People v. Ross

Our review of those claims in light of the whole record requires reversal of the arson conviction and affirmance of the remainder of the judgment as modified.

Facts

The essential facts may be summarized as follows:

During the afternoon of February 1, 1977, the Berkeley Fire Department responded to a fire at the scene of the crime where they discovered the body of the 90-year-old victim, Remi L. Dufau, lying next to a smoldering bedroom mattress; the victim’s hands and feet were trussed together behind his back with a piece of electric cord and a knotted cloth was found next to the victim’s neck. Their investigation revealed that the fire, which began in the area of the victim’s head and shoulders, was of incendiary origin. Police investigation disclosed that the apartment had been thoroughly ransacked; the widow (who arrived later) provided a list of items missing from the apartment, including the victim’s wallet, his Mastercharge card, several bottles of liquor and some jewelry. Upon defendant’s arrest two days later, a search of his room uncovered the victim’s wallet and identification. The next day the director of Harper House^[1] delivered to the police a bottle of Christian Brothers brandy taken from the defendant’s room as well as a bottle of Courvoisier cognac found in the codefendant’s room; the brands matched those taken from the Dufau household.

At trial, forensic evidence established that the victim sustained (1) multiple rib fractures and associated hemorrhaging, and hemorrhage of the brain consistent with the infliction of blows, (2) a contused laiynx caused by an attempted ligature strangulation and (3) extensive burns in the skull region. In the opinion of the pathologist the victim was still alive during the burning and that the cause of death was cardiorespiratory failure due to thermal burns and blunt trauma. In a recorded statement following his arrest, defendant confessed to his complicity in the planned burglary and robbery and in assisting Atkins in tying the victim and carrying him into the bedroom. Defendant denied any culpability for the arson and murder contending that codefendant Atkins alone administered the beating with a pipe and undertook preparations with the announced intention to set afire the blindfolded and gagged victim; that despite his protestation, codefendant Atkins continued his grisly preparations prompting the defendant to leave (with some of the loot) before

Atkins lit the match in order to avoid involvement in the anticipated murder. When Atkins later rejoined him outside, he informed the defendant that he had “burned him up” and that the event should prove newsworthy. Upon their return to their place of residence, they divided the stolen property.

Defendant did not testify, relying on the testimony of the only witness called by the defense, Anthony Deloney, a roommate to whom Atkins confessed his guilt of the charged crimes without mention of another’s involvement or participation. Proof of Atkins’ earlier convictions for the same crimes and torture allegation was offered into evidence by the defense pursuant to stipulation.

On rebuttal, the prosecution introduced impeachment testimony—over objection—consisting of two in-custody statements by Atkins to the authorities wherein he admitted guilt in the burglary and robbery incidents but denied any complicity in the arson and homicide or any such admission to Deloney. The net effect of Atkins’ statements was to reciprocally shift the blame for the arson and torture-murder onto his confederate.^[2]

We consider defendant’s claims in an order and context promoting convenience of discussion.

Sufficiency of the Evidence

Defendant severally contends that the record is barren of any substantial evidence linking him to the crimes of arson and murder by means of torture. Upon review of such contentions the applicable test on appeal is whether substantial evidence exists to support the verdict, viewing the evidence and its inferences in a light favorable to the respondent. (See People v. Redmond (1969) 71 Cal.2d 745 , 755 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ].)

Defendant first contends, relying chiefly on what defendant terms the Toledo doctrine (People v. Toledo (1948) 85 Cal.App.2d 577 [ 193 P.2d 953 ]), that since his exculpatory statements were introduced during the People’s case in chief, “ ‘[t]he prosecution ... is bound by the evidence in the absence of proof to the contraiy.’ ” (See People v. Toledo, supra, at p. 581.) The argument is flawed in many particulars.

First, the so-called Toledo doctrine (whose genesis seems to have been merely an argument offered on appeal)^[3] actually refers to a principle of judicial review invoked in homicide prosecutions obviating a defendant’s burden of showing mitigation or justification where the prosecution’s proof itself tends to show same or a lesser unlawful homicide. (Pen. Code, § 1105; see, e.g., People v. Chapman (1968) 261 Cal.App.2d 149 , 177 [ 67 Cal.Rptr. 601 ]; People v. Mercer (1962) 210 Cal.App.2d 153 , 159 [ 26 Cal.Rptr. 502 ]; People v. Salaz (1924) 66 Cal.App. 173 , 181 [ 225 P. 777 ]; People v. Estrada (1923) 60 Cal.App. 477 , 482-483 [ 213 P. 67 ].) The rule in its amended form is properly restricted to those cases where “all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. [Citations.]” (People v. Chapman, supra, 261 Cal.App.2d 149 , 177; italics ours.) To the extent that the doctrine is founded upon a notion that the prosecution is bound by their witnesses’ statements (see People v. Davis (1965) 63 Cal.2d 648 , 655 [ 47 Cal.Rptr. 801 , 408 P.2d 129 ]) on the antiquated theory of vouchsafing one’s own witnesses (see Witkin, Cal. Evidence (2d ed. 1966) § 1270, pp. 1176-1177), that theory has long since been discarded in favor of the modem rule allowing impeachment of a witness by any party, “including the party calling him.” (Evid. Code, § 785; People v. Chacon (1968) 69 Cal.2d 765 , 779 [ 73 Cal.Rptr. 10 , 447 P.2d 106 , 34 A.L.R.3d 454 ].) In the final analysis the question of defendant’s guilt must be resolved from all the evidence considered by the jury. (See People v. Davis, supra, 63 Cal.2d at p. 655; People v. Chapman, supra, 261 Cal.App.2d at p. 177.)

Herein, in addition to his confessed participation in the crimes of burglary and robbery, defendant admitted his active participation in hog-tying the victim and carrying him into the bedroom where he watched Atkins—whose propensity for committing arson crimes was known—heap clothing and debris upon the victim’s upper body and douse them with a combustible toilet lotion. Under such circumstances

the jury was entitled to find that the defendant knew of Atkins’ maniacal purpose and that his conduct actively aided and promoted its commission; conversely, it was likewise entitled to reject defendant’s claim that he had left the premises after his futile remonstrance but before the actual arson and killing. Under established principles defining the derivative liability of an aider and abettor, the issue of whether upon such evidence the defendant knowingly aided and abetted Atkins in the depraved act, with resultant liability for its natural consequences, presented questions of fact for the jury. (People v. Durham (1969) 70 Cal.2d 171 , 181 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ] [cert, den., 395 U.S. 968 ( 23 L.Ed.2d 755 , 89 S.Ct. 2116 ) and 406 U.S. 971 ( 32 L.Ed.2d 671 , 92 S.Ct. 2416 )]; People v. Villa (1957) 156 Cal.App.2d 128 , 134 [ 318 P.2d 828 ]; see also People v. Standifer (1974) 38 Cal.App.3d 733 , 743-744 [ 113 Cal.Rptr. 653 ].) Such determination based upon substantial evidence, as here, may not be disturbed on appeal. (See People v. Redmond, supra, 71 Cal.2d 745 , 755.)

Defendant next contends that since death resulted solely from an act in which he did not participate (arson), the evidence cannot support his conviction for the crime of murder by torture. The record refutes his contention. Expert testimony disclosed that the terminal cardiorespiratory failure was caused by both the inflicted trauma and thermal burning.^[4] Where concurring causes contribute to the fatal result, one may be criminally liable by reason of his own conduct which directly contributes to such result. (See People v. Lewis (1899) 124 Cal. 551 , 559 [ 57 P. 470 ]; 1 Witkin, Cal. Crimes, §§ 80, 82, pp. 80-82.) Defendant’s participation in the brutal beating inflicted by Atkins during the course of the burglary and robbery clearly established his equal culpability for the resulting death due to combined causes. Evidence of repeated beating of the victim with the intention of inflicting grievous pain and suffering for purposes of extortion (of money) constitutes murder by torture. (People v. Turville (1959) 51 Cal.2d 620 , 632 [ 335 P.2d 678 ] [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 )]; People v. Daugherty (1953) 40 Cal.2d 876 , 886 [ 256 P.2d 911 ]; accord People v. Wiley (1976) 18 Cal.3d 162 , 168, 173 [ 133 Cal.Rptr. 135 , 554 P.2d 881 ].)

Moreover, the evidence supported the first degree murder conviction not only on a theory of murder by torture but also under the felony-murder doctrine (see Pen. Code, § 189), a theory likewise

advanced by the prosecution and upon which the jury was instructed. Any unlawful killing, intentional or otherwise, committed in the perpetration of robbery or burglary for the intended purpose of theft constitutes the crime of first degree murder. (See People v. Burton (1971) 6 Cal.3d 375 , 387-388 [ 99 Cal.Rptr. 1 , 491 P.2d 793 ]; People v. Ireland (1969) 70 Cal.2d 522 , 538 [ 75 Cal.Rptr. 188 , 450 P.2d 580 , 40 A.L.R.3d 1323 ]; People v. Turville, supra, 51 Cal.2d 620 , 631-632.) The record persuasively demonstrates that the victim was killed during the course of the robbery as a part of a continuing criminal transaction; the jury’s implied finding that the killing occurred during and before completion of the crime of robbery is amply supported by the evidence justifying a guilty verdict under the felony-murder rule. (See People v. Manson (1976) 61 Cal.App.3d 102 , 207-209 [ 132 Cal.Rptr. 265 ] [cert, den., 430 U.S. 986 ( 52 L.Ed.2d 382 , 97 S.Ct. 1686 )]; see also 1 Witkin, Cal. Crimes (1978 supp.) § 312, pp. 292-298passim.)

Defendant’s parallel contention that his conviction of murder by torture with intent to kill is unsupported by the evidence and contrary to law is valid.

Although a specific intent to kill is not required in order to prove first degree murder by torture (People v. Steger (1976) 16 Cal.3d 539 , 546 [ 128 Cal.Rptr. 161 , 546 P.2d 665 , 83 A.L.R.3d 1206 ]; People v. Mattison (1971) 4 Cal.3d 177 , 183 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ]), such state of mind must be proved in order to invoke the greater penalty of life imprisonment without possibility of parole then mandated by the statute.^[5] Herein, the jury was properly instructed on the principles of first degree murder by torture^[6] as approved by our highest court (see People v. Wiley, supra, 18 Cal.3d 162 , 168, 173, and fn. 4; People v. Steger, supra, 16 Cal.3d at p. 546) and also on the necessity to find a specific intent to kill in conjunction with the “torture clause” allegation^[7] bearing upon the issue of greater punishment.

Defendant strenuously argues that the enhanced punishment of life imprisonment without parole requires a finding that the defendant personally committed the torturous conduct with the necessary homicidal intent. While we are aware of no authority squarely on point, the logic of defendant’s argument by analogy is compelling. Typically, penal provisions imposing added punishment do not purport to define a criminal offense but simply relate to the penalty to be imposed under certain circumstances. (See People v. Walker (1976) 18 Cal.3d 232 , 242-243 [ 133 Cal.Rptr. 520 , 555 P.2d 306 ]; People v. Strickland (1974) 11 Cal.3d 946 , 961 [ 114 Cal.Rptr. 632 , 523 P.2d 672 ] [enhancement due to personal use of a firearm during commission of any enumerated felony].) Any reasonable doubt as to the meaning of a penal statute must be construed favorably to the defendant as appears reasonable. (Keeler v. Superior Court (1970) 2 Cal.3d 619 , 631 [ 87 Cal.Rptr. 481 , 470 P.2d 617 , 40 A.L.R.3d 420 ].) Under the 1976 amendment to former section 190 (Stats. 1976, ch. 1124, § 1; see also Stats. 1976, ch. 1139, § 133) the Legislature, in denying eligibility for parole to those convicted of first degree murder by means of torture with intent to kill, in effect enhanced the penalty of life imprisonment otherwise provided.^[8] In light of our analysis, a defendant could not be subjected to such additional punishment on a theory of derivative liability but must have actually committed the proscribed conduct (People v. Walker, supra, 18 Cal.3d 232 , 241-242) with the necessary animus. Such conclusion is fortified by the Legislature’s subsequent action in deleting that special penalty provision as part of its comprehensive revision of the death penalty statutes and incorporating it as an alternative penalty upon charging and proving such murder by torture allegations as a special circumstance. (See Pen. Code, §§ 190, 190.1, 190.2, subd. (c)(4) added by Stats. 1977, ch. 316, §§ 5, 7 and 9, effective Aug. 11, 1977, repealed by initiative measure approved Nov. 7, 1978; see new Pen. Code, § 190.2, subd. (a)(18).)

Evidence of a declarant’s statement inconsistent with his statement received in evidence is admissible for the purpose of impeachment. (Evid. Code, § 1202; Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526 , 542 [ 63 Cal.Rptr. 518 ].) The purpose of the evidentiary rule is one of fairness to the party against whom the hearsay evidence was admitted without opportunity to cross-examine or impeach the unavailable hearsay declarant. (Id. at p. 542; see also People v. Beyea (1974) 38 Cal.App.3d 176 , 193 [ 113 Cal.Rptr. 254 ].) Atkins’ confession to Deloney, which tended to exonerate the defendant of arson and murder by torture, was introduced by the defense as a declaration against penal interest (Evid. Code, § 1230); the showing of unavailability as a witness was based upon Fifth Amendment considerations due to Atkins’ earlier conviction and pending appeal. (See Evid. Code, § 240, subd. (a)(1).) Under such circumstances, the only means available to the People to attack Atkins’ credibility was through the process of impeachment afforded by the statute. (Cf. People v. Marquez (1979) 88 Cal.App.3d 993 , 998 [ 152 Cal.Rptr. 200 ].) Since such evidence was not received for the truth of the matter asserted, no Sixth Amendment guarantees were abridged.9 (Cf. Dutton v. Evans (1970) 400 U.S. 74 , 88 [ 27 L.Ed.2d 213 , 226-227, 91 S.Ct. 210 ]; People v. Preston (1973) 9 Cal.3d 308 , 315-316 [ 107 Cal.Rptr. 300 , 508 P.2d 300 ]; People v. Coleman (1969) 71 Cal.2d 1159 , 1164 [ 80 Cal.Rptr. 920 , 459 P.2d 248 ]; United States v. Eaglin (9th Cir. 1977) 571 F.2d 1069 , 1078-1081 [cert den., 435 U.S. 906 ( 55 L.Ed.2d 497 , 98 S.Ct. 1453 )].)

Nor does section 1202 require a preliminary showing of unavailablity; it merely permits impeaching evidence without the necessity that the declarant be given an opportunity to explain or deny the inconsistency. Moreover, it seems specious for defendant to first argue unavailability on grounds of constitutional privilege and thereafter to deny its existence when similarly relied upon by the prosecution.^[9]

9We are mindful that a related but different question is presently pending review by the California Supreme Court. (See In re Johnny G., Crim. No. 20519, hg. granted May 18, 1978.^[10] )

Yet, while such evidence was admissible for the limited purpose intended, its probative value herein was substantially outweighed by its “substantial danger of undue prejudice . . . [and of] . . . misleading the juiy.” (Evid. Code, § 352.) While we fully recognize the trial court’s broad discretion under that statute, it is not unlimited. (See People v. Montgomery (1976) 61 Cal.App.3d 718 , 730-731 [ 132 Cal.Rptr. 558 ].) Not only did such evidence intrinsically possess a high probability to mislead and confuse the juiy to the defendant’s prejudice but the prosecutor consistently compounded that probability for error through his repeated and misleading closing remarks to the jury as to the substantive effect of such limited evidence.^[11] In urging the jury to consider Atkins’ statements in contrast to defendant’s denials in his own confession, the former were forcefully argued as evidence of the truth of the matter stated contrary to their limited probative use. Failure to exclude such evidence because of its demonstrably strong likelihood of misleading the jury constituted an abuse of discretion. Furthermore, the prosecutor’s repeated misstatements of the effect of such evidence constituted misconduct. (See People v. Strickland, supra, 11 Cal.3d 946 , 955.) The combined effect of such error undoubtedly contributed to the jury’s verdict on the arson count upon which the evidence of defendant’s participation was close; under such circumstances, we are not convinced that such error was harmless under either state or federal standards. (Chapman v. California (1967) 386 U.S. 18 , 24 [ 17 L.Ed.2d 705 , 710-711, 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]; People v. Strickland, supra, 11 Cal.3d at p. 955; People v. Coleman, supra, 71 Cal.2d 1159 , 1165.) But as to the remaining counts, the error was harmless. The evidence of defendant’s guilt in the perpetrated burglary and robbery, during which the killing occurred, was overwhelming; no reasonable possibility or probability exists that a different or more favorable verdict on the murder, burglary or robbeiy charges would have resulted had such error not occurred. (Chapman v. California, supra, at p. 24 [17 L.Ed.2d at pp. 710-711]; People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].)