passenger Although side. him, a nearby into he was not the pickup Donna drove wearing them. lights and the waited, running lot and the motor drugstore parking leaving he had killed on. Defendant soon Donna returned to telling pickup, there, ... but “he Randy, right the trigger didn’t mean to pull then, trigger mean to didn’t pull just, that it trigger right had intended Donna really light.” this mean that defendant interpreted She him to do. Randy else, ques- drive had as she someplace expected he had smudged tioned defendant about her that he told fingerprints, and them. Stockton. then couple returned to apartment Chuck Silbertson’s car; had one
Defendant Watkins’ brought back two bags paper En- green Wells car parts. Bank the other contained Fargo bag and Stockton, window. route to out the Donna tossed the with the car bag parts are as to what There discrepancies testimony in the witnesses’ prosecution when testified Donna happened defendant and to Chuck’s. Donna returned defendant had taken told Chuck and had Grant that he killed bank a souvenir. bag. Defendant Chuck as shell gave casing empty $3,000 in laughed. Chuck On found over bank defendant opening bag, and a cash number of in the bar- He checks checks. and Grant burned the Donna, With becue. of the then went canal disposed to a where the bullets and the gun, bank bag.
Chuck testified that but denied he saw night, defendant and Donna that casing the shell count the incident and did not remember seeing *6 Both Chuck money. money and first saw Henry Grant swore that Chuck next and morning $500. that defendant Chuck gave re- couple testified that when the Grant he was 3 a.m. awakened about money. He Defendant cut out the and turned. bank counted open bag Modesto; he ap- Grant that he had a robbed 7-Eleven store in told he held a man in a young deposit; a vehicle bank making proached head; the bag; his the man him give “[t]he refused to gun don’t Grant, get you off.” He also help, went told “Since didn’t you gun money.” any 25, 1979, she and June testified on the morning, following
Donna defendant: Said heard a radio death. Randy’s broadcast telling defendant Later that witnesses.” he is dead so we don’t have to about worry least “At and Donna returned defendant to Reno. day, was discovered after a.m. on June 25.
Randy’s body by police shortly Officer to a citizen’s observed a car Massey, responding report, parked the Wells Bank lot. The driver’s door was and a ajar man’s Fargo parking out, touching radio deck was still leg hanging ground; tape The cause death determined be a wound playing. single gunshot head. The bullet had entered the side of the face below right just the skin between bone at back of the eyelid lodged skull. There were no other wounds. The bullet which was recovered appeared to abe .32 caliber. Reno, later,
About a week defendant told one Danny Haggerman that had He Modesto “to blow someone said that he gone away.” had and, into before the person say car could jumped parked anything, pulled in the He further stated trigger, the victim head. that the shooting victim $1,000 his brother-in-law that he had been to kill paid him. Vaughn Detective the Modesto Police July Department inter- viewed Donna. She said that she and defendant had been in Reno at the trial, of the murder. At she testified that had time told her to say kill and had threatened to her as dead as if she “just Randy” said else. testified that he asked Vaughn Chuck anything April 1981 whether brother had told him that had killed “Yes,” his and Chuck said Randy, Chuck had denied made own a statement having testimony. known Beverly Deeter—who had defendant since 1974—testified that she him in November She told him that had visited 1980. she heard that he had someone. Defendant he had replied that to Modesto gone killed to kill some- named because had raped one wife Donna. He said that him had told about and that the rape killing Donna took place make it because wanted to that someone appear bank had shot Randy Deeter, to Mrs. money. According defendant discussed the occasions, her on several later always speaking matter-of-factly about it. Case
B. Defense *7 Harter, one defense witness was called: Only Raymond an investigator District County the Stanislaus He Attorney’s office. testified that when trial, three Danny weeks Haggerman interviewed before he Haggerman told defendant had admitted that ex-boyfriend wife’s him and told him would kill if anyone price right or if had that “some kind of ’em.” against grudge
303 II. Phase Issues Guilt Rule
Felony-murder could convict de- which it was instructed on two theories on jury murder. and felony fendant of first murder murder: degree premeditated rule because it creates Defendant us to urges reject felony-murder in People that issue unconstitutional of malice. We settled presumption 390, 441, 668 P.2d (1983) Dillon Cal.Rptr. Cal.3d 472-476 697]. [194 Instructions on Inadequate Jury Note-taking
Defendant next instructed the contends that the trial court inadequately (1984) on the v. Whitt 36 Cal.3d jury dangers People note-taking. 724, 1161], the risks 685 P.2d we recognized [205 inherent in that it is “the better juror practice” observed note-taking for courts to Al- sua instruction on give, cautionary note-taking. sponte, the ideal all the instruction would advert though dangers specifically we Whitt found the to be note-taking,10 less instruction complete given “Be I’d careful as to the amount of notes that take. rather adequate: you witness, witness, observe the listen you observe the demeanor of that to how that notes .... f person you testifies rather than taking copious [I] do not recall as to what a witness have said or exactly you disagree, might instance, a witness have may deliberation as to what [sic] said, we can reread (36 747-748.) back . . . .” Cal.3d at pp. transcript case,
In this trial made the comments to jury: judge following see, my “Let’s bailiff to you. has note that he will distribute This pads notes, doesn’t mean that do like to take you to take but some people notes, mind, You must are not you bear in that I assume though, [f] notetakers, what was actually and if there is as to professional any question course, the court information said can reporter, you.” give While these rec comments were not as as the instruction thorough Whitt, ommended or even the were—arguably— one that was given they sufficient to inform the or rely did not have to take jurors upon their own notes. More we hold in Whitt that a trial did not importantly, court is Nor did we establish required give such instructions. cautionary 10See, e.g., the instruction outlined a New York v. DiLuca court York, App.Div.2d 439 N.Y.S.2d given implicit Unlike New California has 735]. Whitt, statutory approval (See to note-taking. supra, 747.) p. 36 Cal.3d at *8 standards recommended
any assessing effect of the failure give error, instructions.11 The if was any, clearly not prejudicial.
III. Issues Relating
Special
Finding
to the
Circumstance
trial court erred in
that must find
to instruct the
failing
jury
that defendant intended
kill in order
circum
robbery
to find the
special
Court,
stance
(Carlos
to be
131.)
true.
v.
Under
35 Cal.3d
Superior
supra,
826],
v.
People
(1984)
Garcia
P.2d
cumstance, defense counsel was faced with the anomaly apparent prQ-Carlos that cold-blooded, under the mur- 1978 death statute a premeditated penalty not, such, der did as call while an acci- for a circumstance finding, dental did robbery occurred of a and it commission course, could result in had, a death robbed clearly sentence. Defendant alibi, and killed There were self- Randy. no defenses based on possible defense, like—nor was a diminished defense ever tendered. capacity Because, case, in this e-Carlos intent to kill to both the pr seemed irrelevant circumstance, felony-murder charge and the the defense had robbery special little, if any, incentive to formulate a evidence there theory around what was that defendant lacked intent to kill. On the our reasoning contrary, 468], Green 27 Cal.3d 609 P.2d gave defense counsel a incentive to strong just client’s argue opposite: was to intention murder merely Watkins that the robbery Thus, incidental homicide. strategy heart of the defense deemphasize evidence defendant had to rob and that the intended rather, have gun may this was an discharged accidentally; counsel argued, murder, intentional incidental to it. robbery being The Green even strategy in defense counsel’s state- apparent opening toment “Let jury: me start by clearing any you might up mysteries client, Silbertson, about situation in you my Steven shot telling Watkins, We don’t with that at all. . . . Your quarrel duty [f] [f] here, or your job jurors, to be whether or really going to decide him, not he killed I you because am telling he did. It is decide 11Defendant prejudicial offers no evidence as to cautionary effect of “inadequate” Moreover, instruction. even fairly if Whitt could be construed re to have created a rule quiring instruction, cautionary defendant’s reliance on Whitt presupposes ap retroactive plication of Whitt—an. issue we which did not address. *9 a course of rob- a that occurred the during this was whether alternative, the or, a in which course was this murder bery murder, murder, a was committed.” end of theft that at the that trial, ani- long-standing defense counsel Throughout emphasized Randy’s rela- Randy between defendant and Watkins mosity generated Donna, and conversations suggesting stressed the incidents tionship to Modesto that defendant drove from Reno and jealousy, argued, finally, is best captured to kill flavor of the defense Randy. perhaps primarily “Intent? jury: from his to arguments following passages closing I case. find it about because the focal of this Talk intent it is really point I can with the District agree ironic is the time in career my rather this first here is darned his final because the intent Attorney argument, pretty led 24th centered around Randy clear. that to the was Everything up [sz'c] Watkins. And all And was about everything day Randy Watkins. on way down to Modesto who was it about? Watkins. [1] You know, was, if to and do a as I said robbery, if it it was Steven’s intent out just go . to . . there has to a number—thousands of rob places earlier be—pick Nevada, Reno, No. His intent here and Was that intent? between [f] Watkins, to kill And after was in- happened was whatever [f] it, to to motive of kill Mr. wanting to his secondary primary cidental Watkins .... [1] Just before he gets to bank, before Steven gets wife, to T am his intent to kill. He clearly expresses says going bank what you kill him. I am back at for you to Tonight’s night. getting me.’ . . times the stand to . She admitted to several that as you done [f] knew, knew he told her are to bank she she because driving killed, Ladies friend and lover was to be and gentlemen, her going [f] it clear of his intent. And of his intent expression just is a is expression before, act His clear seconds before the actual intent just happened. [$]... realities, here, is been And to to ladies expressed. ignore has ignore gentlemen. [1] . . . Mr. Haggerman says Steve told him that he came blow That boyfriend. Modesto—clear to his wife’s is away Modesto—to intent, before, two What intended hours expression day a clear [f] before, before, he did it is a His intent at time what year nothing. means to kill and not And it is clear from all the evidence his counts. afterwards, see, murder He . . . he did the inten- rob. robbed You [f] full he was well that deliberately, knowing going tionally, premeditated I you, it. I am ladies and am asking you, begging do gentlemen, [f] his intent to do an exclusive that there is a doubt here about recognize clearly in which someone murdered. It is not so. robbery is incidentally find, murder, I am man so What you may asking This guilty [f] do, to find ladies is a small that the gentlemen—and thing—is you circumstance, It circumstance is not true. is not true because this was not robbery, clearly murder.”
Defense strategy notwithstanding, prosecution continued to press *10 circumstance on special finding felony-murder theory, supported by on erroneous instructions the intent to kill. The ex- required only possible ception rule of se reversal which per to this might possibly case apply Garcia, which, is the so-called Cantrell-Thomton we exception formu- lated follows: ... cases where the may parties recognized “[T]here issue, that intent to kill was all evidence presented at their command on issue, that and in which the record not only establishes the intent necessary as a matter of but shows contrary law the evidence not of consid- worthy (36 assert, eration.” at 556.)12 course, Cal.3d p. of that People the raised, of issue the presented was the parties evidence on issue and the evidence established intent to kill as a matter law. presented of
As of intent was explained, question raised, the indeed in a though per verse fashion. Because defense counsel’s strategy on the Green centered theory—i.e., that the was robbery merely incidental to an intentional and had no incentive to premeditated argue that did killing—he defendant not to kill. had no reason certainly intend He to all available present evidence Garcia, which the might suggested that was killing unintentional. In we noted the defendant in a supra, that pre-Carlos trial was unaware “[i]f the felony-murder circumstance, that intent to kill an element of was special fail present to evidence might through ignorance of consideration worthy on could such that matter. We not in cases affirm a circumstance did on that defendant not introduce the evidence sufficient ground to finding (36 raise at 556.) a material issue.” Cal.3d p. Unaware an circumstance, that intent to kill was element of felony-murder special failed to may defense counsel indeed have all credible present evidence which the element intent—for might of negate example, additional evidence to shooting the effect that actual accidental.13 (1983) 823, Johnson 460 recognized Connecticut v. U.S. 73 12Garcia that L.Ed.2d [74 969], exception “‘if the defendant 103 for an conceded the issue of S.Ct. also allowed ” (36 however, 555.) Obviously, court p. intent.’ Cal.3d was not addressing at a situa by perception tion triggered where the erroneous nothing “concession” that costs indeed, advantage. and may, be to the defendant’s might presented have been negate evidence which the ele 13That there was additional testimony penalty phase. ment of intent at the Although part is revealed defendant’s not any of this and phase, potential the record we consider other guilt at the must evidence (See on intent to kill is determining People failure to reversible error. whether the instruct 800, 430].) 689 P.2d In v. view of the Ramos 37 Cal.3d dissent, by part emphasize Justice Mosk’s we misunderstanding evidenced II of that we do purpose phase curing not of penalty refer to at the instructional evidence offered to such evidence to point we guilt phase. contrary, error at the To the demonstrate that imaginary, but real. prejudice the error was flowed from trial, jealous penalty At he was of talked defendant admitted that he way “because best robbing getting Donna about the Modesto 7-Eleven of back at robbery.” night theOn look like a was make the encounter “Yeah,” Randy replied, him. Randy and if he remembered got the car with asked him into “worthy evidence Moreover, there the Green strategy, despite testimony in the to kill did not intend of consideration” that defendant that de stated Silbertson Donna of the witnesses. prosecution’s key two didn’t mean her, pull “he fendant told immediately killing, after testified Grant also Henry really but trigger,” light.” “the trigger off.” “the went gun him, killing, that defendant told night Ramos, testified Cal.3d the defendant supra, victims, only he meant intended to while he shoot *11 phase penalty (1985) them, Anderson not to v. graze kill them. The defendant in People fired 777, that he 1149], 58 told police 38 Cal.3d 694 P.2d Cal.Rptr. [210 of the house the occupant without intent to shoot when confronted anyone by were inherently he was burglarizing. these statements Observing incredible, in both inapplicable we held Cantrell-lhomton exception the instances. kill in a lack intent to this case—
Certainly evidence of indicating themselves—is at least as offered witnesses by evidence the prosecution as that than substantial in Anderson and far more that Ramos. persuasive And, noted, had no emphasize as defense counsel reason possible intent. intent or further For these rea- negate lack of introduce evidence of bearing sons—and in mind the caveat Garcia that Cantrell-Thomton would clearly falling to those cases within the ambit reasoning apply “only so detract reasoning substantially per of that as not to se character (36 557)—we of the court’s rule” Cal.3d at conclude high p. that the Can- trell-Thomton is and that Carlos error re- exception inapplicable requires finding. of the circumstance special versal
IV. Conclusion is as it to the The reversed insofar relates judgment special circumstance of is guilt, judgment and On the issue finding penalty. affirmed. J., J.,
Bird, Broussard, J., Reynoso, C. concurred. but MOSK, affirming judgment guilt, I concurin dissent from J. finding. reversal of circumstance said, “Well, go Randy going a ride.” started to step we are out of the
and defendant time, back foot in. At same put tightened told him to defendant car and defendant there; He pistol it went off. had not intended to kill up grip Randy on the thought up. beat him He at first him else and wanted to take somewhere that the bullet had missed, shooting, time At the of the defendant “dropped.” but then was about three gun lap. in his holding feet from
I
majority go
the outset
their
astray
analysis by assuming
“The only
rule of reversal “which
possible
might
Carlos
exception”
(Ante,
possibly
the so-called
apply”
Cantrell-Thomton exception.
306.) This mistaken
p.
into the
thicket
majority
leads
premise
tangled
of factual
in
that must be answered
Cantrell-Thomton
questions
every
whether defendant
all the evidence
quiry, e.g.,
at his command
presented
kill,
negate intent to
and whether
evidence was
consid
“worthy
concede,
eration.” Yet as the
is raised
case the
issue
majority
“in
In all
perverse
(ante,
306).
fashion”
our
Carlos-Garcia
p.
previous
(1985)
v.
cases—including
cited
Anderson
majority (People
pair
by
38 Cal.3d
1149],
P.2d
Ramos
Cal.Rptr.
[210
430])-the
The effort moreover, is because into unnecessary, easily the case fits a different to the Carlos rule. I refer of exception exception course the the United States Court Supreme in Connecticut v. Johnson recognized 73, (1983) 823, 834, 460 U.S. 87 L.Ed.2d 103 opn.)- S.Ct. (plur. [74 969] we reiterated in 539, 554 People (1984) Garcia 36 Cal.3d [205 265, 684 Cal.Rptr. P.2d in cases which the defendant conceded 826]—for issue of intent. but brush majority acknowledge aside this exception remark, however, “Obviously, the court was not a addressing where the situation ‘concession’ is an by erroneous triggered perception indeed, costs (Ante, it nothing may, defendant’s advantage.” 306, 12.) fn. With the remark misses the point. It is true in p. respect, cases defendant’s of a concession of intent pre-Carlos perception may been “erroneous” in the narrow did sense that he know actually could defend a against charge felony-murder circumstance by the intent But it was not a issue. erroneous contesting objective larger, v. Green since our decision in Cal.3d sense: [164 a 468], 609 P.2d whether such question concession “costs to the or—more “be defendant’s de- nothing” advantage” important—may show, on the of the evidence. As I state shall on the record entirely pends was to defendant’s advantage. this case the concession our recent important decisions seemed by recalling point I begin two administering view: in first have lost from to the exceptions Garcia, we are recognized law, rule of reversal applying federal Carlos that “To not state law. We made in Garcia when we stressed this plain avoid we reiterate that we decide present possible misunderstanding, 10), fn. (36 case on the basis of federal Cal.3d at p. precedent” took no would do in the absence of such expressly on what we position course, is (ibid.). federal That “controlling authority” authority, pri- Johnson, Connecticut v. we found the two marily exceptions where supra, It said on the therefore behooves us to reread what that question. opinion After error be harm- “may that the subject. declaring general principle (460 less if the defendant intent” U.S. at 87p. conceded the issue of 834]), L.Ed.2d at with some care: “In court went on to p. high explain self-defense, alibi, or a defendant presenting insanity, defense such as in some was inten- may by cases admit that the act alleged prosecution tional, the likelihood that the thereby sufficiently reducing jury applied erroneous court to consider the instruction as to error permit appellate whether, leave it to the lower courts to determine harmless. We [Citation.] actions, or other a defendant defense himself by raising by particular (Ibid.) has taken the issue of intent from the away jury.” law; Court makes no new this passage Supreme simply recognizes life, i.e., a fact of trial that in certain cases a defendant find it may necessary to concede of the crime in or one element order make expedient a whole. For when the defense evi- charge example, prosecution self-defense, tends to show an intentional and the defense dence claim to his that “it may credibility choose to lend was either him me” killed in order expressly conceding intentionally *13 event, reasons, life. In that Court the as the Supreme save likelihood the an erroneous instruction the jury actually withdrawing ele- applied intent from the that an can of case is so small court hold the appellate ment harmless. error here, to the the Court does not condition
Contrary majority the Supreme of the defendant’s of concession intent on his the instruc- validity knowing Indeed, was in fact erroneous. to that condition would impose nullify tion in all cases tried before the decision exception: declaring instruction (here, claim Carlos), defendants could plausibly appeal erroneous intent even solely conceded or because did not know of the partly they error; that lack of were if would al- knowledge dispositive, exception be Thus the result of the in the case inapplicable. majority’s ways approach to to the is Court—and to this court in Garcia—an impute Supreme bar at erect an that would never exception applied. intent may be avoided anomaly by Court at its simply taking This Supreme whether, should we review the record “to determine a by word: raising actions, defense his other by defendant himself has taken particular [the] of intent (460 issue away jury.” from the U.S. at L.Ed.2d at p. 834-835].) In this pp. case the task is not difficult.
From the of majority’s own recital the facts it is clear prosecution introduced evidence kill ample Randy that defendant intended to Watkins. lover, Defendant’s strong and his feelings towards his wife’s jealousy desire for The method was consequent supplied motive. revenge, to accost and kill he plan near the Randy making night deposit he store where worked. It is incredible to believe defendant and his wife travelled Reno to miles from Modesto for rob- purpose store, a small convenience or that it coincidental bing defend- purely ant’s sworn enemy worked at that store was the who particular person intent, carried its receipts bank. If had robbery been defendant’s there were hundreds potential and more affluent route from long victims on Reno to Modesto. Yet all were overlooked in order to this store get victim. addition, numerous eyewitnesses testified to admissions to kill Randy. of his Defendant’s wife that before recounted arriving said, of the on the scene he I am shooting “Tonight night going even with you what have done to me.” her he was you He told get going car, else, Randy’s into make him drive and kill get him. someplace in fact Defendant entered car face and shot him the Randy’s close A week later defendant told that he had range. Danny gone to Haggerman car, “to blow Modesto someone that he a away”; into jumped parked inside could person say anything trigger before shot pulled head; and him in the that he would kill if anyone he had grudge against Still later defendant Beverly told Deeter that he had gone them. Modesto named to kill someone did so because had Randy; raped his Donna; that Donna him and that he wife had told about the killed rape; bank at the and took the to make it money robbery look like rather a murder. than *14 evidence, this state of
On the of dis- only defendant’s best if not hope the from the cir- suading jury true finding charged special robbery-murder him the death on our rely cumstance—thus exposing penalty—was Green, in People v. 27 we held decision Cal.3d Green supra, 59-62. 61) that a un- (at is p. robbery-murder special circumstance impermissible statute “when the the defendant’s but to kill and der intent is not to steal is the robbery merely incidental to murder . its sole object the . . because or facilitate conceal the crime.” primary the majority acknowledge, As defendant’s a Green decision present apparent the trial. In throughout his statement coun- defense opening be task would admitted defendant told the their jurors sel killed and the course “to decide whether that occurred during or not this was killing or, alternative, which during of a a murder in robbery was this murder, murder, a theft was committed.” course of at the end of that on cross- of refrained from taking challenging evidence counsel During ad- defendant’s any recounting examination of the prosecution testimony as the majority quote missions of to kill. And in his closing argument, {ante, 305), at testimony proof he relied length p. repeatedly counsel defendant’s “intent to kill Watkins.” From this premise murder, not of it was vigorously that his client was argued although guilty robbery, a murder intended to facilitate or conceal a crime primary would not circumstance. hence support finding robbery-murder special was an was our decision This rational defense. Its basis eminently legal Green; which, its factual if had basis was testimony prosecution so, to do robbery chosen could have inferred that the jury reasonably not merely support this case incidental to the and hence would reasons, circumstance and sufficient only special For alleged. good therefore, make defendant chose in order to to concede the issue of intent most defense on This is plausible precisely the facts as unfolded. Johnson, the scenario Court in Connecticut contemplated by Supreme of intent in the words of that concession defendant’s opinion, express er- “thereby sufficiently the jury applied likelihood that reduc[es] instruction as to error harmless.” roneous court to consider the permit [this] (1985) at v. Allen (460 834].) (Accord, U.S. L.Ed.2d at p. p. [74 837].) 628-629 Cal.App.3d will, To invoke this when warranted like the Can it is exception plainly (Garcia, supra, trell-Thomton retrial.” “avoid a exception, meaningless aimless exercise: even Cal.3d.) 556 of 36 Here would be an retrial p. the issue of to contest intent to defendant now knows of his though right kill, were ordered. he would if a retrial This still have no reason to do so now-standard given is so because in such a would proceeding jury allegation to find circumstance to be robbery-murder instruction of a robbery true if the murder occurred the commission only (Carlos) to kill both the are intended following proved: (2) murder was committed for the of facilitating concealing purpose (Green). (CALJIC rev.).) Defendant (1984 No. 8.81.17 could robbery case, latter contest either elements of the but could not People’s contest both: he could not tell the did plausibly jury plausibly *15 all (i.e., to kill at and that he killed for intend of with the purpose of) or facilitating Under a correct statement of concealing robbery. therefore, law, defendant would still have to choose between a Carlos de- defense;
fense and a Green relieve him from we or do here can nothing say to make having that tactical decision. And would because prosecution kill, on the same evidence of defendant’s best chance of put his intent to would success still the Green It fantasy defense. is sheer speculate that he might abandon that defense in of a assault on the favor desperate of credibility each of the numerous witnesses who testified to prosecution kill, his admissions of intent to circumstantial evidence. supported by strong
II also err on this issue defendant’s tes- majority by guilt considering 306-307, 13.) at the For the timony (Ante, fn. penalty phase. right pp. Ramos, do so they rely on 37 Cal.3d at exclusively supra, page 148. But the in nor case authority, Ramos neither opinion gives statutory nor reasoned refers to Ramos’s it analysis, justify step: merely pen- it alty in its Garcia without phase testimony analysis explaining why to do in the so. The issue was not addressed it proper opinion, simply settled that “Cases are not not considered.” authority propositions (In 553], cited.) re Tartar (1959) 52 and cases Cal.2d P.2d
Before the into a of Ramos on this is elevated nonauthority precedent point case, by of the we should unthinking repetition in this stop procedure whether inquire we are I of no other serious law.1 know making good instructional error in the can be cured guilt of a trial that phase capital relying testimony given later at the And the reason is penalty phase. when an harmless, appellate court holds such an it is plain: error expressing that even if its the correct opinion instruction had been it is given reasonably (or doubt, a probable beyond etc.) reasonable probable that the would jury reached the same verdict because the other evidence and instructions jury—ox more that a precisely, rational trier of fact would have before the same verdict it had reached known what this knew. But in jury its if in the guilt of a phase deliberations trial no knows what evidence capital jury will be given instructions if it in fact reaches that penalty phase, Indeed, much of the latter evidence would be highly prejudicial phase. at the guilt is therefore inadmissible at that phase; phase, whole apparatus case is de- trying capital separate stages to prevent the such evidence on the jury precisely considering signed Yet even would not have heard this evidence guilt. though jury issue consider it in what majority nevertheless guilt phase, determining in the point appeals not so much for this for future automatic case as raise 1I address error, us; pending point partic a number of which are before relates Carlos-Garcia analysis, frequent appeals. explained the Cantrell-Ihornton issue in such As ularly to I, however, analysis we need not reach that in this case. Part
313 reasoning, heard it. This is not would have done if it could have jury but guesswork. of the harm- the whole theory
Not is the inconsistent with only procedure rule, In the less error penalty. it is unfair to defendants facing supreme right of their have the constitutional guilt phase trials such defendants their By stand mute and case without help. the state to its require prove contrast, crime, if it is often are found guilty potentially capital their their best in the to admit the offense and hope express penalty phase remorse; full by lack of be to the any that emotion will usually exploited rule, however, who Under the new defendants prosecutor. majority’s exercised their reluctant to not to in the right testify might guilt phase remorse, admit that for fear that penalty phase express will admission be used if we find the intent them this court against by who, instruction erroneous. The same effect would be felt those by chilling choice, in the exercise of their on the defense of their chose right put intent to kill in deny We would never think of guilt using phase. for other that an error errors: for we would never hold
procedure example, ain alibi instruction can the defendant’s admission guilt-phase be cured by crime, in the that in fact he was at scene of the or that an penalty phase error in a self-defense instruction can be cured his admission guilt-phase in the that he then can we penalty phase did initiate the combat. How justify a different rule when the error is in the crucial instruction on intent? I,
For the reasons stated in Part I circumstance would uphold special in this case. finding
GRODIN, J., I findit Concurring. this case to decide unnecessary whether the Garcia/Connecticut v. Johnson “concession” is con exception on the ditioned defendant’s known the “intent instruction” was in having Even (as fact erroneous. contends) dissent it is not so assuming condi tioned, in view my there was no such concession here. to the Contrary (6th 121, 125, situation v. Perini 1980) Cir. 614 F.2d Krzeminski (2d 1981) 447, v. Harris Washington Cir. 650 F.2d (on 453-454 which the Connecticut v. Johnson court relied in illustrating intent conceded ex U.S. 87 L.Ed.2d ception, 969]), S.Ct. defense coun sel’s that his client argument intended to kill was inconsistent with defend ant’s own version shown by penalty phase testimony. Taking the lead and Washington, Krzeminski I would the “concession apply if the only concession exception” is consistent with the defendant’s version of the crime. to the Subject reservation, foregoing I concur in the majority opinion.
LUCAS, I concurin the J. judgment extent it affirms defendant’s guilt dissent, conviction. I however, to the aside of the setting cir- *17 I
cumstances For the stated part reasons finding penalty judgment. of Justice Mosk’s defendant’s concession concurring dissenting opinion, of an intent to rule. kill satisfies the Carlos/Garcia