*1 Dec. No. 10603. Bank. 1968.] [Crim. PEOPLE, Respondent,

THE Plaintiff and ROBERT ANDERSON, Appellant. ARTHUR Defendant *3 Mansfield, Supreme appointment A. under Paul *4 for Defendant Court, Eugene and Marcel Poehe M. Premo B. Appellant. and General, Harris, Jr., W. Lynch, Attorney Albert Thomas C. Deputy Utz, General, Attorney and Jerome C. Assistant Respondent. and

Attorney General, for Plaintiff

19 TOBRINER, J. was Defendant indicted for the murder of 10-year-old Hammond, girl, Victoria 1962. The guilty degree murder, found defendant of first found he penalty sane, and fixed the court, death. This Cal.Rptr. v. Anderson 351 763, 406 P.2d [46 judgment 43], reversed both as to conviction and penalty, grounds being one introduction defendant’s extrajudicial confession violated Escobedo v. Illinois (1964) 378 977, U.S. 478 L.Ed.2d S.Ct. [12 1758]. trial, jury again After a second found guilty degree murder, of first sane, found that he fixed the penalty appeal (Pen. at death. This Code, is automatic. 1239, (b).) subd. § correctly Defendant contends that veniremen were excluded jury panel in from the violation of the standards set forth Supreme Witherspoon Court v. Illinois 391 U.S. 776, L.Ed.2d 1770], S.Ct. and that therefore the penalty imposed. death was unconstitutionally We do not find necessary it penalty trial, remand the for a case new how- ever, we because conclude that the evidence is insufficient to theory verdict of first murder on the (a) premeditated either murder, (b) deliberate mur- der during perpetration committed perpetra- of a tion violation Penal Code section 288.

The Pacts. Defendant, a living San driver, Jose cab had been for about eight months with a Mrs. children, Hammond and her three Cynthia, aged Kenneth, aged 13, victim, and the Victoria, aged morning day murder, 10. On of the of the December 7, 1962, Mrs. Hammond a.m., leaving left work at 7:30 only Victoria at home the defendant. Defendant was still previous bed. He had been home work for the two days, during drinking which time heavily, he had been apparently go day did to work on the of the murder. nearby of a liquor owner store testified that defendant purchased quart of whiskey from him sometime between 1 p.m. on December 1962. The other who witness day prior testified as to defendant’s whereabouts discovery 13-year-old murder was the victim’s brother Kenneth. Kenneth testified that he arrived home from school at 3:30 p.m. on December 7. He front locked, found the door unusual, was not so he went around back house stayed and down to basement. Kenneth there awhile work- *5 microscope. coming a time he heard ing his short noise upstairs in like other the house which sounded boxes and up. cleaning being around, like was He things moved someone running. police A officer later then heard the shower water person in run- a could water

verified that basement hear ning in the shower and movement Victoria’s bedroom. up that he then came from the Kenneth testified further porch The screen and went to the back screen door. basement so locked, unusual, also Kenneth door was was jerked pop Kenneth then went so the hook would out. it porch directly change his his into from the back bedroom porch through He then to the kit- clothes. returned back Kenneth Imocbed on the was also locked. chen door which opened it. that the door and the defendant Kenneth testified only. wearing went into the defendant was slacks Kenneth a for club dance $1.00 kitchen and asked defendant for teen evening. obtained dol- he intended to attend that Defendant pocket hanging pair of slacks lar for him out of the another When Kenneth noticed the on the door. knob bedroom it, the about blood on the kitchen floor asked defendant explan- that he had cut himself. This told Kenneth Kenneth, dressing apparently ation as he finished satisfied p.m. and left house sometime before house when Kenneth testified that no one else was at his he that p.m. 3:30 further testified was there between He his wallet and forgotten 6 :30 he realized that he had about door, his mother approached he front returned home. As arm, on his and Kenneth came out and asked see cut explained asked he no His mother than defend- had cut. had told her the blood she noticed and defendant about ant herself, should not Victoria cut but mother worry, as cut was not After defendant told her serious. dinner, the mother wanted Victoria was at friend’s for get her Kenneth to take Kenneth with Victoria. went back jacket. get a he had a “weird” feel- to his room to Because ing, nude, room. He looked into Victoria’s found blankets on the floor near bloody body under some boxes and screaming ran out of room that defend- her bed. Kenneth Hammond, seeing Victoria’s ant had killed her. Mrs. after phone police. body, went next door to from work Hammond testified she returned home Mrs. doorbell, p.m. rang was at The front door locked she 4:45 Mrs. Hammond blood on and defendant answered. noticed room, she living and when asked defendant about couch it, playing her that Kenneth had cut he told himself awith teenage knife and that he dance. Mrs. Hammond grocery p.m. then went to store returned about 5:30 that at She testified both times she arrived home defendant drinking a highball. also examining testified as to She arm for a cut when he returned Kenneth’s home wal- subsequent explanation and as let to defendant’s that Vic- cut, seriously. toria but not had been Mrs. Hammond dis- covered Victoria’s after Kenneth out of came Victoria’s room. *6 Victoria, person A was classmate who the last to see alive, testified that left in

Victoria she Victoria front of the p.m. house about 3:45 after the Hammond two of them had home from walked school. police p.m. arrived at 7

When the the shades were down on all the windows and the doors were finally locked. Defendant opened the front door for one of the officers who arrested and arresting handcuffed defendant. The officer testified that de- wearing slacks, fendant was no shirt or shoes, and that there was no blood on him. arresting The officer found Victoria’s on the floor

near blood-spotted her bed. He found defendant’s shorts on living room, chair in the and a socks, knife and defendant’s soles, with blood encrusted on the in the master bedroom. The evidence established that the torn victim’s and bloodstained ripped dress had her, been that her clothes, including panties her out of which ripped, the crotch had been were in found various rooms house, bloody there were footprints matching the size of leading the victim’s from the room, to master bedroom Victoria’s and that there was blood every including room kitchen, almost the the floor of which appeared mopped. to have been The TV cameraman who story covered the murder for chan station, police nel the officer who drove to defendant the and the officer who “observed” defendant for four at hours night 7, 1962, the station the of December all testified that appear not defendant did intoxicated. The officers who talked testified, they however, to defendant smelled alcohol on p.m. breath; blood test taken 7:45 indicated that percent-, alcohol content defendant’s was .34 blood which necessary than an was more automobile driver be classi ’’ fied as1 under influence. ‘ wounds, superficial,

Over both severe and were found on body.1 body, The cuts extended over entire Victoria’s through extending vagina, from the rectum including one cutting tongue. off of her partial Several and the post vaginal lacerations, including were mortem. wounds, spermatozoa victim, found in the on her was No evidence next to she was found. panties, bed sexually the murder was prosecution contended The pleaded guilty defendant, not The who not motivated. presented insanity, no defense whatsoever. guilty by reason of jury degree on two theories instructed The court murder, and premeditated and deliberate murder murder, attempt perpetrate perpetration an committed Code; degree 288 of Penal second under section offense manslaughter. voluntary involuntary The murder n capacity jury on diminished due to instructed court also relationship voluntary and its intoxication second manslaughter. found defendant murder prior degree. Initially, an in the first guilty of murder judgment exposition reducing of our reasons for to second murder, dispose of defendant’s contention that the we invalidity proceeding.2 vitiates the entire the indictment to allow to withdraw The trial court’s 1. refusal defendant right waived his plea in a in which his to case did not an abuse discre- attack the indictment constitute tion. 1962. The Defendant indicted presented grand jury connecting defendant with the extrajudicial in violation of confession obtained *7 crime Illinois, (See People supra, v. v. Escobedo 378 U.S. 478. pp. 360-362.) Anderson, supra, 351, at After the re defendant’s first conviction and before defendant’s versal of plea trial, to withdraw his of not defendant moved second him to move to set aside his indictment guilty to enable under 995. trial court’s denial of defen Penal Code section motion did not constitute an abuse of discretion. dant’s Upon timely an motion, an accused’s indictment must . proof guilt legally be if consists of incom set aside the sole of petent expressly pro 996 evidence. the Penal Code Section of urge entry motion of the that failure to such a before vides as 1 The and the funeral director testified to the con deputy coroner did not body. autopsy testify, dition of The doctor who performed was not introduced into evidence. autopsy report alleged do not other contentions since the 2 We reach defendant’s prejudicial guilty errors are on whether defendant .was question guilt of first or second murder not' on of question innocence.

23 precludes plea attacking thereafter an accused from the suffi- ciency presented grand jury. to of the evidence Section express mandate, however, does absolute 996 not and cases may may properly arise attack his in- appeal. 996, first dictment for the time on Section like the general objected rule that errors not to trial cannot be upon Thus, appeal, rests raised on waiver. if the circum- waiver, may challenge stances do not show a defendant appeal though point did indictment even not raise the by a under motion Penal Code section 995. ground Here, upon which defendant could have challenged (that the indictment evidence submitted to the grand Escobedo) violation could have been by entry plea. known the defendant at the time of the appeal Insofar as his trial and concerned, therefrom are first therefore, right object defendant did not waive his to the supporting Defendant, however, the indictment. at tacked the first the indictment for time after first trial which resulted in a conviction and reversal. judge this situation the trial was called to deter-

mine plea, whether set aside defendant’s on a based motion urged which was second relation to a trial. If we were hold judge properly could not consider evidence ad- mitted trial, at the first compel we would do no more than People perform formality obtaining needless a sec- ond indictment. We therefore hold that trial court’s denial plea prior defendant’s motion to set aside a to a second when, trial does not here, constitute an abuse of discretion ample competent the first trial legally reveals evidence on which valid re-indictment can obtained. be 2. The to support a verdict insufficient of first degree murder. must, in We the absence substantial evidence to degree murder, the verdict reduce the conviction to (People 41, second murder. 65 Ford Cal.2d Cal.Rptr. 228, 132], 416 P.2d cert. den. 385 U.S. 1018 [52 554, People ; L.Ed.2d S.Ct. (1964) 61 [17 737] Wolff 271, 795, Cal.Rptr. Cal.2d 818-819 394 P.2d ; [40 959] v. Holt 59, 21]; Code, Pen. 1260.) §§ subd. legislative “The degrees definition of murder leaves much jury many to the discretion of cases. That discretion, however must have a sound factual basis its exercise .... is true as all issues factual resolved [A]s *8 upon is the determination made is jury, a the evidence legal subject question sufficiency on the of its review is jury bound, we, support . . . are the verdict. [T]he jury’s] . . It apply fixed law. ‘. is standards [the duty, fanciful theories and unreasonable inferences to avoid imagination suspicion.’ and resort to not to [Citation.]” Holt, supra, pp. (People 83, 90.) 25 Cal.2d at con “Mere equivalent suspicion is jecture, surmise, or not the reason proof.” (People inference and does constitute able 8].) 164, 186 Bender instant case court instructed the two possible (1) wilful, a theories of murder: deliber- first premeditated is ate, killing; murder which committed attempted perpetration perpetration pun- of an act in the 288. ishable under Penal Code section light Viewing judg- in a most favorable to the the evidence ment, following must rest conviction proof: supporting Kenneth home school he when arrived locked, police and when officersarrived to found the doors arrest defendant down; they the shades in the front room found up apparently had to clean defendant conflicting explana- kitchen, and had fabricated bloodstained tions of the blood that Kenneth in the kitchen, noticed living room, mother observed in the blood that Victoria’s evening killing; Victoria’s absence on had stabbed Victoria post repeatedly inflicted a mor- found in rectal-vaginal wound; tem bloodstains were several Victoria’s and shredded house; rooms of the bloodstained under her next to which nude dress was found bed pile Victoria’s blankets,- was discovered under slip, boxes straps off, found under the in the with the torn bed ripped out of bedroom; master the crotch was Victoria’s of de- panties; and the bloodstained clothes bloodsoaked fendant’s which socks and his were discovered were People argue that shorts, facts defendant was from which during almost nude the attack. of the above We test this evidence under both theories support determine whether it is sufficient to first, conviction second, degree than rather murder. pre- (a) support finding The evidence insufficient meditation and deliberation. brutality is well It established killer acted with finding in itself cannot premeditation “If no and deliberation. the evidence showed multiple acts violence on the more than the infliction

25 killing sufficient show victim, it would be was thought weighing of of careful the result considera (People (1955) 864, v. Caldwell 43 Cal.2d 869 tions.” [279 Tubby People (1949) 539]; 72, also v. P.2d see 34 Cal.2d 78 People Bender, supra, v. 27 164 ; p. P.2d Cal.2d at [207 51] Moreover, although premeditation 180.) and delibera may (People tion be shown circumstantial evidence v. Ro Cal.Rptr. 88, 167, 55 93-96 (1960) billard Cal.2d 358 P.2d [10 295, 1086], People on another ground, 83 A.L.R.2d overruled (1964) 631, Cal.Rptr. 201, Morse v. 60 Cal.2d 649 388 [36 810]), People 12 33, P.2d A.L.R.3d bear the burden of establishing beyond killing a reasonable doubt premeditation and deliberation, result of and that there first, degree fore second, rather than murder. (People Holt, supra, 59, v. p. 91.) 25 Cal.2d at presumption unjustified Given aof being human second, constitutes murder of the rather than of the first, degree, legislative and the clear intention differen tiate between first and degree murder, second we must deter mine in proof case of circumstantial evidence whether the is such will as furnish a reasonable for an infer foundation premeditation ence of (People Hillery and deliberation v. 692, Cal.Rptr. 62 Cal.2d 703 401 30, 382], P.2d [44 cert. den. 386 810, U.S. 958], 938 L.Ed.2d 87 S.Ct. reh. [17 den. 386 1000 U.S. L.Ed.2d 87 1310]), S.Ct. [18 conjecture whether it “leaves and surmise the conclu sion that defendant either arrived at or carried out the inten tion kill as the result of a of concurrence deliberation premeditation.” (Italics added.) (People Bender, supra, v. p. 179.) 27 Cal.2d 164 at “phase conceptual One of consistency the lack of dif [in ferentiating between murder of first and degrees] second is varying upon manifest bases reviewing which the predicated power courts have exercise judg of the to reduce ments to lower Regardless or lesser crime. . . . of imperfections concept statutory academic either law or in interpreting enacted some the decisions it, we are making practical application faced with task of that dividing degrees . . law . the offense of murder into two . (People Holt, supra, . .” pp. . 25 88-89.) Cal.2d v. Recognizing clarify the need to the difference between the degrees two of murder and reviewing the bases which may court find that is sufficient to degree murder, verdict of first we set forth standards, derived

26 premeditation and deliberation as em nature from the ployed by court, interpreted by this Legislature finding is sustain a sufficient to the kind of evidence analyze representa We then premeditation and deliberation. including People argue require an cases, those which the tive light demonstrate, in In conclusion we here. affirmance developed (People very similar cases and two standards People v. ; (1957) 49 P.2d Granados Cal.2d 346] [319 947]) in which this Craig mur judgment from to second court reduced the jury can reason from which a der, the kind deliberately, wilfully, and with ably infer that an accused meaning of Penal premeditation killed his victim within lacking totally Code here. section Bender, supra, As we noted *10 Legislature intended we find no indication that the 164, 183, “premeditated” other give and to the words “deliberate” dictionary Moreover, ordinary meanings. we have than their legislative of repeatedly pointed out that classification meaningless degrees if be “delibera murder into two tion” and would requiring as no “premeditation” were construed in may involved the mere formation of reflection than be more supra. (People Wolff, 795, v. 61 Cal.2d specific a intent kill. to ; 864, Caldwell, p. 43 supra, ; at 869 p. 821 v. Cal.2d at (1945) 880, [156 P.2d 7].) Cal.2d 898 People Thomas 25 v. malice killing for a Thus have held that order we murder, degree aforethought to first rather than second be 1“ pre-exist a . . formed intent kill must be . [t]he ’ subject reflection, ing . . . been the of actual [and have] forethought (People Thomas, supra, . .” v. . . deliberation or pp. 900-901.) (Italics added.) We have therefore at Cal.2d “ . . of murder in the first . held that verdict [on [a] premeditated killing] is wilful, deliberate, and theory a aof thought proper only slayer ‘as a result of careful if the killed judgment a deliberate or weighing considerations; of and [especially] according to cooly steadily, plan; carried on and preconceived design.’ (People [supra], v. 27 Cal.2d Bender a ” p. Caldwell, supra, 864, (People Cal.2d at 183.) 164. v. 869.) suffi type court has found of evidence which this premeditation and deliberation finding of

cient to sustain (1) categories: facts about how and falls into three basic killing prior did to the actual which show what defendant activity engaged toward, directed defendant in, killing—what may explicable as intended result “planning” (2) characterized as be facts activity; about the prior relationship defendant’s conduct with the victim and/or jury reasonably could infer which the a “motive” victim, together kill which inference of motive, with facts type (1) (3), of would in turn or inference that killing pre-existing the result of “a reflection” and thought weighing of “careful considerations” rather impulse or hastily than “mere rash unconsidered executed” (People Thomas, supra, pp. 898, 900, (3) nature 901); facts about the from which the jury particular infer that manner could was so exacting the defendant must have intentionally according “preconceived killed design” to take his vic particular way tim’s life in a for a “reason” which the reasonably type (1) can infer from (2). facts or Analysis of the cases will show that this court sustains typically verdicts murder when there evi- types requires all dence of three otherwise at least ex- tremely strong conjunc- evidence of or of (2) in (3). tion with either As will become clear from the analysis following repesentative present cases, the case lacks types. of the three People Hillery, supra, the jury could reasonably engaged infer that the following parked “extended course conduct”: defendant his ear (a 15-year-old near the girl’s) house, victim’s entered the surreptitiously, seized house the victim while sewing she was slip prevent and covered her head with towel and outcry length identification, cut of cord another room to se scissors, her, hands dragged cure her behind took the victim’s nearby irrigation her to a ditch where her was subse *11 quently found, in engaged struggle victim, a with the and plunged directly (Id. then into p. scissors her chest. at 704.) Hillery represents very type a strong (1) ease of evidence: surreptitious subjection the defendant’s of conduct his vic- complete control, carrying tim his to and off of his victim to a place unlikely intrude, where others were to can be described acitivity “planning” directly killing. as related to the More- over, strong type (3) directly there is also : plung- ing weapon a into the lethal chest evidences a deliberate in- opposed type tention to kill as to “indiscriminate” multiple superficial and attack of both severe wounds which in engaged the instant ease. People Quicke In Cal.Rptr. (1964) 617, v. 61 155 [37

28 to victim’s town to 393], defendant came 390 P.2d spent He intercourse. to have sexual girl with whom find girl. killing looking Defendant for such afternoon used that procedure with the victim same followed cap did not When the victim successfully weeks earlier. two her, to a killed drove her threats, his the defendant itulate preparation, then, considerable area, after travelled and less corpse. The court held her engaged in intercourse with “upon reasonably supported the inference the evidence deliberately formed a preconceived reflection defendant] [the engaging in intercourse with plan the victim into to coerce satisfy alive, failed, if to kill her she him while 159.) (Id. p. corpse.” her his desires with type Hillery, Quiche, involves substantial like ac- activity. In both cases the “planning” (1)—pre-killing meaningfully as intended to re- tivity described most can be (in Quiche, rape if that fate forcible sult in and/or in fact suffered. More- rape unsuccessful) which the victim type Quiche (2) over, also contains evidence the record previous engaged on as defendant in similar conduct insofar occasion. Cal.Rptr. 361, People Kemp (1961) In 55 Cal.2d [11 apartment 913], entered his victim’s the defendant P.2d screen, removing found victim through window after hands, stockings her neck and bed, tied around alone in raped strangled washcloth, then gagged with a her coming surreptitious Kemp, Hillery, defendant’s her. In as prevent her from efforts to the victim and calculated help, crying together with identifying her assailant out for types killing—evidence manner of the deliberate “preconceived (3)—point is the result of to a (People explosion design” opposed “an of violence.” p. 360.) Anderson, supra, 63 Cal.2d at Cal.Rptr. People v. Cartier 53], supported an the evidence inference talking becoming angered over his wife’s defendant, after they bars that had been on the last of several in the a sailor killing, went home with wife and then hit evening instrument, procured blunt various the head with a her over kitchen, brought them the room where his from the knives and, knowledge of his as a body found the basis wife’s superficial cuts on her to locate the heart butcher, made by severing vagina and then murdered them from her body. strong type (3) represents a case of evidence: the

Cartier

29 killing manner of must have been of the result calculation. superficial Moreover, apparently wounds inflicted with supply instruments of “planning” activity blunt evidence weapons intended to dull the resistance; victim’s used were with deliberate choice consistent defendant made on (cid:127) experience the basis of his as a butcher and the fatal wounds sexual-jealousy were with a consistent “motive” for kill- ing reasonably which supported. the evidence Cartier thus types points involves of all three ato “calcu- ” type killing. lated p. 310.) at {Id. People v. (1956) Cole 47 Cal.2d 99 P.2d 56 [301 1435], living A.L.R.2d impecu involved defendant with an (his nious victim) woman marrying and desirous of a well-to- do woman. The evidence established that the defendant secretly gun took the latter’s from her dresser the week before killing, carrying evening that he was it on the killing, and that Moreover, he used it kill his victim. evidence also planned tended show that impli defendant cate the wealthier woman so as to secure her assistance in concealing guilt and that he killed the victim to remove her as an plans. obstacle to his pointed marital As the court out, showing “a indicating killing motive was and planned” premeditation tends to inference p. represents deliberation. 107.) Cole thus {Id. ease of type primarily supported by type (1) evidence. In v. Stroble 330], [226 affd. 343 599], U.S. L.Ed. 72 S.Ct. the defend- victim, six-year-old girl, ant’s was a friend of defendant’s granddaughter and previously submitted to defendant’s fondling day her. On she found defendant alone in his son-in-law’s house where she came to find her objected friend. of, she to, screaming When and started because attempt her, defendant’s to molest he tried to silence her by choking quiet her. After she became and then started to again, direct, move deliberately inflicted several placed hammer, pick, fatal wounds with a an ice blunt end axe, knife, of an relieving and a kitchen purpose the claimed suffering. her Stroble, Cartier, inas the defendant particular selected rendering to kill his totally instruments victim after (type passive (1) evidence), relationship had a vic- prior tim which a “motive” could be (type (2) evidence), deliberately placed inferred and inflicted victim, blows on the all must of which have been intended to evidence). condition (type (3) While the in death result physical other evidence at the scene of victim’s *13 Ught Stroble, in when considered in the defend- crime of prior killing past immediately to the and his ant’s conduct killing, victim, point a relationship to “calculated” with his body ease, in instant when the victim’s the condition of Ught any the absence evidence of the considered in prior immediately to conduct defendant’s “unusual” relationship points to victim, with the a “ran- explosive rather than calculated. The which was dom” attack pre- argument that Stroble holds that Attorney General’s may the condi- be inferred from meditation and deliberation body physical evidence at the other scene tion of there is sufficient evidence of crime, and that therefore is premeditation in the instant case thus and deliberation totally of merit. devoid People Granados, strikingly similar to v. present The case 490, in which this court reduced a verdict of supra, 49 Cal.2d degree ground murder on the first murder to second premeditation insufficient to show either that evidence was in the or that the occurred course and deliberation an 288 of the Penal The violation of section Code. Granados, while premeditation and deliberation clearly to sustain the verdict of insufficient stronger present theory, than in the was case murder on that find evidence from which could rea- we no “ ‘with a sonably defendant acted deliberate and infer that ” (People Holt, supra, take clear intent to life.’ 91, People Howard p. quoting from Cal. 59, at 1385].) P. 71 A.L.R. 329 [295 relationship Granados, in common defendant lived law girl. taking victim, 13-year-old After of his with the mother office, brother to real estate and her the deceased money gave requesting to take to brother a note nearby. the brother returned home worked When mother who requested he the rear of the money saw defendant with the house, defendant came run- As he started enter house. ning get him for his sister him and asked some alcohol on fainted. The brother noticed blood one (decedent) who had had the other hand hands that defendant defendant’s his back. behind unsuccessfully looked for some brother alcohol. get suggested they a doctor and an ambu- Defendant then hand then that defendant’s had lance. noticed The brother drug- a then drove the brother been washed. Defendant gave alcohol, him store, cents some and told him he would away wait for him. The defendant drove and did not return for the brother.

Defendant then called the mother and told her the victim poisoned herself. The mother returned with a house friend who found lying the victim’s the bedroom pulled up parts, floor. skirt exposing private Her her there wall, floor, head, were bloodstains on the and decedent’s lying and a machete covered with blood was a corner of the living room behind small heater. day testified Defendant that on the of the killing girl helping him clean the house and that he asked her if she virgin, replied was a to which she it was of his none business. Defendant said that she had never answered him in way therefore struck her hand, with his but striking did not remember her with the machete. mother

Decedent’s testified that she had warned defendant next daughter, time he bothered she would tell *14 police, the and that in reply defendant threatened kill her and her children if both she did. prosecution argued The that the murder was sexually moti- per court, MeComb, vated. This Justice held that the evidence was support insufficient as matter of law to verdict first (49 p. 497.) murder. Cal.2d at Applying developed standards Granados, the above to we only find that the (1) prior evidence of defendant’s behavior killing could be “planning” the which described as killing activity purpose related to was sending defendant's the apparently victim’s brother on an errand and returning alone with home the decedent. highly Such evidence is ambiguous in terms of the support various it inferences could purpose behaving. as to defendant’s (2) so The evidence of prior (alleged defendant’s behavior with the victim sexual question virginity) molestation and his as to is insufficient support a reasonable inference that defendant a “mo- girl, support tive” to kill the which could turn an infer- striking ence that with the machete was the result of a “preconceived design” “forethought.” Finally, the evi- (3) killing (brutal hacking) dence of the manner does not support deliberately placed blows, a reasonable inference of support could in turn act of inference that the kill- ing premeditated impetuous.” “hasty rather than ground Justice Carter dissented in Grabados on the following finding evidence was sufficient to sustain a instrument, premeditation and the nature of deliberation: sending the on body, the an defendant’s brother condition prior immediately killing, to the time of the errand girl family. (49 prior against and her defendant’s threats pp. 498-499.) dissent demonstrates Cal.2d at Carter’s Justice premeditation and delibera that there was some evidence Here, hand, the other Granados, tion in insufficient. albeit any any conduct do not evidence of either we have prior killing which indicate defendant to the would planning anything, otherwise, or or felonious rea from which the could behavior towards Victoria had a "motive” or desire to sonably infer that defendant (3), sexually kill The evidence of her. attack and/or body, killing and condition of same manner of in rea which the evidence inference both cases: is that the resulted sonably supports in ease either violent, rather than "random,” indiscriminate attack from a according pre placed inflicted to a deliberately wounds Cartier, design. (Contrast People supra, 54 v. conceived 615.) 300; People oble, supra, 36 Cal.2d Cal.2d Str Granados, here, Finally, defendant by lying up” to the brother the crime to "cover Although type this of evidence victim. and the mother of the state of mind possibly defendant’s bear on may after ascertaining defendant’s state of killing, irrelevant it is killing. prior to, during, Evasive immediately mind inference the double shows it cannot conduct fear: time he planned his crime at the com to hide defendant committed the crime that therefore it and mitted premeditation and deliberation. Craig, supra, 49 (who dis- present case is also similar per court, Carter 313, in Justice which this Granados, supra), reduced a verdict People v. sented ground degree murder on the degree murder to second premeditation either insufficient to show evidence was in the course occurred deliberation *15 premediation and delibera- attempted rape. The evidence present case. stronger than that in the Craig is also tion in morning of the Craig told someone the In the defendant (49 loving.” a little have murder that he would "like evening to a went p. of murder 315.) at On the Cal.2d refused to dance with a woman who he threatened bar where a man who evening with another bar he left him. Later parted where he approaching intersection victim saw the the defendant. company with morning victim was found next

The under car at a apparently- service station near the above She intersection. dragged wearing had been there. She was a raincoat with only slip panties garments on underneath. All three were ripped open part exposed. so that front of her lying legs spread apart. She was on her back with her She multiple contusions, suffered caused an estimated 20 to 80 body, key blows. Four heel marks were found her and a clothing. the defendant’s hotel room was found morning after the murder defendant told someone that “I up they stayed beat a woman” and hit that when he them (49 317.) hit.” at p. Cal.2d The court evidence, held that as a law, “the matter of shows second . . . The record shows a murder. killing accomplished great brutality, with but does not show any premeditation.” (Italics added.) (49 p. 318.) Craig, opposed present ease, to the there was some (1) prior evidence of killing defendant’s conduct to the support which looking would an inference that he was for a girl with engage whom to Although sexual intercourse. may “purposeful” such conduct behavior, be described as it bearing has no as to an intention to kill his As in victim. present Craig points no case, (2) evidence in any prior relationship or behavior with the victim from jury which the could infer that defendant entertained a “motive” for kill- ing his (3), victim. And in both cases the evidence of way death, points only which the victim suffered a violent, attack; brutal it cannot the double inference that deliberately particular wounds inflicted and in were man- ner, killing and that therefore the was deliberate and executed premeditation. Finally, in Craig, the evidence of the statements conduct of defendant after the resem- up cleaning bles evidence of defendant’s and false stories probative such highly here: evidence is of whether defendant crime, committed the but it does not bear the state of the defendant’s mind at the time commission of the crime. finding premeditation We conclude that a deliberation cannot be sustained in the absence of evi

dence of prior defendant’s actions killing, (2) to the jury “motive” or “reason” from could rea sonably infer that Victoria, intended kill a manner which the reasonably could infer that the wounds were deliberately calculated to result *16 People Granados, supra, in Craig, supra, v. As death. People 313, the suffices 49 Cal.2d evidence v. degree only a of support verdict second murder. finding support a (b) is The evidence of insufficient punishable by section specific commit an intent offense

288. “ guilt to establish first order a defendant's [I]n degree theory that murder on the he committed the during perpetration perpetration] the of one [or Code], 189 of the enumerated felonies section the Penal [in prove specific prosecution the the must he harbored (People intent commit one of such enumerated felonies.” Cal.Rptr. 330, 62 Cal.2d 401 P.2d that v. Sears [44 938].) Additionally, the evidence must establish prior the felonious intent either to or dur defendant harbored ing which in the of the acts resulted victim’s commission death; evidence which establishes that defendant formed only engaging support in the intent after fatal acts cannot (People 189. first murder based on section a verdict of 121,125 497].) Hudson 45 Cal.2d degree murder, sustain the verdict of first In order to support a here, therefore, must sufficient to the evidence be immediately prior dur inference that either to or reasonable ing Victoria, he the fatal wounds on defendant's infliction of “wilfully lewdly lascivi any commit lewd or intended to ous act . . . upon Victoria, body, part or member or with arousing, thereof,” appeal “with the intent of to, passions gratifying the lust or or sexual desires” ing 288.) (Pen. Code, explain why We Victoria. § himself or support insufficient to a reasonable inference is harbored such an intent. 'the defendant prosecution urging upon relies indistinguish- is attempted violation of section 288 violation or support as matter of law to from that held insufficient able People Granados, supra, murder verdict of prosecution argues the nature of 490. Here the victim, appearance clothing and the the wounds house, lack of rooms of blood blood several shorts, clothing except his socks and any of defendant’s that defendant was almost an inference suffices to through attacking pursued her Victoria naked while several rooms ripped and slashed at and off her of the house clothing a lewd act her to with intent to commit the victim was found satisfy his sexual desires. In Granados private parts pulled up exposing her in a room with her skirt only walls and floor. The difference bloodstained between condition victim’s the two cases vaginal wound, here the area was lacerated. Since this how- ever, randomly inflicted one of several wounds cover- ing body, piece entire the victim’s this of evidence has little if any bearing on the issue whether stabbed Victoria *17 specific satisfying by with the intent of his sexual desires wilfully committing lewd act her. Moreover, here, prosecution in Granados, the failed unlike present any phase during guilt the of the trial any feelings towards, that defendant had ever formed sexual engaged any in with, any kind of lewd conduct Victoria or person. Granados, hand, other In on other the the defendant angered that testified he became because the tone of the response question victim’s to his virginity, as to her and the victim’s mother testified that had she threatened to tell the police daughter again, if the defendant tried to the bother responded that and the defendant kill would the family Thus, Granados, prosecution whole if she did. in the presented independent particular act of kill- ing body. and of the condition of the victim’s This evidence disclosed in the defendant’s sexual interest the victim and his reported threats that if such interest were he would retaliate against family. Here, prose- the entire hand, on the other the presented relating possible cution no evidence ato section 288 offense other than that of the act of murder itself. present resembles, explained The case also as we above, Peo- ple Craig, supra, which this court held the support finding evidence insufficient to rape of intent to the Craig In murder victim. the wearing victim was found a rain- slip panties coat with and on underneath. All three garments ripped open exposing were part the front of her lying victim body; the was on her back legs spread with her apart. multiple She had suffered Moreover, contusions. Craig Granados, as in present unlike the ease, the defend- displayed ant an activity interest sexual immediately prior Craig the murder. the defendant told someone on the morning of the murder that he would “like to have a little ’' loving, evening and on the the murder he threatened a in a woman bar refused to who dance We held him. the evidence was insufficient to establish that defendant har- specific rape upon bored the intent to commit the murder (49 pp. 318-319.) victim. Cal.2d at Craig Our explaining conclusion insufficiency support degree the evidence a first murder verdict based felony-murder theory present applies equally to the on the ease: “ proved is to have been committed ‘When presump- defendant, nothing shown,

by further is is it act of murder; tion malicious but of law be murder of the second in such a case verdict should degree.' It murder of the first degree, [Citations.] is appears that in the at bar killing a total lack of satisfac- ease there committed in the tory either evidence that the in the com- attempt to commit violation of section 288] [a punishable by ; section evi- mission of act 288] [an multiple more than the infliction of acts of dence shows no though was an violence on the victim and that even proved only extremely one the have brutal degree murder guilty second defendant was [citation]." (Id. p. 319.) Indeed, were we hold evidence in degree present murder ver- ease sufficient to fiirst theory during a dict that the murder was committed of section brutal violation or violation years age of 14 be found person of a under could murder sufficiently degree “sexually motivated" to constitute felony-murder doctrine. murder under the section reducing judgment is modified modified, and, as murder of the second so crime to *18 is the court remanded to trial with direc- affirmed. The cause judgment arraign pronounce on defendant tions to ruling. foregoing with the accordance J., Peek, J.,* Traynor, J., Peters, concurred. C. BURKE, J. The substantial circumstantial evi I dissent. jury supports the verdict of the presented in this case dence in his by committed homicide was the performance performance of lewd or or actual child victim in violation upon of the acts the lascivious constituted first 288 and therefore Code section of Penal Code, felony-murder (Pen. rule degree under the murder §189). reasonably evidence adduced infer from the jury could The gratifica- sexual underlying crime was motive the he alone the house chose a time when was tion : defendant were down and the girl; window blinds little the

with the throughout pursued the house locked; the child he doors another; ripped out the crotch he inflicting one wound after remaining her; clothes from panties; he tore her of her sitting assign Supreme under the Court * Retired Justice of Associate hy Council. Chairman the Judicial ment the excepting removed his own clothes was no socks—there logical explanation other bloody for the absence of other male clothing took a immediately and he shower crime; after the during furthermore, at one time the assault he had the child by large on the bed as evidenced the blood stain found the mattress; finally, center and, of the number of the wounds upon child inflicted the could be considered sexual in nature, particularly thrust of the knife into her vagina, the cut- ting through anal canal and the numerous cuts and private parts thighs. contusions of her supportive this face of evidence it is not the function reweigh (People this court Hillery, evidence. Cal.Rptr. 382].) 702-703 401 P.2d [44 Although I there is believe credible evidence from which the premeditated homicide, e.g. locking could find a (whether the doors before or after the actual killing is a mat- conjecture), ter of pursuit assault, duration of the through many rooms quantity being with a of blood left in room, many each stabbings the extensive of which would have weapon sufficed as fatal, removal of murder from one apparent repeated room and rooms, of it in use other it is not necessary jury’s rest the determination of first ground murder on that the evidence substantial since felony-murder homicide was first murder under the rule. clearly distinguishable People This ease is v. Grana- dos, by majority. 49 Cal.2d 490 P.2d relied 346], [319

In Granados, every there was indication of a sud- den blow from a machete and no evidence whatsoever cutting, stabbing private parts molestation, physical suggestion possible of a offense child. The sex pulled up motive was that the child’s dress was above the vaginal However, this area was concealed underneath an area. apron There was which she wore over the dress. no evidence of clothing removal of all as in the ease deliberate or forceful before us. Craig, majority rely also here, 947], again, but are substantial differ- there Craig does deal with a ences the two cases. not even between Craig victim in was not Penal 288 situation. The Code section *19 opinion points as the out adult a child woman but body of attack on the of a sexual there was “No evidence levis smears on defendant’s were no blood decedent.” There slip night gown or raincoat, a on her victim had shorts. The torn, expose open to been although they had panties supports body a of the evidence review part of the front Craig died from that victim of this court the conclusion no of an there was evidence beating and a vicious despite crime, defendant's statement rape sex seeking purposes. girl sex day that he in the earlier question of whether the evidence case the the instant requisite intent to commit had the the defendant showed determine victim was for upon the child acts lewd Meichtry, (People v. surrounding circumstances.

from all the physi 847].) In the face of the 385, 389 it said produced I submit cannot be in this case cal that no reasonable ground support an inference was shown to such intent existed. judgment. I would affirm McComb,J., concurred. agree dissenting with the SULLIVAN, J. I dissent. I concludes that there is opinion insofar it Burke of Justice of first murder support a verdict sufficient by defendant theory the homicide was committed attempt perpetrate, an offense performance of,

in proscribed by or the Having such 288. reached section Penal Code Burke, that we are conclusion, I am of the view as is Justice theory additional required uphold verdict on the join premeditated murder. Indeed I would deliberate deeming dissenting opinion that, it not for the fact while were theory unnecessary it to rest verdict on of deliberate and premeditated murder, the author nevertheless comments on sufficiency sustain of the evidence to the verdict on such theory. disposed question. I am not to reach this judgment. affirm I would rehearing Respondent’s petition January for a was denied Peek, place J., J.,* Mosk, 1969. sat who deemed him disqualified. McComb,J., Burke, J., self and Sullivan, J., were opinion petition granted. should be sitting assign * Retired Associate Justice of the Court Supreme under ment by the Chairman of the Judicial Council.