*1 Dist., No. 13987. Fourth [Crim. Div. One. June 1984.] PEOPLE,
THE Plaintiff and Respondent, WILLIAMS,
NORMAN SAMUEL Defendant and Appellant.
Counsel Defender, the Court
Quin Denvir, by Public under appointment State Defender, for Defendant Zilius, State Public Deputy and Christine Appeal, and Appellant. General, and Linda Robert D. Marshall de Attorney
John K. Van Kamp, General, for Plaintiff and Cabatic, Respondent. A. Deputy Attorneys Opinion hear- based on
WIENER, J. preliminary a “slow plea” entering After con- from the judgment Norman Samuel Williams ing appeals transcript, (§ 261, subd. (a)),1 Code, rape subd. (Pen. him of murder 187, victing § 1). Williams also (§ subd. former degree and first § (2)) statutory 1All Penal Code. references are on the
appeals rape court’s circumstance based special findings 190.2, burglary. (§ (a)(17)(vii).) The court sentenced (a)(17)(iii), subds. Williams to the murder life without for imprisonment possibility parole 190.2, to concur- (§ (a)), subd. accompanied by special circumstances rent and bur- terms of for the upper rape and six eight years, respectively, (§§ 264, 461, glary. of conviction by subd. We modify judgment reducing murder from first to second degree conviction modified, we affirm the striking special judg- circumstance As findings. ment. We also remand the matter for on second murder resentencing and direct the im- court sentence resentencing stay upon previously posed rape.
Facts and murdered raped 11-year-old during early Deanna R. morning hours July while which burglarizing apartment she lived.
Discussion *5 I convictions, Williams all of were based on challenges they his arguing involuntary he confessions made to the He also the court should says police. have made oral so as to allow express voluntariness findings regarding meaningful (See review of Johnson appellate the voluntariness v. ruling. Johnson, (Alaska State 1981) 508, 513.) 631 P.2d In the court care- App. fully noted, extensive, “we do not mandate written or formalistic opinions elaborations on the of the trial part trial court. A brief statement court’s findings is all that concerning contested facts essential to its decision (Id., 513, is required.” 16.) at p. fn.
California law on this is that point judge’s [voluntariness] “[t]he determination must be in al reflected the record with unmistakable clarity he need though (1972) not make Rowe (People formal written v. findings.” 1023, 22 816], Georgia Sims v. Cal.App.3d citing 1029 Cal.Rptr. (1967) 538, 385 593, 598, 639].) U.S. L.Ed.2d S.Ct.
We fail to see the Alaska any substantive or differences between practical Here, California standards. the both. After coun- court with complied sel’s arguments to its voluntar- regarding only contested facts essential iness determination, evi- I heard any the court stated: once have “[NJever dence know, that held out a I anybody any, you carrot. don’t think there was ‘we’ll get you murder nothing two—’ or like that. But there is anything proved District has Attorney that the
like that this case. So I’m convinced law eliciting the applicable doubt that followed a reasonable he beyond confession was found Williams’ confession.” Thus the court [Williams’] basis, and, on that ruled induced threats or through implied promises not voluntariness de- The court’s made. voluntarily confession was our to allow clarity sufficient is in the record with termination reflected Rowe, at p. review of its v. ruling. {People merits, the uncontra to “examine it is our function Turning to determine indepen facts of the statements surrounding making dicted statements that the proved met its burden dently prosecution whether the inducement, threat. intimidation or voluntarily were without given previous that ‘accept must testimony, With conflicting respect [we] [Citations.] to the extent that to the People, of events which is most favorable version ’ which must The burden proof it is the record. by supported [Citation.] be is of voluntariness proof on by questions be sustained prosecution doubt.[2] (1982) 31 Cal.3d Hogan v. (People a reasonable yond [Citation.]” v. 815, 817, 93]; 647 P.2d accord Jimenez Cal.Rptr. 172, 672].) ‘“In 580 P.2d 21 Cal.3d Cal.Rptr. 608-609 [147 rational of a is the product whether the defendant’s confession determining will, surrounding circumstances and a free totality intellect {People Haydel be taken account.’ confession must into [Citations.]” 12 Cal.3d 198 [115 oc separate on three Police Brad Frank Investigator questioned late in the occurred death. The first interview casions Deanna’s following 6 and July on and third interviews on followed the second day July his former probation initiated the 2 and contacts July through 7. Williams *6 received Williams officer, contact. July Dan Hutton. Frank initiated 436, (1966) 384 U.S. (Miranda and his Miranda rights waived Arizona 1602, 974]) on 725-726, 10 A.L.R.3d 86 S.Ct. 478-479 L.Ed.2d occasions. all.three for present Hutton was Hutton’s office. July
The interview occurred at throughout. present mother was of the interview and Williams’ part the first her apart- and burglarized he murdered Deanna Williams denied and raped ment. present Hutton was at the station. July police
The 6 interview occurred of hers were and a friend of the Williams’ mother for most interview and in the crimes. involvement denied Williams present throughout. again apply not does (d) California Constitution 2Section subdivision of article I (People 257-263 this case. v. Smith Cal.3d station represented The 7 interview also took at July place police Chief Charles Martin ques- in the case. Frank and Police turning point of his in the of both parents. tioned Williams for about an hour presence in the crimes. Martin Williams involvement began by denying any again Williams then of Williams’ theory culpability. described his and Frank’s mother, left the room emotionally upset, then confessed his Williams’ guilt. Williams’ father She returned sometime later. as Williams to confess. began in Martin then asked remained the room the entire confession. Williams, statements from to leave the room and Frank obtained two
parents short written oral his confession and a an statement tape-recorded reiterating In his Martin the written statement. statement. assisted Frank obtaining her statements Williams admitted Deanna and burglarizing apart- raping ment, but he denied her or to hurt her. killing intending
Williams both the confession he made in his challenges parents’ presence former, and the two to the Wil- statements he Frank and Martin. As gave liams Frank and Martin induced him to confess argues through implied latter, his statements should threats As to the promises. argues have been and because excluded as the of a coerced confession products him Frank and Martin them. collaborated with composing is threats or that testimony contradictory regarding any promises have induced mother testified Martin might Williams’ confession. Williams’ his and “that—he described by saying Frank’s events prefaced theory the things that—about the death and that when people cooperate penalty, them, with the could talk they that it’s easier for and that sometimes police, he to the officer or the or the him.” Hutton added D.A. judge help he dur- remembered Williams Frank about thought asking possible penalties interview, could result ing July and Frank that a conviction responding Cor- in commitment either to the or to the Youth Authority Department rections. Frank Williams’ testi- contradicted both Hutton’s and Mrs. flatly Frank, came reference to the Youth mony. According Authority first Similarly, when Williams raised the his subject concluding confession. after of WiK the first reference to the death came the latter during part penalty crimes, confession, when liams’ he had admitted his commission after *7 with this conflict- Martin him about Faced questioned possible accomplices. we because it is most favorable testimony, must Frank’s narration ing accept {People Hogan, supra, to the and is the record. v. People supported by Jimenez, 835; at Conse- Cal.3d at 21 Cal.3d p. p. did references to the Youth and the death quently, any Authority penalty came he admitted his not induce Williams’ confession because they after 238, 251-252 (1964) of the guilt {People crimes. v. Nelson 385].) Cal.Rptr. [36
Likewise, tell that he would the dis introductory Martin’s comment trict whether he truth or lying Williams was the was attorney telling thought did induce was little more also not confession. Martin’s comment Williams’ than a variation on the that a defendant can warning anything says Miranda matter, and will be used a the against prosecutor him in court. As practical him against must be told of a in to use them defendant’s statements order Moreover, in court. it is for the to evaluate as well as police appropriate evenhanded evalu transmit such statements. Williams an Martin promised ation. 633-634 People v. Brommel 56 Cal.2d (Compare [15 in com We Martin’s see nothing improper ment. above,
Based on the statements were we conclude Williams’ necessarily not the of argument a confession. For his collaboration products coerced Williams relies on Alabama 199 L.Ed.2d Blackburn v. U.S. 274], based on an S.Ct. Blackburn reversed a conviction robbery 250].) As the Su- involuntary {Id., confession. at p. at L.Ed.2d p. bar, Court es- preme indisputably “In the case at the evidence explained: and incompe- tablishes that Blackburn was insane strongest probability stage tent at the time he of our Surely present confessed. in allegedly civilization a most of by spectacle basic is affronted justice sense made a human basis he while incarcerating of a statement being upon insane; in and this be articulated terms judgment can without difficulty accused, of the confession, of the the lack of choice unreliability rational or a enforcement conviction that our of law should simply strong system And when not so as to take of a in this fashion. operate advantage person to nine-hour considered—the eight- other circumstances are pertinent literally which occasion sustained in a room was interrogation tiny upon relatives, friends, or officers; filled with the absence of Blackburn’s police counsel; Sheriff rather confession legal Deputy composition by been the product than Blackburn—the chances of the confession’s having intellect remote and the a rational free will become even more {Id., due at 207-208 denial of even more process egregious.” pp. at 248-249].) L.Ed.2d pp. illiterate, ex difficulty
Although virtually undereducated and experiencing himself, form, neither was insane in written Williams pressing particularly Furthermore, Frank and Martin nor when 7. July on incompetent questioned than hour. in no more an of his questioned parents the presence are consistent with statements the room Williams’ made after his left parents incriminating no his made The statements show their presence. confession Finally, attributable to or collaboration. coercion changes police statements extended Frank’s and Martin’s assistance preparing Williams would (which no be further than words to used some suggesting
153 sentences either or approve correcting “putting disapprove), spelling ” Blackburn, for him the situation in together This is unlike grammatically. where the form on “. . . Chief narrative the statement Deputy composed the basis of the of- by Blackburn’s answers to the various asked questions ficers, (361 and Blackburn U.S. at days the confession two later.” signed intrude L.Ed.2d at did not p. p. Frank and Martin improperly into the of preparation Williams’ statements. the
Considering Haydel, supra, of totality (People the circumstances 198), 12 Cal.3d at the Williams’ confession p. trial court ruled correctly and statements were made. voluntarily
II the failure to determine the correctly asserts trial court’s degree of the murder conviction mandates his murder modifying degree first to one of second of murder degree. The trial court Williams guilty found but failed to fix the of the degree crime.3
Section 1157 convicted of a crime provides: “Whenever a defendant is or to commit a the attempt jury, crime which is into degrees, distinguished the waived, or court if jury a trial the crime or is must find degree of attempted crime which failure of or the guilty. jury he is Upon determine, court to so of of which the crime or crime degree attempted the defendant guilty, is shall be deemed to be of lesser degree.” section
Similarly, of or con- upon a provides: “Upon guilty, plea viction by court without a of or crime distin- a crime jury, attempted must, sentence, or divided guished into the court before degrees, passing determine, determine the degree. the failure of court to so Upon degree the crime or crime of the defendant is attempted guilty, which shall be deemed to be of the lesser degree.”
Courts have and 1192 and lit- consistently strictly sections 1157 applied erally defendants, favor of much this so so that “on form point, triumphs substance, over and the law is traduced.” v. Johns (People 182]; Cal.App.3d accord v. Thomas Cal.Rptr. J., cone.).) stat- (Ashby, 532]
utes must be to fix the when the or the fails applied inadvertently court jury (See, of a defendant’s conviction before is e.g., sentence imposed. 3The court respect burglary avoided similar conviction stat error with to Williams’ Information, ing: “In Count 5 to find that the Court will have Information—Amended guilty the Defendant degree, is of Section 459 of the Penal in the a violation first (Italics added.) Code.” *9 154 225, 85, 524 P.2d
People (1974) v. Flores 12 Cal.3d Cal.Rptr. 93-95 [115 353]; 652, 556, (1974) v. 10 Cal.3d 656 People Stephenson Cal.Rptr. [111 Johns, 294-295; 820]; 517 145 at People pp. P.2d v. supra, Cal.App.3d 775, 778, 1 People (1976) Cal.Rptr. v. Baeske 58 fn. [130 Cal.App.3d 35].) returns The statutes even court or a jury specific also if the apply which would the as a matter degree warrant a of finding higher conviction 625, 629, of (1973) law. v. Beamon 8 fn. 2 (People Cal.Rptr. Cal.3d 681, 905]; Thomas, 283- 84 at v. People supra, Cal.App.3d pp. 285; 1; Baeske, 778, v. at fn. People People v. 58 supra, Cal.App.3d p. 793]; (1974) 592, Doran 36 v. People Cal.Rptr. 592-593 Cal.App.3d 378, Cox 33 (1973) 381-382 Cal.App.3d
In “In 1 of the of the court Count finding Williams murder said: guilty Information, I’m in Count charged to find the Defendant as guilty going the Information, murder, on Amended Section 187 of the a violation of Penal mal- Code.” The murdered Deanna with information Williams alleges ice to first in No is made aforethought violation of section 187. reference or the second the failed to determine degree murder. court Consequently, Johns, of of v. degree supra, murder which was guilty. {People 145 a 295.) at reflects judgment the abstract Cal.App.3d Although p. order, conviction, first murder consistent with degree the clerk’s minute court’s of “Count I—Murder pronouncement, shows Williams guilty PC” but makes no the court hearing reference to At the degree. sentencing I, of Count again referred generally “guilty to Williams’ conviction Code, which murder” was of Section 187 of Penal violation “[a] information.” as in the first count amended charged second On a in a conviction nearly robbery identical record a case involving (§ in 211) (§ 12022.5), court a firearm accompanied by finding use Thomas, con- People v. the defendant’s reduced case {Id., 283-285.) viction from first to second at degree robbery. pp. here against reduction Thomas was it is because stronger even than trial order amend belatedly court but entered an ex ineffectually parte Nonetheless, {Id., sentence to reflect a first at degree conviction. p. find- court “The that court’s reasoned: appellate respondent argues had com- ing as to the use the defendant finding manifests that allegation mitted armed therefore crime is of the first robbery degree. robbery not This since it was that a argument requires degree is finding implied that the as such. Code expressed require Penal sections 1192 and of Peo- degree must be determined. . . . the dictates Following [Citations.] ., Beamon ple v. Flores . Cal.3d 95 . be ., implied not an may Cal.3d 629 . . we conclude that there find of first and the specifically the instant case failure finding *10 {Id., at second requires degree.” conviction to be of robbery 283-284, italics, pp. original omitted.) fns. the record to contain an
Similarly, implied in case cannot be read this conviction of murder finding degree first We cannot hold Williams’ murder. is one of that first degree degree first on Attorney theory General’s 190.2, murder (see is a for prerequisite findings § circumstance special murder (a)) subd. and of therefore must be first degree Williams guilty because the This argu- court found to be true. two circumstances special ment, on grounded a of is reasoning, precluded circular process applicable statutes and are to reduce required cases. We legally reduction, turn, murder conviction from first to second That degree. such find- requires striking court’s because findings circumstance special {Thomas, cannot stand on a of ings conviction second murder. degree 281) a remand for necessarily These modifications require on second resentencing murder.
Ill to his Turning rape convictions, we must argues remand for failed to state resentencing because trial court separately reasons for offense, (2) for used the imposing upper terms each improperly same facts terms, to impose both relied on inappro- upper possibly priate factors to impose the term for upper burglary.
Before sentence court stat- imposing on of convictions the any Williams’ ed: “All I’m right. far I’m make the as going—as going aggravation, harm, following findings: violence, bodily crime involved great great harm, threat of great bodily cruelty, other acts disclosing high degree viciousness, callousness, whether or as an enhancement charged not under Court, 12022.7. 421(a)(1).4] Rules rule [Cal.
“The victim was Defend- 421(a)(3).] The particularly vulnerable. [Rule ant’s prior adjudications or as a are numer- juvenile commissions of crimes ous or of increasing 421(b)(2).] seriousness. [Rule
“The Defendant was on when he committed crimes. probation [Rule 421(b)(4).]
“The of the De- only mitigating circumstances I find is the action can fendant once that he did admit the was he well custody, why pretty 423(b)(3).]” matter. [Rule
4A11rule references are to the California Rules of Court.
After this statement the court on his murder convic- sentenced Williams tion, the death life without withholding but penalty imposing imprisonment possibility The court then an term for parole. burglary, imposed upper stating Court has for on the record its already placed reasoning adopt- “[t]he term.” ing The court an term for upper concluded by imposing upper rape, Court its stating has on the record already reasoning put “[t]he selecting term.” upper
The court on stated its reasons for terms adequately imposing upper and rape would Although preferred practice convictions. have for sentencing courts state reasons for each term imposed, separately of its purposes review the reference appellate court’s incorporation remarks two prefatory reveals its reasons for sufficiently imposing upper (See 1132, terms. v. (1984) 154 1142 Hetherington Cal.App.3d [201 756].) Cal.Rptr.
Furthermore, it was not for on the rely the court to same facts improper both impose (1984) 803, terms. 151 upper v. Price (People Cal.App.3d 811-812 99].) Cal.Rptr. [199
As for Williams’ third nor rule-cre statutory neither argument, Price, ated dual use bar base terms. v. applies (People multiple upper supra, at crime-related facts relied p. Although ibid.), on under 421(a) (see rule we must be relevant to each count specific conclude the failure of the which facts to the court to delineate applied counts was the court respective expressed harmless. As a matter practical itself in for the it terms simple language why aggravated was imposing and was rape Its later reference to those factors burglary. incorporation by sufficient to justify the terms. Since the record upper amply supports sentences it is not of these under the circumstances reasonably probable crimes that a a different respective remand for would resentencing produce result. We hold the court’s error was harmless. sentencing
IV
for the bur-
Williams asserts the
terms of six and eight years
concurrent
glary and
section 6545
rape,
pending
must be
under
respectively,
stayed
in different
provides
punishable
5Section 654
made
part: “An act or omission which is
ways by
provisions,
provisions
may
different
either of such
punished
of this code
be
under
but in no
punished
case can it be
under
one
more than
....’’
He claims the bur
his sentence on his murder conviction.
completion
of conduct incident
glary,
murder constituted an indivisible course
rape
intent, i.e.,
to a
criminal
of Deanna.
single
objective
rape
“The initial
is to ascertain the de
inquiry
any section
application
criminal
fendant’s
If he entertained
objective
objectives
intent.
multiple
other,
which were
of and not
to each
he may
incidental
independent
merely
be
for
violations committed in
of each
punished
independent
objec
pursuit
tive even
the violations shared common acts or were
of an
though
parts
Beamon,
otherwise indivisible
course
conduct.”
(People
639.) However,
at
Cal.3d
“if
p.
all the offenses are incident to one objec
tive, the defendant
be
for
one of them but
may
any
not for more
punished
368,
than one.
v. Bauer
1 Cal.3d
(People
[Citations.]”
cert,
357,
den.,
1398],
Cal.Rptr.
A.L.R.3d
From criminal Wil these facts we discern two objectives motivating First, liams’ conduct. Sec there was the for the theft. burglary purpose ond, there was the theft The for the was rape. burglary purpose complete room, once Williams entered her television set and started Deanna’s took It Deanna leave. was as he woke and Williams only was that leaving up went over to Given the her. then did he form the intent to Only rape. conduct, of his theft be for divisibility Williams may punished separately murder, however, The incidental to each other burglary. were rape 158
and to Williams’ The General objective rape Attorney virtually Deanna. concedes for the and murder violates section 654. multiple punishment rape the trial Consequently, court must the sentence pre- upon resentencing stay Adams, viously (In 636-637.) for imposed re 14 at rape. Cal.3d pp. Williams finally his convictions must both be argues rape reversed because one or both of them served him as basis convicting of first murder in degree felony violation of state and federal constitutional guarantees against double Even if convicted of first Williams was jeopardy. murder under a murder his is meritless. felony theory, argument
With Constitution, to the respect California “the constitutional guar antee [against double has no to the service of a sen jeopardy] application tence, but applies to twice trial for the same offense. only being put upon (In 359], re (1925) Wilson 524 196 Cal. P. original [Citation.]” italics; (1975) accord v. Carter 677]; Witkin, see also Cal. Wil Crimes §§
liams, course, has been tried Con once. As for the United States only stitution, “the Fifth Amendment double . . . has guarantee against jeopardy been said to consist of three It separate protects constitutional protections. a second against prosecution for the same offense after It acquittal. protects a second against for the And it prosecution same offense after conviction. protects against (North for the same Caro multiple punishments offense.” lina v. 656, 664-665, Pearce U.S. L.Ed.2d 2072], S.Ct. omitted.) fns. The first two afforded the federal protections double jeopardy clause are of the third here. inapplicable applicability *13 protection is moot in of our section 654 above. light holding immediately
Disposition judgment conviction is modified Williams’ murder by reducing conviction from first to second degree by striking rape special modified, circumstance As is affirmed. The findings. judgment matter is remanded for on second murder and resentencing upon the court resentencing shall the sentence stay previously imposed rape. Work, J., concurred.
STANIFORTH, IV; I, III I Acting P. J. concur as to concur parts I as to II part under 1157 and only Penal Code sections 1192. compulsion