Opinion
As Modified Nov. 19, 1982.
Hearing Granted January 27, 1983.
Opinions on pages 942-991 omitted.
HEARING GRANTED
[186 Cal.Rptr. 652]George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.
Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Handy Horiye, Deputy State Public Defender, for defendant and appellant.
WIENER, Associate Justice.
James Hardy Smith, III appeals the judgment entered on jury verdicts convicting him of murder in the first degree (Pen. Code, §§ 187, 189) during the commission of a robbery (§ 211) and kidnapping for the purpose of robbery (§ 209, subd. (b)) alleged as special circumstances (§ 190.2, subds. (a)(17)(i) and (ii)) and as independent counts. The jury also found Smith was armed within the meaning of section 12022, subd. (a) but he did not personally use the firearm under section 12022.5. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND
Before July, 1980, Michelle Kruse worked as a masseuse at an Escondido massage parlor owned and operated by William Hawthorne. When Kruse told Hawthorne she was quitting her job in mid-July, Hawthorne refused to pay her $75 of the amount she was owed.
Angry and upset, Kruse told her boyfriend Charles (Butch) Fleck about the incident. She reported Hawthorne appeared to carry thousands of dollars with him in a money belt and complained he had little reason to deny her the $75. Fleck became angry and wanted to confront Hawthorne and force him to pay Kruse the money, but Kruse dissuaded him. She was concerned about Fleck getting into trouble since he had only recently been released from prison on parole.
A few weeks later on August 7, Fleck and several friends gathered at his Escondido apartment to drink beer. The friends included defendant James (Sonny) Smith, whom Fleck had met while in prison. One of the other individuals present, David Wildasin, heard Fleck suggest to Smith the possibility of robbing a man with a money belt.
Smith spent the night of August 7 at Fleck's apartment. Kruse testified that on the morning of August 8 Smith remarked about needing some money. Fleck suggested a robbery of Hawthorne would allow them to get back Kruse's $75 plus some additional money the three could split. Kruse then left to take a shower. When she returned, she saw a pistol lying on the bed. She inquired about it because she was frightened, but Smith told her not to worry since the gun was only to be used to scare Hawthorne. He then showed her it was not loaded. Kruse testified that on leaving the apartment, Smith placed the revolver in his waistband.
Smith's version of the morning's events was somewhat different. He admitted a discussion regarding getting money from Hawthorne, but asserted it related only to the $75 owed to Kruse. Smith testified Fleck left at one point and returned with a pistol and holster wrapped in a newspaper. Smith asked what the gun was for and Fleck replied it was to "scare" Hawthorne. Smith indicated he did not like guns, examined the revolver, unloaded it, put the bullets in a jar, and gave it back to Fleck.
Smith, Fleck and Kruse then left to obtain a ski mask or masks, presumably for use in the robbery. They first checked with Ron Thompson, a friend of Fleck. Thompson testified Fleck explained their plan to rob Hawthorne of several thousand dollars while Smith listened. Smith testified he remained behind when Fleck talked to Thompson and did not hear the conversation. In any case, Thompson did not have a ski mask so Fleck, Smith and Kruse went to a nearby store. Kruse testified they bought two masks; Smith stated they bought one.
Between 5:00 and 5:30 p.m., Kruse drove Fleck and Smith to an alley near Hawthorne's massage parlor. She testified Smith left the car carrying the pistol and Fleck carried a tire iron. Smith maintained he carried the tire iron and that Fleck had the revolver.
Kruse then left and returned home. The only testimony regarding the details of the robbery and the events which followed came from Smith. He testified Fleck instructed him to remain across the alley with the tire iron while Fleck waited with the pistol by Hawthorne's van which was parked behind the massage parlor. Smith's function was to ward off anyone coming up the alley. Neither Fleck nor Smith was wearing a mask.
Hawthorne came out of the massage parlor and got into the van. Fleck approached him and forced him at gunpoint into the back of the van. Fleck rolled down the window and called to Smith to "[g]et your fucking ass over here." When Smith approached, Fleck told him to drive the van. Smith protested that he just wanted to leave but Fleck insisted. Smith testified he was "scared shitless" and believed Fleck might shoot him if he did not comply.
[186 Cal.Rptr. 654]Smith got in and drove the van while Fleck gave directions. Smith was so upset he scraped the passenger side of the van against a truck while leaving the alley. Fleck directed Smith to a deserted area of North Escondido. Fleck tied Hawthorne's hands behind him with some antenna wire he found in the van. After searching Hawthorne for money, Fleck got out of the van and directed Hawthorne at gunpoint over the top of a small hill nearby. Fleck told Smith he was going to tie up Hawthorne and leave him where he would be found in a couple of hours. Smith waited in the van. Several minutes later he heard a gunshot. He alternately walked and ran up the hill and discovered Fleck standing over Hawthorne's body holding the gun. Smith asked Fleck what happened and Fleck replied, "The fucking asshole." Shaken, Smith ran back to the van followed by Fleck. As Fleck drove, Smith threw the tire iron out the passenger side window. (See post, fn. 2.)
They drove to Fleck's apartment and met Kruse. She testified she asked if they did it, to which Smith replied they had, but that it had not been worth it. According to Kruse, Fleck and Smith each took $300 from the robbery. According to Smith, he, Kruse and Fleck each received $132. They later abandoned Hawthorne's van in Escondido.
Hawthorne's body was discovered several days later as was his van. Fleck was arrested on August 21 and Smith was arrested a day later. After his arrest, Smith gave a tape recorded statement to police in which he admitted planning and participating in the robbery. He denied any involvement in the shooting itself and the details of the incident closely matched his trial testimony. In addition, while he was in jail, Smith discussed the crime with a fellow inmate, Lawrence Warfel. Warfel testified at trial that Smith's story to him basically matched Smith's trial testimony except that Smith had mentioned nothing about believing Fleck would shoot him if Smith did not drive the van.
Smith's statements to Warfel allowed sheriff's deputies to retrieve the tire iron at approximately the point Smith said he threw it out the window.
Kruse testified she asked Fleck who shot Hawthorne and Fleck told her it was Smith. She confronted Smith with this allegation while visiting him in jail. According to her testimony, Smith nodded that he had shot Hawthorne, but stated it was a "total accident and everybody would be surprised."
Smith and Fleck were charged with robbery (§ 211), kidnapping for the purpose of robbery (§ 209, subd. (b)) and murder (§§ 187 and 189). As to the murder, two special circumstances were alleged: murder in the course of robbery (§ 190.2, subd. (a)(17)(i)) and murder in the course of kidnapping (§ 190.2, subd. (a)(17)(ii)). In addition it was alleged that both defendants were armed with and personally used a firearm as to all three substantive counts. (§§ 12022, subd. (a) and 12022.5.) Prior convictions and prison terms were also alleged as to both Smith and Fleck. (§ 667.5, subd. (b).)
Smith was tried separately after Fleck's severance motion was granted. The jury found him guilty of robbery, kidnapping and first degree murder and determined both special circumstance allegations to be true. Although the jury found Smith was armed with a firearm within the meaning of section 12022, subdivision (a), it concluded he did not personally use a firearm in the commission of any of the crimes. (See § 12022.5.)
Because the special circumstance allegations were found to be true, Smith was subjected to a separate penalty phase trial to determine whether he should suffer the death penalty. (See §§ 190.3 and 190.4.) The jury chose the lesser alternative, fixing the punishment at life imprisonment without possibility of parole. Sentences on the robbery and kidnapping convictions and related enhancements were stayed pursuant to section 654.
DISCUSSION
I
Smith's initial contentions focus on the admission of his taped statement given [186 Cal.Rptr. 655] to sheriff's deputies following his arrest. He alleges the transcript of the statement demonstrates he did not knowingly, intelligently and voluntarily waive his Miranda rights before talking to the deputies. (See Miranda v. State of Arizona [1966] 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) And even if his statements on the tape are admissible, Smith contends the court erred in not excising certain portions of the tape during which the deputies were playing a portion of Fleck's tape-recorded statement for Smith to hear. Smith argues the failure to eliminate these portions violated his Confrontation Clause rights under People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. Recognizing his trial counsel's failure to object to the admission of any part of the taped statement would normally bar his raising these issues on appeal, Smith asserts such a failure constitutes a denial of his Sixth Amendment right to effective assistance of counsel. (See People v. Pope [1979] 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)
Smith's Miranda -related arguments focus on two separate occurrences during the interview. At the outset of the questioning, after the required Miranda admonition, Smith replied, "Um-hmm yeah. If I want an attorney, I got to wait all day...." Smith contends this statement was sufficient to invoke his Miranda rights and halt questioning while an attorney was obtained. (See and compare People v. Degner [1982] 131 Cal.App.3d 1049, 1053, 184 Cal.Rptr. 179.) Smith's second argument, although phrased in terms of an additional Miranda contention, is in essence a complaint that his statements were involuntarily obtained based on implied promises of leniency if Smith would admit participation in the robbery but identify Fleck as a triggerman. He explains the police erred in [186 Cal.Rptr. 656] stating that his punishment would be less severe if he were only involved in the robbery because these statements ignored the operation of the felony-murder rule coupled with the application of California's death penalty statutes pursuant to which admission of the robbery is tantamount to the admission of first degree murder with special circumstances. (See People v. Johnson (1969) 70 Cal.2d 469, 478-479, 74 Cal.Rptr. 889, 450 P.2d 265.)
After Smith's statement, the conversation continued as follows:
The transcript of the taped interrogation reads in relevant part as follows:
Interestingly, even if the deputies' statements were legally inaccurate, they are probably correct as a practical matter. As the U.S. Supreme Court noted recently in Enmund v. Florida (1982) --- U.S. ----, ----, 102 S.Ct. 3368, 3375, 73 L.Ed.2d 1140:
We need not decide either substantive contention since we have concluded that even if they are correct, Smith has failed to demonstrate ineffective assistance of counsel on this record. Although incriminating, the tape-recorded statements paint a not-unsympathetic portrait of Smith as an essentially nonviolent individual unsuspectingly caught in Butch Fleck's violent enterprise. Since the substance of Smith's admissions would have been presented to the jury in any event by way of Lawrence Warfel's testimony, defense counsel may well have concluded that admission of the tape would help Smith more than it would hurt him. In the absence of additional evidence casting light on counsel's motivations, Smith has failed to meet his burden of demonstrating ineffective assistance of counsel. (See People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)
For similar reasons, we do not think the trial counsel erred as a matter of law in allowing the jurors to receive copies of the transcript of Smith's statements.
Smith's final argument with respect to the taped statement involves counsel's failure to request excision of that portion of the tape containing Fleck's taped accusation that Smith fired the fatal shot. But the record reveals trial counsel's decision not to object was based on his evaluation that Fleck's statements were unintelligible. In any case, the trial judge was careful to admonish the jury to "... disregard anything they think they hear with respect to the tape that is being played as to the individual who is making this tape. Personally, I can't understand any of it. I doubt you could understand any of it. I see most of you are shaking your heads. [p] But in the event you thought you did catch a word [186 Cal.Rptr. 657] or two, please disregard it. We are not supposed to listen to the tape played of somebody else, just the tape played of the conversation with Mr. Smith." Having listened to the tape ourselves, we are of the view that such admonition cured any possible prejudice flowing from the failure to excise Fleck's statements.
II
Smith next makes two claims of instructional error regarding the trial court's sua sponte duty to instruct under People v. Flannel (1979) 25 Cal.3d 668, 680-681, 160 Cal.Rptr. 84, 603 P.2d 1 and People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913. (See also People v. Wickersham [1982] 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311.) In Flannel, the court noted "... that even in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. 'The most rational interpretation of the phrase "general principles of law governing the case" would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court.' " (Id., 25 Cal.3d at pp. 680-681, 160 Cal.Rptr. 84, 603 P.2d 1, quoting People v. Wade [1959] 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116; fn. omitted, italics in original.) In distinguishing the court's obligation to give requested instructions, the court in Sedeno stated that the sua sponte duty arises "... only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)
The distinction may have been clouded by language in Flannel suggesting that the court's duty to give requested instructions applies only where there is supporting evidence "substantial enough to merit consideration." (25 Cal.3d at p. 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.) A literal comparison of Flannel and Sedeno would suggest that the only time a defendant must request an instruction is when the instruction, although supported by substantial evidence, is inconsistent with his theory of the case.
Relying on his testimony that he believed Fleck was merely seeking to get back the $75 which Hawthorne owed to Kruse, Smith contends the trial court should have instructed the jury that an honest but mistaken belief in the right to reclaim wrongfully withheld property negates the specific intent necessary to constitute a robbery. (See People v. Butler [1967] 65 Cal.2d 569, 573, 55 Cal.Rptr. 511, 421 P.2d 703.) Smith also points to his testimony regarding his belief that Fleck might shoot him if he didn't drive the van and argues the court erred in failing to instruct that an honest but unreasonable belief Smith was under duress might be sufficient to negate the specific intent to steal necessary to sustain the convictions for robbery and kidnapping for the purpose of robbery and the specific intent to commit the underlying felony necessary for application of the felony-murder rule. (Cf. People v. Flannel, supra, 25 Cal.3d at pp. 674-680, 160 Cal.Rptr. 84, 603 P.2d 1.)
As to the mistaken belief in the right to reclaim the $75 Hawthorne owed to Kruse, we assume for the purposes of our discussion that the trial court was obligated to instruct sua sponte that such a belief, if possessed by Smith, could negate the specific intent to steal necessary to convict Smith of robbery. We nevertheless cannot conclude such instructional error was prejudicial. Three witnesses testified to overhearing Smith and Fleck discuss plans to rob Hawthorne of several thousand dollars. Smith's own statement to police admitted Fleck mentioning such an amount. And, of course, Smith admitted the actual robbery [186 Cal.Rptr. 658] proceeds were something greater than $390. Under such circumstances we cannot conclude there exists a reasonable probability a result more favorable to Smith would have been reached in the absence of the error. (People v. Watson [1956] 46 Cal.2d 818, 836, 299 P.2d 243; see People v. Murtishaw [1981] 29 Cal.3d 733, 765, mod. 29 Cal.3d 836a, 175 Cal.Rptr. 738, 631 P.2d 446.)
Such an assumption is not unreasonable in that the only factor mitigating Smith's admitted participation in the robbery was his belief as to the $75. The alleged duress only came into play after the commission of the robbery had begun. It would thus appear Smith was relying on his mistaken belief as his only defense to robbery. (See People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)
Smith's alleged honest but unreasonable belief in duress is another matter. Although admitting the jury was properly instructed on the complete defense of duress (see CALJIC No. 4.40), Smith relies by analogy on People v. Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, which involved a claim that an honest but unreasonable belief by the defendant that his life was in danger negated the malice necessary to sustain defendant's murder conviction. The court reviewed past precedent discussing this so-called "imperfect self-defense" claim, but concluded that the obscurity of its legal basis would not support a conclusion the trial had a sua sponte duty to anticipate the Flannel holding. (Id., at pp. 681-682, 160 Cal.Rptr. 84, 603 P.2d 1.) Here, although Flannel provides support for Smith's contention, that case does not hold an honest but unreasonable belief always negates a specific intent element of the crime charged.
We accept Smith's contention that an honest but unreasonable belief as to duress may negate the specific intent necessary for robbery and kidnapping for the purpose of robbery. But for the reasons stated in Flannel, given the absence of precedent providing direct support, this proposition does not rise to the level of a sua sponte duty in this case. (See 25 Cal.3d at pp. 681-682, 160 Cal.Rptr. 84, 603 P.2d 1.) Furthermore, the failure to so instruct, even if error, could not be deemed prejudicial in view of the fact that Smith's taped statement and his discussion with jail inmate Lawrence Warfel did not mention any aspect of duress. (See People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243; People v. Murtishaw, supra, 29 Cal.3d at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446.)
As in Flannel, we are of the view that the discussion of the issue in this case gives rise to a sua sponte duty in future cases whenever the evidence suggests an honest belief, which if reasonable, would absolve the defendant of liability for the charged crime. Under such circumstances, an honest but unreasonable belief may negate the appropriate specific intent element.
As we noted previously (ante, fn. 8) Smith's belief as to duress would not affect his robbery conviction since Fleck's alleged implied threats occurred while the robbery was in progress.
III
Smith argues the jury should have been instructed pursuant to CALJIC Nos. 2.71.5 and 6.24 before they were allowed to consider hearsay statements made by Butch Fleck which tended to show Smith's knowledge of the plan to rob Hawthorne. In [186 Cal.Rptr. 659] order for the statements to have been considered, either on the theory of an adoptive admission or a statement in furtherance of a conspiracy, the jury was required to make certain preliminary findings, i.e., could defendant reasonably be expected to respond to the incriminating statements or were the statements made during and in furtherance of an ongoing conspiracy? The trial court erred in failing to so instruct the jury.
CALJIC No. 2.71.5 reads as follows:
Although error, we think the court's failure was not prejudicial. With respect to statements made in the course of an ongoing conspiracy, there would appear to be more than abundant evidence indicating Smith and Fleck were coconspirators planning a robbery at the time Fleck made the statements. In addition, Smith's own statements to Warfel and the sheriff's deputies indicated knowledge of the plan during the relevant period of time. A different result was not reasonably probable in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
IV
Smith testified at trial that he had previously been convicted of two second degree burglaries involving uninhabited structures (see § 459) to establish his character for nonviolence and support his testimony that he believed Fleck's revolver was unloaded when they embarked on the robbery. The trial court instructed pursuant to CALJIC No. 2.20, "The fact that a witness has been convicted of a felony may be considered by you; however, only for the purpose of determining the credibility of that witness." Smith contends this instruction was erroneous since he was entitled to rely on the past felony convictions for the purpose of showing relatively good character.
Operation of the felony-murder rule, however, makes evidence of Smith's nonviolent intent generally irrelevant for all purposes other than determination of penalty. There is no credible evidence suggesting Smith did not intend to rob Hawthorne. Once a robbery is established, the felony-murder rule makes any killing in the course of the robbery a murder, and section 189 mandates that such murder is of the first degree. Section 190.2, subdivision (a)(17)(i) makes any first degree murder committed during a robbery subject to a minimum penalty of life imprisonment without possibility of parole. Thus, even if the jury accepted the evidence of Smith's nonviolent propensities, the facts of this case demonstrate a first degree special circumstance murder under current law. While the court erred in giving CALJIC No. 2.20, the error was not prejudicial. (See People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)
The jury apparently did accept Smith's nonviolent character and believe his testimony as to his lack of involvement in the actual killing since they specifically found Smith did not personally use a firearm in the commission of the crime.
V
Smith next contends the trial court erred in failing to instruct the jury pursuant to paragraph 2 of CALJIC No. 8.81.17 which prohibits a special circumstance finding of murder in the course of an enumerated felony (see § 190.2, subd. (a)(17)) if the other felony "was merely incidental to the commission of the murder." Smith argues [186 Cal.Rptr. 660] the jury could have found Fleck killed Hawthorne for a purpose other than furthering the commission of the robbery/kidnapping, i.e., because Fleck detested Hawthorne due to his treatment of Fleck's girlfriend, Michelle Kruse.
The complete text of CALJIC No. 8.81.17 (1980 rev.) reads as follows:
Paragraph 2 of the instruction finds its genesis in People v. Green (1980) 27 Cal.3d 1, 60-62, 164 Cal.Rptr. 1, 609 P.2d 468. Green involved a defendant who stripped the body of his murder victim and later burned the clothes and personal articles in an effort to prevent detection. Relying on the language of former Penal Code section 190.2, the court concluded the case involved not a "murder in the commission of a robbery" but rather a "robbery in the commission of a murder." (Id., at p. 60, 164 Cal.Rptr. 1, 609 P.2d 468.) Noting that the purpose of the statutory "special circumstances" was to "... provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not," the court stated, "[I]t would not rationally distinguish between murderers to hold that this defendant can be subjected to the death penalty because he took his victim's clothing for the purpose of burning it later to prevent identification, when another defendant who committed an identical first degree murder could not be subjected to the death penalty if for the same purpose he buried the victim fully clothed--or even if he doused the clothed body with gasoline and burned it at the scene instead." (Id., at p. 61, 164 Cal.Rptr. 1, 609 P.2d 468, fns. omitted.)
The applicable statutes in Green required a finding that "... the defendant committed a 'willful, deliberate and premeditated' murder 'during the commission' of a robbery or other listed felony. (Former § 190.2, subd. (c)(3).)" (27 Cal.3d at p. 61, 164 Cal.Rptr. 1, 609 P.2d 468.) The court could thus conclude such a special circumstance finding rationally singled out for more severe treatment "those defendants who killed in cold blood in order to advance an independent felonious purpose." (Ibid., italics added.)
The Attorney General correctly points out this is not a Green -type case in that the robbery was not committed in order to cover up the murder. Nevertheless, if during the commission of a robbery or other enumerated felony one of the defendants decides to kill the victim for a purpose independent of the underlying felony, the spirit if not the letter of the Green court's decision would suggest the special circumstance finding cannot be sustained. Similarly, numerous courts have held the common law felony-murder rule inapplicable in situations where the killing is not causally related to or in furtherance of the underlying felony. (See especially People v. Wood [N.Y.1960] 8 N.Y.2d 48, 201 N.Y.S.2d 328, 332-333, 167 N.E.2d 736, 738-739; see also Commonwealth v. Campbell [1863] 89 Mass. (7 Allen) 541, 543-545; ct. People v. Washington [1965] 62 Cal.2d 777, 781, 44 Cal.Rptr. 442, 402 P.2d 130.)
Had Smith asked for the paragraph 2 instruction or something similar, we would be inclined to hold the trial court erred in failing to give it. But Smith's case indicated no apparent reliance on the theory and People v. Green, supra, although supportive of Smith's position, is by no means determinative of the issue. In addition, the evidence of an independent motive on Fleck's part, although present, was largely insubstantial. It being much more likely [186 Cal.Rptr. 661] Fleck killed Hawthorne to eliminate a witness to the robbery or at least that Fleck acted with concurrent motivations (see People v. Murtishaw, supra, 29 Cal.3d at p. 752, fn. 13, 175 Cal.Rptr. 738, 631 P.2d 446), the evidence of Fleck's independent motive was not of such a character as to alert a reasonably competent trial court to the issue presented. We are therefore unwilling to say the court erred in failing to instruct sua sponte that an independent homicidal purpose, if the sole motivation for Fleck's killing of Hawthorne, would eliminate Smith's liability for the murder and/or the special circumstance allegation.
VI
As to the first degree murder charge against Smith, the jury was instructed on two alternative theories: premeditated first degree murder and first degree felony-murder. Smith contends the trial court erred in instructing on premeditated first degree murder since the evidence before the jury was legally insufficient to sustain a conviction on that theory. He insists where a jury is instructed on two legal theories, one of which is not supported by the evidence, and the reviewing court cannot tell which theory the jury utilized, the conviction must be reversed. (People v. Green, supra, 27 Cal.3d at pp. 70-71, 164 Cal.Rptr. 1, 609 P.2d 468.)
We agree with Smith as to the sufficiency question. The only evidence directly connecting Smith with the killing of Hawthorne was the testimony of Michelle Kruse to the effect that Smith was carrying the revolver shortly before the robbery and that Smith admitted to her he pulled the trigger. But the jury clearly rejected Kruse's testimony in finding Smith did not personally use the weapon, so any instructional error as to that evidence is of no moment.
It seems unlikely this evidence alone was sufficient to enable a reasonable trier of fact to conclude beyond a reasonable doubt that Smith was guilty of premeditated murder. (See People v. Johnson [1980] 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) Although credibility is generally a question for the jury, Kruse's status as an accomplice made her testimony suspect (see § 1111; People v. Gordon [1973] 10 Cal.3d 460, 471, 110 Cal.Rptr. 906, 516 P.2d 298) and she had numerous reasons to protect her boyfriend, Fleck. The testimony of Ron Thompson and David Wildasin corroborated Smith's testimony that Fleck was the motivating force behind the robbery. And with the exception of this alleged admission to Kruse, all of Smith's statements consistently denied any knowledge of or involvement with the killing itself.
But Smith counters that the instructions were such that the jury could have found Smith aided and abetted Fleck's premeditated murder of Hawthorne. To suggest such a conclusion, however, would be pure speculation. There was no evidence presented from which a jury could conclude that if Smith was not the triggerman, he nonetheless aided Fleck's preconceived design knowing of Fleck's intent to kill Hawthorne. (Compare People v. Houts [1978] 86 Cal.App.3d 1012, 1019, 150 Cal.Rptr. 589.)
Aiding and abetting instructions (see CALJIC Nos. 3.00 and 3.01) were given and erroneously not limited to the robbery and kidnapping charges.
The Green rule is limited to situations in which the reviewing court cannot discern which theory the jury in fact relied upon, i.e., there must have been "ample reasons for the jury not to rely on the legally sufficient [evidence]." (27 Cal.3d at p. 71, 164 Cal.Rptr. 1, 609 P.2d 468.) Here we have no doubt but that the jurors reached their verdict by way of the felony-murder rule's imputation of malice. To require reversal under these circumstances necessitates an assumption the jury premised its verdict on a legal theory for which there was no evidentiary support and ignores the almost uncontradicted evidence of felony-murder. The error of which Smith complains resulted in no miscarriage of justice. (Cal.Const., art. VI, § 13; People v. Green, supra, 27 Cal.3d at p. 74, 164 Cal.Rptr. 1, 609 P.2d 468; cf. People v. Murtishaw, supra, 29 Cal.3d at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446.)
VII
Smith contends the case must be remanded to the trial court for resentencing [186 Cal.Rptr. 662] because that court was under the mistaken impression it had no discretion to sentence him to a term less than life imprisonment without the possibility of parole. Smith pursues two alternative theories. He first asserts a trial court pursuant to section 654 has discretion to stay a sentence imposing greater punishment and elect to impose sentence on a conviction carrying a lesser punishment. (People v. Mendevil [1978] 81 Cal.App.3d 84, 88, 146 Cal.Rptr. 65; People v. De Vaney [1973] 33 Cal.App.3d 630, 639, 109 Cal.Rptr. 276; People v. Wesley [1970] 10 Cal.App.3d 902, 911-912, 89 Cal.Rptr. 377; see also People v. Hood [1969] 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370.) He also argues the trial court has discretion to strike a special circumstance finding "in furtherance of justice." (§ 1385; see People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.)
The sentencing colloquy between counsel and the court reads as follows:
Despite the consistent approval of this practice in the cited cases, we have some concern that the ability of a trial court to impose a lesser sentence would turn on the fortuity that the course of criminal conduct engaged in by defendant happened to violate more than one statutory proscription. For instance, the crime of rape is punishable by a minimum term of three years in state prison. (§ 264.) First degree burglary is punishable by a minimum prison sentence of two years. (§ 461.) A trial court sentencing a defendant who burglarized a house and thereafter raped the occupant would have discretion to impose a two-year term for the burglary and stay the three-year term for rape. On the other hand, if the same defendant raped the same victim in her backyard, thus committing no burglary, the court would have no choice but to sentence the defendant to the minimum three-year term. We suggest the rationality of such a distinction is highly suspect.
We assume arguendo (see ante, fn. 18) the correctness of Smith's statement of the applicable legal principles. Nonetheless, in contrast to all the cases cited by Smith, the trial court here indicated no intention to exercise any discretion even if it believed such discretion existed. In fact, the court specifically stated it was imposing sentence "... believing and being advised that the suggested term as set forth in the probation officer's report on page 8 is the correct term ...." (See ante, fn. 17.) We think it necessary at a minimum for a defendant to point to factual support in the record giving rise to an inference the trial court would reduce the term imposed if the case were remanded. (Compare People v. Williams, supra, 30 Cal.3d at p. 477, 179 Cal.Rptr. 443, 637 P.2d 1029.) Smith has brought no such fact to our attention.
VIII
Smith contends, and the Attorney General concedes, Smith was not properly advised of his constitutional rights before admitting several prior convictions and prison terms within the meaning of section 667.5, subdivision (b). (See In re Yurko (1974) 10 Cal.3d 857, 863-864, 112 Cal.Rptr. 513, 519 P.2d 561.) The proper remedy under such circumstances is a remand to the trial court for a limited hearing on the truth of the priors. (People v. Hickey (1980) 109 Cal.App.3d 426, 437, 167 Cal.Rptr. 256.) Although such a hearing is largely academic in this case since the section 667.5 priors were stayed pursuant to section 654, we see no alternative disposition. [186 Cal.Rptr. 663]
Ideally, we might prefer a procedure where Smith's ability to request such a hearing would be postponed until such time as he is actually facing the possibility of serving a prison term for the section 667.5 enhancements.
IX
The issues addressed under the last three headings are currently before the California Supreme Court in one form or another. In his first argument, Smith asserts the jury selection process used in this case denied him a jury drawn from a "representative cross-section of the community." (People v. Wheeler [1978] 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748; see also Taylor v. Louisiana [1975] 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690.) He points to two facts in support of his assertion. He first contends the exclusion for cause of four prospective jurors under the standards set out in Witherspoon v. State of Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 was erroneous because the exclusion was not limited to the penalty phase of Smith's trial and there is no sufficient state interest supporting their exclusion from the guilt phase. (See Hovey v. Superior Court [1980] 28 Cal.3d 1, 17-18, fn. 38, 168 Cal.Rptr. 128, 616 P.2d 1301.) He also argues the prosecutor's use of peremptory challenges to exclude several jurors who may have been qualified to serve under Witherspoon standards denied him a cross-sectional jury in both the guilt and penalty phases.
Both prongs of Smith's argument are currently before the Supreme Court in People v. Alcala (Crim. 21532, on automatic appeal) and People v. Fields (Crim. 21126, on automatic appeal).
Given the outcome of the penalty phase, any error to that extent, of course, did not prejudice Smith.
There are currently two theories by which a criminal defendant may challenge the composition of the jury chosen to judge him. He may attempt to show some aspect of the composition which makes the jury biased against him. (See Hovey v. Superior Court, supra, 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301.) Alternatively, he may try to prove the exclusion of some "cognizable group" has denied him a cross-sectionally representative jury. (People v. Wheeler, supra, 22 Cal.3d at p. 272, 148 Cal.Rptr. 890, 583 P.2d 748; see also Taylor v. Louisiana, supra, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Rubio v. Superior Court [1979] 24 Cal.3d 93, 97, 154 Cal.Rptr. 734, 593 P.2d 595.) In pursuing this latter route, a defendant need not show he is a member of the excluded "cognizable group" (Peters v. Kiff [1972] 407 U.S. 493, 503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (plurality opn. of Marshall, J.)) or even allege the exclusion biased the jury against him (Hovey, supra, 28 Cal.3d at pp. 13, 17-18, fn. 38, 168 Cal.Rptr. 128, 616 P.2d 1301).
These factors tempt one to view cross-sectional analysis as modified equal protection of the excluded group whose rights are vicariously asserted by the criminal defendant. This view finds some support in the equal protection roots of many cross-sectional cases. (See, e.g., Peters v. Kiff, supra, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83; see also Adams v. Superior Court [1974] 12 Cal.3d 55, 63, 115 Cal.Rptr. 247, 524 P.2d 375 [dis. opn. of Mosk, J.]; see also, Duren v. Missouri [1979] 439 U.S. 357, 370-371, 99 S.Ct. 664, 671-672, 58 L.Ed.2d 579 (dis. opn. of Rehnquist, J.).)
In arguing that the excusal for cause of four Witherspoon -excludable jurors denied him a representative cross-sectional jury, Smith necessarily contends that the state interest in the utilization of a single jury to decide both the guilt and penalty phases is inadequate to justify limiting the class of persons qualified to determine a murder defendant's guilt. A similar contention was rejected by the Supreme Court in People v. Thornton (1974) 11 Cal.3d 738, 753, 114 Cal.Rptr. 467, 523 P.2d 267 (overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1):
"The seating of persons who, although unable to impose the death penalty, might have been able to render a fair and impartial decision on the issue of guilt, would have resulted in separate juries for guilt and penalty issues whenever the trial of the latter issue was required under sections 190 and 190.1 of the Penal Code. However, the Legislature in section 190.1 expressed a clear preference that both guilt and penalty issues be tried by the same jury, and we have repeatedly pointed out that insistence upon a single jury pursuant to this preference did not [186 Cal.Rptr. 664] deprive defendant of his right to an impartial jury. [Citations.]" (Fns. omitted.)
While it is arguable that a defendant's right to a representative cross-sectional jury was not considered by the Thornton court, the cross-sectional argument was before the court in People v. Sand (1978) 81 Cal.App.3d 448, 146 Cal.Rptr. 448 which relied on Thornton in rejecting defendant's call for a separate guilt phase jury. (Id., at p. 452, 146 Cal.Rptr. 448; compare id., at pp. 459-461, 146 Cal.Rptr. 448 (dis. opn. of Jefferson, J.).)
There is no evidence in this record to suggest the extent of the state interest, fiscal or otherwise, in utilizing a single jury in special circumstance murder cases. If the state bears the burden of justifying the exclusion (Hovey v. Superior Court, supra, 28 Cal.3d at p. 13, fn. 25, 168 Cal.Rptr. 128, 616 P.2d 1301), as would be the case under traditional equal protection principles (see ante, fn. 22), they have failed to carry that burden here. Additionally, we note that while the relevant statutes in Thornton and Sand expressed a preference for a single jury in capital cases, a similar legislative preference does not appear to be present in the current death penalty statutes. (See §§ 190.1-190.4.)
It thus might be possible to implement a dual-jury system in capital cases by way of a court-declared rule of criminal procedure (see Hovey v. Superior Court, supra, 28 Cal.3d at p. 80, fn. 135, 168 Cal.Rptr. 128, 616 P.2d 1301) without reaching defendant's ultimate constitutional argument.
While our course of action might differ under other circumstances, we think it more prudent to leave resolution of these intriguing constitutional and policy questions to the Supreme Court in its consideration of the several pending cases which raise the issue. We therefore defer to Sand and Thornton in rejecting Smith's argument. [186 Cal.Rptr. 665]
We intentionally decline to state this result in terms of a conclusion that persons unalterably opposed to the death penalty do not constitute a "cognizable class" for the purposes of cross-sectional analysis. As the court made clear in Adams v. Superior Court, supra, 12 Cal.3d at pp. 60-62, 115 Cal.Rptr. 247, 524 P.2d 375 a conclusion on cognizability does not dispose of the entire issue; a related equal protection challenge must still be addressed whenever any group is excluded. (Id., at p. 66, 115 Cal.Rptr. 247, 524 P.2d 375 (dis. opn. of Mosk, J.).)
B
Smith's argument regarding the prosecutor's use of peremptory challenges, although relying on cross-sectional analysis, involves considerations different from his challenge to the for-cause exclusions. Necessarily, Smith places primary emphasis on People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, in which the Supreme Court held that the use of peremptory challenges to exclude prospective jurors solely on the basis of perceived "group bias" violates the cross-sectional jury requirement under article I, section 16 of the California Constitution. (Id., at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748.) From the standpoint of application, the problem with Wheeler is that it does not define what types of groups qualify for "group bias." Wheeler itself involved perhaps the most invidious type of discrimination: racial. The defendant in Wheeler alleged the prosecutor utilized his peremptory challenges to exclude all blacks from the jury. In addition, the Wheeler opinion suggests by example that exclusions based on "religious, ethnic, or similar grounds" would constitute sufficient "group bias." (Id., at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748; see also People v. Williams [1981] 29 Cal.3d 392, 404-405, 174 Cal.Rptr. 317, 628 P.2d 869.)
The scope of the Wheeler rule must also be measured against language in Wheeler commenting on the proper exercise of peremptory challenges. The opinion suggests that persons may be legitimately excused based on their "clothes or hair length." (Id., at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.) In addition, victims of crime or persons having relatives in law enforcement are properly challengeable. (Ibid.) Although an argument can be made that the inclusion of such groups could significantly contribute to "the interaction of the diverse beliefs and values the jurors bring from their group experiences" (id., at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748; see also Peters v. Kiff, supra, 407 U.S. at pp. 503-504, 92 S.Ct. at pp. 2168-2169), the level of societal bias and tradition of discrimination is presumably insufficient to justify limitation on the freedom of the peremptory challenge.
Wheeler relies on cross-sectional analysis and makes no attempt to articulate any limitations on the analytic process when peremptory as opposed to other types of exclusions are involved. The question of "cognizable class" (see ante, fn. 24) presented little problem since racial groups were perhaps the first to be deemed cognizable. (See Peters v. Kiff, supra, 407 U.S. at pp. 497-498, 92 S.Ct. at pp. 2165-2166 and cases there cited.) But we question whether the considerations are identical in both situations. If a statute authorized the exclusion from jury service of persons defined in terms of their hair length or unconventional dress, is there any doubt but that the statute would effectively deny litigants their right to a jury drawn from a representative cross-section of the community? Yet Wheeler approves the use of the peremptory challenge for this purpose. (22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)
There is an inherent tension between the peremptory challenge system and the cross-sectional jury requirement. If the "community" to be represented in the jury box consists of those persons left in the population after justifiable exclusions have been made, peremptory challenges are by their very nature unjustifiable. Yet the peremptory system is perceived as giving rise to significant benefits for all parties involved. (See Swain v. State of Alabama (1965) 380 U.S. 202, 219-220, 85 S.Ct. 824, 835, 13 L.Ed.2d 759; People v. Williams, supra, 29 Cal.3d at p. 405, 174 Cal.Rptr. 317, 628 P.2d 869.) Given the continued approval of the peremptory challenge system by our Supreme Court (People v. Williams, supra, 29 Cal.3d at p. 405, 174 Cal.Rptr. 317, 628 P.2d 869), we think Wheeler is best viewed as a forceful statement that some types of discrimination in our society are so intolerable that even the give-and-take benefits of the peremptory challenge system are insufficient to justify them.
Whether the set of groups which cannot be excluded even by peremptory challenge is coterminous with the set of "suspect classes" under equal protection analysis (see [186 Cal.Rptr. 666] ante, fn. 24); larger, or smaller is a question we need not decide in this case since we are convinced the class of persons who are to some extent opposed to the death penalty does not qualify for this enhanced protection. Certainly such group has not suffered a history of discrimination; the definitional characteristic is not immutable. We accordingly conclude the conduct of which Smith complains does not violate the right to trial by a jury drawn from a representative cross-section of the community. In any case, the Supreme Court's current consideration of this issue should give the bench and bar a more definitive answer in the near future.
The fact that the group is defined by the members' subjective viewpoint rather than an objective criterion (see Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries (1977) 86 Yale L.J. 1715, 1737) is not necessarily determinative. In either case, the predicate characteristic gives rise to an inference on the part of the attorney exercising the peremptory challenge that the group member will be predisposed to view the case in an unfavorable manner. Assuming past victims of crime may be properly challenged on the assumption they will tend to view the case against the accused (see Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748), there seems little reason why persons expressing some opposition to the death penalty may not be challenged on the assumption they will be more likely to view the case in his favor.
X
Smith relies by analogy on Woodson v. North Carolina (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 and Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101, both death penalty cases holding that a defendant must be given the opportunity to present mitigating factors in an effort to receive a sentence less than death. Smith attempts to argue similarly that the penalty of life imprisonment without the possibility of parole (LWOP) is so severe that even as to a defendant convicted of first degree murder with special circumstances, the jury must be given a lesser alternative.
This issue is currently before the Supreme Court in People v. Zimmerman (Crim. 21858, hg. granted Feb. 17, 1981) and People v. Grundy (Crim. 21909, hg. granted Mar. 18, 1981).
However, Justice Stewart's plurality opinion in Woodson on which Rockwell relied, explicitly stated the decision "... rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." (428 U.S. at p. 305, 96 S.Ct. at p. 2991.) While a sentence of LWOP has certain finality to it, it is not irreversible in the sense the death penalty is. (See People v. Matthews (1979) 98 Cal.App.3d 453, 458-459, 161 Cal.Rptr. 101.) Moreover, the Legislature is entitled to grade crimes and punishments as long as such grading is rational and proportionate. The vagaries of the felony-murder rule to one side (see post, pp. 666 - 668), Smith does not suggest the LWOP punishment is disproportionate to the crime of first degree murder. We conclude the Legislature was within its authority in prescribing the LWOP punishment as the lesser of the two sentences available for a defendant convicted of first degree murder with special circumstances.
XI
As would be expected in a fact situation such as this, Smith makes several attacks on the felony-murder rule. His most direct sortie relies on the recent landmark decision of the Michigan Supreme Court in People v. Aaron (1980) 409 Mich. 672, 299 N.W.2d 304 and argues the common law felony-murder rule should be abolished. (See also Annot. [186 Cal.Rptr. 667] (1982) 13 A.L.R. 4th 1226.) Recognizing our subordinate position as an intermediate appellate court (see Auto Equity Sales, Inc. v. Superior Court [1962] 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) and the substantial array of precedent supporting application of the rule in California (see People v. Ramos [1982] 30 Cal.3d 553, 590, mod. 30 Cal.3d 879a, 180 Cal.Rptr. 266, 639 P.2d 908), Smith nonetheless requests we "advise" the Supreme Court of our views on the Aaron question.
The Michigan first degree murder statute involved in Aaron is virtually identical to California Penal Code section 189. That section provides, "All murder ... which is committed in the perpetration of, or attempt to perpetrate [one of six enumerated felonies] is murder of the first degree ...." (Italics added.) Section 187 defines "murder" as "... the unlawful killing of a human being ... with malice aforethought." Aaron reasoned Michigan's equivalent of section 189 did not make every "killing" in the course of an enumerated felony a first degree murder; rather, the statute by its own terms operated only after a "murder" had been proven, which requires a showing of malice. The court then determined the artificial imputation of malice which is the hallmark of the felony-murder rule was in reality a common law doctrine, subject to change by the courts. After reviewing the almost uncontradicted scholarly criticism of the rule, the Michigan Supreme Court concluded that felony-murder was a common law doctrine which had outlived its usefulness. (409 Mich. 672, 299 N.W.2d at pp. 328-329.)
We think such an advisement inappropriate. The Supreme Court has already indicated its awareness of the issue and, perhaps, an inclination to consider it when presented by an appropriate fact pattern. (See Ramos, supra.) The issue was argued in several cases still pending before the court. (See, e.g., People v. Dillon (Crim. 21964, hg. granted Mar. 16, 1981).) We are confident the parties are in a better position than we to advise the Supreme Court of the arguments in favor of and against retention of the felony-murder rule in California.
Smith is of course aware that the facts which led the Supreme Court in Ramos to decline defendant's invitation to reconsider the felony-murder rule are not present in this case. (See 30 Cal.3d at p. 590, 180 Cal.Rptr. 266, 639 P.2d 908.) He therefore focuses on his nontriggerman status, relatively minor participation in the robbery, and character for nonviolence in making two related arguments. He first contends section 190.2, subdivision (b) requires a jury finding that the defendant intentionally aided and abetted the murder before a special circumstance finding may be returned. If this is not the state of the law, Smith asserts the sentence of life without possibility of parole is cruel and unusual punishment where it is not shown that either the defendant intended to kill or intentionally aided and abetted the killing. (Cf. Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140.)
Ramos involved a defendant who shot two restaurant employees in the back of the head during a robbery. In contrast, Smith apparently did not carry the weapon, did not expect Fleck to use the gun, and did not see the shooting take place.
The Supreme Court is currently considering a similar issue in Carlos v. Superior Court (L.A. 31487, hg. granted Oct. 23, 1981).
Smith correctly points out subdivision (b) of section 190.2 presents an interpretational problem. Apparently some of the drafters of the 1978 Death Penalty Initiative detected an implication in one or more of the special circumstance descriptions found in subdivision (a) that a special circumstance finding could be returned only against the actual killer. Not wanting to be misunderstood, subdivision (b) was drafted to specify that "[e]very person, whether or not the actual killer" who "intentionally" aids and abets the murder may be subject to a special circumstance finding.
Subdivision (b) reads in relevant part as follows:
As to most of the special circumstances listed in subdivision (a), subdivision (b) was [186 Cal.Rptr. 668] merely redundant since an individual who intentionally aids the commission of a crime is guilty to the same extent as the actual perpetrator. (§ 31.) But as to the felony-murder special circumstances listed in paragraph (17) of subdivision (a), the word "intentionally" poses a problem. Under traditional operation of the felony-murder rule, the actor's state of mind with respect to the killing is irrelevant. Smith contends we should read subdivision (b) as a limitation on (a)(17) such that a defendant convicted of first degree murder on an aiding and abetting theory can only be subject to a special circumstance finding if it be shown he "intentionally" aided the murder. He argues since there was no such instruction here, the special circumstance finding must be reversed.
The first problem with Smith's "limitation" argument is that subdivision (b) is phrased in inclusory terms. None of the terms used remotely suggest an intent to cut back on what might otherwise be allowed. Moreover, Smith's position requires us to conclude he was convicted of first degree murder on an aiding and abetting theory. In point of fact, he was convicted neither as the perpetrator nor as an aider and abettor; he was convicted on a hybrid felony-murder theory of "implied," "imputed" or "presumed" malice. (See People v. Poddar [1974] 10 Cal.3d 750, 755, 111 Cal.Rptr. 910, 518 P.2d 342; People v. Burton [1971] 6 Cal.3d 375, 385, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Ketchel [1969] 71 Cal.2d 635, 642, 79 Cal.Rptr. 92, 456 P.2d 660.) Because Smith was not the actual killer it is easy to assume he must have been an aider and abettor. But the felony-murder rule supersedes all the usual rules regarding aiding and abetting. (See CALJIC Nos. 3.00 and 3.01; People v. Yarber [1979] 90 Cal.App.3d 895, 916, 153 Cal.Rptr. 875.) They are simply inapplicable in this context. [ ] 135 Cal.App.3d 406, 425, 185 Cal.Rptr. 375.)
Smith's last salvo also falls short. In Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, the U.S. Supreme Court recently concluded that imposition of the death penalty on a defendant convicted of felony-murder without a finding he intended a killing take place violated the Eighth Amendment's ban on cruel and unusual punishment. Anticipating Enmund, and taking it a step further, Smith argues the punishment of life imprisonment without possibility of parole is cruel and unusual in the absence of a finding he intended to aid in committing the killing.
We are unwilling to take the additional step and remain unpersuaded by Smith's analysis citing In re Lynch (1972) 8 Cal.3d 410, 425-427, 105 Cal.Rptr. 217, 503 P.2d 921. In particular, by way of comparison to other jurisdictions, before Enmund was decided there were at least 18 states (including California) which theoretically allowed imposition of the death penalty for felony-murder without a finding of intent. (See 102 S.Ct. at p. 3374.) With that backdrop, the sentence of life without possibility of parole is hardly disproportionate. More importantly, however, much of Smith's argument assumes the critical nature of a specific intent in evaluating the culpability of defendants convicted of murder. Such an assumption implies the irrationality of the felony-murder rule itself, and not just a particular punishment imposed for it. It may be the common law felony-murder rule should be abandoned. (See People v. Aaron, supra, 409 Mich. 672, 299 N.W.2d 304.) Some have even suggested the doctrine is substantively unconstitutional on due process or equal protection grounds. (See, e.g., Jeffries and Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law (1979) 88 Yale L.J. 1325, 1383-1387; Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea (1973) 10 Houston L.Rev. 1039, 1052-1054.) But it seems rather selective to implicitly rely on almost 100 years of criticism of the doctrine as a substantive rule of law (see, e.g., 3 Stephen, A History of the Criminal Law of England (1883) pp. 57-75) but only to argue the disproportionality of the penalty.
In the final analysis, any change of the sweeping nature advocated by Smith's arguments must undoubtedly emanate from the Supreme Court. This is particularly [186 Cal.Rptr. 669] true where the issue involved is currently under consideration by that body.
Disposition
The judgment is affirmed. The matter is remanded for the limited purpose of a hearing on the truth of Smith's alleged prior convictions. (See § 667.5, subd. (b).)
BROWN, P.J., and BORUNDA, J., concur.
Not surprisingly, it has been suggested that a "cognizable class" is similar if not identical to the concept of "suspect" or "quasi-suspect" classes under traditional equal protection analysis. (Adams v. Superior Court, supra, 12 Cal.3d at p. 61, 115 Cal.Rptr. 247, 524 P.2d 375; Duren v. Missouri, supra, 439 U.S. at p. 371, 99 S.Ct. at p. 672 [dis. opn. of Rehnquist, J.].) Candidly, the effect of the cognizable class analysis is that if the excluded group is "cognizable" the criminal defendant is granted vicarious standing to raise an equal protection challenge on behalf of the excluded group. But questions of "cognizability" defined in terms of "distinctiveness" or "identifiability" tend to obscure more than they clarify. Any group by its very definition is "identified" and to that extent "distinctive." Perhaps it would be better to recognize cross-sectional analysis for what it is--vicarious assertion of an equal protection challenge --and focus instead on the question of whether the procedural advantage of vicarious standing should be invoked to protect the rights of non-suspect groups, whether defined in terms of objective criteria, or, as in this case, subjective views on a particular issue. (See post, fn. 25.)
Presumably, the criminal defendant is perceived as having a significant if not always articulable interest in the composition of the jury selected to pass on the question of his guilt despite his inability to prove that such jury is biased against him.
Assigned by the Chairperson of the Judicial Council.
"Q [DEPUTY]: What do you want
"A [SMITH]: Find out what the hell's going on.
"Q [DEPUTY]: Are you willing to talk to me?
"A [SMITH]: Uh-huh."
"Q [DETECTIVE HENDERSON]: Let me explain something to you. We talked to a lot of people. We arrested Butch [Fleck] yesterday. We got a full statement from Butch and everyone surrounding him.
"A [SMITH]: I don't
"Q Sonny
"A Have nothing to do with it.
"Q I'm just gonna tell you right now. I know you were there and I know you took part in it. I know that you were involved.
"A I didn't have nothing to do with it.
"Q And I know that you were dropped off after, but if you want to lie about it, go ahead and I'm-I'm not gonna lie to you. What happened is, you and Butch went down and robbed a guy and you took him out in his vehicle
"A No.
"Q And you dumped him and, uh, then you went and took the vehicle back to an old place where Butch used to live and dropped it off and that's what happened. And I'm telling you what-if they lay it on you as the trigger man, which is obviously what's happening, you're looking at an execution.
"A I didn't do shit.
"Q Murder as a result of a robbery, which carries, in the State of California, you're looking at the death penalty, and that's it.
"A I didn't--I didn't
* * *
"Q Sonny, uh, you're not a stupid person, obviously. But you're being very dumb right now. What you're looking at and I don't care how other you feel about it, you have
"A I-I didn't want to blow nobody away. I don't believe in hurtin a fuckin cat.
* * *
"Q Then take the heat, go head and take the heat.
"A I don't want to take heat for nothin cause I ain't got nothin to do with the fuckin shit. If Butch pulled a robbery, I never done a robbery before in my fucking life and whatever Butch has done
"Q You did two weeks ago.
"A No, I ain't.
"Q Look, if you robbed a guy and Butch did something crazy and shot him because he was pissed off about Michelle, God damn it, don't be taking the heat for that, but I'm telling you right there--you heard what he's saying and it goes on and on and Sonny, you're going to be convicted. It's plain and simple. You're going to be convicted, but tell us the truth.
"Q [DETECTIVE STREED]: We're not just talking about, uh, what Butch had to say, Sonny. There are other people we've talked to also. A lot of people-a lot of people know about this. Everyone--everyone I've interviewed
* * *
"Q [HENDERSON]: If you're involved in the robbery, you're involved in the robbery. If you didn't kill the guy, let's hear it.
"Q [STREED]: The fact of the matter is, you were there and we know you were there. We know about the gun. We know about you flashing the gun around at Butch's place, showing Michelle it wasn't loaded cause she was worried about it. We know about the van being driven away. We know about the keys being thrown up on top of the carport. We know about the whole thing. We just want to get
"Q [HENDERSON]: Somebody's trying to lay it on you as the trigger man.
"A ... you--I ain't I--I don't want to get involved in this, seriously. I been tryin as hard as I fuckin can to stay out of shit. I don't want to go back to that fucking jail because
"Q So tell us the truth.
"A I ain't had nothing to do with this bullshit.
"Q Tell us the truth, Sonny.
"Q [STREED]: Tell us what happened.
"Q [HENDERSON]: If you rode along with him, tell us. We know you were there.
"Q [STREED]: It's not a question of you getting involved. You are already involved. We
"A I didn't want to have anything to do with it.
"Q [HENDERSON]: OK.
"Q [STREED]: Tell us about it. Tell us how it went down.
"A And I'm going back to jail for another four or five years for a fucking robbery, bullshit. I don't want to. I ain't had nothing to do with it. It wasn't nothing to do with me.
"Q [HENDERSON]: OK. Who did it?
"Q [STREED]: We're talking about murder.
"A I don't know what the fuck Butch done and got off into.
"Q [HENDERSON]: Yes, you do. That's your problem."
"The evidence is overwhelming that American juries have repudiated imposition of the death penalty .... [p] ... in cases such as this one where the defendant did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder ...."
"ADOPTIVE ADMISSION--SILENCE, FALSE OR EVASIVE REPLY TO ACCUSATION
"If you should find from the evidence that there was an occasion when the defendant, under conditions which reasonably afforded him an opportunity to reply, failed to make denial [or made false, evasive or contradictory statements,] in the face of an accusation, expressed directly to him or in his presence, charging him with the crime for which he now is on trial or tending to connect him with its commission, and if you should find that he heard the accusation and understood its nature; the circumstance of his silence [and conduct] on that occasion may be considered against him as indicating an admission that the accusation thus made was true. Evidence of such an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence [and conduct] of the accused in the face of it; and unless you should find that his conduct at the time indicated an admission that the accusatory statement was true, you should entirely disregard the statement."
CALJIC No. 6.24 reads as follows:
"DETERMINATION OF ADMISSIBILITY OF COCONSPIRATOR'S STATEMENTS
"Any evidence of a statement made by one alleged conspirator other than at this trial shall not be considered by you as against another alleged conspirator unless you shall first determine from other independent evidence that at the time the statement was made a conspiracy to commit a crime existed and unless you shall further determine that the statement was made while the person making the statement was participating in the conspiracy and before or during the time the person against whom it was offered was participating in the conspiracy and, finally, that such statement was made in furtherance of the objective of the conspiracy.
"The word 'statement' as used in this instruction includes any oral or written verbal expression or the nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression."
"To find that the special circumstance, referred to in these instructions as murder in the commission of __________, is true, it must be proved:
"[1a. That the murder was committed while the defendant was [engaged in] [was an accomplice] in the [commission] [or] [attempted commission] of a __________.]
"[1b. That the murder was committed during the immediate flight after the [commission] [attempted commission] of a __________ [by the defendant] [to which the defendant was an accomplice].] and,
"2. That the murder was committed in order to carry out or advance the commission of the crime of __________ or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [attempted] __________ was merely incidental to the commission of the murder." (Brackets in original.)
The rationality of the statutory scheme suffered somewhat with the enactment of the 1978 Death Penalty Initiative which eliminated the requirement that the murder be "willful, deliberate and premeditated." Under current law, the defendant in Green who cold bloodedly murdered his wife and stripped her body can receive a maximum sentence of 25 years to life. (See § 190.) The defendant in this case, however, who did not commit the killing and manifested no intent to kill, is subject to a minimum sentence of life imprisonment without the possibility of parole.
"THE COURT: Very well.
"The Court does not have much discretion in this case, it would be my impression, Mr. Burns.
"Would you disagree with that?
"MR. BURNS: No, your honor.
"THE COURT: Any comments from the district attorney?
"MR. BEALL: No, your honor.
"I think pursuant to statute, specifically 654, the court's discretion is very limited, and I think the probation department has set out properly the format for which the defendant should be sentenced in his recommendation.
"THE COURT: Very well, then, there being no apparent reason why the court should not impose sentence, and the court believing and being advised that the suggested term as set forth in the probation officer's report on page 8 is the correct term, the court will impose sentence of life in prisonment [sic] without possibility of parole with respect to count 1; that is, the violation of Penal Code section 187, first degree murder."
Past cases utilizing cross-sectional analysis have required that the excluded group must be "identifiable" (Peters v. Kiff, supra, 407 U.S. at p. 500, 92 S.Ct. at p. 2167) and "distinctive" (Duren v. Missouri, supra, 439 U.S. at p. 364, 99 S.Ct. at p. 668). To qualify, "... there must be a common thread running through the excluded group--a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community." (Adams v. Superior Court, supra, 12 Cal.3d at p. 60, 115 Cal.Rptr. 247, 524 P.2d 375.) Assuming exclusion of a cognizable class has been established, such exclusion may not be justified "on merely rational grounds." (Taylor v. Louisiana, supra, 419 U.S. at p. 534, 95 S.Ct. at p. 699.) In order for an exclusion to be constitutional, "... significant state interest [must] be manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group." (Duren v. Missouri, supra, 439 U.S. at pp. 367-368, 99 S.Ct. at p. 670.)
"Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), or (19) of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true."