MARK RICHARDS, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. AO22029
First Dist., Div. One.
Aug. 22, 1983.
A petition for a rehearing was denied September 20, 1983, and petitioner‘s application for a hearing by the Supreme Court was denied October 20, 1983.
146 Cal. App. 3d 306
Carl B. Shapiro and Dennis P. Riordan for Petitioner.
No appearance for Respondent.
John K. Van de Kamp, Attorney General, Thomas A. Brady and Charles J. James, Deputy Attorneys General, for Real Party in Interest.
OPINION
NEWSOM, J.-By his petition for writ of prohibition and/or writ of mandate, Mark Richards challenges three of four special circumstance allegations pleaded in an amended information filed against him in Marin County Superior Court. Richards is charged with violations of
Following denial of his
We issued a stay of petitioner‘s trial and an alternative writ in order to review the issues raised by the petition.
As will be seen, we agree that the evidence presented at the preliminary hearing and reasonable inferences therefrom will not support the allegation that the murder was committed “while lying in wait,” and we issue our writ accordingly. In all other respects, however, the petition is denied.
A review of the factual context as presented at the preliminary hearing shows the following.
The victim, Richard Baldwin, was an acquaintance of both petitioner and his accomplices, Crossan Hoover and Andrew Campbell. Campbell, who was 17 at the time of the preliminary hearing, worked for petitioner in the latter‘s construction business. In early July of 1982, Campbell and Richards were working at Baldwin‘s home, adding on to the garage. Approximately three weeks prior to the day Baldwin was killed, Campbell first learned from Richards of the latter‘s plans for the murder. The subject arose between Richards and Campbell on more than one occasion and, around the first of July, Richards allegedly became more specific. Richards explained that Baldwin owed him money and that he had thought of killing him previously. His plan, as presented to Campbell and Hoover, was this: The three would go to Baldwin‘s house to work; Campbell would stay at the house to keep it open, while Richards and Hoover would entice Baldwin to the latter‘s garage-shop, where they would lure him out of sight and kill him with a convenient heavy object. Meanwhile, if the opportunity presented itself, Campbell was to go into the house and inventory it for items to sell at a later date. Richards promised Campbell $2,000 for staying at the house and
Richards’ plan, as presented to Campbell and Hoover, was apparently not of recent origin. In May of 1982, he allegedly approached another of his construction employees, William Robles, about killing Baldwin, telling Robles he was going broke and needed money fast, that Baldwin kept all of his money with him at home, and, in addition, had many cars at his garage, including a Rolls Royce, all of which could be sold. Robles told petitioner he would think about it, but joined the Navy in late June, disappearing from the scenario.
One Thomas Mills went to Baldwin‘s home to visit him on the morning of July 6, 1982, and while there saw Richards, Hoover and Campbell. When the three returned from a lunch break, Mills was about to leave. During their lunch break, according to Campbell‘s testimony, the trio discussed their murder plan, and agreed on certain refinements. Thus, upon their return, they planned to talk with Baldwin, “calming him down,” and to inquire whether he had plans for the week of his murder, lest he be missed and suspicion aroused. If Baldwin had no plans, Richards and Hoover would persuade him to take them to his shop on the pretext that some of Richards’ tools were there, while Hoover would indicate interest in seeing some of Baldwin‘s old cars. Richards told Hoover to use any heavy instrument he could find in the shop to kill Baldwin. Richards did not want to use a gun as it would make noise and leave traceable bullets, nor a knife, being fearful it might not kill Baldwin cleanly.
After lunch petitioner conversed with Baldwin, who showed his visitors several of his cars and invited them inside for cookies. Campbell now explained that, while Hoover had an interest in cars and wanted to see those in Baldwin‘s shop, he would himself rather stay at work on the house. Baldwin, Hoover and Richards thereupon left for the shop. While they were away, Campbell, as directed, searched the house for valuables. About two hours later, Hoover and Richards returned to the house, at which time petitioner told Campbell he did not want to discuss the murder-adding, however, that it had been “bloody” and that he wanted to get things out of the house quickly.
Eventually, the three removed from the house a large safe, a small metal box, marijuana, guns, ammunition, a wooden box and $2,000 in cash. They purchased a boat that evening, towed it to the Loch Lomond Marina, then
The trio used a mechanic‘s creeper to move Baldwin‘s body-wrapped in plastic-to petitioner‘s truck, drove to their boat and dumped the corpse in San Francisco Bay. Weights taken from the shop to sink the body snapped, however, and they were forced to use for their purpose an extra motor from the boat.
Baldwin‘s body was subsequently found floating in the bay and later examination showed two frontal stab wounds to his heart, a fractured skull, and brain damage from a blow to the left occipital portion of the skull. A bloody screwdriver and a bloody wrench-the apparent murder weapons-were found in the shop.
Before considering the substantive questions raised by the petition, we discuss certain procedural issues, first noting that special circumstance allegations are properly challenged before trial by a motion to dismiss. (
I
We turn first to the “lying in wait” allegations, and to
In Domino, supra, this court rejected the argument that the special circumstance “while lying in wait” provision was equivalent to the “lying in wait” provision for first degree murder contained in
The court in Domino v. Superior Court, supra, 129 Cal.App.3d 1000, 1011, read the term “while” “as creating a requirement that where first degree murder has been ‘perpetrated by means of . . . lying in wait,’ the death penalty or life without possibility of parole may be imposed only if the appropriate temporal relationship exists between the killing and the lying in wait.” The court then held that “the killing must take place during the period of concealment and watchful waiting or the lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the period during which the killing takes place, the circumstances calling for the ultimate penalty do not exist.” (Id.) For agreement, see People v. Superior Court (Maciel), supra, 134 Cal.App.3d 893, 897; People v. Harrison (1963) 59 Cal.2d 622 [30 Cal.Rptr. 841, 381 P.2d 665]; and People v. Rosoto (1962) 58 Cal.2d 304, 355 [23 Cal.Rptr. 779, 373 P.2d 867].
It is significant, petitioner avers, that while Campbell testified Richards said “we did it,” he made no reference to the precise manner of killing, so that it may be “that the fatal blow . . . was struck from a concealed position [but] could be that it came long after the ‘lying in wait’ ended, if any such ‘concealment’ occurred at all.”
Respondent does not cavil with the requirement that the killing must have occurred during, or at least immediately following, some period of watchful waiting from concealment, or, as the court in Domino, supra, put it, that “the lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends.” (Domino v. Superior Court, supra, 129 Cal.App.3d at p. 1011.) Rather, the Attorney General justifies the allegation on the theory that the element of concealment does not require physical hiding but may be satisfied merely by circumstances which by reasonable inference prove that petitioner obtained a position of advantage over his victim, then took him unawares.5 (Cf. People v. Ward (1972) 27 Cal.App.3d 218 [103 Cal.Rptr. 671].)
On the present record, real party argues, sufficient evidence appears from which we can at least know, by reasonable inference, that the victim was taken by surprise and unawares-from behind. Thus, there is evidence that Baldwin was struck a lethal blow, and it is a reasonable inference from the position of his body and surrounding circumstantial evidence that he was
Assuming arguendo that real party‘s reconstruction of the murder is correct, we nevertheless reject the premise that merely taking the victim “unawares” satisfies the language of the statute as developed in decisional authority. Accepting real party‘s interpretation would require that we equate concealment with surprise, and ignore evidence that petitioner initiated the visit to Baldwin‘s garage and did not wait but simply went there, allegedly first to kill and then rob his victim.
While the decisional law is sparse, it reveals no support for real party‘s position.
A leading case is People v. Tuthill (1947) 31 Cal.2d 92 [187 P.2d 16], where it was held that a brief temporal gap between the commencement of the requisite combined physical concealment and “watchful waiting” and the moment of the murder was not fatal to the charge of lying in wait, and where the court further concluded that no attack from ambush was required to establish the special circumstance. In that case, however, the murderer had gone to his victim‘s house and literally there awaited her. When the victim returned, he permitted her to leave the room briefly; only upon her return, a few moments later, did he murder her.
We find in People v. Tuthill, supra, implicit acknowledgment that some period of physical concealment must precede the murder for it to be one committed “while lying in wait,” and a further requirement that such concealment be accompanied by “watchful waiting.” Moreover, it is clearly part of the high court‘s ruling in Tuthill that, while the murder need not occur directly from ambush or other concealment, lying in wait must be the general means by which it was accomplished. (31 Cal.2d 92, 101.)
The Attorney General places heavy reliance on People v. Ward, supra, 27 Cal.App.3d 218, as authority for the proposition that only concealment which puts the accused in a position of advantage to take the victim unawares is required; and that mere ruse, secrecy or deception, designed to place the victim in a position where he can be killed unawares, suffices as a basis for the concealment element of a lying in wait special circumstance allegation: literal physical concealment is not required. We think that, on the contrary, a close reading of Ward, supra, leads to an opposite conclusion.
In Ward, as here, the People argued that secrecy, as opposed to physical concealment, was pivotal and sufficient. The court, however, rejected the notion that the element of concealment was satisfied by mere secrecy, although it agreed that the killing did not have to take place from ambush. Rather “‘“[t]he gist of “lying in wait” is that the person places himself in a position where he is waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon such person or of killing such person.“‘” (People v. Thomas, supra, 41 Cal.2d 470, 473; italics added.)
To summarize, we are of the opinion that the evidence adduced at the preliminary hearing, and all permissible inferences therefrom, is insufficient to justify submission of the lying in wait special circumstance to a jury, and we accordingly order such allegation stricken.7
We turn now to the allegations, as special circumstances, that the murder occurred during the commission of burglary.
Petitioner contends that since the evidence clearly shows that the murder took place at Front Street and not at Venicia Meadows, it could not have
As real party correctly observes, in order to establish that burglary has been committed, the prosecutor need only prove that the defendant entered the premises with the intent to commit a theft or a felony. The entry need not constitute a trespass. (People v. Pendleton (1979) 25 Cal.3d 371, 382 [158 Cal.Rptr. 343, 599 P.2d 649].) Moreover, the crime is not considered complete for all purposes upon completion of the entry.9 The Attorney General agrees, as do we, that the Domino court‘s definition of the term “while” equally applies to the burglary special circumstance, so that a temporal coincidence is required.
And of course, a murder is not committed while a defendant is engaged in the commission of a burglary within the meaning of the special circumstance statute unless the accused kills in order to further that separate crime. 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, . . .” (People v. Thompson (1980) 27 Cal.3d 303, 322 [165 Cal.Rptr. 289, 611 P.2d 883], quoting from People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468].)10
Here, the evidence clearly supports the reasonable inference that petitioner, when he entered the garage, harbored both the intent to kill Baldwin and the intent to feloniously remove property from the garage. According to such evidence, it was indeed petitioner‘s plan at the outset, from his earliest conversations with Robles and with Campbell and Hoover, to kill Baldwin in order to obtain the latter‘s allegedly considerable property-from his home and from his garage.
Strong evidence at the preliminary hearing indicates that, during the time petitioner and Hoover were at the Front Street garage killing Baldwin pursuant to the conspiracy, Campbell entered the Venicia Meadows house to inventory it in order to expedite the planned theft. Thus, he burglarized the premises, and petitioner was a principal in that burglary. (
Let a peremptory writ of prohibition issue restraining respondent superior court from taking further action on the allegation of violation of the provision of
Holmdahl, J., concurred.
RACANELLI, P. J.-I concur but with the following observations:
I agree that the record contains sufficient evidentiary support concerning the
Given the basic legislative design that each special circumstance have some rational basis differentiating which murderers should be executed, the critical determination whether the murder was committed during the commission of the specified burglary is not merely “‘a matter of semantics or simple chronology‘” (People v. Thompson (1980) 27 Cal.3d 303, 322 [165 Cal.Rptr. 289, 611 P.2d 883]) and must be factually demonstrated in terms of temporal-if not spatial-propinquity.
A petition for a rehearing was denied September 20, 1983, and petitioner‘s application for a hearing by the Supreme Court was denied October 20, 1983.