People v. Asher

William Walter Asher, Victor Franklin Carrafa and William Henry Williams have each appealed from separate judgments of conviction of murder of the first degree, sentencing them to state prison, with varying prior convictions. The judgments were entered after a bifurcated jury trial in which the jury found each defendant guilty of the murder in the first degree of John Kammeyer on December 8,1960, and fixed the penalty at life imprisonment.

The uncontradieted evidence shows that Kammeyer, the manager of a bar, was fatally shot by Williams, and that the three defendants robbed the bar and its patrons. The evidence was conflicting as to whether the intent to rob the establishment was formulated before or after the shooting. Evidence also was introduced to show that Williams was incapable of harboring malice aforethought or the intent to kill or rob because of mental disease, defect and intoxication. Insofar as is material the evidence on these issues is referred to below.

Each of the defendants contends (1) that the evidence is insufficient to sustain the verdicts and judgments, (2) that the court erred in failing to give instructions on manslaughter, and (3) that the court erred in failing to submit separately to the jury the question of whether any defendant could be found guilty of robbery as a lesser included offense. (4) Carrafa and Williams additionally claim that the court’s

An examination of these contentions reveals that with, the exception of an error in the designation of a prior conviction found to have been suffered by Asher, there is no prejudicial error in the record, and the judgments must be affirmed with the exception of the finding that Asher suffered a prior felony conviction.

Sufficiency of the Evidence

“Under the felony-murder rule of section 189 of the Penal Code, a killing committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under section 288 is murder of the first degree. This is true 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. [Citations.]” (Peoples v. Lookadoo (1967) 66 Cal.2d 307 , 314 [ 57 Cal.Rptr. 608 , 425 P.2d 208 ], See also People v. Willingham (1969) 271 Cal.App.2d 562 , 575 [ 76 Cal.Rptr. 760 ]; People v. Baglin (1969) 271 Cal.App.2d 411 , 416 [ 76 Cal.Rptr. 863 ]; People V. Lilliock (1968) 265 Cal.App.2d 419 , 431 [ 71 Cal.Rptr. 434 ]; People v. Chapman (1968) 261 Cal.App.2d 149 , 165 [ 67 Cal.Rptr. 601 ]; People v. Fortman (1967) 257 Cal.App.2d 45 , 51 and 55 [ 64 Cal.Rptr. 669 ]; and People v. Sievers (1967) 255 Cal.App.2d 34 , 38-39 [ 62 Cal.Rptr. 841 ].)

The testimony shows that the defendants entered the bar about 7 or 7:30 p.m. and first occupied and thereafter spent most of their time in the vicinity of three bar stools at the far end of the bar, away from the entrance and near the rest rooms and rear office. They drank, conversed with other patrons in the bar, moved about the bar, occasionally left the premises and returned, displayed large amounts of cash in big denominations, and shook dice for drinks and music. They ordered mixed drinks, and notwithstanding the duration of their stay, none of them appeared to be intoxicated. The bartender noticed that they appeared nervous. He thought they might do something, and called a friend to come over.

At almost the stroke of midnight the defendants opened their coats and withdrew weapons. Williams had a sawed-off shotgun which a patron recognized as a 12-gauge single barrel weapon. Asher and Carrafa had pistols. Williams said, ‘ ‘ This is a holdup. Don’t make a move, and don’t anybody do anything wrong. Put your hands on top of the bar.” Williams walked up to Kammeyer saying, “I’ll show you who to call a punk.” He put the shotgun in Kammeyer’s back, pressed the trigger and the weapon discharged. Kammeyer fell, mortally wounded.

The bartender heard Williams threaten to do the same to anyone who interfered “because you only die once.” Then, apparently to the dying Kammeyer, Williams said, “You didn’t know who you were fooling with, Baby. ’ ’

The owner moved to help Kammeyer but Williams told her to get back. A voice said, “What did you do that for?” Two patrons thought they heard the owner and the bartender say these words. The bartender thought they came from Carrafa. Williams replied, “I’m going to pay for this.” The defendants each cautioned the patrons, “Everybody keep still. Nobody else will get shot. ’ ’

The bartender and the owner heard the announced holdup before Williams shot Kammeyer. Other patrons who testified were apparently unaware of what was happening until their thoughts or conversations were interrupted by the blast of the shotgun.

Kammeyer was moaning, “I’m dying; I’m dying; I’ve been shot.” Williams demanded money from the bartender who complied by giving him bills and- checks, worth about $418. Williams then directed either Asher or Carrafa to

Carrafa, gun in hand, emptied the cash register. Carrafa or Asher.then sa.id, “Let’s get that safe open." Williams told the bartender that he picked “The New Hearth” for the robbery because they had been there on Friday night and had seen the receipts, which they thought by Sunday would total some $1,200-$!,500.

Asher, armed with a pistol, pulled the owner back toward the office where the safe was located. She did not have a key to the office door and Asher broke down the door. Asher said that they expected to find $2,000 in the safe. The owner explained that she did not know how to open the safe. She. tried to open it while Asher and Carrafa moved in and out of the office. Both also worked on the safe.

About five minutes later, Asher and Carrafa came out and dragged the bleeding and moaning Kammeyer into the office. As they did so they abused him. Asher kicked him in the ribs ; Carrafa kicked him in the stomach. Inside the office Kammeyer, barely conscious, tried to give them the combination. He was kicked and shoved. The bartender went in and offered to help. Kammeyer gave numbers but the bartender could not get the safe open. The owner pleaded that Kammeyer was bleeding to death. Asher replied, “I know. That punk is trigger-happy. He’s going to be sorry he did this.” Picking up some rubber gloves, he wiped off the safe and the combination dial.

During and after the attempt to open the safe the patrons in the bar were systematically robbed. Williams continued to guard the door and had also armed himself with a “cutting knife.” The bartender told Williams that the police often came in and Williams replied, “From where I am standing I will blow a hole in their back[s]. They won’t have half a chance. I hope they do come in. ” A patron heard him express the same hope, adding, ‘ ‘ I would just like to smoke me one of them.” The same patron fearing that Williams would shoot the first person to enter, exclaimed that a friend was due to arrive. Asher, pointing a gun at the patron’s head, came up and hit him over the head, knocking him off the bar stool.

At about 12:15 a lady called the bartender and Williams answered the telephone. Williams told her that the bartender

A patron stepped in at about 12:30 a.m. and he also was jumped by Williams. He was told to put his wallet on the bar “or you’re dead.” Asher, holding a gun, came up and kicked him in the groin. A second customer who came in at 12:45 a.m. to keep his appointment with a patron, received similar treatment.

Williams ordered the bartender to mix drinks for the customers which was done. Later Carrafa told the bartender to wash all the glasses. Then the bartender was directed to break all the glasses which he and the defendants proceeded to do. The defendants, of course, had been handling glasses during the evening. The telephones were ripped out of the bar and the back office.

The defendants left about 1 a.m. Williams warned the victims not to call for help, “We’ll have a man with a 30-30 Savage waiting across the street covering the door.” One of the defendants said, “Just tell them [the police] three niggers held us up. ’ ’

There is no- lack of substantial evidence to sustain the charge. (See People v. Teale (1965) 63 Cal.2d 178 , 187 [ 45 Cal.Rptr. 729 , 404 P.2d 209 ] [reversed on other grounds Chapman v. California (1966) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]] ; People v. Robillard (1960) 55 Cal.2d 88 , 93 [ 10 Cal.Rptr. 167 , 358 P.2d 295 , 83 A.L.R.2d 1086 ]; People v Baker (1954) 42 Cal.2d 550 , 563 [ 268 P.2d 705 ]; People v. Willingham, supra, 271 Cal.App.2d 562 , 570-571; Peoples v. Chapman, supra, 261 Cal.App.2d 149 , 160-161; and People v. Fortman, supra, 257 Cal.App.2d 45 , 52.)

Defendants’ attack is predicated on the premise that the evidence compels the conclusion that the killing arose solely out of Williams’ mental illness, intoxication, use of drugs and passion and anger at being called a “punk” by the victim. If such were the case and the killing preceded, or was not in furtherance of the robbery, the felony-murder rule would not be applicable to Williams.

In People v. Washington (1965) 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ], the opinion observed and ruled, “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this

“If Schader’s testimony is believed, the killing he committed had no relationship to the planned robbery except that it occurred during the time of the conspiracy’s existence. The killing was not committed in the perpetration of the robbery, just as it would not have been so committed if Schader had killed at a different time and place accidentally or for a purpose personal to himself while, unknown to him, a eoconspirator was engaged in a previously planned robbery.” (62 Cal.2d at pp. 731-732. See also People v. Ford (1966) 65 Cal.2d 41 , 55-57 [ 52 Cal.Rptr. 228 , 416 P.2d 132 ]; People v. Gilbert (1965) 63 Cal.2d 690 , 705 [ 47 Cal.Rptr. 909 , 408 P.2d 365 ]; People v. Jeter (1964) 60 Cal.2d 671 , 675 [ 36 Cal.Rptr. 323 , 388 P.2d 355 ]; and People v. Carnine (1953) 41 Cal.2d 384 ,388 [ 260 P.2d 16 ].)

By the same token, if the killing were not in furtherance of the robbery, the defendants Asher and Carrafa cannot be charged vicariously as accomplices. In People v. Gilbert, supra, 63 Cal.2d 690 , the following principles are found among those that may be invoked to convict a defendant of first degree murder for a killing committed by another. “ (3) Vicarious criminal liability. Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design. (People v. Schader, 62 Cal.2d 716 , 731 . . . ; People v. Boss, 210 Cal. 245 , 249 . . . ; People v. Ferlin, 203 Cal. 587 , 597 . . .)

The testimony of Dr. Werdegar indicated that Williams harbored neither malice aforethought nor intent to kill or rob. The doctor testified that appellant could not consider, reflect, or weigh the rightness or wrongness, advantages or disadvantages, implications or consequences of his actions. As a result of mental illness, he suffered a severely handicapped capacity to premeditate or to form any reasoned intent to commit any complex act. He lacked substantial capacity to form intent to commit murder or robbery. Dr. Werdegar also testified that the defendant shot Kammeyer because Kammeyer represented an authority figure who had provoked him, and that the shooting was not in furtherance of the robbery.

Dr. Mickle testified that while defendant could have carried on purposeful conduct at the time of the robbery the shooting was the acting out of a behavioral pattern, rather than an act done as part of a robbery. Williams’ rages and hostilities were usually directed toward persons in positions of authority ; the bartender, bar manager (the victim) the bar owner represented persons of authority to him; and the shooting of such an individual would be consistent with defendant’s pattern of expressing his hostility to persons in authority. Further, Williams was suffering from a severe sociopathie personality disorder.

Dr. Levy testified that Williams suffered from a sociopathie personality disorder and acted before he thought, and that his use of alcohol and drugs would further aggravate his violent tendencies and impair even further his rather poor controls. While defendant did have the ability to form specific intent to steal, the shooting occurred not as part of a robbery scheme but rather as the result of the earlier altercation between Williams and the victim.

Dr. Kessler testified that Williams’ ability to conform his actions to law-abiding behavior was likely to have been impaired by his intoxication. While Williams could have had intent to rob, it is entirely speculative as to whether he did have such intent.

Dr. Walter Kapaport, a psychiatrist, reviewed the reports of Doctors Levy, Mickles and Werdegar, as well as the grand jury transcript. He further revieAved the transcribed testimony of the aforementioned doctors and that of Dr. Kessler. He did not examine Williams. He reached the opinion that

“It is the trier of fact, not the appellate court, that must be convinced of a defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Love, 53 Cal.2d 843 , 850 . . . ; People v. Newland, 15 Cal.2d 678 , 680 . . . ; People v. Daugherty, 40 Cal.2d 876 , 885 . . .)” (People v. Robillard, supra, 55 Cal.2d 88 , 93. See also People v. Hillery (1965) 62 Cal.2d 692 , 702-703 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ]; People v. Lawrence, supra, 143 Cal. 148 ,154; People v. Chapman, supra, 261 Cal.App.2d 149 ,161; and People v. Fortman, supra, 257 Cal.App.2d 45 , 52.)

Defendants’ attack on the sufficiency of the evidence cannot be sustained.

Instructions on Manslaughter

In instructing the jury the court defined “homicide” (see CALJIC (1967 Cum. Pocket Part) No. 300 (New)), first and second degree murder as set forth in section 189 of the Penal

Williams claims that the failure to give his proffered instructions on manslaughter violated the foregoing principle and constitutes prejudicial error requiring a reversal. Asher and Carrafa assert that any error by which the jury was prevented from finding Williams guilty of a lesser offense taints the vicarious criminal liability which was imposed on them. (See People v. Schader, supra, 62 Cal.2d 716 , 732; and People v. Jeter, supra, 60 Cal.2d 671 , 676.)

In People v. Jeter, supra, as in this case, the perpetrator of the homicide and his companion fled with property of the victim. In fact, their convictions of robbery were affirmed. There was, however, a conflict in the evidence as to whether the fatal shot was fired during the perpetration of a robbery, or as a result of a scuffle arising out of an argument. The court observed, “The crime, if any, could have been second degree murder if the jury found that Jeter fired the first shot with malice aforethought but without wilfulness, deliberation, or premeditation [citations], or it could have been manslaughter if the jury found that, the shooting was done without malice upon a sudden quarrel or in the heat of passion. [Citations.] ” (60 Cal.2d at p. 675.) The court ruled, “. . . the issues of second degree murder and manslaughter are squarely posed, and it was prejudicial error not to instruct thereon. ’ ’ (Id., p. 676. See also People v. Carmen, supra, 36 Cal.2d 768 , 773-774; and cf. People v. Hudgins, supra, 252 Cal.App.2d 174 ,181.)

It is questionable whether the evidence in this case would support a finding that the homicide was committed “upon a sudden quarrel or heat of passion.” (See Pen. Code, § 192, subd. 1.) The evidence concerning the time which elapsed between Kammeyer’s remark to Williams and his companions, and the fatal shooting is conflicting. Nevertheless, both men had returned to their respective stools at opposite ends of the bar, and no scuffle ensued. The subsequent shooting was entirely without warning, and ostensibly deliberate. On these circumstances alone, it was proper to refuse an

The defendants do not seriously contend that the homicide falls within the definition of manslaughter in the proffered.instructions. They urge that the issue raised by the evidence of Williams’ diminished capacity necessitated further instructions on manslaughter. In People v. Aubrey (1967) 253 Cal.App.2d 912 [ 61 Cal.Rptr. 772 ], the court observed, “What the Conley opinion [People v. Conley (1966) 64 Cal.2d 310 ( 49 Cal.Rptr. 815 , 411 P.2d 911 )] teaches is that there is a type of voluntary manslaughter which does not come within any of the three definitions found in Penal Code section 192. . . . The nonstatutory voluntary manslaughter is a homicide which may be intentional, voluntary, deliberate, premeditated, and unprovoked. It differs from murder in that the element of malice has been rebutted by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.” (253 Cal.App.2d at p. 919, quoted with approval in People v. Castillo, supra, 70 Cal.2d at p. 270. See also, People v. Conley, supra, 64 Cal.2d at p. 318; People v. Gorshen (1959) 51 Cal.2d 716 , 733-734 [ 336 P.2d 492 ]; People v. Baker, supra, 42 Cal.2d 550 , 569; People v. Conley (1968) 268 Cal.App.2d 47 , 51-52 [ 73 Cal.Rptr. 673 ]; and People v. Waters (1968) 266 Cal.App.2d 116 , 120-122 [ 71 Cal.Rptr. 863 ].)

The failure of a defendant to request an instruction on the type of voluntary manslaughter which has been developed out of the doctrine of diminished capacity will not relieve the trial court of the duty to give such an instruction where it is warranted by the evidence, nor will it preclude the defendant from raising the point on appeal. (People v. Castillo, supra, 70 Cal.2d 264 , 271, fn. 5; People v. Wilson, supra, 66 Cal.2d 749 , 759-760; People v. Ford, supra, 65 Cal.2d 41 , 58, fn. 9; People v. Baker, supra, 42 Cal.2d 550 , 576-577; cf. People v. Baglin, supra, 271 Cal.App.2d 411 , 416-418.

In Castillo (see 70 Cal.2d at pp. 268-269), as in this case, there were instructions on diminished capacity (see fns. 3 and 4, supra), and instructions on second degree murder (CALJIC No. 305 (Rev.), supra). In each ease the jury found first degree murder. Logically it is difficult to find prejudice because of errors in instructions on an offense of lesser dignity than second degree murder, when the jury rejected the latter charge and found first degree murder. (See People v. Aubrey, supra, 253 Cal.App.2d at p. 919.) In Castillo, however, the court approved and applied (70 Cal.2d at p. 271)

Defendant seeks to come within the provisions of the caveat contained in a footnote in Ford reading as follows: “Of course, pursuant to the Conley rule, manslaughter instructions must be given notwithstanding the involvement of the felony-murder rule in those cases where there is any factual dispute as to whether the homicide was committed during the perpetration of a relevant felony or where the issue of diminished capacity or intoxication is raised as a defense to the felony charge as well as to the murder charge.” (Id. p. 58, fn. 9; and People v. Baglin, supra, 271 Cal.App.2d 411 , 414-417.) In this case there was a factual dispute as to whether the homicide was committed during the perpetration of robbery, or whether the robbery independently followed the shooting. The jury was, as noted above, fully instructed on the principles necessary for the application of the felony-

In People v. Lovato, supra, one opinion questions whether the application of the inherently dangerous felony-second degree murder principle should preclude a showing of diminished capacity (Stone, J., 258 Cal.App.2d at p. 299). Two justices concurred that the possession of a concealable weapon by an alien was not inherently dangerous in all cases, and did not preclude a finding of manslaughter. The second justice noted, ”... there is a clear, rational and logical distinction between the nature of the offense when committed by an ex-felon and when committed by an alien. An ex-felon by his felony conviction has demonstrated instability and a propensity for crime. Thus, there is a core of logic in the assumption that if such a person arms himself with a concealable weapon he commits a crime per se dangerous to human life.” (258 Cal.App.2d at pp. 295-296.) So in this case whether Williams knowingly armed himself to commit robbery or to settle any altercations in which he might become engaged, he was committing a felony inherently dangerous to human life, and should be bound by the consequences even though his capacity to form a specific intent was impaired by his mental condition, or voluntary intoxication, or use of drugs, or a combination of any of those factors. (See Pen. Code, § 22.)

Even though it were error to fail to give an instruction on manslaughter to cover the situation if the felony-murder rule were found inapplicable, the record in this case precludes a finding of prejudice. In People v. Modesto, supra (59 Cal.2d

In People v. Sievers (1967) 255 Cal.App.2d 34 [ 62 Cal.Rptr. 841 ] (hearing in Supreme Court denied) the defendant was charged with murder and robbery in connection with the death of a victim who was found beaten and robbed. He was found guilty on both counts. Evidence was introduced to show defendant’s diminished capacity to form an intent or indulge in premeditation, and instructions were given on that defense. The trial court refused defendant’s proposed instructions on manslaughter and charged the jury that the defendant was either innocent of the charge of murder or guilty of murder in the first degree. The court stated, . the defense of diminished capacity is applicable to all crimes which require specific intent, including robbery. If in fact appellant did not possess sufficient mental capacity to form an intent to deprive his victim permanently of his property, he could not be guilty of robbery, and hence not guilty of felony murder. Appellant’s defense of diminished mental capacity was raised against both the murder charge and the robbery charge. If the jury had sustained his defense as to the robbery charge and thus found him not guilty of that offense, it would then have been required to consider appellant’s guilt on the murder charge. As to this offense also, diminished capacity was an issue, and if the jury had sustained it they might well have found him guilty of a lesser included offense, such as manslaughter. Under the circumstances of this case, manslaughter instructions were required, notwithstanding the involvement of the felony-murder rule. (See People v. Ford, 65 Cal.2d 41 , 58, fn. 9. . . .) ” (255 Cal.App.2d at p. 39.) The court concluded:

No prejudicial or reversible error is found in the failure to give instructions on manslaughter. The foregoing makes it unnecessary to consider, as urged by the People, that Williams’ recantation at the penalty trial (discussed infra) bars the assertion of any error in the instructions on diminished capacity.

Instruction on Intoxication

The court instructed the jury in the language of Penal Code section 22 as follows: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.” This instruction was followed by the instructions on diminished capacity which have been referred to above. (See fn. 6, supra, and text following. Cf. CALJIC (1967 Cum. Pocket Part) No. 319 (Rev.).)

In People v. Ford, supra, 60 Cal.2d 772 , the court observed, “As the issue of intoxication was thus clearly raised by the evidence, it was essential that the jury be correctly instructed regarding the possible effect of that evidence on the state of mind in which defendant did the acts in question and hence as to whether such acts were or were not the product of that specific and deliberately formed and executed intent to kill which constitutes first degree murder.” (60 Cal.2d at p. 798. See also People v. Teale, supra, 63 Cal.2d 178 , 193; People v. Spencer (1963) 60 Cal.2d 64 , 86-87 [ 31 Cal.Rptr. 782 , 383 P.2d 134 ]; People v. Baker, supra, 42 Cal.2d 550 , 571-573;

A review of the instructions in this case, as they have

If there was a preexisting plan to rob the bar and the killing occurred while the defendants were engaged in perpetrating that crime and in furtherance of that plan, all of the defendants were chargeable with felony murder of the first degree. The jury so found. It was unnecessary to charge the jnry that they could find one or another of the defendants guilty of the robbery necessary to establish the foregoing offense, because if guilty at all, such a defendant was guilty of the more grievous offense. The following principle applies to Asher and Carrafa: “. . . under Penal Code section 189, the trial court properly instructed the jury that appellants were either guilty of first degree murder or not guilty of murder at all. [Citations.]” (People v. Ketchel (1963) 59 Cal.2d 503 , 525 [ 30 Cal.Rptr. 538 , 381 P.2d 394 ] [disapproved on other grounds People v. Morse (1964) 60 Cal.2d 631 , 649 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ], vacated People v. Ketchel (1966) 63 Cal.2d 859 [ 48 Cal.Rptr. 614 , 409 P.2d 694 ].] See also People v. Witt (1915) 170 Cal. 104 , 107 [ 148 P. 928 ].) Even if it could be said that robbery was included in the general charge of murder (see discussion, infra), the court properly refused the instruction because of the general rule that it is not error to omit or refuse to instruct the jury on their right to convict of lesser offenses included in the offense charged when the evidence shows, or tends to show, that the defendant, if guilty at all, is guilty óf the offense charged. (People v. Thomas (1962) 58 Cal.2d 121 , 127 [ 23 Cal.Rptr. 161 , 373 P.2d 97 ]; People v. McCoy (1944) 25 Cal.2d 177 , 187-188 [ 153 P.2d 315 ]; People v. Allison (1966) 245 Cal.App.2d 568 , 572-574 [ 54 Cal.Rptr. 148 ] ; People v. Morrison (1964) 228 Cal.App.2d 707 , 712-714 [ 39 Cal.Rptr. 874 ]; and see People v. Welborn (1966) 242 Cal.App.2d 668 , 679-680 [ 51 Cal.Rptr. 644 ].)

A second theory, which the jury was free to adopt under the instructions and the evidence, was that although there was a preexisting conspiracy and plan to rob the bar, Williams’ acts were not performed in the perpetration of that plan or in furtherance of the conspiracy to rob, either because he did.not have the capacity to form the intent to rob, or because the

A third hypothesis was that the intent to rob did not arise until after Williams had shot Kammeyer. Here again the robbery charge would be completely separate from the homicide charge. (See People v. Butler (1967) 65 Cal.2d 569 , 574 [ 55 Cal.Rptr. 511 , 421 P.2d 703 ]; People v. Carnine, supra, 41 Cal.2d 384 , 388-389.)

Defendants’ contention is predicated on the general rule referred to above that, "... the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever”; and upon the particular rule stated as follows: “ It is the duty of the court to instruct the jury in regard to any included offense which the evidence tends to prove.” (People v. Burns, supra, 88 Cal.App.2d 867 , 871. See also Pen. Code, §§ 1159 and 1093, subd. 6; People v. Modesto, supra, 59 Cal.2d 722 , 727; People v. Miller, supra, 57 Cal.2d 821 , 829-830; People v. Dewberry, supra, 51 Cal.2d 548 , 555; People v. Carmen, supra, 36 Cal.2d 768 , 773; People v. Coyne, supra, 263 Cal.App.2d 445 , 450-451; People v. Garcia (1967) 250 Cal.App.2d 15 , 17 [ 58 Cal.Rptr. 186 ]; People v. Roth, supra, 228 Cal.App.2d 522 , 527-531 [ 39 Cal.Rptr. 582 ]; and People v. Lewis (1960) 186 Cal.App.2d 585 , 596-599 [ 9 Cal.Rptr. 263 ].)

“An indictment or information charging murder . . . also charges all lesser offenses necessarily included in the crime of murder, including voluntary and involuntary manslaughter. [Citations.]” (In re McCartney (1966) 64 Cal.2d 830 , 831 [ 51 Cal.Rptr. 894 , 415 P.2d 782 ], See also People v. Marshall (1957) 48 Cal.2d 394 , 399, fn. 5 [ 309 P.2d 456 ]; People v. Witt, supra, 170 Cal. 104 , 107-108; People v. McFarlane (1903) 138 Cal. 481 , 484 [ 71 P. 568 , 72 P. 48 , 61 L.R.A. 245 ] ; and People v. Beach (1968) 263 Cal.App.2d 476 , 488-489 [ 69 Cal.Rptr. 394 ].) The foregoing cases do not indicate whether separate offenses which may be used to establish criminal responsibility for murder under the felony-murder rule as applied to first or second degree murder, or used to establish an unlawful act as a predicate of involuntary manslaughter or manslaughter in the driving of a vehicle, are lesser and included offenses of a homicide charge of which such separate offense is a part.

The principle has been expanded upon by cases which have permitted conviction for other offenses embraced with the facts set forth in the indictment or information, and for offenses consistent with the pleading which, through the evidence adduced at the preliminary hearing or by other means, have been accepted as issues in the ease.

In People v. Marshall, supra, 48 Cal.2d 394 , the court concluded, after reviewing existing precedents, “Since the decisions as to included offenses, so far as they relate to choice of a standard to measure what offenses are ‘necessarily included’ within the meaning of section 1159 of the Penal Code, have not expressly considered or decided the question of selection as between the language of the accusatory pleading and the statutory definition, we base our choice of the specific language of the accusatory pleading upon considerations of fairness to both parties.” (48 Cal.2d at p. 405. See also People v. Powell, supra, 236 Cal.App.2d 884 , 886; People v. Chandler, supra, 234 Cal.App.2d 705 , 708; People v. Hensel, supra, 233 Cal.App.2d 834 , 838-839; People v. Troyn (1964) 229 Cal.App.2d 181 , 185 [ 39 Cal.Rptr. 924 ]; People v. Lewis, supra, 186 Cal.App.2d 585 , 600; and cf. People v. Leech, supra, 232 Cal.App.2d 397 , 398.)

Defendants Asher and Carrafa contend that the foregoing authorities indicate that they could have been convicted of robbery under the indictment as framed, and that therefore it was error to fail to give the requested form of verdict. However, People v. Marshall, supra, distinguished between a simple statutory pleading, and an indictment or information setting out further facts. The opinion states: “A person charged simply with robbery ‘in the words of the statute describing the offense’ [fn. omitted see Pen. Code, § 952] would not be charged with and could not be properly convicted of the offense defined by [former] section 503 [of the Vehicle Code] because the accusatory pleading would not inform the defendant that he must be prepared, at the trial, to contravene evidence that he took a particular kind of personal property, a vehicle. [Citations.]” (People v. Marshall, supra, 48 Cal.2d 394 , 399, fn. omitted. See also People v. Lewis, supra, 186 Cal.App.2d 585 , 600.)

Some cases have touched on the matter of the offenses included under a general homicide charge. In People v. Mayes, supra, 262 Cal.App.2d 195 , the court considered the propriety of sustaining a conviction of battery under a charge of murder. The opinion states, “Manifestly, there are several methods by which a murder can be committed without touching the victim and hence without committing a battery in the technical sense. The starving, frightening or luring of a victim to his death are a few examples. Thus, it is arguable that a battery is not a necessarily included offense of the crime of

In People v. Welborn, supra, the court observed “We need not here determine the question whether assault with a deadly weapon was necessarily included within the ‘charge’ of murder as that charge was here framed [second degree murder].” (242 Cal.App.2d at p. 679, fn. omitted.) The court pointed out the difficulties in treating it as an included offense, and disposed of the contention that the instruction should have been given, by ruling. “In any event it was the defendant’s election to make [a request for the instruction].” (Id., at p. 680. Cf. People v. Ireland (1969) 70 Cal.2d 522 , 539-540 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ], as modified.)

In People v. Lewis, supra, the defendant contended that it was error to refuse to give a requested instruction on felonious assault when the evidence in a homicide case permitted a finding that the death was not proximately caused by the acts of the defendant. The court applied the rule of People v. Marshall, supra, 48 Cal.2d 394 , and concluded, “The indictment here did not charge murder by this means [murder with a hatchet], but merely the statutory crime in general terms. Under People v. Marshall, supra, and In re Hess, supra [ 45 Cal.2d 171 , 175 ( 288 P.2d 5 )], the defendant could not have been convicted of the assault described. Therefore, there was

The evidence reveals that there were several victims of the robbery in addition to the deceased Kammeyer. The general charge of robbery is sufficient to sustain the felony-first degree murder charge. Defendants could be convicted and sentenced for separate offenses against separate victims, but could only be sentenced for one offense against Kammeyer. (Neal v. State of California (1960) 55 Cal.2d 11 ,18-21 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ]; People v. Chapman, supra, 261 Cal.App.2d 149 , 179-180.) The question presents itself as to which victim should be selected as the lesser included offense to the murder charge. It is presumably Kammeyer in this case, but if the victim of the killing were not a robbery victim, there would be no way of determining which robbery was the lesser and included offense of the murder charge.

There was no error in failing to submit to the jury the separate issue of whether Asher and Carrafa were guilty of robbery. On analysis it appears that the real complaint of these defendants is that they were not charged with all of the robberies they committed, and that such charges were not joined (Pen. Code, § 954) with the murder count. Attention has not been directed to any principle which permits the accused to determine the offenses with which he will be charged. It is unnecessary to determine in these proceedings whether, as urged by defendants, any further prosecution for the robberies would be barred by the rule against multiple prosecutions. (See Pen. Code, § 654; and Kellett v. Superior Court (1966) 63 Cal.2d 822 , 825-827 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ].)

Evidence of Other Offense

Defendants Carrafa and Williams contend that the court erroneously admitted, over timely objection, evidence that Carrafa, armed with a shotgun, and a companion armed with hand gun held up a bar in Oakland at 11 a.m. on the day prior to the killing. They assert that the testimony was improper rebuttal evidence (see Pen. Code, §1093, subd. 4; People v. Carter (1957) 48 Cal.2d 737 , 753-754 [ 312 P.2d 665 ] ; and cf. People v. Kelley (1967) 66 Cal.2d 232 , 241 [ 57 Cal.Rptr. 363 , 424 P.2d 947 ]; People v. Whitehorn (1963) 60 Cal.2d 256 , 263 [ 32 Cal.Rptr. 199 , 383 P.2d 783 ]; People v.

Reference to the earlier robbery first appears in the record in the opening statement made by the attorney for Asher at the beginning of the trial. He stated, “Our testimony and our evidence will show you and put Mr. Williams and Mr. Carrafa in possession of that shotgun several days before this holdup, and the testimony will come through a bartender of a bar in the East Bay who will come in and testify that Williams' and Carrafa entered his bar and held him up, and that they had a shotgun, a sawed-off shotgun, and that same bartender will put the revolver in Mr. Williams ’ and Mr. Carrafa’s sole and exclusive possession, because he is going to testify that when he was held up they also had a revolver. ’ ’ This reference went unchallenged. A second reference drew objections on behalf of Carrafa and Williams, and they jointly moved for a mistrial. The court apparently sustained the objection, denied the motion for a mistrial as to both defendants, and admonished the jury that the statements of counsel were not to be considered as evidence.

No evidence of the earlier robbery was presented in the People’s case in chief. Carrafa was the first defendant to present his defense. In the opening statement made on his

In his testimony Carrafa acknowledged that he and Asher had' borrowed the shotgun from a friend of Asher in Los Angeles; that he had shortened the barrel so it would be small enough to put under the dashboard of a car; that he last saw the shotgun a day or two before the holdup in a closet in a home in Oakland; that when they came to San Francisco the day before the homicide he thought the shotgun was in Oakland; and that after the homicide it was broken up and thrown out of the car while driving to Sacramento

Carrafa also testified that Williams left the .22 pistol at the hotel room on the day before the homicide; that he took it out with him to seek Williams; that he met Asher, and gave the loaded pistol to Asher; and that he saw the pistol in Asher’s hotel room the next day; and that he and Asher were unarmed at the Hearth bar.

He related that he had no intention of robbing the “New Hearth Bar” when he walked into it with Asher and Williams; that he had no indication a holdup was taking place until Williams spoke after the shot was fired; that he followed Asher and the owner into the back office and joined in asking the owner to open the safe; that he attempted to open the safe with the combination numbers obtained from Kammeyer; and that he took the money from the cash register when Williams pointed the shotgun at him and ordered him to do so.

On cross-examination by the prosecution he reiterated that he last saw the shotgun in a closet in Oakland. He was not initially questioned about the earlier robbery. Asher’s attorney brought out that Carrafa and Williams had been in the Coat of Arms bar on the morning of the day before the homicide and had the pistol and sawed-off shotgun with them. The deputy district attorney thereafter was permitted to reopen his cross-examination and elicited similar testimony. There Avas a conflict in Carrafa’s testimony as to who had the pistol and who had the shotgun. Thereupon the prosecutor interrupted his examination with the suggestion that the propriety of further questions should be taken up outside of the presence of the jury. The court postponed that issue, and shortly thereafter defendant Asher began presentation of his case.

The following morning the question of examining Carrafa

The defendants further point to the dissimilarity of circumstances between the two robberies, and assert that they preclude use of evidence of the earlier offense in proof of the latter. The requirement of similarity is essential when proof of the modus operandi is relied on to establish identity. (See People v. Nazzaro, supra, 223 Cal.App.2d at p. 379; and People v. Channell, supra, 136 Cal.App.2d at pp. 113-115.) Once the identity of the perpetrator is established, the requisite degree of similarity may vary with the purpose for which the evidence of the prior offense is offered. The principal discrepancy noted in connection with the circumstances attendant to the two robberies was the time lag in commencing the robbery on the second occasion. The delay does not, as contended by defendants, compel a conclusion that the intent to rob was an afterthought to the homicide, but is readily explainable by a desire to wait until the number of patrons in the bar diminished.

Finally, it should be noted that the testimony was relevant to impeach Carrafa’s testimony that he had not seen the shot

When the examination was renewed the following occurred: “Q. You have been previously convicted of a. felony, haven't you, sir? A. Well, I don’t know if we can decide whether it is a felony or not. The Court: That is another matter we haven’t quite worked out. [ Carrafa’s Attorney] : I will stipulate that the Court may make its ruling on the information before it. I have nothing in addition to offer to the Court.” Thereupon the court examined the certified records in the file and stated, ‘‘ It would be my ruling that the man has been previously convicted of a felony. ’ ’ The records were then received in evidence without objection. No attempt was made, either in chambers or open court, to examine Carrafa concerning the proceedings in which he suffered the prior convictions, or concerning the manner in which he served his punishment.

On this record it is clear that the offenses "were felonies under the laws of Connecticut, and, as such, were properly used to impeach Carrafa. (Evid. Code, § 788; People v. Theodore (1953) 121 Cal.App.2d 17 , 28-30 [ 262 P.2d 630 ]; and see fn. 17, supra.) Carrafa aptly points out that for the purpose of augmenting his punishment it must be established that the offense of which he was convicted in another jurisdiction was one which could have been punished as a felony under the laws of this state. (Pen. Code, § 3024, subd. (g); and see People v. Hamm (1956) 145 Cal.App.2d 242 , 244 [ 302 P.2d 345 ].) Here evidence was offered in support of the prior convictions, and the court did not have to depend on the admission of the defendant Carrafa on cross-examination. (Cf. People s. Hamm, supra.) Escape, theft of a motor vehicle, and breaking and entering with intent to commit theft are all punishable as felonies under the laws of this state. (See Pen. Code, §§ 4530 and 4532; § 484 and Veh. Code, § 10851; and Pen. Code, § 459.)

Carrafa did not contend below, nor has he shown here that there was insufficient evidence to sustain a finding of the truth of the allegations of the prior convictions. His reliance on the principle that the failure of the trier of the fact to find on the issue of the truth of the allegations of the prior felony

In this case the issue of the prior convictions was expressly-withdrawn from the jury. There was, therefore, no acquittal by the failure of the jury to find on the issues raised by the defendants’ qualified pleas. The court, to whom the determination was submitted, did in fact, as reflected by the minutes, make a finding of the truth of the allegations after Carrafa had had a full opportunity to present such facts and argument as he desired. The fact that the finding postdated the verdict of the jury on the principal charge does not invalidate it. In People v. Romo, supra, the court analyzed the code provisions as follows: “Penal Code, section 1158, provides that ' [w]henever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, . . . the judge . . . must . . . find whether or not he has suffered such previous conviction . . .’ The language of this section, ‘whenever . . .. defendant is found guilty,’ obviously contemplates a finding on the prior by the judge in a nonjury trial after his finding of guilt on the main charge, although it does not specify when thereafter it must be made. Cases cited by appellant involving jury verdicts are not here controlling, for the nature of the jury’s function and the fact that the jury is discharged upon rendering a verdict (People v. Ysabel, 28 Cal.App.2d 259 . . .), require a determination of the issue of a prior, submitted with the main charge, at the same time. Whereas, in a court trial, in which the judge’s jurisdiction over all submitted matters ordinarily continues until disposed of, there is no necessity, practical or otherwise, for making a finding on the prior at the time he finds defendant guilty on the main charge. In fact it is a common practice to continue a finding thereon to a time after the disposition of a motion for new trial on the main charge or until the court has before it a probation or presentence report.

‘ ‘ This is not a situation in which the case was reopened for the purpose of proving the prior felony conviction charged, as in In re Daniels, 119 Cal.App. 350 . . . , relied upon by appellant herein; but is one in which proof of the charge has already been received at the trial and was before the court at the time it found defendant guilty of violation of section 266h. We do not see how the court’s inadvertent failure to act

Asher’s judgment should be corrected to reflect the true nature of two of the offenses which were a part of his multiple conviction. No other prejudicial error is found.

Denial of Asher’s Motion for a New Trial

Defendant Asher contends that he was denied the opportunity to argue his motion for a new trial, and that it was an abuse of discretion to deny the motion in the light of Williams’ recantation of his original testimony at the trial on the penalty issue.

In People v. Sarazzawski (1945) 27 Cal.2d 7 [ 161 P.2d 934 ], the court ruled: “Refusal to permit counsel for the defendant a reasonable opportunity to both prepare and present a motion for a new trial is, under the circumstances shown here, more than a mere error in procedure. It amounts to a deprival of a substantial statutory right and is not covered by the quoted constitutional provision [ § 4%, now § 13 of article VI of the State Constitution].” (27 Cal.2d at p. 18.) In that ease the circumstances upon which the court acted are summarized as follows: ‘ ‘ The above quoted excerpts disclose, not only that counsel for the defendant was misled as to the date upon which she would be required to argue the motion, but also that the trial judge entertained an egregious misconception of his duties and of the relative powers and

The facts of this case show no such refusal to permit Asher’s counsel to prepare and present a motion on his behalf. Following the return of verdicts favorable to the defendants at the penalty trial, the defendants were arraigned for judgment. (See, Pen. Code, § 1200.) Thereupon each defendant made a motion for new trial on all of the statutory grounds, and Asher’s attorney suggested that he would further attack the proceedings by petition for writ of coram nobis. All agreed upon a hearing date one week later. In the course of the discussion of the date for hearing it was brought out that Asher had two attorneys, both of whom were present at the original arraignment.

At the time originally appointed the attorney who conducted the trial for Asher advised the court of the defendant’s hospitalization. He withdrew the motion for a writ of coram nobis, advised the court that his argument on the motion for new trial would be very short, and agreed to a continuance to the morning calendar on June 12th. The court proceeded to hear arguments on the motion made by Carrafa. It concerned alleged inflammatory comments of the prosecutor and the attorney for Asher, the failure to give instructions and a verdict form on robbery, and the effect of Williams’ recantation. Williams’ motion was submitted without argument. The court denied each of their motions. Asher’s counsel was apparently present during these proceedings because when they concluded he consented to having all pending matters continued to June 14th rather than June 12th. He indicated to the court that if the motion for new trial with respect to Asher was denied at that time, that sentencing could pror ceed, provided the presentence reports were prepared by that time.

On the 14th, associate counsel for Asher appeared alone and stated, “... I would like to make a motion for a new trial on behalf of Hr. Asher. ’ ’ The deputy district attorney stated the motion had already been made by the other co-counsel. The court affirmed that statement. Co-counsel interjected, “I was under the impression that it hadn’t been made.” The court then stated, “It was made, and I am prepared to rule on it, and the motion will be denied.” No objection was voiced by the associate counsel for Asher, and he requested that sentencing be continued to the following Friday, rather than Thursday as suggested by the attorney for Carrafa, and he expressly waived the limitation on the time for sentencing.

It is apparent that Asher's two attorneys had failed to get together on the question of arguing the motion for new trial. The failure to request or present argument cannot be attributed to any arbitrary action of the trial court. It had heard argument on other motions in the same case, and in the absence of the presentation of new points was prepared to rule. It lay within the province of counsel appearing on the 14th to request an opportunity to argue if he desired it. If he was misled on the question of whether there had been a full presentation of Asher’s motion, it was not solely because of the remarks of the prosecutor and the court, but was also occasioned by his failure to properly consult with principal counsel as to the status of the proceedings. Similarly, the failure of the principal counsel to request argument on June 23d is partially, if not wholly, attributable to his failure to consult with co-counsel as to what had transpired on the 14th.

Furthermore, Asher at this time advances no grounds for a new trial which were not advanced to the court in the argument on behalf of Carrafa. Section 1202 of the Penal Code provides in part: “If the court shall refuse to hear a defendant’s motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial.” In this case the court did not refuse to hear, in the sense of giving “judicial consideration” to, the motion, nor did it deprive the defendant of a reasonable opportunity to prepare to argue the motion. (See, People v. Sarazzawski, supra, 27 Cal.2d at pp. 17-18.) The most that can be said is that Asher’s attorneys failed to request to orally argue the motion because of a lack of communication between themselves, and a misunderstanding with the court. The case is similar to People v. Murphy (1962) 207 Cal.App.2d 885 [ 24 Cal.Rptr. 803 ]. There “defendant consented to the hearing of his motion for a new trial together with the hearing on the question of probation. He did not call the attention of the court to his motion for new trial or to his

“We are convinced that a waiver was effected in the instant case and, after reading the entire evidence, we conclude that no prejudicial error resulted which would indicate that there was a miscarriage of justice, or that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the alleged error. (People v. Watson, 46 Cal.2d 818 . . . .) ” (Id., at p. 890.) So here, Asher must be deemed to have waived argument.

At the penalty trial Williams testified that he did remember the events of the evening in question, that the shooting occurred accidentally when he cocked the gun, and that Asher and Carrafa had nothing to do with the robbery until after Kammeyer was shot. It was for.the trial court to determine whether Williams’ newly pronounced version of the evening was any more truthful than his original testimony, which had been disbelieved by the jury, that he lacked capacity to act or remember what had occurred. (See People v. Tallmadge (1896) 114 Cal. 427 , 430-432 [ 46 P. 282 ] ; and Witkin, Cal. Criminal Procedure (1963) § 562, par. (2), pp. 571-572, and cases collected at p. 572.) The trial court was warranted in concluding that the second version was the product of Williams’ desire to protect his confederates. No abuse of discretion is found in the denial of Asher’s motion for a new trial, or in the manner in which it was heard and determined.

The judgments, with the exception of the finding of Asher’s prior conviction of a felony, are affirmed. That part of the judgment finding that Asher suffered a prior felony conviction is reversed, and the cause is remanded for the limited purpose of. determining the nature of the offenses for which Asher suffered a prior conviction.

Molinari, P. J., and Elkington, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied August 6, 1969.