People v. Jackson

It was nearly seven years ago that the life of Norman Merrill was taken in a savage murder perpetrated by three predators named Thomas Varnum, John Jackson and-Edward Jackson.

The history of this murder case as it relates to Varnum is set forth in People v. Varnum, 70 Cal.2d 480 [ 75 Cal.Rptr. 161 , 450 P.2d 553 ], the decision upon the Supreme Court’s review of Varnum’s third penalty trial which, as in each of the two previous trials, resulted in a jury verdict imposing the death penalty.

In the first trial all three defendants were tried together

“The body was found behind the warehouse the next day. Merrill had died of two bullet wounds in the back which perforated his heart and left lung. The bullets were fired from a single-action .41 caliber revolver, which can be fired only by cocking the hammer before pulling the trigger. Varnum had borrowed the gun earlier in the evening of the killing, and his fingerprint was found on the inside of the stolen car. ...”

In a footnote to the first decision in Varnum, supra, at page 426, the Supreme Court noted that the Jacksons had been sentenced to life imprisonment for the murder and to life imprisonment without possibility of parole for the kidnaping but that they had not appealed. However, on May 26, 1965, nearly one year after the filing of the opinion from which we have quoted, and substantially more than a year after the entry of the judgments of conviction, the Supreme Court granted the application of the Jacksons for relief from a late filing of their notice of appeal. (People v. Jackson, 62 Cal.2d 803 [ 44 Cal.Rptr. 452 , 402 P.2d 140 ].) Their appeal was thereafter perfected. The judgments as they applied to these appellants were reversed by Division Three of this court as we have recited above.

Since the briefs of appellants and the brief of respondent set forth lengthy statements of the evidence which appear to be substantially consistent and accurate in all material respects, we perceive no reason to burden this opinion with their repetition. The record of appellants’ second trial establishes the same basic facts as those proven at their first trial and recited in our quotation from the decision of the Supreme Court.

The first contention advanced by appellants is that the evidence is insufficient to support the judgments convicting them of murder and kidnaping for the purpose of robbery. They

We reject these contentions. The evidence proves that after Mr. Merrill was kidnaped and forced into the ear by the three robbers, Varnum took his watch and Edward Jackson took his money which was added to that which had been taken at the service station and which constituted a part of the loot later divided among the three robbers. The fact that appellants robbed the decedent after they had kidnaped him and still later divided the loot constituted a sufficient basis for the inference that all three robbers were participants in a common plan and design throughout. As stated in People v. Ketchel, 59 Cal.2d 503 , 523-524 [ 30 Cal.Rptr. 538 , 381 P.2d 394 ] : “Appellants, however, do not recognize the fact that ‘ [r] obbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. (People v. Boss, 210 Cal. 245 , 251 [290 P.881] ; People v. Dowell, 204 Cal. 109 [ 266 P. 807 ].) ’ (People v. Rye (1949) 33 Cal.2d 688 , 693 [ 203 P.2d 748 ].) A ‘killing . . . committed in connection with conduct intended to facilitate escape after the robbery and as part of one continuous transaction' constitutes ‘murder of the first degree by the terms of the statute.’ (People v. Coefield (1951) 37 Cal.2d 865 , 868-869 [ 236 P.2d 570 ]; see People v. Kendrick (1961) 56 Cal.2d 71 , 90 [ 14 Cal.Rptr. 13 , 363 P.2d 13 ].)’’ (See also People v. Washington, 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ].)

Furthermore, it seems entirely clear that the evidence supports the murder conviction by reason of the application of the felony-murder doctrine. As stated in People v. Lookadoo, 66 Cal.2d 307 , 314 [ 57 Cal.Rptr. 608 , 425 P.2d 208 ], this doctrine applies ‘ ‘ whether the killing is wilful, deliberate, and premeditated or merely accidental and whether or not the killing is planned as a part of the commission of the robbery. ’ ’

In short, we hold that the evidence proving appel

Appellants’ contention that the trial court erred in imposing sentence of life imprisonment without possibility of paróle on the murder count requires no extended discussion. In support of this contention it is argued that the addition of the phrase “without possibility of parole” improperly operates to increase the penalty to one of greater severity than that imposed by the former judgments which were reversed. It is argued also that such addition is unauthorized by the provisions of Penal Code section 190. Respondent argues with some persuasiveness that since this sentence was suspended and by the terms of the judgments remains inoperative “until and unless” the judgments of conviction on the count charging kidnaping for the purpose of robbery are reversed, the issue as to its correctness is rendered moot by an affirmance of the judgments. However, notwithstanding the practical -unimportance of the matter, we deem it appropriate to .modify the judgments by striking therefrom the phrase “without possibility of parole” only as said phrase relates to the sentence imposed on count II.

In their supplemental brief appellants contend that prejudicial error was committed when the prosecution was permitted to read into the record the testimony given by one John Victoria at appellants’ previous trial. Prior to offering this testimony the prosecution proved that Victoria was absent from the State of California and confined in a penitentiary in Santa Fe, New Mexico. The prosecution also offered to introduce an authenticated copy of an order of the District Court of the State of New Mexico reading as follows:

“It is therefore ordered, adjudged and decreed that the Court’s order committing the defendant Ashton Victorian to the New Mexico State Hospital in Las Vegas, New Mexico, be set aside and that the defendant Ashton Victorian be committed to the Penitentiary of New Mexico at Santa Fe, New Mexico, where after six months a psychiatric report shall be submitted to the Court to determine whether the defendant Ashton Victorian remains incompetent to stand trial in .this cause.”

In lieu, of reading the foregoing order into the record, counsel for appellant John Bell Jackson offered "the following stipulation in which counsel for appellant Edward Jackson

In the light of this record it appears that the ruling of the trial court admitting the testimony given by the witness Victoria at the former trial constituted a reasonable and proper exercise of discretion. (People v. McCaughan, 49 Cal.2d 409 , 419-420 [ 317 P.2d 974 ]; People v. Cavanaugh, 69 Cal.2d 262 , 265-268 [ 70 Cal.Rptr. 438 , 444 P.2d 10 ] ; People v. King, 269 Cal.App.2d 40 , 46-47 [ 74 Cal. Rptr. 679 ].)

“The question to be determined is whether the proposed witness’s mental derangement or defect is such that he was deprived of the ability to perceive the event about which he is to testify or is deprived of the ability to recollect and communicate with reference thereto. ...”

“ It is universally recognized that the competency of a witness is to be determined by the trial court in the exercise of its judicial discretion. (People v. Ives, supra, 17 Cal.2d at 476 [ 110 P.2d 408 ]; People v. Harrison, supra, 18 Cal.App. at 295 [ 123 P. 200 ]; see McCormick on Evidence, p. 123.) Manifestly, however, sound discretion demands the exercise of great caution in qualifying as competent a witness who has a history of insane delusions relating to the very subject of inquiry in a case in which the question is not simply whether or not an act was done but, rather, the manner in which it was done and in which testimony as to details may mean the difference between conviction and acquittal.” (People v. McCaughan, supra, 49 Cal.2d at pp. 420,421.)

The trial court was entitled to determine the effect of the adjudication of ineompetency by the New Mexico court in the light of the law of that state prescribing the test of competency. As stated in State v. Roybal, 76 N.M. 337 , 338 [ 414 P.2d 850 ] : “ It is a generally accepted rule that no person shall be called upon to stand trial or be sentenced who because of mental illness is incapable of understanding the nature and object of the proceedings, or of comprehending his own condition in reference thereto, or of making a rational defense. 1 J

Further, as pointed out in McCormick on Evidence (1954) at page 494: “If the person is proved to have become insane

The fact that appellants had been accorded their right of confrontation and that their counsel had cross-examined the witness at length during the former trial are .relevant facts providing additional support for the trial court’s exercise of its discretion.

We have considered the additional arguments and contentions set forth in appellants’ supplemental brief and reject’ them on the basis of our holding that they are patently unmeritorious and lacking in sufficient substance to require further discussion. Although the point has not been raised by counsel, we deem it proper to strike the sentences imposed on count IV since the robbery therein charged constituted an essential element of the other two crimes of which appellants were convicted. (Pen. Code, § 654.)

Each of the judgments is modified by striking therefrom the phrase ‘‘without possibility of parole” insofar as said phrase relates to the sentence imposed on count II of the information, and by striking the sentence imposed on count IV, and as thus modified the judgments are affirmed, and the appeals from orders denying motions for new trial are dismissed.

Roth, P. J., and Wright, J., concurred.