THE PEOPLE, Plаintiff and Respondent, v. MAURICE SETON THOMPSON, Defendant and Appellant.
Crim. No. 20707
Supreme Court of California
June 9, 1980
27 Cal. 3d 303
Quin Denvir, State Public Defender, under appointment by the Supreme Court, Charles M. Sevilla, Chief Assistant State Public Defender, Joseph Levine and Richard A. Curtis, Deputy State Public Defenders, for Defendant and Appellant.
OPINION
BIRD, C. J.—This is an automatic appeal from a judgment imposing a penalty of death. (See
I
Maurice Seton Thompson was convicted by a jury of the first degree murder of Michael Whalen (
On November 14, 1977, appellant entered a bar owned by June Filice in La Mirada. June had seen appellant in the bar before but spoke to him for the first time and learned he was called Tom.
Later that evening June was at home taking a bath when she heard a knock on the bathroom door. She opened the door and saw a man holding a gun on Michael Whalen, her fiance. The intruder told the two that he wanted their money. Whalen displayed an empty wallet but reached into his pocket and retrieved a wad of crumpled bills, which the man “just looked at” but did not take.
With the intruder‘s permission, June went into her bedroom and put on a robe. She pointed out her purse, which she said contained $5, cred-
At this point, June asked the intruder why he picked their particular house. When he answered that someone had told him it would be “a good hit,” June told him he had been given a bad “steer.” She explained that due to a recent fire, little remained in the house. Again, the intruder inquired about any money, whereupon June reminded him of the $5 in her purse, her jewelry and the cash in Whalen‘s pocket. However, the intruder said he did not want them.
After staring at Whalen and June for a few seconds, the intruder picked up a pillow from the floor and held it in front of his gun. Looking at June, he told her, “You know why I‘m here and you know who sent me.” Then he fired three shots into Whalen and three into June.
Whalen was fatally wounded. June was shot twice in the left leg and once in the stomach. She watched the man run out of the room and throw away the key ring from which the car keys had been removed. It was later determined that the car was never moved and the car keys were dropped in a park near the house.
After the intruder left, June dialed the operator for the police. When they arrived, she told them her estranged husband, Frank, had shot her. June believed Frank had arranged the shooting. She based this belief on the intruder‘s remark, “You know who sent me,” and on the fact that Frank had previously threatened “to put a .38 slug between Mike‘s eyes” and to throw acid in her face. She explained that “if you belong to Frank, you‘re not going to belong to anybody else.”
June‘s 21-year-old son, Frank, Jr., had also heard his father threaten his mother and Whalen. In addition, the son had heard his father ask for a picture of Whalen a week before the shootings. When told of his mother‘s description of the assailant, Frank, Jr., believed him to be a Larry V., a criminal friend of his father. However, at the hospital June identified her attackеr as “Tom” and picked appellant‘s picture out of
Almost two weeks later, in the early morning hours of November 27, 1977, appellant held up Scott Domnie, the supervisor of the Breakers Restaurant in San Luis Obispo.2 Wearing a ski mask and pointing a gun, appellant accosted Domnie as he was leaving the restaurant and approaching his car in the parking lot. Appellant suggested they “go back into the restaurant and get the money.” Domnie said he did not have the keys but would help appellant break in. Domnie then heard the click of the pistol‘s hammer being pulled back, and he quickly offered to give appellant what money he had. Appellant instructed Domnie to put his wallet on the floor of the car and to put the keys in the car‘s ignition. Appellant then drove the car out of the lot and down the hill. The police discovered the car the following day.
That same afternoon, appellant returned to the Los Angeles area and contacted Mark Amos, a man he had met a month earlier through Frank Filice. Frank had told appellant that Amos was a person who bought stolen cars. In fact, Amos was an undercover agent working for the Los Angeles County Sheriff‘s office. Apрellant and his girlfriend, Cheryl Patton, met with Amos and discussed the sale of a 1977 Ford LTD (not Domnie‘s car) for $700. After arranging to meet the two at 11 p.m. in a Santa Monica bar, Amos called Los Angeles Deputy Sheriff Robert Roane and learned that appellant was wanted.
Roane joined in the 11 p.m. meeting, pretending to be a potential buyer of the car. He also coordinated appellant‘s arrest with the Santa Monica and La Habra Police Departments. The officers arrested appellant and his girlfriend, Patton, as they emerged from the bar after the meeting was concluded.
In response to this evidence, defense counsel argued that appellant was not the person who had committed the charged offenses. Further, he contended that the evidence failed to establish beyond a reasonable doubt that the perpetrator, evеn if it were appellant, had the specific intent to steal.4
A specific intent to steal was a necessary element of the substantive crimes of robbery and burglary5 as well as the special-circumstances allegations.6 Since the prosecution sought to prove that appellant was guilty of first degree murder under a felony-murder theory premised on
The jury found appellant guilty of all the offenses and found the special circumstances and firearm-use allegations to be true. Prior to the commencement of the penalty phase of the trial, appellant moved to have a new jury empanelled to determine if he should receive a sentence of death. Counsel believed that since he had portrayed the killer as a cold-blooded executioner at the guilt phase, it was impossible to argue to the same jury at the penalty phase that appellant‘s life should be spared. The trial court recognized that at the guilt phase counsel‘s argument to the jury “almost had to be made.” Nevertheless, thе motion was denied and a verdict of death was returned by the jury. This automatic appeal follows.
II
This court must determine whether the trial court erred when it permitted the prosecution to introduce evidence of the robbery that appellant committed outside the Breakers Restaurant in San Luis Obispo. This evidence was offered to prove that he had an intent to steal at the time the offenses were committed at June‘s house.
The admission of any evidence that involves crimes other than those for which a defendant is being tried has a “highly inflammatory and prejudicial effect”9 on the trier of fact. This court has repeatedly warned that the admissibility of this type of evidence must be “scrutinized with great care.”10 “[A] closely reasoned analysis”11 of the pertinent factors must be undertaken before a determination can be made of its admissibility.
In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding13 or an intermediate fact “from which such ultimate fact[] may be presumed or inferred.”14 (See Law Revision Com. comment to
Three interrelated extrinsic policies tend to limit the admissibility of evidence of other crimes despite the fact that the evidence may be relevant to prove a material fact.
The primary reasoning that underlies this basic rule of exclusion is not the unreasonable nature of the forbidden chain of reasoning. (See People v. Schader, supra, 71 Cal.2d at p. 772.) Rather, it is the insubstantial nature of the inference as compared to the “grave danger of prejudice” to an accused when evidence of an uncharged offense is given to a jury. (See Jefferson, op. cit. supra, § 21.3, p. 262; People v. Sam, supra, 71 Cal.2d at p. 203.) As Wigmore notes, admission of this evidence produces an “over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts.” (1 Wigmore, Evidence, § 194, p. 650.) It breeds a “tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offences....” (Ibid.) Moreover, “the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor.”18 (Note (1964) 78 Harv. L. Rev. 426, 436.) “We have thus reached the conclusion that the risk of convicting the innocent... is sufficiently imminent for us to forego the slight marginal gain in punishing the guilty.”19 (People v. Schader, supra, 71 Cal.2d at pp. 772-773.)
In the present case the prosecution sought to justify the admission of the uncharged robbery at the Breakers Restaurant on the basis that it proved appellant‘s specific intent to steal at the time of the shootings in La Habra. Specific intent to steal was an element of the crimes charged and of the allegations of special circumstances. Thus, it was an ultimate fact in the action. (Cf., ante, fns. 4-8 and accompanying text.) As shown by defense counsel‘s arguments to the jury, appellant placed this element in issue, and the evidence of the Breakers robbery was not cumulative. The requirements of materiality and necessity were met.
liberty by artificially handicapping the prosecution, thus importing into the courts of justice the notions of sportsmanship. On the contrary, the object is to prevent a person not guilty of the present charge from being improperly found guilty of it.” (1 Wigmore, Evidence, supra, § 194, p. 651 (italics omitted); cf. People v. Fries (1979) 24 Cal.3d 222, 231-232 [155 Cal.Rptr. 194, 594 P.2d 19].)
The theories of relevance advanced in this case are premised on the contention that if a person acts similarly in similar situations, he probably harbors the same intent in each instance. Therefore, if the circumstances of the Breakers Restaurant robbery showed that appellant had an intent to steal, then the presence of similar circumstances in La Habra would suggest that he had the same intent at the time of the shootings.23
This claimed similarity is not borne out by the facts. The testimony at trial did not establish that June or Whalen indicated an “inability” to comply with appellant‘s demands. Whalen offered appellant cash of an undetermined amount. June offered her purse, her credit cards, and her jewelry, including a ring worth $6,000. Further, there was no evidence that in La Habra appellant expressed an interest in a larger sum of money that might have come from his victim‘s business, as he had at the Breakers robbery.
The evidence did not show that appellant “reacted” in a similar fashion. After failing to obtain money from inside the Breakers Restaurant, appellant settled for the money he thought was in his victim‘s wallet. Contrast these facts with the events that took place in La Habra where the victims’ wallet, purse, and money were all refused. Further, the victims were shot.
The only similarities were that in both instances the actor demanded an automobile and left the scene with a set of his victim‘s car keys. With respect to the former “similarity,” it is urged that the evidence that appellant drove off with Domnie‘s car tends to establish that appellant would have driven off with June‘s car but for Whalen‘s warning about its recognizability. Thus, the argument runs, the evidence of this aspect of the Breakers robbery tends to prove appellant‘s intent to steal June‘s car at the time he demanded it. However, this chain of reasoning does not tend to prove that appellant had an intent to permanently deprive June of her car, since the facts of the Breakers robbery do not reasonably show appellant had an intent to permanently deprive Dom-
prosecution had “not shown that the similarities between the two offenses are substantial enough to have probative value.” (16 Cal.3d at p. 728.) Significantly, the court relied upon the rationale of People v. Haston (1968) 69 Cal.2d 233. Haston is the leading case for the well established rule that there must be distinctive common marks between an uncharged and charged crime to prove identity on the basis of a common modus operandi.
The other similarity established by the record is that on both occasions appellant demanded and took a set of car keys. However, this single act would not invest the evidence of the Breakers robbery with probative value substantial enough to outweigh its prejudicial effect. The probative force of this similarity is significantly weakened by the dissimilarities discussed earlier. Moreover, there is great prejudice in admitting evidence of the entire Breakers Restaurant robbery to establish a limited similarity24 on the narrow question of appellant‘s intent to steal a set of car keys.
Evidence that an individual intended to steal car keys оn one occasion does not, by itself, substantially tend to prove that he intended to steal them on a second occasion. The only tendency it establishes is the impermissible inference that he has a “disposition to commit” such crimes. Since the Evidence Code specifically forbids the admission of uncharged offenses to prove such a disposition, even as a waystation to proving intent, the trial court erred in admitting this evidence.
III
This court‘s recent decision in People v. Green (1980) ante, page 1 [164 Cal.Rptr. 1, 609 P.2d 468] raises the additional question of whether the evidence in the present case was sufficient to support the jury‘s findings that the robbery and burglary special circumstances were true. In Green, as here, the defendant was convicted of first degree murder with a special circumstances finding that the murder was (inter
Under the special circumstances statute, this court reasoned in Green, “it was not enough for the jury to find the defendant guilty of a murder and one of the listed crimes [there, robbery]; the statute also required that the jury find the defendant committed the murder ‘during the commission or attempted commission of’ that crime. [Citation.] In other words, a valid conviction of a listed crime was a necessary condition to finding a corresponding special circumstance, but it was not a sufficient condition: the murder must also have been committed ‘during the commission’ of the underlying crime.” (Id., at p. 59.)
Since “the Legislature must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not,” the determination as to whether or not a murder was committed during the commission of robbery or other specified felony is not “a matter of semantics or simple chronology.” (Id., at pp. 60, 61, fn. omitted.) Rather, this determination involves proof of the intent of the accused. A murder is not committed during a robbery within the meaning of the statute unless the accused has “killed in cold blood in order to advance an independent felonious purpose, e.g., [has] carried out an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.” (Id., at p. 61, italics added.) A special circumstance allegation of murder committed during a robbery has not been established where the accused‘s primary criminal goal “is not to steal but to kill and the robbery is merely incidental to the murder...because its sole object is to facilitate or conceal the primary crime.” (Id., at p. 61.)
The principles enunciated in People v. Green compel this court to examine the evidence in the present case to determine whether it is sufficient to uphold the jury‘s findings that the robbery and burglary special circumstances were true beyond a reasonable doubt. In making this determination, “the court must review the whole record in the light
While the ultimate issue under Green is whether or not the perpetrator‘s intent to steal was “merely incidental” to his intent to kill, it is at most a close question whether the perpetrator had any intent to steal at all. Although he vocalized a demand for money, the perpetrator declined all cash tendered by June and Whalen, including a wad of bills from Whalen‘s pocket which “could have been a hundred dollars,” according to June‘s testimony. When June pointed out her purse and stated it contained $5, credit cards, and a checkbook, the perpetrator “didn‘t ask me to dump it out or open it or nothing.” Then, June noticed her jewelry and rings on a nearby table. She told the man to take them and indicated that one ring alone was worth $6,000, but “he said he didn‘t want it.” He never indicated he felt the items offered to him were too insubstantial in value; he never searched the house or any of its contents for more money; and he left the home with nothing valuable. The conclusion seems inescapable, then, that the evidence is insufficient to establish an intent to steal money.26
Therefore, if any inference of an intent to steal property may be drawn from the evidence adduced below, it could reasonably arise only from the perpetrator‘s demands for June‘s automobile and car keys. These demands were not mentioned until the end of the confrontation, after June and Whalen had been forced downstairs into the family room and June ordered to sit in a broken loveseat. Once the perpetrator
The question presented under People v. Green is whether the shootings were done to advance an independent felonious purpose of stealing the car and keys or whether instead such intended thefts27 were “merely incidental to the murder.” Viewing the record as a whole in the light most favorable to the jury‘s verdicts, as this court must, it is impossible to conclude that the prosecution sustained its burden of proof on this issue.
The perpetrator‘s final remark to his victims as he held the pillow in front of his gun—“you know why I‘m here and you know who sent me“—undeniably indicates that this confrontation was intended primarily (if not exclusively) to be a killing. The man‘s refusal without apрarent reason to accept any of the victims’ jewelry strongly imports that property gain was at most of secondary importance. According to an uncontradicted portion of his confession, appellant arrived at the home on foot. Therefore, he had a motive to take a car simply to effect his getaway from the shootings he intended; and the fact that his first demand for the car was made just prior to the shootings suggests that this was indeed his reason for demanding the car keys. It was well established by the record that appellant was an accomplished automobile thief, one who would have no need for car keys in order to make off with a vehicle.
When the whole record is viewed in a light most favorable to the verdict, it establishes at most a suspicion that appellant had an intent to steal independent of his intent to kill. However, “[e]vidence which merely raises a strong suspicion of the defendant‘s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].) “To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.” (People v. Hall (1964) 62 Cal.2d 104, 112 [41 Cal.Rptr. 284, 396 P.2d 700].) The evidence against aрpellant on the question of the truth of the special circumstances is “so fraught with uncertainty as to preclude a confident
The crimes depicted by the evidence below were brutal offenses carried out by an apparently cold and ruthless individual. The jurors who tried this case undoubtedly were sorely tested when they realized they would have to return a “not true” finding as to all special circumstances allegations if they determined appellant was primarily a killer instead of a thief. But constitutional protections, including the requirement of proof beyond a reasonable doubt, are not limited to those defendants who are morally blameless. (See Jackson v. Virginia, supra, 443 U.S. at pp. 324-325 [61 L.Ed.2d at pp. 576-577, 99 S.Ct. at p. 2792].) No matter how blameworthy in other respects, this appellant is entitled to the same dispassionate review of the sufficiency of the evidence as to the special circumstances findings as a civil litigant is allowed upon appeal from an adverse judgment for money. Indeed, in a case such as this, where the moral equities weigh so heavily against an individual, an appellate court has a special duty to apply its objectivity.
The jury‘s findings with respect to the special circumstances allegations may not stand.
IV
Next, appellant raises several contentions relating to the confession he made to Officer West, which he repudiated at trial. According to appellant, the confession was not only involuntary but obtained during a period of illegal detention. (
Detective West left the station at 4:30 a.m. but returned later that morning because he had “overlooked taking fingertip prints [of appellant and Cheryl] at the time of the booking.” As West completed this procedure appellant inquired as to whether or not charges were to be filed against Patton. West replied that that decision rested with the authorities in Los Angeles County29 with respect to any charges involving the sawed-off shotgun and the stolen car.
A discussion ensued concerning the possibility that Patton might be an accessory to murder. Appellant stated that she was innocent of any wrongdoing. West replied, “we had no way of knowing that,... both of them had chose[n] to remain silent, and we had no way to check it out at that time.” Appellant replied, “If I could just see Cheryl, I could straighten out a lot of things.” West arranged for Patton and appellant to converse over the telephone in the visitor‘s room of the police station. Their conversation lasted approximately 30 minutes.
When the visit concluded, West started to put appellant in his cell when appellant volunteered he desired to talk to West. “He [Thompson] said that he wanted to clear something up and get Cheryl out of trouble.” West stated to appellant that “I [West] couldn‘t ask him any questions because he had already told me that he didn‘t wish to talk. I advised him that it would have to be him that requested to talk to me.” Appellant replied, “when can I talk to you?” West indicated they “could talk anytime, if that‘s what he chose to do, and he indicated he did want to.” Appellаnt was taken to West‘s office, advised of his Miranda rights, which were waived, and a confession was given. Appellant exonerated Patton.
At the motion to suppress this confession, appellant denied the confession he had made was true. He indicated he had confessed because he was concerned about Patton‘s health and the possibility that charges would be filed against her. There was an “agreement” between himself and Officer West that if he confessed, Patton would be released. Appellant testified that during his 3 a.m. booking at the La Habra police station, Officers West and Smyth spent about an hour “questioning me about the shooting and supplying some information about it, wanting to know if this happened or that happened and...just asking general questions about it for a while.” Appellant testified he was told that if he did not “make a statement,” the officers would “do their best to prosecute” Pattоn, which he took as an “ultimatum.”
West testified that appellant asked “numerous times” about Patton‘s well-being throughout his detention. West tried to reassure appellant that she was being well treated, but denied he ever told appellant that charges would be filed against Patton if he did not talk. Appellant contends that the statement by Officer West that the police “had no way to check...out” Patton‘s innocence because “both of them had chose[n] to remain silent” renders the confession involuntary.30
The prosecution bears the burden at trial and on appeal to show that a confession was voluntary. (People v. Jimenez (1978) 21 Cal.3d 595, 602 [147 Cal.Rptr. 172, 580 P.2d 672].) If a confession is admitted at trial, the appellate court is required to examine the uncontradicted facts “to determine independently whether the trial court‘s conclusion of voluntariness was properly found.” (People v. Berve (1958) 51 Cal.2d 286, 290 [332 P.2d 97].) A confession is voluntary if the accused‘s decision to speak is entirely “self-motivated” (People v. Steger (1976) 16 Cal.3d 539, 550 [128 Cal.Rptr. 161, 546 P.2d 665]), i.e., if he freely and voluntarily
Appellant argues that West‘s statement amounted to an implied inducement that Patton would be released if appellant made a statement.31 However, West was explicit that he would offer no assistance to Patton on the possible shotgun and stolen car offenses. Moreover, he repeatedly attempted to calm appellant‘s concern for Patton‘s health. In this context, West‘s statement could not have been interpreted to imply that a benefit would be given if appellant confessed. While appellant undoubtedly hoped Patton would be released if he confessed, his decision to talk to achieve that goal was self-motivated. It was not a product of any implied inducement by West.
Next, appellant contends that his confession was inadmissible because it was obtained while he was being illegally detained. (
Officer West stated that “the time element” was the reason for the delay in arraigning appellant. “[D]ue to the time the defendant was booked in [4:30 a.m.], [and] the fact that neither of us had had any sleep, I decided to not even try to make that morning arraignment.”
The critical factor is the necessity for any delay in arraignment. These provisions do not authorize a two-day detention in all cases. Instead, “a limit [is placed] upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute” and of the Constitution. (See Dragna v. White (1955) 45 Cal.2d 469, 473 [289 P.2d 428]; People v. Stroble (1951) 36 Cal.2d 615, 624-626 [226 P.2d 330].) In determining which delays are necessary under the statute, this court has rejected arguments that the delay was “not unusual” or made “the work of the police and the district attorney easier.” (Id., at p. 625.) As the Court of Appeal recently observed, “[t]here is no authority to delay for the purpose of investigating the case. Subject to obvious health considerations the only permissible delay between the time of arrest and bringing the accused before a magistrate is the time necessary: to complete the arrest; to book the accused; to transport the accused to court; for the district attorney to evaluate the evidence for the limited purpose of determining what charge, if any, is to be filed; and to complete the necessary clerical and administrative tasks to prepare a formal pleading. [Citations.]” (People v. Williams (1977) 68 Cal.App.3d 36, 43, fn. omitted [137 Cal.Rptr. 70].)
The right to a prompt arraignment is “a fundamental right of the arrested person” (People v. Powell (1967) 67 Cal.2d 32, 59 [59 Cal.Rptr. 817, 429 P.2d 137]), and cannot be ignored because an officer desires some sleep. However, even if a confession occurs during a period of illegal detention under
Officer West‘s testimony established that the purpose оf the delay was not to obtain statements from appellant. It is true that appellant refused initially to discuss the case with West but he subsequently changed his mind and initiated further conversations. The decision to confess was itself free and voluntary. Under these circumstances, even if
A final argument concerning the confession is advanced by appellant. He claims that the prosecution‘s use of the confession for the first time on cross-examination was improper. This court has criticized the tactic of waiting for cross-examination or rebuttal to use important evidence. If evidence is directly probative of the crimes charged and can be introduced at the time of the case in chief, it should be. (See, e.g., People v. Mosher (1969) 1 Cal.3d 379, 399 [82 Cal.Rptr. 379, 461 P.2d 659]; People v. Carter (1957) 48 Cal.2d 737, 753-754 [312 P.2d 665].)
The purpose of this restriction “is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent‘s case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution‘s possession that tends to establish the defendant‘s commission of the crime. It is restricted to evidence made necessary by the defendant‘s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.] A defendant‘s reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecution‘s introduction of new evidence to establish that which defendant would clearly have denied from the start.” (Ibid.)
Clearly, a purported confession by an accused to any crimes that are charged “tends to establish the defendant‘s commission of the crime.” (See id., at p. 753.) “If the defendant had confessed, proof of the confession was a part of the case of the People and it was the duty of the
In the present case, the prosecutor sought to introduce on cross-examination a limited portion of appellant‘s confession. The purpose of the evidence was to rebut a statement made by appellant in direct examination which did not cover a matter “implicit in his denial of guilt.” On direct examination, appellant admitted knowing Frank Filice and using him on several occasions as a person who was “able to find someone to sell a stolen car to.” Appellant stated he did not know that June was Frank‘s former wife, although he had met her on several occasions, the last time being “the day before or the same day she was shot.” Appellant admitted the .357 revolver belonged to him but claimed he never fired it and did not shoot June or Whalen. No testimony was given as to where appellant was at the time of the killing.32 All of this testimony involved matters implicit in appellant‘s plea of not guilty.
However, appellant did give further direct testimony about the revolver which he claimed he bought “somewhere around five to seven days” prior to his arrest. This would have been a date after the killing of Whalen. Appellant said he bought the gun for $30 from a man whom he believed to be an addict and who was introduced to him by Frank.
At the completion of appellant‘s direct examination, the prosecutor indicated he wished to examine appellant on that part of his confession which contained statements concerning the revolver. (See post.) The trial court agreed.
Although appellant‘s plea of not guilty notified the prosecution that he would deny possession of the weapon at the time of the crime, it could not be anticipated that appellant would assert he had not even seen thе weapon until several days later. Therefore, the prosecutor could cross-examine appellant on that assertion. However, the prosecutor went beyond that and asked appellant if he had told West (1) that he “left the Filice residence with the gun and it was empty“; (2) that he walked “from there” to “someplace” where he hid the gun; (3) that the
In this series of questions, appellant admitted not only possessing the gun at the time of the shootings but committing the shootings as well. The latter admission was tantamount to a confession. Although eliciting this confession went beyond the scope of proper cross-examination, appellant‘s counsel made no attempt to exclude the extraneous statements. Further, he failed to object to the form of the prosecution‘s questions. This failure by counsel waives any claim of error by appellant.
On redirect examination, appellant testified in front of the jury that he had made the statements regarding the pistol because of “a deal between me and West to get Cheryl released.” He noted Patton was released from custody the same day he confessed. Thereaftеr, the prosecutor engaged in a lengthy reexamination in an attempt to show that appellant‘s explanation was not truthful. This examination resulted in the introduction into evidence of most of the remainder of appellant‘s confession. However, any error in this regard was harmless in light of what had been elicited from appellant on cross-examination.
Next, appellant contends that the categories of persons excludable for cause at the guilt phase of a capital trial under Witherspoon v. Illinois (1968) 391 U.S. 510, 522-523, footnote 21 [20 L.Ed.2d 776, 784-786, 88 S.Ct. 1770], should be narrowed. He argues that persons unalterably opposed to the imposition of the death penalty should be able to serve on a jury at the guilt phase if they could be fair and impartial. The Supreme Court in Witherspoon did not finally resolve this important issue.33 However, no prospective juror was excluded for cause at appellant‘s trial who should have been permitted to serve under appellant‘s reasoning. Therefore, the issue is not properly before this court.
V
In view of this court‘s determination that the evidence was insufficient to support the jury‘s findings with respect to the special
In the instructions read by the trial judge, the jurors were informed they could consider the evidence of the uncharged robbery on the issue of whether appellant had an intent to steal. As already noted, the circumstances of the charged offenses were ambiguous at best concerning this element, and the fact that the prosecutor brought up the Breakers robbery on at least nine separate occasions during his closing arguments indicates the significance this evidence probably had in the resolution of the question of intent. The prosecutor argued that the Breakers robbery “is important insofar as how it shows the defendant‘s intent at the time he did the murder []....” He went on to ask the jury to “look at the way that [appellant] did the robbery in San Luis Obispo if anybody has any questions about whether or not he had any intent to steal; because when [sic] he did that very similarly to the way he did this.... [Y]ou have a very similar kind of occurence there, and it shows you the intent.... [E]ssentially the same thing is going on here as went on in San Luis Obispo....”
There can be no doubt, therefore, that the erroneous admission of the uncharged robbery was prejudicial on the issue of appellant‘s specific intent to steal. Therefore, the judgment cannot stand as to the robbеry and burglary convictions. (Cf., ante, fns. 5-8 and accompanying text.)
The situation is more complicated with respect to the convictions for murder and attempted murder. The prosecution sought to prove appellant guilty of first degree murder on two theories: (1) the killing was committed with malice aforethought in a willful, deliberate and premeditated manner, and (2) the killing was committed in the perpetration of a robbery and/or a burglary. (Cf., ante, fn. 7 and accompanying text.) The latter theory involves the specific intent to steal; the former does not. Usually, it would be impossible to determine whether or not some or all of the jurors arrived at their verdicts based on the second theory of culpability. Under those circumstances, the judgment of both of the murder counts would ordinarily have to be reversed because of the prejudicial error with respect to the specific intent to steal.
VI
The judgment against appellant is reversed as to the convictions for robbery (counts 3 and 4) and burglary (count 5); on count 1 the two findings of special circumstances are set aside and the judgment is modified to provide a punishment of life imprisonment. In all other respects, the judgment is affirmed.
Tobriner, J., Mosk, J., and Newman, J., concurred.
RICHARDSON, J., Concurring and Dissenting.—I concur with the majority conclusion that the trial court erred in admitting evidence of defendant‘s subsequent robbery offense for the purpose of establishing his intent to steal during the present offenses. That error requires a retrial of the robbery and burglary offenses, and of the special circumstances findings which were based upon them.
I respectfully dissent, however, from the entirety of that portion of the opinion (part III) which holds that no substantial evidence existed to support the jury‘s findings with respect to the special circumstances allegations, and which sets those findings aside, precluding further retrial thereof. In my view there was ample evidence to sustain findings that defendant committed his murder during the commission, or attempted commission, of both a robbery and burglary. Accordingly, in fairness, the People should be permitted to reestablish those findings in
The majority acknowledges (ante, pp. 322-323) that our present review of the record must be made “in the light most favorable to the judgment below....” (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738], italics added.) Yet the majority, contrary to the foregoing rule, has proceeded to isolate only those portions of the record which would negate the special circumstances findings, disregarding entirely the contrary evidence which supports the jury‘s findings. Thus, while the majority enunciates the correct standard for review it refuses to apply it.
The majority agrees that “it is at most a close question whether the perpetrator [i.e., defendant herein] had any intent to steal at all.” (Ante, p. 323, italics added.) If so, all such “close questions” must be resolved to support the judgment. Within the context of “special circumstances” the statutory requirement of proof of a murder is that it be committed ”during the commission or attempted commission” of a robbery or burglary (former
First, as soon as defendant confronted his victims at their residence, he pointed a gun at them and demanded money. Although he refused the few crumpled bills displayed by victim Whalen, the $5 supposedly in victim Filice‘s purse, and the ring worn by her, the jury might well have found that defendant was seeking a larger cash hoard which he believed was hidden on the premises. Such a finding would be supported by (1) defendant‘s еxplanation to Filice that he selected her house because he was told “it would be a good hit,” and (2) defendant‘s subsequent repeated demand for money from his victims.
In addition to demanding money, defendant ordered Whalen to produce his car keys, which defendant took and removed from the key ring. Although defendant did not take Whalen‘s car, the jury might well have found that he was inhibited only by the fact that, as Whalen subsequently told him, the car bore personalized plates and could readily be identified. Defendant‘s original intent to steal Whalen‘s car is further substantiated by repeated record reference to his involvement
The majority suggests that defendant‘s demand for money and car keys may have been a ruse to hide his true intent to kill Filice. In this regard, the majorities rely upon defendant‘s statement to Filice, “you know why I‘m here and you know who sent me.” Yet it is just as likely that defendant entertained a joint intent to kill and to steal. In any event, there is no sound basis for concluding, as does the majority, that Filice‘s murder was defendant‘s “primary” intent, while the attempted robbery and burglary were of “secondary importance.” (Ante, p. 324.) This is purest speculation and violates, again, the cardinal principle of appellate review that trial records are to be viewed favorably to, and in support of, the conviction. Based upon the substantial evidence above discussed, the jury was entitled to find that defendant‘s murder of Whalen occurred during the commission, or attempted commission, of a robbery and burglary. Accordingly, any expression contained in People v. Green (1980) ante, pages 1, 59-61 [164 Cal.Rptr. 1, 609 P.2d 468], is inapplicable to the case before us.
As noted, a murder committed during the course either of the commission or attempted commission of a robbery or burglary constitutes “special circumstances.” Viewed in a light “most favorable to the judgment below,” there was ample evidence that the victim Whalen was killed by defendant during the course of the “attempted commission” of either or both robbery and burglary.
I would affirm the murder and attempted murder convictions, reverse the robbery and burglary convictions and special circumstances findings, and permit a limited retrial of the robbery and burglary charges together with the special circumstances allegations.
Clark, J., and Manuel, J., concurred.
Appellant‘s petition for a rehearing was denied July 16, 1980.
Notes
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”
The burglary count did not allege that appellant‘s entry was made with an intent to commit an assault or murder, presumably because such a burglary could not be used to invoke the felony-murder rule in connection with the homicide counts. (See People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22].)
However, evidence of other crimes is not automatically admissible under subdivision (b) whenever it is offered to prove an intermediate fact other than disposition. Subdivision (b) merely clarifies the fact that subdivision (a) “does not prohibit” the admission of such evidence when it is offered to prove a fact other than disposition. (Cal. Law Revision Com. comment to
People v. Durham, supra, 70 Cal.2d 171, was such a case. The defendant was accused of killing a police officer who had made a traffic stop on the car defendant was driving. This court ruled that several prior dissimilar crimes were admissible to prove intent to kill, premeditation, and deliberation by establishing the intermediate fact of motive. Similarity of offenses was not necessary to establish this theory of relevance, since it was the fact of the commission of the uncharged crimes—not their similarity to the charged offense—whiсh gave rise to the reasonable inference that defendant had a motive to kill the officer.
However, similarity is often necessary to bridge the gap between other crimes evidence and the material fact sought to be proved. Thus, in People v. Guerrero, supra, 16 Cal.3d 719, a defendant was accused of the murder of a 17-year-old girl by means of a blunt object. The victim had been found with her blouse pulled up but there was no evidence of sexual molestation. The prosecution was allowed at trial to introduce evidence that defendant had recently raped another 17-year-old girl and had thereafter threatened her with a lug wrench. This evidence was admitted to establish, inter alia, that in the charged offense defendant had intended to rape the victim, thus invoking the felony-murder rule.
This court unanimously ruled the evidence was inadmissible to prove intent since the