People v. Bennett

Opinion

By a jury’s verdicts defendant Bennett was convicted of first degree murder, and found to have been armed with a deadly

Bennett made no denial of the commission of the act of homicide; his defense was self-defense and “diminished capacity” which he describes as “his state of mind at the time.” The jury’s verdicts were beyond any doubt supported by substantial evidence according to the standards of People v. Redmond, 71 Cal.2d 745 , 755 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ], and Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782 , 784-785 [ 59 Cal.Rptr. 141 , 427 P.2d 805 ].

For the reasons which we now state, it is concluded that the judgment, subject to a certain modification, must be affirmed.

I. It is first contended by Bennett that the “testimony of. . ., the prosecution’s psychiatrist, was admitted into evidence in violátion of appellant’s Miranda rights [and] in violation of appellant’s physician-patient privilege, Evidence Code section 994.”

The Miranda contention is raised for the first time on appeal, and is accordingly found to be invalid. “There is abundant authority in this state that if there is no objection at the trial to the admission of a confession or of statements obtained in violation of Miranda, the objection cannot be raised for the first time on appeal.” (People v. Peters, 23 Cal.App.3d 522 , 530 [ 101 Cal.Rptr. 403 ] [cert. den., 409 U.S. 1064 ( 34 L.Ed.2d 517 , 93 S.Ct. 563 )], and see authority there collected.)

Further, the record establishes that at least twice before he was interviewed by the psychiatrist, Miranda admonitions were read to Bennett. “[Q]ne warning of the Miranda rights adequately given is sufficient for subsequent interrogations.” (People v. Brockman, 2 Cal.App.3d 1002 , 1006 [ 83 Cal.Rptr. 70 ], and see authority there collected; see also People v. Johnson, 32 Cal.App.3d 988 , 997 [ 109 Cal.Rptr. 118 ].) And we note that the silent record fails to establish that no Miranda warning was given by the doctor; had timely objection been made an inquiry may have disclosed yet another such admonition. An accused may not by withholding an objection prevent correction of a trial omission and thus assure himself of a reversal, if convicted. Such speculation on a favorable verdict followed by a tardy claim of error is not permitted. (People v. Tappan, 266 Cal.App.2d 812 ,

We have considered the application to this issue of the recent case of People v. Bennett (not the defendant in the present case), 58 Cal.App.3d 230 [ 129 Cal.Rptr. 679 ], which involved a similar claim of lack of Miranda admonition by a prosecution psychiatrist. There, unlike the case at bench, proper and timely objection had been made by the defendant. The case is of no aid to us on the instant appeal. (See People v. Peters, supra, 23 Cal.App.3d 522 , 530.)

An incidental contention is that allowance of the psychiatrist’s testimony “as to appellant’s extensive drug history” was prejudicially erroneous. It is based upon the following proceedings: “Q. [By deputy district attorney, Mr. Van Sicklen]: Did you ask him about specific narcotics or drugs of any kind? A. Yes, I did. Q. Did he answer positively to any of those questions? A. Yes, he did. He has a rather extensive drug history here. (Examining records.) Q. Did he indicate whether or not he had drugs—Mr. Diamond [defense attorney]: I’ll object to that, Your Honor. Mr. Van Sicklen: Q.—the night in question? The Court: Excuse me just a minute. The prior answer, you mean? Mr. Diamond: Yes, Your Honor, ask it be stricken. The Court: The answer will be stricken; the jury will disregard it. You may question him as to what the defendant said regarding the period immediately before the incident in question. Mr. Diamond: I would approach the bench, Your Honor. The Court: All right. (Off-record conference at bench.) The Court: Just one minute. I want to make clear to the jury we’re not dealing here at all with any prior history that anybody might have had; the only relevant information here relates to what occurred immediately before the incident in question and what influence it might have had one way or the other in connection with that incident; that’s all we’re concerned with.”

We opine first that Bennett’s extensive drug history may not reasonably be deemed wholly irrelevant to his diminished capacity defense. Even if it be considered irrelevant, and therefore inadmissible, substantial prejudice is not apparent for, without objection, the psychiatrist otherwise testified to Bennett’s admitted current or recent drug usage; indeed proof of that drug usage was a part of Bennett’s defense. And in any event, such prejudice as might have existed appearssto have been cured by the trial court’s prompt jury admonition.

II. The People’s theory at the trial was that the charged homicide was first degree murder since it was committed in the perpetration of or attempt to perpetrate robbery, and was a “willful, _ deliberate, and premeditated killing, . . .” (See Pen. Code, § 189.) Bennett urges that the jury were permitted to, and probably did, disagree on which was the theory upon which they based their first degree murder verdict. This, he claims, was error.

A similar contention was made in People v. Milan, 9 Cal.3d 185 , 195 [ 107 Cal.Rptr. 68 , 507 P.2d 956 ], where the court said: “[I]n a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.” (See also People v. Nye, 63 Cal.2d 166 , 173 [ 45 Cal.Rptr. 328 , 403 P.2d 736 ] [cert. den., 384 U.S. 1026 ( 16 L.Ed.2d 1033 , 86 S.Ct. 1960 )]; People v. Hardenbrook, 48 Cal.2d 345 , 353-354 [ 309 P.2d 424 ]; People v. Chavez, 37 Cal.2d 656 , 670-672 [ 234 P.2d 632 ]; People v. Seastone, 3 Cal.App.3d 60 , 69 [ 82 Cal.Rptr. 907 ].)

III. Error is charged in the admission at the trial of “evidence obtained by the police during a warrantless search of the appellant’s home and without probable cause ....”

The subject homicide occurred May 31, 1974, and the police promptly obtained a warrant for Bennett’s arrest therefor. A fruitless attempt was made to execute the warrant on June 1 at a residence where Bennett lived alone; the premises were found unoccupied. Several days later someone identifying himself as Bennett telephoned the police, but while they were trying to trace the call the person went off the line. Suspecting that Bennett may have returned to his home the police went there. It was observed that a window shade had been moved, and that an open back door had been closed since the last police visit to the premises. While in the backyard one of the officers heard “kind of a shuffling noise . . . like

From the foregoing facts the superior court reasonably concluded that the police had good cause to believe that Bennett, for whom they held an arrest warrant, was present in the premises. They accordingly were permitted, upon compliance with the “knock and notice” requirements of Penal Code section 844, to enter the building. (Horack v. Superior Court, 3 Cal.3d 720 , 726 [ 91 Cal.Rptr. 569 , 478 P.2d 1 ].) The record establishes substantial compliance with section 844. Upon entering the premises they were, of course, authorized to institute a search for Bennett. During the course of such a search they observed the gun in plain sight. This they were obviously allowed to seize and later, use as evidence. (People v. Block, 6 Cal.3d 239 , 243 [ 103 Cal.Rptr. 281 , 499 P.2d 961 ].) We further opine that under the described facts and circumstances, examination of the heavy jacket and seizure of the bullets found therein were reasonable. (See People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ] [cert. den., 364 U.S. 841 ( 5 L.Ed.2d 65 , 81 S.Ct. 79 )].) Assuming arguendo the contrary, the allowance of the bullets in evidence was obviously harmless; for since the gun was properly in evidence, the bullets had little, if any, additional prejudicial effect. (See Cal. Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ] [cert. den., 355 U.S. 846 ( 2 L.Ed.2d 55 , 78 S.Ct. 70 )].)

It follows that the superior court did not err, at least prejudicially, in allowing the questioned items of property in evidence.

IV. The jury found, as indicated earlier, that in the commission of the homicide Bennett (I) “was armed with a deadly weapon” (see Pen.

We are advised by the Attorney General of the possibility that if Bennett, or a similarly situated offender, “were later to commit a felony while armed with any of the deadly weapons defined in subdivision (f) of section 3024 of the Penal Code other than a firearm, or if he committed a felony not enumerated in section 12022.5, the penalty enhancing provision of section 12022.5 would not apply. . . . And, because the finding under section 12022 had been stricken, he could then not be additionally punished as a multiple offender under that section.” For this reason we are asked to “stay the effect of the section 12022 finding, rather than striking it entirely, . . .” We think the People’s fears are unfounded. One who uses a firearm (§ 12022.5) is necessarily armed with a deadly weapon (§ 12022). (See People v. Strickland, 11 Cal.3d 946 , 961 [ 114 Cal.Rptr. 632 , 523 P.2d 672 ].) If in the future Bennett shall commit an offense subject to the provisions of section 12022, the jury’s finding in the instant case that he used a firearm may also be treated as a finding that he was armed with a deadly weapon.

The superior court will modify the judgment, and the abstract of judgment and commitment to state prison, by striking therefrom the jury’s finding that defendant was armed with a deadly weapon in the commission of the offense of which he was convicted. As so modified, the judgment is affirmed.

Molinari, P. J., and Sims, J., concurred.

A petition for a rehearing was denied August 11, 1976, and the opinion was modified to read as printed above. Sims, J., was of the opinion that the petition should be granted.