People v. Romo

Opinion

A jury found defendant DeWitt guilty of murder of the first degree, and defendant Romo guilty of murder of the second degree; and they have appealed from the judgments.

This case discloses a sordid, gruesome, and tangled skein of facts from which a consistent factual thread stands out with sufficient clarity to make it possible to condense a factual summary.

On December 30, 1973, Romo, Rick Fournier (the murder victim), Kim Treharne (half brother of Romo), Bonnie Tovar (common law wife of DeWitt), Ace Waldner and Linda Drouin (Romo’s girl friend) spent approximately 10 hours at Romo’s residence in Sacramento drinking extensively. At approximately 10:30 p.m., all except Linda Drouin, who was ill, left Romo’s house and traveled to DeWitt’s home. Romo, Kim and Bonnie traveled together, and Fournier and Ace drove to DeWitt’s house in Ace’s car. Fournier appeared to be intoxicated; Romo appeared somewhat intoxicated but was capable of coherently conversing and driving the vehicle from his home to DeWitt’s home without apparent trouble. At DeWitt’s, additional drinking took place. Romo and Fournier (the victim) had a slight altercation but reconciled their differences. DeWitt later attacked Fournier and was joined in the attack by Romo and Kim. The three of them beat Fournier with their fists and kicked him about the head and body. Fournier, intoxicated but conscious, was lying on the floor not resisting. DeWitt ordered Bonnie to insert a dildo in Fournier’s rectum. Bonnie resisted but was threatened by DeWitt and thereafter complied. After this assault upon Fournier, DeWitt was heard to state, “We’re going to have to, . . . dust this guy, he [Fournier] could violate our parole by a report to the police.” Hearing this, Fournier began pleading for his life. DeWitt pulled Fournier’s trousers up, taped Fournier’s hands behind his back, and blindfolded him with pieces of sheet. DeWitt and Romo forced Fournier to his feet and took him to the car Romo was using. At this time Fournier was conscious and pleading for his life. The defendants left with Fournier from DeWitt’s home at about 12:45 a.m. with Romo driving, DeWitt in the passenger seat, and Fournier bound and blindfolded in the rear seat. Fournier’s body was

In California v. Green (1970) 399 U.S. 149 [ 26 L.Ed.2d 489 , 90 S.Ct. 1930 ], the court sets forth the present rule regarding the use of extrajudicial statements as follows: “[T]he Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” In 1971, the court reaffirmed this doctrine in Nelson v. O’Neil (1971) 402 U.S. 622 [ 29 L.Ed.2d 222 , 91 S.Ct. 1723 ]. That case involved a joint trial at which incriminating extrajudicial statements of one codefendant tending to implicate the other were admitted. Both defendants here, however, took the stand and testified. The court, in O’Neil at page 627 [29 L.Ed.2d at page 227], stated: “The Constitution as construed in Bruton . . . , is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-examination.” (Italics in original.) In both Green and O’Neil, both defendants testified as witnesses and were subject to full and effective cross-examination. Thus, no violation of the confrontation clause existed.

In Bruton v. United States, supra, 391 U.S. 123 , the extrajudicial statement of a codefendant was admitted which implicated both the defendant Bruton and the codefendant. The court there stated, “ ‘A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice....’ ” (Italics added.)

In support of their assertion that denial of the motion for severance was reversible error, both defendants urge upon the court the holding of People v. Aranda, supra, 63 Cal.2d 518 . We distinguish that case because the court’s holding there is confined to the singular factual situation presented. The principal evidence against defendant Aranda, and upon which his conviction was obtained, was the extrajudicial statement of codefendant Martinez. Under circumstances where no clear evidence of joint action, or other evidence under which the conviction could clearly stand, is presented, the court established the procedures to be followed: “When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a

Aranda distinctions have been previously made. (People v. Epps (1973) 34 Cal.App.3d 146 , 157 [ 109 Cal.Rptr. 733 ].) It is not Aranda error to admit into evidence the admission or confession of one defendant, which reflects his commission of a crime that is revealed by the physical evidence, even though such evidence might reflect on the issue of whether or not the crime was actually committed also by another, who is linked to the offense by evidence other than the confession. In such circumstances, the joint trials have been held eminently proper. (People v. Diaz (1969) 276 Cal.App.2d 547 [ 81 Cal.Rptr. 16 ].) Where both defendants implicate themselves in the offense charged in a joint conversation, separate trials are not indicated by Aranda. (People v. Fuller (1969) 268 Cal.App.2d 844 , 854-855 [ 74 Cal.Rptr. 488 ].) In view of the decisions in California v. Green, supra, and Nelson v. O’Neil, supra, the Aranda principle must be narrowly applied.

Denial of Severance as Abuse of Discretion

DeWitt asserts the denial of the severance motion was an abuse of discretion. And, for the first time here on appeal, DeWitt asserts that when the severance motion was denied, the trial judge failed to take into account the dictates of People v. Massie (1967) 66 Cal.2d 899 , 916-917 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ], and did not exercise discretion in the denial. Neither contention has merit. The motion for severance as disclosed by the augmented reporter’s transcript on appeal indicates DeWitt made no reference to any of the dictates of Massie allegedly applicable to his case. That record further fails to reveal any request by Romo for a severance of the trial and to the contrary, contains a disclaimer from participating in such motion. The trial court is not obliged to order separate trials sua sponte. The granting or denial of a request for severance must be supported by a showing of grounds at the

Sufficiency of the Evidence

In support of this contention, DeWitt speciously argues his conviction was totally based upon the uncorroborated testimony of defendant Romo, an accomplice. He studiously disregards the mountainous volume of other evidence supporting his conviction. DeWitt emphasizes his testimony of nonparticipation and argues that Romo’s extrajudicial statements were the only evidence determinative on the question of his guilt or innocence. The record reflects overwhelmingly to the contrary. The defendant Romo testified fully to the facts as we have set them forth. Romo implicated DeWitt in the shooting as well as the kidnapping and assault. This testimony was corroborated by the testimony of Kim Treharne and Bonnie Tovar in every respect except for the firing of the gun. DeWitt’s testimony was that of total nonparticipation. He admitted participation in the earlier assault but denied participation in the kidnapping and murder.

In reviewing the evidence on appeal, the applicable test is not whether guilt has been proven beyond a reasonable doubt, but whether substantial evidence supports the conclusion of the trier of fact. The reviewing court does not perform the function of reweighing the

On the question of sufficiency of the evidence of premeditation and deliberation, the court in People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ], stated as follows: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ (People v. Thomas, supra, 25 Cal.2d 880 , at pp. 898, 900, 901 [ 156 P.2d 7 ]); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).

“Analysis of the cases will show that this court sustains verdicts of first degree murder typically where there is evidence of all three types and

We find substantial evidence to satisfy the trilogy of circumstances outlined in People v. Anderson, supra. His planning activity commenced after the violent and sordid assault on the victim when he declared the victim would have to be “dusted.” DeWitt bound and blindfolded the victim and thereafter, with Romo’s assistance, took him to the car. DeWitt was observed at this time to be armed with a .38 caliber pistol.

A shallow and needless motive, but nonetheless genuine, was shown by DeWitt’s statement that the victim would have to be dusted to prevent his possible report to the police of the violent assault and the consequential violation of DeWitt’s parole. When asked why he had shot the victim, DeWitt replied, “He would have snitched on us.” Viewing the evidence as we must on appeal in a manner most favorable to the verdict, DeWitt is shown to have led the victim from the car, stood over him and fired three shots from the revolver into his body, one in the head and two in the back. Upon returning to the car, Romo asked what happened and DeWitt replied, “I blew the .. ,’s brains out.”

There was sufficient evidence to support the conviction.

Prosecutor Misconduct

Among Romo’s remaining contentions, he asserts the prosecutor committed reversible misconduct by a reference to Romo’s parole status. The burden of proof in these circumstances is on Romo to show the existence of misconduct by the prosecutor. (People v. Beivelman (1968) 70 Cal.2d 60 , 75 [ 73 Cal.Rptr. 521 , 447 P.2d 913 ].) Misconduct is a dishonest act or an attempt to persuade the court or the jury by use of deception or reprehensible methods. Whether the prosecution has committed misconduct depends upon the particular circumstances of each case and bad faith must be shown to establish the existence of misconduct; bad faith is manifested where the prosecutor intentionally asks questions, the answers to which he knows to be inadmissible because they are prejudicial to the accused. (People v. Rhinehart (1973) 9 Cal.3d 139 , 154 [ 107 Cal.Rptr. 34 , 507 P.2d 642 ]; People v. Collins (1964) 228 Cal.App.2d 460 , 463 [ 39 Cal.Rptr. 595 ]; People v. Stokley (1968) 266 Cal.App.2d 930 , 935 [ 72 Cal.Rptr. 513 ].) The statement regarding parole status was in response to a question by the prosecutor not

Ineffective Counsel

Romo argues he was denied effective assistance of counsel as a result of counsel’s failure to raise a diminished capacity defense on his behalf. The argument is illusory. The court in People v. Rowland (1971) 21 Cal.App.3d 371 , 373 [ 98 Cal.Rptr. 419 ], most accurately assesses this sort of attack: “[Romo] does not attack the sufficiency of the evidence, but, as is now the prevailing custom on appeal, ignores the effectiveness of the evidence against him and blames his conviction on trial counsel.” This attack is further perplexing in view of the fact that complete instructions on diminished capacity were given.

The record accurately and adequately reflects direct, as well as circumstantial, evidence on the question of diminished capacity on behalf of Romo. DeWitt’s only defense was no involvement, and the record does not reflect the prosecution offering or tendering evidence on the defense of diminished capacity for Romo. The jury resolved this question against Romo following his taking the stand and presenting a lucid description of the ugly events occurring on the night of the kidnap-murder. Romo has simply failed to carry the burden of demonstrating his denial of effective assistance of counsel. Our determination on appeal, when ineffectiveness of defense counsel is asserted, must be to determine whether or not actions of defense counsel, or failure to act, resulted in withdrawing crucial defenses or reduced the trial to a mere farce or sham. (People v. Ibarra (1963) 60 Cal.2d 460 , 464 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ].) To justify reversal on such grounds, an extreme case must be shown as a demonstrable reality and not as a speculative matter. (People v. Stephenson (1974) 10 Cal.3d 652 , 661 [ 111 Cal.Rptr. 556 , 517 P.2d 820 ].) The record discloses a total lack of support for this contention.

The second degree felony-murder instruction was given with simple kidnapping as the underlying felony. (CALJIC Nos. 8.32 and 9.20.) With these instructions, the jury was required to consider Romo’s intoxication in determining whether he could achieve the specific state of mind required to commit the underlying felony. Error is claimed because the jury was not specifically so instructed. In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole. We must also assume that the jurors are intelligent persons and capable of understanding and correlating all juiy instructions which are given. (People v. Henley (1969) 269 Cal.App.2d 263 [ 74 Cal.Rptr. 611 ].)

Our review of the record does not reveal any objection by defendant Romo to the giving of CALJIC Nos. 4.21, as modified, and 8.32, nor do we find that any other instructions were requested. Under these circumstances, the defendant has waived the right to raise the objection on appeal. (People v. Hawkins (1968) 268 Cal.App.2d 99 [ 73 Cal.Rptr. 748 ].) In any event, the jury was instructed on the significance of voluntary intoxication as it bears upon the “state of mind” which is a necessary element of murder. The jurors were also instructed on the requirement of specific intent to kidnap as a basis for second degree felony (kidnap) murder. The court likewise instructed on the effect of diminished capacity induced by intoxication upon the specific mental states which are essential elements of murder. Although the precise instruction was not given (or requested) of which an error in omission is now charged, the juiy was instructed to consider the instructions as a

The judgments of conviction are affirmed.

Regan, Acting P. J., and Paras, J., concurred.

A petition for a rehearing was denied April 25, 1975, and the petition of appellant DeWitt for a hearing by the Supreme Court was denied July 3, 1975.