*1 29, 1972.] No. 14214. In Bank. Nov. [Crim. PEOPLE, Plaintiff and
THE Respondent, al., et Defendants and Appellants. ROBERT STERLING CANNADY *4 Counsel Jr., Harris, and D. under N. Ralph Drayton, appointments
Robert Court, and for Defendants Supreme Appellants. General, W. Edsel and Evelle J. Attorneys C. Lynch
Thomas Younger, General, for Plaintiff O. Attorneys and Arnold Deputy Haws Overoye, and Respondent.
Opinion Beard, life Bufford Lee pris- BURKE, J. Cannady Robert Sterling and with aforethought with malice oners, were for an assault indicted (Pen. inmate, Leonard Shiekscon Thompson another weapon upon deadly and fixed Code, 4500). as charged A found defendants guilty jury § Cannady’s at Beard’s life imprisonment. death and at Cannady’s penalty Code, (b)), and (Pen. subd. is now us § automatic before appeal therewith. has been consolidated Beard’s judgment appeal
383 at the trial guilt contend that the coúrt erred in admitting Defendants evidence, defendants as consistent statements witnesses substantive prior matters, the court erred in were denied fair as a result of trial specified another, and defense of instructions failing give on-manslaughter an instruc the court an instruction on misread gave flight improperly We have con in a manner to defendants. tion prejudicial that, can be but since cluded that none of contentions upheld here, be cannot judgment death constitutionally imposed penalty entered should be modified in accordance with against Cannady Anderson, (See P.2d also 880].1 v. Georgia, 2726],) Furman L.Ed.2d S.Ct. We 408 U.S. entered affirm that as so modified and against judgment judgment Beard. 29, 1969, (known
On the Coach morning April Lloyd Kelley Prison, recreation at a conversa- Folsom had Kelley), supervisor victim, tion in his office with the and another “Shiek” Thompson, terminated, named inmate Howard Before the conversation Cooper. Cooper left to to the restroom noticed outside go beckoning after Cannady having the office. En route asked what he wanted. re- Cooper Cannady Cannady that he did not want but was “for snitch in- plied Cooper beckoning side,” saw was hold- apparently referring Thompson. Cooper Cannady ing aluminum baseball bat behind him. bats are never Such properly *5 at any location other than athletic office or the baseball field without authorization by the coach. also observed Beard near Cooper standing the coach’s office and saw in him the same return spot upon Cooper’s the restroom. ended, and Thompson between Coach Kelley
After conversation room,” in which called the “issue went into room adjacent Thompson heard out. Less than a minute later Kelley athletic was handed equipment out, looked saw Thompson the “issue room.” He loud voices room, say and heard Thompson “issue room” and outside the Cannady the “issue coach went into with As the you?” “What heck’s the matter bat, which was room,” saw an aluminum baseball he up Cannady pick room,” make a thrusting and wall of the “issue the exterior against leaning 1 adopted Election “Although General at the November the electors purporting I of the Constitution added 27 to article Proposition 17 which section the constitutional holding invalidity penalty, death nullify to Anderson’s of 10; Const., I, Kring (U.S. v. Missouri § art. against post ex facto laws prohibitions 16) I, Const., 443]; § art. Cal. (1882) 2 S.Ct. L.Ed.2d 107 U.S. date effective arising before its to cases application amendment preclude ante, IV, (see (People Murphy, Const., 1).” pp. § art. 594].) with the bat at first tried to ward toward Thompson
motion Thompson. and end. After the bat then took hold of its entered Cannady off opposite room,” to the bat but was unsuccessful. the “issue Kelley attempted grab to a where the bat to managed push Cannady point protruded Thompson bat,” out and hollered “Take the someone outside. the door apparently bat but aside and Beard if to take the instead it stepped up pushed a knife into Beard and shoved chest. Cannady thereupon Thompson’s a and held over to desk. both still pushed Thompson Thompson Cannady Thompson bat, released it when Beard tried to stab him Beard again. twice, stabbed beat on the head with Thompson Cannady Thompson bat and also beat with the bat until a bone was Thompson’s leg out.” “sticking officers, left to summon aid. his return with two he saw
Kelley Upon defendants in the direction of a going general guard post. Thompson on the lying floor the “issue and near him the bat and room” were knife. died a few a minutes after immedi-
Thompson physician being brought after the assault. The and the testi- ately physician autopsy surgeon wounds, fied extensive head concerning Thompson’s injuries, including - fractured and stab leg, wounds in his chest. to the According physician, wounds, the cause death was the stab which involved the heart and both lungs, causes were concussion fracture contributory possible both bones in one The cause of testified that the leg. autopsy surgeon death was stab wounds to the lungs.
Beard and were after the theAt Cannady apprehended shortly incident. time their Beard was outside the “issue room” and Can- apprehension was in the nady prison recreation The two men were then examined yard. for No injuries. were found on and Beard had injuries Cannady, only scratch on his knee superficial from scratch treated before the apart *6 assault. alleged
It was that each defendant was a life sentence stipulated undergoing in a California at the time prison assault.
The defense was presented self-defense. Both defendants took the in stand their own behalf. In the before the testified: Cannady morning, incident, had he an with He did not see argument Thompson. Thompson until again afternoon when- the “issue early Cannady was near room” and heard someone “Look out.” and yell turned saw Cannady Thompson toward him coming with a knife. at him. Cannady Thompson lunged caught hand, and Thompson’s and Thompson Cannady’s jacket grabbed to get away, unsuccessfully the “issue After trying him into room.” pulled room” and hit Thompson the “issue a bat in took from rack Cannady was way Cannady from him. part bat with it. Thompson eventually got Cannady, off Thompson Beard affray. when Beard pulled down entered all times. in at acted self-defense left. Cannady which point Cannady at as- and degree robbery for second committed to prison He was originally a deadly by weapon and was convicted in 1963 of possession sault violation of assault of another inmate in and inmate section 4500.
Beard He testified: saw a the “issue and inmates near room” group knew was something He went inside and saw wrong. holding Thompson (who someone he later' found At Beard was on the first Cannady) ground. were but realized when he saw thought they were playing they fighting were for the bat. Beard then He they wrestling unarmed. grabbed him Thompson pulled Beard saw that had a knife in up. Thompson one hand and the bat in other hand. hand his Beard grabbed Thompson’s that held the knife and knife struggle Thompson dropped following and Beard obtained it. tried to hit Beard with the bat and Thompson Beard stabbed who then fell. Beard heard Thompson, saying people leave,” he “better and he did so. far Beard knew Cannady So was gone when Beard obtained the knife. inmates,
Several witnesses, called as defense testified that saw they grab Thompson and saw a knife Cannady hand. The defense Thompson’s also evidence of presented nature. Thompson’s aggressive convictions,
The recited evidence is manifestly sufficient to support stated, however, no claim is made to the As heretofore de- contrary. fendants seek to have the set aside on the judgments following grounds: Receipt
I. Prior Consistent Statements as Substantive Evidence Defendants contend that the. admission into evidence of two prosecution witnesses’ prior consistent statements as substantive evidence under Evi- dence Code section 12362 violated their of confrontation right guaranteed by Sixth Amendment of the federal Constitution. provides: 2Section 1236 by “Evidence of a previously statement made witness
is not made by hearsay inadmissible rule if the statement is with his consistent testimony hearing at the compliance is offered in with Section 791.” Section 791 provides: previously “Evidence a statement a witness that made is *7 hearing consistent with his testimony credibility at the support is inadmissible to his it unless is offered after:
“(b) express charge testimony An or the implied has been made that his at witness,
The first prosecution Coach testified that he saw Kelley, Can- bat, nady pick a which was the wall up against exterior of the “issue room,” before it at thrusting To defense Thompson. Kelley, impeach counsel asked on him cross-examination whether he had not made a report
in April a incident, of containing specified the which description did not description bat, mention seen the having Cannady pick up in Kelley responded affirmative. Thereafter the redirect on prosecutor of examination elicited the Kelley statement that he had testified before the grand jury May 1969 that “. . . the bat. . . .” Cannady picked up The witness, second prosecution testified on direct examination Cooper, to his version of the him, assault. To alleged defense counsel asked impeach on him cross-examination whether he had stated that he not know did about anything (1) the incident when he talked to defender’s public investigator week (2) before the trial and the district investi- attorney’s gator after the shortly assault. alleged that he had told Cooper replied he investigators that did not have to them. Defense anything say counsel also cross-examined Cooper made to concerning representations him the 1, 1969, testified, on prosecutor October before day Cooper stated that the Cooper had told prosecutor him “the can rehear judge case.” your For the on purpose rehabilitating Cooper, prosecutor cross-examination of the district elicited attorney’s investigator testimony that when he had time, interviewed a second in June Cooper Cooper gave assault, narration concerning which narration was sub- alleged in accord with his stantially at trial. testimony No were instructions given for which the limiting purpose prior consistent statements were admitted.
In
support
their contention that the
receipt
consistent
prior
statements as substantive evidence under section 1236 violated their Sixth
upon
Amendment
confrontation,
right
defendants
People v. Wash-
rely
ington (1969)
479],
458 P.2d
Cal.Rptr.
[80
which held
Johnson,
that “under the
[People
rationale of
Kelley
of their
receipt
effective
Accordingly,
full
cross-examination.
did
defendants’ Sixth Amendment
consistent statements
not violate
prior
149;
Green,
U.S.
(See
supra,
v.
399
right
confrontation.
California
Cal.Rptr. 241,
1193];
589,
v.
4
Bynum,
483 P.2d
People
Cal.3d
603 [94
Green,
494,
v.
3
P.2d
People
Cal.3d 981
479
Cal.Rptr.
998] [cert.
[92
34,
20)].)
(30
U.S.
L.Ed.2d
92 S.Ct.
dismissed 404
801
use of the
con
that the substantive
argue
prior
Defendants also
process
13,
I,
of article
section
sistent statements violated the due
clause
Washington,
People
v.
California
Constitution. They rely upon
supra,
Washington, however,
71
based
the federal
Cal.2d 1061.
on
Constitution, and,
stated,
Wash
which
upon
heretofore
rationale
Green,
ington
supra,
relied was
v.
U.S. 149.
399
rejected
California
Furthermore, at
no
to the admission of
the trial
was made
objection
consistent
for
use on the
now
prior
statements
substantive
grounds
their
rule,
As
be
will not
reviewed
evidence
urged.
general
admissibility
specific
on
in the
at the trial
appeal
absence of
timely objection
Cal.Rptr. 655,
Mabry,
759];
(People v.
Although first consistent statements as substantive evidence under section prior
388 Amendment, violated the defendant’s of confrontation under the Sixth right required Johnson, that was v. supra, holding by a case decided over before Johnson year defendants’ trial. involved the admission inconsistent statements prior as substantive evidence under Evidence Code Washington section but this court noted in (p. 1075), “We are to unable basic difference between the perceive any admission substantive evidence of inconsistent statements of a prior witness on the one hand and consistent statements on the other. There prior to be no appears significant factor in the situation whose former present absence the latter would obviate a defendant’s any infringement constitutional right confrontation in a case.” criminal Accordingly, did Washington not such a “represent substantial in the former change rule as to an excuse that objection decision.” anticipating
Defendants further that consistent was argue statement Cooper’s prior inadmissible under Code Evidence section 1236 because the prosecution with one of the two complied only conditions forth in section set '(b), subdivision of that 2 (See herein.) code. fn. Defendants admit implied that there was an or express defense counsel that by charge fabricated, was but Cooper’s testimony assert that the recently they prose cution failed to show that “the statement was made . before the . . motive However, for fabrication ... is to have arisen.” one for motive representation fabrication was the that “the can prosecutor judge case,” Cooper’s prior [Cooper’s] rehear that statement preceded repre That sentation. there have existed motive for fabri may always another prosecution did not cating deprive show its that motive right shown by the evidence did not (See People affect witness’ testimony. Duvall, 708].) Furthermore, Cal.App.2d no was made at objection on ground trial now defend urged, ants have shown no circumstances that would our justify departure r,ule ordinary errors not at trial cannot serve as challenged grounds for reversal on appeal.
No is claim made that Kelley’s consistent statement was prior inadmissible on the ground that the conditions in Evidence Code section fulfilled, 791 were not and no was made on that at the objection ground trial. The admissibility that evidence under section will therefore be not reviewed on appeal.
II. Asserted Denial a Fair Trial that, Defendants further contend that were denied a fair trial in they although were they with charged Penal Code section violating connection In this murder. conducted as if the charge trial was of the physician the testimony to admit that it was improper first argue they because, assertedly, death Thompson’s surgeon concerning and autopsy no objection admit that Defendants death was irrelevant. fact of his on the ground Even had objection the evidence at the trial. was made to- *10 admit been error to trial, not have the it would been made at relevancy of 426, P.2d Berry, 44 Cal.2d (People 861] [over v. the testimony. Martin, (83 524, 537 v. 1 Cal.3d St. ruled on another in ground their 390)].) The findings physicians determination in the to the death were relevant as cause of opinions attitude of and, of the mental amount force used consequently, the each defendant at the time the assault. instructions, of which some that certain argue
Defendants further defense, the improperly and others by by were offered prosecution such instructions such as and “homicide”—that used terms “fatal blow” of homicide” with a case to the that it “was emphasized jury dealing How and confuse jury.” “could have no other effect than to prejudice admitted, ever, seen, we death was as have evidence of the victim’s properly references clear that the death it is and since the was aware of his jury would not have prejudiced instructions to the terms in question have confused the references defendants. would jury against Nor defendants against clear the charge The instructions made jury. given and the various verdicts'. possible Instructions Failing
III. Error in to Give Certain Asserted Manslaughter Instruction A. an instruction erred in to give
Defendants contend that court failing circumstances a man under some Although manslaughter.3 on Penal for violating instruction be in a must slaughter given prosecution Martin, 524, 532- 1 Cal.3d (see People supra, Code v. St. section 4500 see, did not such 536), here, give as we shall the court properly instruction. a than (other offense defendant cannot be convicted of an
A indictment or offense) him by included not necessarily charged against show that evidence at his trial to information or not there was whether Hess, (In committed Cal.2d 174-175 he had that re offense. argues give its own duty 3Beard a instruction on that the court had such an giving instruc Cannady argues proffered a defense motion. that the court erred in not man the offense to regarding provocation that would reduce tion the nature of slaughter. included offenses 5].) necessarily “Two different types P.2d be First, cannot where one offense in this state. have been recognized offense, offense is neces another the latter committed without committing Second, is necessarily a lesser offense included offense. sarily [Citation.] in the accusatory charged included if it is within the offense specifically of the crime. definition as distinguished statutory [Ci pleading, Martin, 524, 536.) Under the first supra, (People St. tations.]” the offense offense in test is not a included necessarily manslaughter 4500, since, course, be crime can the latter section by proscribed instant Nor in the committed without committing manslaughter. included offense case under the second test is manslaughter necessarily did not allege section since the indictment crime proscribed assault. This died section 4500 the victim result of *11 Martin, the indictment People supra, case thus differs from v. St. wherein the assault. that the victim died as a result of felonious alleged Regarding B. Instruction Another Defense of the court Beard contends that erred in to instruc failing give Code, Craig, v. (see 694; People tion of a Pen. on defense third person § 42, 997]; Witkin, (1963) 157). He 152 Cal. 50 P. 1 Cal. Crimes p. [91 that defense that the asserts if an instruction he that requested regarding defective, court to sua declined was it was the court’s to give give duty sponte a correct instruction on the to his own testimony He subject. points who, which it the aid from that he entered to affray Cannady, appears to had according been attacked Cannady’s by Thompson. testimony, However, unarmed it also that he was from Beard’s appears testimony he when entered the it was that after Beard affray; only pulled Thompson and obtained the off the knife that Beard Cannady Thompson dropped knife and Cannady stabbed and that far Bear'd knew so Thompson; he left was when Beard the testified that gone obtained knife. Cannady when Beard he off him. Beard was asked pulled why When Thompson knife, struck was scared of with the Beard that he Thompson replied bat, that that at” Thompson, with “coming him Thompson he would to kill him. it Thompson try Accordingly appears knew the defense Beard with a deadly assaulted testimony weapon Thompson in defense thus testimony himself—not in defense of The Cannady. did in warrant an not instruction on defense of another. The court gave structions on self-defense defendants. as proposed
391 Flight Instruction on IV. an instruction that the court erred in giving
Defendants contend because, not the instruction. the evidence did warrant on flight4 assertedly, of a in the direction general to the fact that were going They point they occurred, where the assault after room guard post leaving assert of guilt, that this fact “rather than consciousness indicating they is more consistent with an ... to affray guards.” attempt report However, the reflected could infer that defendants’ jury flight reasonably act consciousness neither guilt. Flight physical requires nor haven. The evidence running far-away reaching (See, People is sufficient to v. of the instruction. support giving e.g., Hutchinson, 196, 132]; People 346 Cal.Rptr. [78 Hinshaw, Murguia, 115]; v. 6 People Cal.2d v. P.2d 194 [57 Kessler, 156]; Cal. 26-27 P. v. [227 Cal.App.2d Jack, 248]; People [65 458-459 Cal.Rptr. Cal.App.2d 566].) Defendants also that this court “reevaluate the request efficacy instruction,” flight Wong they point matters such as a statement in States, 471, 483, 441, 452, Sun v. United 371 U.S. footnote 10 L.Ed.2d 407], 83 S.Ct. questioning value of evidence of Penal probative flight. 1127c, however, Cede section makes of an instruction mandatory giving *12 on where of flight evidence a defendant’s is relied as flight upon tending show to and the guilt,5 of such an giving instruction in cases appropriate Hutchinson, has been repeatedly People supra, v. approved. (E.g., 71 342, 346; Hill, Cal.2d People 105, v. 67 Cal.2d 119-120 Cal.Rptr. [60 234, Jordan, 586]; People v. Cal.2d 45 706 P.2d [290 484]; Chessman, People v. 184 P.2d 1001] [over- ruled on a Daniels, different People issue in v. Cal.2d 71 1139 given 4The flight instruction reads: person immediately “The of a after the com - crime, of a mission committed, or he after is accused aof crime that has been is which, not sufficient in guilt, itself to establish proved, may his but is a fact be if by you considered light in proved deciding the of question all other the facts in of guilt or his weight innocence. The to a which such circumstance is entitled is jury matter for to determine.” . n . . where evidence 5Penal Code any section 1127c provides: “In criminal trial flight of a tending guilt, defendant upon is relied as to show the court shall in jury struct substantially as follows: flight crime, “The a immediately person after the a or after commission of he committed, accused is crime has that been is not sufficient in itself to establish guilt, which, deciding guilt his or but is a proved, jury may fact if in his consider weight innocence. The to which such entitled is a matter for circumstance is jury to determine. flight given.” “No subject further instruction on the need be (80 225)]; Witkin, P.2d Cal. see Evidence generally (2d 1966) 481.) ed. p. that,
Defendants further an on argue although instruction flight may where, here, be under some circumstances should not be proper it as given is defense since the justification instruction assumes assertedly justi- fication was However, not its terms the instruction does not proved. by so (See herein.) assume. fn. With to a similar instruction on respect Daener, flight, 511], 832-833 P.2d Cal.App.2d out that pointed instruction “assumed neither the nor guilt flight defendant.”
V. Asserted Misreading Instruction
From it that the reporter’s court transcript gave appears instruction assault, concerning “When an provocation began: this, case such as is committed in (Italics a heat of . . . .”6 passion added.) The'word was used in the instruction “charge” instead requested word, of the italicized and defendants assert that aas result of “tire inad vertent change” it be language could inferred from the instruction as given that the However, had prosecution made out its case of assault. as a instructions whole made it clear that whether there was an assault was one of the for decide, issues and the jury trial judge specifically told the “I jury, have not intended I have said ... to in anything timate or what should find suggest you to be the . facts . . and if anything I have . . . said indicate, has seemed to so will that intima you disregard tion and form your own without opinion thereto.” regard
The judgment entered against is modified Cannady provide punish- of life ment imprisonment instead of death and as so modified is affirmed. The judgment entered Beard is against affirmed. J., Peters, J., Tobriner, C.
Wright, J., Mosk, J., J., Sullivan, con- *13 curred.
McCOMB, J. I concurin the that, for the opinion, reasons ex- except pressed Anderson, my dissenting opinion 880], I from the dissent modification from the death to life judgment penalty for defendant imprisonment Cannady. 6From clerk’s transcript appears it given instruction contained “charge” above,
word in lieu of the word italicized but will be it assumed that reporter’s transcript is correct.