Free Response to Order to Show Cause - District Court of California - California

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EXHIBIT C (PART 2)

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Elgin; a pat-down search accidentally yielded a roll of . 2 currency in excess of $1,700. The discovery of such a large sum of money unusually secreted about Elgin's person was sufficient to elevate Officer Bird's original suspicions to a reasonable and conscientiously entertained belief that Elgin was the third robbery participant; i.e., it provided probable cause for Elgin's arrest. supra, 27 Cal.3d 670.) Defendants also characterize Elgin's arrest as unreasonable, in that it was made without a warrant after the officers'
e~try

(People v. Superior Court (Wells),

into the apartment.

People v. Ramey (1976) 16

Cal.3d 263,275 does-hold that warrantless arrests within the home.are per se constitutionally invalid in the absence of

2

Detective Watson's. testimony was that the roll of currency fell out of Elgin's sock during the pat-down--not that it was removed therefrom. Contrary to defendant's assertion, a pat-down search was justifiable. The record clearly establishes the vicious nature of the Boy's Market crimes, as well as Officer Bird's knowledge that both in-store robbers were armed with handguns only one of which had been recovered at the time of the defendants' arrests. A pat-down search will be upheld where the record reveals specific "factors creating a potential for danger to the officers · · · · " (pe9~~e v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, ; see also People v. Mat (1973) 33 Cal.App.3d 888, 891-892.) Such factors are present ere; from the totality of the circumstances, the officers had every reason to believe another handgun, with which Elgin might have armed himself, was in the apartment.

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exigent circumstances or consent to enter. New York (1980) 445 U.S. 573.) did consent to the officers'

(See also Payton v.

But in the instant case, Elgin Moreover, the officers did

ent~y.

not seek entry for the purpose of arresting the occupant; probable cause to arrest Elgin arose after the entry. There is

nothing in the record to indicate their lack of receptiveness to any explanations
Elg~n

might have offered to negate his

criminal involvement.

Hence, nothing in the officers' intent (People v.

vitiated the consensual nature of the entry. Patterson (1979) 94 Cal.App.3d 456, 463.)
;

Consent to Search ' Inasmuch as Elgin's. consent to search was not tainted by the illegality of his arrest (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251), we proceed to examine whether consent was freely and voluntarily given. Elgin himself testified that he

felt no compulsion to consent; Officer Bird informed him that he could refuse and the police would obtain a warrant. Notwithstanding Elgin's restraint in handcuffs, the foregoing constitutes substantial evidence to support the trial court's finding that Elgin's consent was voluntary. (People v. Reyes

(1974) 12 Cal.3d 486, 501; see also People v. Mayberry (1982) 31 Cal.3d 335,
~43.)

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In any event, the handguns discovered in the course of the consensual search were admissible evidence under the doctrine of inevitable
d~scovery.

As enunciated in People v. Superior

Court (Tunch) (1978) 80 Cal.App.3d 665, 673, this doctrine permits the admission of evidence which would have been secured eventually without regard to alleged improper police conduct; it has developed to prevent criminals unjustly from escaping prosecution. (See also Lockridge v. Superior Court (19iO) 3 In the course of normal events and proper

Cal.3d 166, 170.)

police activity, the handguns inevitably would have been discovered. Due to the dual occupancy of the apartment, Officer Bird was prepared to obtain a search warrant whether or not Elgin consented to a search; without reference to the handguns to which Elgin led the officers, Officer Bird had available ample facts to support such 'a warrant (which he subsequently obtained).
3

During the search made pursuant to that

warrant, the handguns would have come to light.

3

Defendants presumably recognize this, for they did not attack the validity of the subsequently-obtained warrant in the court below. '

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II

There is no merit to Jordan's contention that the trial court erroneously failed to instruct the jury sua sponte on second degree murder. The trial court must give instructions,

even in the absence of a request, on all general principles of law "closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v.·St. Hartin (1970) 1 Cal.3d 524,531.)

The obligation extends to instructions regarding lesser included offenses "when the evidence raises a question as to whether all of the
ele~entsof

the charged offense were present

...

,

but not when there is no evidence that the offense was [Citations omitted.]" (People v ,

less than that charged.

Wickersham (1982) 32 Cal.3d 307, 323-324~) In the instant matter, quite apart from reference to the
. .

felony-murder doctrine, the evidence as to the killing of Martin and Cousins bespeaks nothing other than calculated, deliberate, premeditated murder. In the course of the Norm's

Restaurant robbery, Jordan demanded Martin's wallet; when Martin hesitated, Jordan pulled out a gun and shot him. may not reasonably infer a "panic" killing, an accidental killing or a defensive reaction from such a scenario; the only One

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reasonable inference to be drawn is that Jordan decided to kill Martin in retribution for Martin's hesitancy in surrendering his property. Although circumstantial in nature, the evidence

relating to the killing of Cousins equally lends itself to only one reasonable set of inferences. When Jordan shot CO'!lsins,

Cousins was standing at the Boy's Market telephones with a telephone receiver in his hand; his gun, was holstered. in the store, Jordan threatened a box boy, calling for security, with death, stating, "r've already killed one person." Moreover, Jordan walked away, leaving Cousins to It is.clear that when he perceived himself Later,

bleed to death.

"crossed," Jordan once again killed with deliberation .and malice. There simply was no evidence before the trial court Accordingly,

supportive of a second degree murder theory.

there was no error in the court's failure to instruct thereon. III Jordan avers that the trial court erred in denying his motion to exclude evidence of witnesses' photographic lineup identifications and
in~court

identifications based thereon, in We

that the photographic lineup was impermissibly suggestive. cannot agree.

An in-court eyewitness identification which follows a
pretrial photographic identification is grounds for the

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reversal of a conviction only if the photographic identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968) 390 U.s. 377, 384.)

Whether the photograp4ic identification was unduly suggestive turns on the facts of each case. 107 Cal.App.3d 531, 556.) Jordan argues that the photographic lineup procedure utilized was unduly suggestive because he alone among the six individuals depicted possesses the distinctive characteristic of oriental-appearing eyes or "Samoan" features. Biggers (1972) 409 Cal.App.3d 476.)
U.S~

(People v. Guillebeau (1980)

(See Neil v.

188; People v. Smith (1980) 109

We have examined the photograph of Jordan, as

well as the photographs of the five other individuals, utilized in the lineup procedur~. As a result of our examination, we

conclude that Jordan's' personal characteristics are not as distinctive as he may wish; he is neither the only individual depicted with a somewhat "Oriental" cast to his eyes nor the only one with arguably "Samoan" features. It is apparent that the police took great pains to produce a fair cross-section of photographs for identification; in our view, they succeeded. We find nothing unduly suggestive in the

lineup procedure thus ,followed.

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IV
Jordan asserts that the trial court failed to articulate adequate reasons for imposing consecutive sentences. disagree. Penal Code section 1170, subdivision (c) provides: "The We

court shall state the reasons for its sentence choice on the record at the time of sentencing . · . · " The selection of

. consecutive sentences is a sentence choice within the meaning of subdivision (c). 619, 622.) (People v. Walker (1978) 83 Cal.App.3d

However, the failure to specifically articulate
'

reasons for the imposition of consecutive sentences is harmless . error if the reason for the court's choice is apparent from the record. (People v. Blessing (1979) 94 Cal.App.3d 835,

838-839.). California Rules of Court, rule 425(a) provides criteria relating to the- imposition of consecutive sentences. may consider:
[~]

The court

"Facts relating to the crimes, including.

. ...

(1) The crimes and their objectives were predominantly
[~]

independent of each other.

(2) The crimes involved
[~]

separate acts of violence or threats of violence.

(3) The

crimes were committed ,at different times or separate places,

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rather than being committed so closely in time and place as to indicate a single period of aberrant' behavior. the crimes involved multiple victims.
[11']. (4) Any of

[,r] (5) The convictions

for which sentences are to be imposed are numerous."

It is

abundantly clear from the record that each and everyone of the enumerated criteria applies to Jordan's crimes. Accordingly,

there is no reasonable:purpose to be served in remanding the . 4 matter for resentencing.

v
Jordan's further assertion that the sentences imposed on counts I, II and III constitute multiple punishment in violation of Penal Code section 654 lacks merit. . section 654 provides in pertinent part: Penal Code

"An· act or omission

which is made punishable in different. parts of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; ·

. . ."

In general, a

defendant may be punished for each crime of violence against a

4
The People urge us to do so, in that the trial court . mistakenly entertained the belief it could not impose consecutive sentences in certain instances.--nowever, the issue is not reviewable in this court, for the People have no standing to appeal the trial court's exercise of or failure to exercise sentencing discretion. (Pen. Code, § 1238.)

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different victim, even though he entertains but one principal criminal objective during an indivisible course of conduct. (People v , Ramos (1982): 30 Cal.3d 553, 587.) Robbery is a- crime 'of violence against the person; the central element of the "crime is the force or fear exerted against the victim in order to deprive him of his property. (Id., at p. 589.) Counts I, II and III stem from the January

30 Safeway Market robbery, in which Jordan first approached Potter at the liquor counter and demanded at gunpoint the money Potter was removing from the cash register. Jordan then

ordered Potter to proceed to Sallis' checkstand; Potter told Sallis to give Jordan the money, but when she was slow in doing so, Potter assisted her. After moving at Jordan's command to

Dorgan's checkstand, Potter removed the money from that register. Both Sallis and DOfgan knew Jordan had 'a gun;. they were frightened and nervous. Hence, it is readily inferable that

Jordan exerted force and fear against each in order to take property in their
safekeeping~

even though he utilized Potter
\

as the actual instrument of removal at Dorgan's cash register. Accordingly, Jordan was properly punished for the robbery of each of the three victims.

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VI
Jordan also avers that he is entitled to good time/work time credits per People v. Sage (1980) 26 Cal.3d 498. In that

Jordan was sentenced to life imprisonment without possibility of parole, we consider this court's holding in People v. Garcia (1981) 115 Cal.App.3d 85 at pages 112,-114 dispositive of the issue. The sentence imposed herein is equally indeterminate in

nature as a sentence of straight life imprisonment imposed pursuant to former Penal Code section 190 (repealed by section 1 of Initiative Measure approved November 7, 1978). as was the case \-lith
r~spect

Moreover,

to a sentence of straight life

imprisonment under former section 190, the present version thereof makes no provision for the application of
I

con~uct

credits to a sentence of life imprisonment without possibility of parole. Hence, under the analysis set forth in Garcia,

Jordan is not entitled to such credits.

VII
Finally, Jordan contends that'the trial court failed to properly instruct the jury on the intent required to sustain the special circumstances alleged pursuant to the Penal Code section 190.2, subdivision (a)(17). The issue of whether the

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killer must have intended the death of the victim in order to sustain a special circumstance alleged under subdivision is presently pending before the 5 California Supreme Court. Under the factual circumstances
l

(a)(17) of section

190~2

of this case, the error (if any) in the trial court's failure to instruct on intent must be deemed harmless; given the strong evidence that the killings were deliberate, premeditated and malicious there is no reasonable probability that Jordan would have obtained a more favorable result had the jury been· instructed as he proposes. 818, 836.) (People v. Watson (1956) 46 Cal.2d

Accordingly, we consider the instant matter an

inappropriate vehicle to decide this issue on an interim basis and rely instead on the doctrine of harmless error to affirm the special circumstance findings.

VIII
Dawson contends there is no substantial evidence to sustain his conviction of the robbery or of Cousins' murder under the felony-murder doctrine. We disagree.

5

People v. Kelly, Grim. No. 22137.

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In assessing whether a conviction is supported by substantial evidence of each element of the crime, we must view the entire record in the light most favorable to the judgment, presuming the existence of every fact which reasonably could be deduced from the evidence. 557, 576.) (People v. Johnson (1980) 26 Cal.3d

Substantial evidence is that which is "reasonable

in nature, credible, and of solid value" as -opposed to conjecture or speculation. (Ibid.)

Dawson argues that there is no evidence he was aware of the shooting of Cousins outside Boy's Market. Concededly, there is

no direct evidence of such awareness; however, that is not dispositive of the issue. The robberies within the market

followed a discernible pattern, in that the checkstands were approached in descending numerical order. Thus, it may

reasonably be inferred that Jordan and Dawson initially approached Tucker at checkstand 11, demanding the money from the cash register, after which Jordan hurried outside in pursuit of the armed security guard, Cousins, who had just walked past Osby in the direction of the telephones. Meanwhile, Dawson commandeered the assistant manager, Smith, to approach and empty the registers at checkstands 6, 5 and 2. Thereafter, Jordan returned and visited checkstands 8 and 7,

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then proceeded to checkstand 6, unaware that Dawson had begun his predations there. From reference to the circumstances of the McCoy's Market robbery earlier the same evening, further significant patterns of conduct reasonably may be inferred.
,

At McCoy's, Jordan

attempted to ascertain; the whereabouts of the security guard, Hanson, after which he; was able to take Hanson (who was not armed with a gun) by surprise and effectively neutralize him. In the meantime, Dawson retrieved Linger, who had gone outside to the telephones, but assured Dawson he was not telephoning
;

the sheriff's department.

Hence, it appears clear that an

integral part of defendants' robbery scheme was to neutralize security guards and to prevent the raising of any alarm until they completed their qrimes. Further, it is readily inferable that both defendants were prepared to kill in the face of noncooperation or any threat to the smooth completion of their aims. During the Jack-in-the-

Box robbery, in which Dawson participated, Jordan threatened to shoot when Jackson attempted to hide and cocked his handgun, aimed at Jackson, when Jackson reached for his wallet. In the

course of the Boy's Market robbery, Dawson threatened Smith with death if he diq not do as he was told. Defendants'

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conduct overall therefore supports the inference that Linger did not meet with
deat~

because he managed to convince Dawson

he had not raised an alarm. The ultimate infer¢nces which legitimately may be drawn from the foregoing evidentiary and reasonably deduced facts are: (1) Dawson knew Jordan left the store in pursuit of the

armed security guard, Cousins, intending to neutralize him as a threat to the success of the criminal enterprise; (2) Dawson knew that would entail the forcible disarming of the guard (i.e., a robbery); (3) Dawson knew from the McCoy's Market experience that the guard might be going to the telephones; and, most importantly, (4) Dawson knew Jordan was prepared to kill the guard if
necessa~y

to neutralize the threat he posed.

Clearly, Dawson aided and abetted Jordan· in the achievement of the criminal ends directed against Cousins. The guilty

intent necessary for aiding and abetting is not the shared specific intent to commit a particular offense, but is that manifested by knowledge that the particular criminal enterprise is planned and that one's actions facilitate its commission. (People v. Tewksbury (1978) 15 Cal.3d 953, 960.) The ultimate

inferences delineated above establish Dawson's knowledge, thus meeting Tewksbury's first prong. A defendant with the

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requisite knowledge is.an aider and abettor when he acts in a manner which either directly or indirectly increases the probability the crime will be
comple~ed

successfully.

(People

v , Markus (1978L 82 Cal.App .sa 477, 481.)

Dawson's continuing

armed presence inside the store while Jordan pursued Cousins did just that--at.least indirectly--by reducing the likelihood of any person's interference with Jordan. Accordingly, whether

by reference to the felony-murder doctrine or without reference thereto, there is substantial evidence that Dawson aided and abetted in the murder as well as the robbery of Cousins.

IX

In Aaron, the Michigan Supreme Court noted that Michigan decisional law consistently construed the state's first degree murder statute as having the purpose of graduating punishment rather than establishing a separate offense; accordingly, the court determined that Michigan's felony-murder rule was of common law rather than statutory origin, thus permitting the

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court to abrogate the rule.

In direct contrast, California

decisional law has consistently recognized the felony-murder provision in Penal Code section 189 as establishing a substantive offense, rather than limited to delineating a graduation in punishment. (See, e.g., People v. Burton (1971)

6 Cal.3d 375, 387-388; ;People v. Washington (1965) 62 Cal.2d 777, 781.) Inasmuch as California's felony-murder rule is

firmly 'established by decisional law which we are bound to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450) and is statutory in origin, we must defer to. the
i

wisdom of the Legislature and may not abrogate the rule. The People's Appeal The People contend the trial court erred in striking the special circumstance as to Dawson. for the following reasons: A. An intent to aid in the killing of the victim is not an

element required of a special circumstance enumerated in Penal Code section 190.2, subdivision (a)(17), as applied by subdivision (b); B. Assuming that intent is required, there is substantial Although

evidence that Dawson possessed the requisite intent.

we disagree as to the intent required under Penal Code section 190.2, subdivision (b ) ; we do agree that the jury's special circumstance finding was supported by substantial evidence of

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6

the requisite intent.

Initially, we note our construction of section 190.2, subdivision (a)(17) killer.
7

as applicable solely to the actual

To construe subdivision (a) broadly to encompass any

defendant found guilty of first degree murder whether or not the literal slayer is possible, but such a construction would

6

The jury was instructed in part as follows: "If defendant . · . Dawson was not the actual killer, it must be proved beyond a reasonable do~bt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree · · · ."
7

Section 190.2, subdivision (a)(17) provides in pertinent part: "The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been: . · . specially found . · · to be true: The murder was committed while the defendant was engaged in or was an accomplice in the commission of · · · the following felonies: . "(i) Robbery in violation of Section 211. "(ii) Kidnapping in violation of Sections 207 and 209. "(iii) Rape in violation of Section 261. "(iv) Sodomy in vi~lation of Section 286. "(v) The performance of a lewd or lascivious act upon person of a child under the age of 14 in violation 'of Section 288. "(vi) Oral copulation in violation of Section 288a. "(vii) Burglary in the first or second degree in violation of Section 460. ' "(ix) Train wrecking in violation of Section 219."

" "(17)

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render subdivision (b)

8:

largely superfluous contrary to the

well-established principle of statutory construction that the courts are not to treat words as surplusage, but are to give effect where reasonably possible to every phrase of a statute.
(J~

R. Norton Co. v. Agricultural Labor Relations Bd. (1979)26

Cal.3d 1,36-37; Peoplev. Gilbert. (1969) 1 Cal.3d 475,480.) Accordingly, any imposition of a sentence of life imprisonment without possibility of parole as to Dawson must be based on subdivision (b). The gravamen of the People's position is that where the enumerated crime forms the basis for a felony-murder conviction under Penal Code section 189, as does robbery, the language "intentionally aiding '. . · in the commission of murder in the first degree" may be cpnstrued as requiring only that the defendant have intentionally aided and abetted in the underlying crime of robbery. This argument is facially valid

8

Subdivision (b) provides in pertinent part: "Every person whether or not the actual killer found guilty of intentionally aiding, abetting . · . or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which .' . . the special circumstances enumerated in paragraphs · · · (17) . . · of subdivision (a) of this section has been.. · . specially found . · . to be true. II

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as it applies to subparagraphs (i) [robbery], (iii) [rape], (v) [child molestation], (vii) [burglary] and (viii) [arson] --all of which are enumerated in Penal Code section 189.
I

On the

other hand, a criminal: defendant may be guilty of first degree murder pursuant to Pen~l Code section 189 because a death resulted from his participation in the crime of mayhem, yet not be subject to the penalties prescribed by Penal Code section 190.2, subdivision (bY. More importantly, however, section 189 felony murder cannot be the basis upon which a defendant is found to have intentionally aided in the commission of first
degre~

murder

committed while he was engaged in or all accomplice in the commission of kidnaping [ii], sodomy Ivl , oral' copulation [vi] or train wrecking [ix] in that these offenses are not among those enumerated in.section 189 as inherently dangerous. Therefore, malice and premeditation must be found independently from commission of one of those felonies.
I

As a result, an

adoption of the People's construction would assign a different meaning to the key phrase "intentionally aiding · · . in the commission of murder in the first degree" in connection with subparagraphs (i), (iii), (v), (vii) and (viii) than that applied to subparagraphs (ii), (iv) , (vi) and (ix) of paragraph (17) of subdivision (a). Such a construction contravenes a

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Reason dictates that the key language of subdivision (b) have the same meaning with respect to all of the subparagraphs of paragraph (17). Moreover, an examination of the ballot

arguments for and against proposition 7, which enacted section 190.2, provides additional support for a construction that requires a defendant to act with intent that the victim be killed. The rebuttal argument on page 35 of the California

Voter's Pamphlet for November 7, 1978 general election contains the following passage:· . "The opposition maintains that if someone were to lend a screwdriver to his neighbor and the neighbor used it to commit a murder, the poor lender could get the death penalty, even though 'he had NO INTENTION' that anyone be killed. "Please · · . read section 6b . . · . It says that a

person must have INTENTIONALLY aided in the commission of a murder · · · · " In determining the intent of a ballot measure, (Carter v.

it is appropriate to consider the .ballot arguments. Seaboard Finance Co. (1949) 33 Cal.2d 564.) From the

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foregoing, it is apparent that subdivision (b) was intended to be limited in application to those persons who, in aiding or assisting another's acts, intend the victim to be killed as a result. Our analysis comports with the principle that, in

construing a penal statute, a defendant is to be given the benefit of every reasonable doubt as to the meaning of the language employed
ther~in.

(People v. Walker (1976) 18 Cal.3d

232, 242.)
We conclude, however; that there is substantial evidence Dawson possessed the requisite intent. In our view, as applied

to aiding and abetting, the use of the word "intentionally" in subdivision (b) does not require that a defendant share the slayer's specific intent to kill; but only that he intends to
(

aid and abet in the commission of a murder.

Hence, under

traditional principles applicable to aiding and abetting, the intent the victim be killed may be inferred from the actor's knowledge that a murder is planned and his acts will facilitate its commission. 960. ) We have analyzed at length the evidence from which Dawson's intentional· aiding and abetting in Cousins' murder may be inferred (ante, at section VIII of our discussion); we shall (People v. Tewksbury, supra, 15 Cal.3d 953,

I

·

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not do so again.

Suffice it to say that the substantial

evidence which suppor-ts Dawson's aider-abettor liability for murder without
referen~e

to the felony-murder doctrine is

sufficient to support the jury's special circumstance finding. Accordingly, the trial court erred in striking the finding. Jordan's judgment of conviction is a£firmed. striking the special
c~rcumstance

The order

as to Dawson is reversed.

Dawson's judgment is reversed as to the sentence imposed on the murder conviction and the matter is remanded for resentencing thereon; in all other respects, Dawson's judgment is affirmed.

SPENCER, P. . J .

We concur:

LILLIE, J.

HANSON (L. Thaxton), J.