Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II, III, and IV.
Review Granted July 29, 1998.
Previously published at 63 Cal.App.4th 717
Roberta K. Thyfault, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Sabrina Y. Lane, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, Associate Justice.
A jury convicted John Michael Palumbo of murder (PEN.CODE, § 187, subd. (a)), conspiracy to commit residential robbery (§ 182, subd. (a)(1)), and attempted residential robbery (§§ 664/211/212.5, subd. (a)). With respect to the murder and attempted robbery, the jury found Palumbo personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury also found the murder occurred during the commission of the attempted robbery for purposes of a robbery-murder special circumstance allegation. (§ 190.2, subd. (a)(17).)
All statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Palumbo to life in prison without the possibility of parole for the murder conviction and a consecutive 10-year term for the firearm enhancement. The court stayed sentence on the other crimes pursuant to section 654.
Palumbo appeals. His principal assignment of error is the failure to have the jury specify the degree of murder on the verdict form; he argues on the basis of section 1157 and a long line of cases, that his murder conviction must be reduced to second degree. Palumbo also contends it was error (1) to allow trial spectators to wear a badge displaying a photograph of the murder victim, (2) not to give cautionary instructions regarding his admissions, adoptive admissions and pre-trial statements (CALJIC Nos. 2.71, 2.71.5, 2.71.7, & 2.72.), and (3) to instruct on reasonable doubt pursuant to the 1994 version of CALJIC No. 2.90.
FACTS
A. Prosecution Evidence
The Murder
On July 24, 1995, Darrell Ray Hawkins, Jr., 18, planned to spend the night with his girlfriend, who lived with her mother in a condominium complex on South Pierce Street in El Cajon. After getting off work, he stopped at his parents' residence, changed his clothes and picked up some toiletries, and, shortly before midnight, proceeded to his girlfriend's residence.
At 12:15 a.m., as Hawkins was passing by unit 240, which was downstairs from his girlfriend's unit, he was accosted by Palumbo. Palumbo had been hiding in the bushes along with a companion as part of a plan to rob the occupants of unit 240 and had become impatient. Palumbo placed a .357 magnum revolver to Hawkins's head and ordered him to open the door to unit 240. When Hawkins said he did not live there, Palumbo pulled the hammer back on the gun to intimidate Hawkins and reiterated his order. As Palumbo was using the gun to push Hawkins through the door, the gun accidentally fired. Hawkins died from a single gunshot wound to the back of his head. Soot and markings around the entrance wound indicated the gun was in contact with the head when it was fired. The Conspiracy to Commit Robbery
Under the prosecution's theory, Hawkins died as the result of being in the wrong place at the wrong time--namely, the scene of a botched robbery attempt that had been planned and/or was about to be carried out by Palumbo, James Roche and Robert Heimer. All three were charged with murder, conspiracy to commit robbery and attempted robbery; Roche and Heimer were allowed to plead guilty to the conspiracy and attempted robbery charges and have their murder charges dismissed in exchange for their testimony against Palumbo.
Roche is the father of Grace Roche (Grace), who in July 1995 was in jail. Father and daughter used and/or sold drugs (primarily methamphetamine). Grace was HIV positive. Upon learning that Grace also was pregnant, Roche decided to bail her out of jail. On July 24, he decided to raise money for this purpose by, among other things, robbing someone who had drugs.
Roche had met Palumbo through a mutual friend a few days earlier, and had allowed Palumbo, who had no permanent residence, to stay with him. Palumbo agreed to help Roche raise money to post bail for Grace; Palumbo offered to sell his tattoo gun toward this end. Roche said he would sell his .357 magnum revolver to raise bail money.
Roche and Palumbo went to Heimer's house in Lemon Grove to try to sell the tattoo gun and the .357 magnum revolver. A heavy user of crystal methamphetamine who sometimes participated in money scams, Heimer used his residence as a "party house" for "other drug fiends" and fellow participants in money scams. Among those who "hung out" at Heimer's residence were Grace, whom Heimer considered a friend, and Roche.
When Roche and Palumbo arrived at Heimer's house, Palumbo had the .357 magnum revolver in his belt. Roche asked Heimer if he could suggest someone to rob. Heimer told him about Richard Kos, a methamphetamine dealer, whom Heimer knew kept drugs and money in a safe in his condominium at 240 South Pierce Street in El Cajon. Heimer said that it might not be a good idea to rob Kos at this time because two days earlier someone else had unsuccessfully attempted to rob Kos in his condominium. Roche said he was willing to take the risk.
Heimer also knew Kos through a check scam in which he and another individual deposited stolen or forged checks into Kos's account. If the checks cleared, Kos would keep half of the money and turn over the other half to Heimer and his partner. There was a dispute concerning the last transaction because Kos said the check had not cleared.
Heimer rode with Roche and Palumbo in Roche's car to Kos's address and pointed out Kos's condominium. The trio drove back to Heimer's house and dropped him off. Roche and Palumbo proceeded back to Kos's condominium and hid in the bushes outside the unit until Hawkins passed by.
After Hawkins was shot, Roche and Palumbo went back to Heimer's residence, where Palumbo told Heimer: " 'I shot the dude.' " When Heimer asked if the man was dead, Palumbo replied: " 'Yeah, well, it was pointblank with a .357 in the back of the head. Of course[,] he's dead.' " Heimer, Roche and Palumbo discussed how to dispose of the gun and drill out its barrel.
Later on July 25, Roche used his credit card to post bail for Grace; Palumbo met her when she was released from jail. Palumbo spent much of the next week in the company of Grace and/or Roche. Palumbo often waved the gun and played with it as though it was a toy; both Grace and Roche were afraid of Palumbo. On one occasion, Roche took the gun from Palumbo and fired it between Grace and Palumbo to show Palumbo he was not afraid of him. The bullet went through the kitchen wall and into the bathroom. Roche gave the gun back to Palumbo. Later, Grace and Palumbo went to his grandmother's house, where he fired the gun in a bedroom. Palumbo also fired the gun while Grace was driving on the freeway.
When Grace and Palumbo went to Heimer's house about a week after the shooting, Heimer convinced Palumbo to give him the gun, two speed loaders and some rounds of ammunition. Heimer drilled out the barrel of the gun. Heimer gave the gun, the speed loaders and some ammunition to Tufa Iuvale, The Police Investigation
When El Cajon Police Department Homicide Detective Clyde Conkin learned of the first attempt to rob Kos at his condominium on July 23, he concluded that offense may have been related to Hawkins's murder and decided to investigate both crimes. On August 4, 1995, Conkin received a telephone call from Iuvale, who was in jail on a marijuana possession charge. Iuvale relayed information that led Conkin to believe Heimer may be a suspect in the murder of Hawkins. Conkin arranged to have Iuvale released from jail, stay at a motel, and, with Iuvale's permission, set up a police surveillance of the motel room.
The police also surveilled Heimer's residence on August 7 and 8. Kathie Rhoads was among those identified during this surveillance. She agreed to the police monitoring a conversation between her and Michael Norton, who lived at Heimer's residence. During the conversation, "Taz," which is Palumbo's nickname, was mentioned in connection with Hawkins's murder. Conkin had earlier learned there was a connection between "Taz" and Grace Roche.
On August 9, Conkin and another detective interviewed Roche at his residence; before the interview, neither Roche nor Palumbo was a suspect. After Roche said he owned a gun and knew "Taz," he and the detectives continued the interview at the police station. Roche recounted the circumstances leading to the shooting, and how the shooting occurred. Roche also identified a photograph of Palumbo.
During a search of Heimer's residence, police found a drill, drill bits, ammunition, a vise, and metal shavings. Police also found five bullets between the mattress and box springs of Heimer's bed.
After interviewing Roche, police located a bullet hole in Roche's kitchen wall and recovered a bullet from a hair dryer in the bathroom. The bullet had been fired from the same weapon that was used to kill Hawkins.
Eight months later, on April 30, 1996, police learned about the bullet fired inside the house of Palumbo's grandmother. After obtaining a search warrant, police found a bullet hole in a bedroom dresser. According to the crime laboratory, the bullet fragments appeared to be from a bullet of similar type to the one that struck Hawkins's head, but the fragments were too small to conclude they had been fired from the same gun used in the Hawkins shooting.
Other Prosecution Evidence
After the shooting, Palumbo went to Heimer's residence looking for Heimer and told Norton, who also lived there, that he (Palumbo) had taken care of something for Heimer and it had turned into a deadly situation with someone being shot. The next day when Palumbo returned to Heimer's residence, Norton inquired about the condition of the person who had been shot and Palumbo responded he had to be dead because he been shot pointblank. Palumbo demonstrated for Norton how he placed the gun at Hawkins's head.
Also after the shooting, Roche's brother crushed the bullet casing from the round fired at Hawkins because Palumbo wanted the casing as a souvenir. Thereafter, Palumbo was observed wearing a smashed .357 bullet casing around his neck; Palumbo claimed this was a trophy from the shooting. The letters "DM" were scratched into the casing; "DM" refers to "Dago Mob," a white supremacy gang.
Chad Pierson, a jailhouse informant, testified Palumbo told him while they were both in custody about accidentally shooting someone during a robbery. Palumbo also gave Pierson a list of names of potential witnesses in the case and told the informant to make sure these people did not show up at court. On the day Pierson was released from jail, Palumbo gave him a note with instructions to tell Heimer and Norton to "shut up." Palumbo signed this note: " 'Love and respect, Mr. Notorious,' " and included the following postscript: "P.S. Dago Mob. 'When Dago rides, the world hides.' "
B. Defense Evidence
Palumbo's friend, Michael Gregory, testified he had a conversation with Roche on Testifying in his own defense, Palumbo denied shooting Hawkins and said the prosecution witnesses lied during their testimony.
Palumbo testified Grace was the girlfriend of his friend, Keith Shoemake. When Roche asked Shoemake for help in collecting money owed to Grace so he could bail her out of jail, Shoemake suggested Palumbo help Roche. Palumbo agreed and also offered to sell his tattoo gun to help post bail. Later, Roche gave Palumbo an "eight ball" of methamphetamine as payment for helping him collect money owed to Grace; Roche also showed Palumbo a gun.
Around 10 p.m., Roche and Palumbo drove to Heimer's residence to try to sell Palumbo's tattoo gun and to find out who owed Grace money. Roche spoke privately with Heimer in a bedroom. After 15 minutes, Roche and Heimer emerged from the bedroom, and Roche told Palumbo: " 'Come on, let's take a ride.' " Roche said Heimer was going to direct them to people who owed Grace money. Palumbo understood that he was coming along to provide "muscle." Palumbo did not know anyone was carrying a gun. When they arrived at the Pierce Street condominium complex, Heimer and Roche told Palumbo to wait in the car.
While Palumbo was waiting he heard a noise like a backfire or firecracker and a couple of minutes later Roche and Heimer returned to the car. When Palumbo asked if anything was wrong, he was told: " 'No, no, we just left them a message.' " Roche and Heimer never told Palumbo what had happened.
Palumbo also testified Roche shot the gun inside of his residence because he was mad at his landlord. Palumbo denied firing a weapon in Grace's presence and wearing a bullet casing around his neck.
Palumbo testified he gave the note to Pierson because people were lying and setting him up for the murder charge. Palumbo wanted Pierson to tell these people to stop lying; he did not instruct Pierson to threaten or harm these people.
DISCUSSION
I. Finding of Degree of Murder
Relying on section 1157 and long-standing caselaw interpreting the section, Palumbo contends his conviction must be reduced from first degree murder to second degree murder because the verdict form did not specify the degree of murder. As we shall explain below, we reject the contention because under the circumstances presented in this felony murder case section 1157 was not applicable.
A. Introduction and General Overview of Section 1157
Section 1157 provides:
"Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
Section 1192 is a parallel provision, which requires a specific finding of degree when there is a guilty plea or a court trial. Section 1192 reads: "Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
Regarding section 1157, our Supreme Court has declared the jury in a criminal case is required to determine the degree of the crime and if it does not, the offense is deemed to be of the lesser degree. (People v. McDonald (1984) 37 Cal.3d 351, 379-383, 208 Cal.Rptr. 236, 690 P.2d 709; see also People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 73, 2 Cal.Rptr.2d 389, 820 P.2d 613.) Absent an explicit finding on degree, "[T]he statute applies to reduce the degree even in situations in which the jury's intent to convict of the greater degree is demonstrated by its other actions, i.e., by signing a subsequent verdict form [citation] or making a finding on an enhancement [citation]. Contrary to respondent's assertion, the key is not whether the 'true intent' of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of the statute turns only on whether the jury specified the degree in the verdict form. In the present case the verdict form failed to specify the degree; in the absence of such specification, the jury's finding on the special circumstance allegation is irrelevant and the conviction must be deemed second degree murder as a matter of law pursuant to the unambiguous language of section 1157." (People v. McDonald, supra, 37 Cal.3d at p. 382, 208 Cal.Rptr. 236, 690 P.2d 709; see also People v. Superior Court (Marks), supra, 1 Cal.4th at p. 73, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
For more than a century, California courts have consistently applied section 1157 and its predecessor statutes (Crimes & Punishment Act of 1850 (Stats. 1850, ch. 99, § 21, p. 231) amended in 1856 (Stats. 1856, ch. 139, § 2, p. 219)) to require jury specification of the degree of a charged crime when that crime is divided into degrees. (See, e.g., People v. Campbell (1870) 40 Cal. 129; People v. Dailey (1996) 47 Cal.App.4th 747, 55 Cal.Rptr.2d 171.) Before 1950, reviewing courts routinely would set aside a verdict that did not make a finding of degree as to a crime distinguished by degrees, reverse the judgment and remand for a new trial. (See People v. Dixon (1979) 24 Cal.3d 43, 51, 154 Cal.Rptr. 236, 592 P.2d 752 and cases cited therein.) In 1949, the Legislature amended section 1157 to include a remedy that eliminated the need for a new trial: if a jury returned an incomplete verdict, the degree of the crime for which the defendant was found guilty will be deemed to be the lesser degree. (Stats.1949, ch. 800, § 1, p. 1537.)
Section 1157 was amended in 1951 to make the statute applicable to court trials as well as jury trials (Stats.1951, ch. 1674, § 109, p. 3849), and in 1978 to make the statute applicable to attempts to commit a crime that is distinguished into degrees (Stats.1978, ch. 1166, § 4, p. 3771).
Throughout its history, section 1157 has been applied by the courts in a "formalistic" fashion. (People v. Bonillas (1989) 48 Cal.3d 757, 802, 804, 257 Cal.Rptr. 895, 771 P.2d 844 (conc. opn. of Arguelles, J.).) Put another way,
"The operation of this proviso is categorical and conclusive, 'even in situations in which the jury's intent to convict of the greater degree is demonstrated by its other actions....' [Citation.]" (People v. Superior Court (Marks), supra, 1 Cal.4th at p. 73, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
Notwithstanding the long-standing rigid judicial interpretation of section 1157, we take up the issue once again in view of the particular circumstances presented here.
B. How This Case Was Prosecuted and Tried
A review of the murder count (count 1) in this case--including the manner in which it was charged, the theories advanced, the court's instructions, counsels' arguments and the verdict--clearly show the sole theory of murder was first degree felony murder.
Palumbo was charged with "willfully and unlawfully murder[ing] DARRELL RAY HAWKINS JR., a human being, in violation of PENAL CODE SECTION 187(a)." In connection with this count, the amended information alleged, among other things, the murder "was committed by defendant(s) JOHN MICHAEL PALUMBO ... while the said defendant(s) was/were engaged in the commission and attempted commission of the crime of robbery, in violation of Penal Code section 211, within the meaning of Penal Code section 190.2(a)(17)."
The jury was instructed pursuant to CALJIC No. 8.10 that "[e]very person who unlawfully kills a human being during the commission of or attempted commission of robbery is guilty of the crime of murder in
No jury instruction on second degree murder was given.
The jury's verdict on the murder count read:
"We, the jury in the above entitled cause, find the defendant, JOHN MICHAEL PALUMBO, Guilty of the crime of MURDER, in violation of Penal Code section 187(a), as charged in Count One of the Information.
"VICTIM: DARRELL RAY HAWKINS, JR.
"W27
"And further we find, the allegation that the murder of DARRELL RAY HAWKINS, JR., was committed by defendant JOHN MICHAEL PALUMBO while the said defendant was engaged in the commission and attempted commission of the crime of Robbery, in violation of Penal Code section 211, within the meaning of Penal Code Section 190.2(a)(17), to be True."
Although the apparent intention of the jury was to find Palumbo guilty of first degree felony murder, the verdict form merely stated Palumbo was guilty of murder. As recited above in Part I.A., ante, under the overwhelming jurisprudence surrounding section 1157, the lack of jury specification as to the degree of murder is controlling no matter how strongly one can infer that the jury's intent was to find Palumbo guilty of first degree murder. We do not quibble with such authority.
However, we seek to explore the applicability of section 1157 in a case prosecuted solely on a theory of felony murder, which, as a matter of law, can be only first degree murder.
C. Analysis
Murder is the unlawful killing of a human being or a fetus with malice aforethought. (§ 187, subd. (a).) Section 189 classifies murder as either first degree or second degree. For purposes of this case, "[a]ll murder which is ... committed in the perpetration of, or attempt to perpetrate ... robbery ... is murder of the first degree." (§ 189.)
Application of section 1157 in a strict felony murder case, where no other murder theory is presented, to reduce a verdict without a specified degree to second degree murder is inconsistent with section 189, which defines felony murder as first degree murder. In other words, felony murder can only be first degree murder. Section 189 as applied to this case is incongruous with section 1157 and its remedy of reduction to second degree for failure to specify on the verdict form. There is no sensible basis to do so for the application of section 1157 here would render section 189 void. Courts should avoid interpretations of statutes that lead to absurd results. (People v. Aston (1985) 39 Cal.3d 481, 492, 216 Cal.Rptr. 771, 703 P.2d 111.)
Another rule of statutory construction also comes into play. There is no doubt that section 1157 is a statute of general application (People v. Superior Court (Marks), supra, 1 Cal.4th at p. 71, fn. 12, 2 Cal.Rptr.2d 389, 820 P.2d 613) while section 189 is a specific statute. To the extent two statutory provisions conflict, the specific statute must take precedence over the general one. (People v. Gilbert (1969) 1 Cal.3d 475, 479-481, 82 We also observe the rationale of section 1157 is fully inapplicable in a strict felony murder case because the issue of degree is not in doubt: felony murder can only be first degree murder. (§ 189.) Thus, to apply section 1157 in a case such as this where the crime can only be first degree murder would, in a sense, be analogous to endorsing and approving an unauthorized sentence. A sentence is unauthorized where it could not lawfully be imposed under any circumstance in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040; cf. In re Birdwell (1996) 50 Cal.App.4th 926, 930-931, 58 Cal.Rptr.2d 244 [finding defendant's failure to raise issue below when verdict did not specify first degree murder did not constitute waiver because under section 1157 first degree murder was unauthorized sentence].) Surely, the law does not--and cannot--endorse the imposition of an unauthorized sentence, which is an act that is in excess of a court's jurisdiction.
For all of the above reasons, we conclude section 1157 should not be applied to this felony murder case.
We are aware that recently another Court of Appeal (First Dist., Div. Five) in People v. Mendoza (1997) 59 Cal.App.4th 1095, 69 Cal.Rptr.2d 664 review granted March 25, 1998 (S067104) refused to apply section 1157 to reduce a first degree murder conviction to second degree murder because no degree was specified on the verdict form under a different theory: application of section 1157 is subject to a harmless error test under California Constitution, article VI, section 13.
D. Issue of Stare Decisis
As indicated above, we are mindful that our high court has almost invariably applied section 1157 to reduce a crime distinguished by degrees to a lower degree if the verdict form does not specify the degree. We are also mindful that, as an intermediate appellate court, we are compelled to adhere to the law as set forth by our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 (Auto Equity ).) Indeed, Palumbo argues that under Auto Equity, supra, and Supreme Court precedent on section 1157, we must reduce his first degree murder conviction to second degree murder.
We disagree; we are not circumventing the principles of stare decisis because our Supreme Court has not considered the issue in the context of a felony-murder case that can only be first degree murder as a matter of law under section 189. Decisions of our Supreme Court are not controlling authority for propositions not considered. (People v. Superior Court (Marks), supra, 1 Cal.4th at pp. 65-66, 2 Cal.Rptr.2d 389, 820 P.2d 613.)
None of the Supreme Court precedent on section 1157 has held in a felony-murder case that the statute requires an explicit finding of degree in a situation such as this one, where the only possible verdict was for felony murder, which can only be first degree murder as a matter of law. For example, People v. Campbell, supra, 40 Cal. 129 was not a felony-murder case because there was no predicate felony. In People v. Superior Court (Marks ), supra, 1 Cal.4th at page 62, footnote 3, 2 Cal.Rptr.2d 389, 820 P.2d 613, there was no predicate felony, so there could be no conviction for felony murder.
In People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, which was solely a robbery and kidnapping case, there was no felony-murder conviction, because the defendant was not found guilty of, or even charged with, murder.
People v. McDonald, supra, 37 Cal.3d at page 355, 208 Cal.Rptr. 236, 690 P.2d 709, a felony-murder case is distinguishable because while the jury found the murder occurred while the defendant was engaged in the commission of a robbery, the jury also acquitted the defendant of the robbery that formed the basis of the special circumstance allegation. Moreover, the jury in People v. McDonald, supra, at page 379, 208 Cal.Rptr. 236, 690 P.2d 709, was instructed it must unanimously agree whether the defendant was guilty of murder in the first degree--an instruction not given here. To our thinking, the reason there is no Supreme Court precedent that requires a verdict specification of degree in a felony murder situation such as this, where the only possible result was for acquittal or conviction, is that felony murder is first degree murder as a matter of law under section 189, and it cannot be "distinguished into degrees" by a jury, no matter how the jury was instructed.
In People v. Bonillas, supra, 48 Cal.3d 757, 257 Cal.Rptr. 895, 771 P.2d 844, a felony murder case, the issue was whether the trial court could reconvene the jury for the purpose of correcting the jury's omission of the degree of murder and complete its verdict by specifying the degree. The jury had not been discharged, but excused pending the penalty phase of the trial. (Id. at p. 768, 257 Cal.Rptr. 895, 771 P.2d 844.) When the jury was reassembled, it was provided with two verdict forms, one finding murder to be in the first degree and one finding the murder to be in the second degree; the jury returned a finding that the murder was first degree. (Ibid.) The Supreme Court upheld the first degree verdict, holding the trial court was authorized to have the jury reconvened prior to the penalty phase and fix the degree of murder. (Id. at p. 770, 257 Cal.Rptr. 895, 771 P.2d 844.)
We note, however, a case from this court, People v. Williams (1984) 157 Cal.App.3d 145, 154, 203 Cal.Rptr. 562, containing the following language referencing sections 1157 and 1192: "The statutes also apply even if the court or jury returns a specific finding which would warrant a conviction of the higher degree as a matter of law," is arguably in conflict with our holding here. As we shall explain, the language in People v. Williams, supra, was dicta; it was not only unnecessary but also inapplicable to the decision reached in the case.
The defendant in People v. Williams, supra, 157 Cal.App.3d at pages 148-149, 203 Cal.Rptr. 562, who raped and murdered a girl while burglarizing the apartment, entered a "slow plea" based on the preliminary hearing transcript. In finding the defendant guilty of murder, the trial court said: " 'In Count 1 of the Information, I'm going to find the Defendant guilty as charged in Count 1, on the Amended Information, murder, a violation of Section 187 of the Penal Code' "; the information alleged the defendant murdered the victim with malice aforethought in violation of section 187. (Id. at p. 154, 203 Cal.Rptr. 562.) The court also found true special circumstances based on the rape and burglary. (Id. at p. 149, 203 Cal.Rptr. 562.)
Putting aside the felony murder rule, first degree murder differs from second degree murder because the former includes a finding of premeditation and deliberation. (§ 189.) The information in Williams did not contain any reference to premeditation and deliberation; rather the information merely mentioned "malice aforethought," which does not distinguish first degree murder from second degree murder but more accurately is an element of murder. (§ 187, subd. (a).) Thus, People v. Williams, supra, was not a case in which the only crime was first degree murder as a matter of law. Rather, it was a case in which the intent of the trier of fact to make a first degree murder finding could be inferred from the court's determinations on the special circumstances allegations. We held under section 1157 an implied finding cannot be substituted for an explicit finding of degree. (People v. Williams, supra, 157 Cal.App.3d at pp. 154-155, 203 Cal.Rptr. 562.) As indicated above, we continue to subscribe to that reading of the law. Our decision is not in conflict with our earlier opinion in People v. Williams, supra, 157 Cal.App.3d 145, 203 Cal.Rptr. 562.
See footnote 1, ante.
DISPOSITION
Affirmed.
HUFFMAN, Acting P.J., and McINTYRE, J., concur.
In her closing argument in favor of first degree murder, the prosecutor told the jury it need not consider any theory other than the felony murder theory.