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Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cleo Frank RUTHERFORD, Defendant and Appellant.

No. A019653.

Decided: February 18, 1988

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., Landra E. Rosenthal, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Frank O. Bell, Jr., State Public Defender, Joel Kirshenbaum, Deputy State Public Defender, San Francisco, for defendant and appellant.

A jury found Cleo Frank Rutherford guilty of the first degree murder of Stacy Benjamin with special circumstances that she was a witness to the crimes of robbery, possession of a sawed-off shotgun and assault with a deadly weapon and was killed to prevent her testimony.  (Pen.Code, §§ 187, 190.2, subd. (a)(10).)   Additionally, the jury found defendant guilty of kidnapping, conspiracy, robbery and assault with a deadly weapon.  (Pen.Code, §§ 207, 182, 211, 245.)   Two use allegations were also found to be true.  (Pen.Code, § 12022.5.)   Defendant was sentenced to a prison term of 10 years and 4 months plus life without possibility of parole, and appeals from the judgment.

We view the evidence of these drug-related offenses in the light most favorable to the People.  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

In early 1981 the victims in this case, Stacy Benjamin and Paula (“Patty”) Geddling, were living together in Stacy's van.   Patty Geddling had left her husband, Ed Geddling, and was having an affair with Stacy.   Ed Geddling was upset by his wife's desertion and resented the relationship between the two women.   Stacy, who earned a living selling drugs, had a reputation as a “rip off” who “burned” her customers by taking money and not providing the drugs.   Defendant, who was a friend of Ed Geddling, was interested in helping Ed get revenge.   Bill Forrester, another friend of defendant, had been “burned” by Stacy Benjamin and was also interested in retribution.

Rickie Soria, the main prosecution witness, was the former girlfriend of Forrester, had lived with Patty and Ed Geddling and, at the time of the murders of Stacy Benjamin and Patty Geddling, was living with Donald Beardslee in an apartment on Hopkins Avenue in Redwood City.1

According to Soria, prior to April 24, 1981, defendant expressed his hostility for Stacy Benjamin, stating that she had ripped him off in drug deals.   Sometime in April of 1981, defendant, Ed Geddling and Soria were together in defendant's car.   Geddling, upset about his wife's relationship with Stacy Benjamin, stated that he wanted somebody to beat up Patty and wanted the privilege of killing Stacy.   Defendant volunteered to “take care of Patty” for Ed.   Since neither of the men had a good relationship with the women, Soria offered to assist them by setting up a meeting with the women.

On the afternoon of April 24, 1981, Soria telephoned Stacy to set up a drug purchase at the apartment Soria shared with Don Beardslee.   Stacy said she would stop by in a couple of hours.   At that time Soria and her ex-boyfriend Bill Forrester were planning to recover $185 which Bill claimed Stacy and Patty had stolen from him in a drug deal.

After speaking to Stacy, Soria telephoned defendant and told him about her plan with Forrester.   Defendant asked to come to the apartment and requested that Soria have Beardslee call him when he returned home from work.   Defendant also gave Soria Ed Geddling's number and told her to call Ed, which Soria did.   After Beardslee came home and Soria told him of the plans, Beardslee went to pick up defendant.

Bill Forrester arrived at the apartment a short time later with his friend John Burdette.   Beardslee and defendant returned a while later.   While defendant, Soria, Forrester, Burdette and Beardslee were waiting for the two women, defendant tied the ends of a piece of wire to two shotgun shells, fashioning a garrote.   He then stated, “this should be strong enough.”   Defendant asked that John Burdette leave so that he would not be involved in what was going to happen.

When Stacy and Patty arrived at the apartment, Beardslee answered the door and let them in.   Defendant was holding a shotgun,2 and Forrester approached them with a knife.   As defendant and Forrester were moving the two women toward the couch, defendant fired the gun, wounding Patty in the shoulder.

After Stacy told Soria that George Ford and Shelly Johnston were waiting downstairs in Stacy's van, Soria left the apartment to find out whether they had heard the shot.   Using the pretext that Stacy had dropped some drugs which she was looking for, Soria spoke to the couple and told them the noise had been a firecracker.   She then returned to the apartment.   Defendant told Soria to drive Ford and Johnston anywhere they wanted to go.   Soria returned to the van, told the couple that Stacy was going to set up Forrester at the Frog Pond, then drove the couple to the Hollywood Motel in San Mateo.

When Soria returned to the apartment at about 6:00 or 6:30 p.m. Ed Geddling was there.   Stacy and Patty were tied up and gagged.   Defendant, Forrester and Soria proceeded to inject methamphetamine which had been taken from Stacy;  Beardslee snorted two lines.

Defendant left with Ed Geddling in Beardslee's car to pick up defendant's car.   While they were away, Stacy attempted to get loose from her ties, but Beardslee and Soria subdued her.   When defendant and Ed Geddling returned, defendant told Soria to drive Ed wherever he wanted to go so that he would have an alibi.

Soria drove Ed to South San Francisco and then to Hillsborough.   While in the car, Ed told Soria that Patty was going to have to be killed so she would not be a witness to Stacy's death.

After Soria returned to the apartment, defendant told Soria that they were going to take Patty to the hospital and winked at her.   Beardslee then told Forrester and Soria, “one of you two are going to have to do it,” because he was already on parole for murder.   Both Forrester and Soria refused.

Thereafter, Beardslee and Forrester left with Patty in the van;  Soria followed in Beardslee's car.   Defendant stayed in the apartment with Stacy.   Instead of stopping at the hospital the two vehicles drove south on Highway 1 to a turnoff at Bean Hollow Road where they parked.   Beardslee asked Soria for two shotgun shells which she gave him.   Through the rearview mirror Soria observed Forrester getting Patty out of the van and heard Patty pleading for her life.   She then heard two shots.   Beardslee returned to the car and asked Soria for two more shells which she gave him.

The trio left the area with Soria driving the van and Beardslee driving his car.   When the van ran out of gas, the vehicle was abandoned after being wiped clean of fingerprints.   Beardslee then asked Soria for two more shells in order to kill Forrester.   When Soria refused, they drove back to Redwood City in Beardslee's car, dropped off Forrester, washed and vacuumed the car and returned to the apartment.

A few minutes after Soria and Beardslee were in the Hopkins Street apartment they received a telephone call from defendant who had taken Stacy to the home of his girlfriend, Dixie Davis.   A short time later, Soria and Beardslee joined defendant at Dixie Davis' apartment.

Between 4:30 and 5:00 a.m., on April 25, 1981, defendant, Soria and Beardslee left Davis' apartment with Stacy.   They then drove to Millbrae where Stacy collected $80 from a past drug deal.   They continued to Pacifica where they purchased cocaine.   All of them used cocaine as they drove north to Sebastopol.

In Sebastopol the group stopped at the home of defendant's brother.   At approximately 11:00 a.m., defendant telephoned Dixie Davis and asked her to listen to the news from Half Moon Bay.   Defendant called his girlfriend again at 2:30 p.m. at which time she told him that the radio broadcast had reported a girl's murder in Bean Hollow.

Defendant, Soria, Beardslee and Stacy then drove to Lake County.   Stacy was crying during the trip.   When Beardslee stopped the car, Stacy initially refused to get out but complied after defendant tried to force her out with Beardslee's help.   Defendant asked Soria for his wire and shotgun shells which were in her purse.   When Soria asked Beardslee what the wire was for, he responded “for choking someone.”

Soria heard scuffling noises, heard Stacy say “No, don't, don't do this” and saw defendant sitting on top of Stacy with his arm around her neck in a chokehold.   As Beardslee stood and watched, he yelled to Soria that she should go back to the car.   As she passed them on her way to the car, Soria saw defendant taking the wire off Stacy's neck.   She observed red scratches and lines on the victim's neck.   Stacy was gasping for air and there was blood on her teeth;  she opened her eyes and looked up at Soria.

Beardslee asked defendant for the six-inch buck knife which defendant wore on his belt.   When defendant asked why, Beardslee stated, “Because I am going to cut her throat.”   Defendant handed Beardslee the knife and the two men started to drag Stacy up a hill.   Soria returned to the car and did not see anything more.   When the men returned to the automobile, defendant stated that Stacy was a “diehard bitch.”

The trio drove back to Redwood City where defendant was dropped at Dixie Davis' house.   Beardslee and Soria washed and vacuumed the car and disposed of their victims' purses.   They then returned to their apartment.   At about 5:00 p.m. police came to the Hopkins Street apartment and showed Soria and Beardslee a photograph of Patty Geddling.   They both denied knowing her.

The police had come to the Hopkins Street apartment because two telephone numbers had been found in Patty Geddling's pocket.   One of the numbers was for Beardslee's phone.   The second number led the police to Shelly Johnston who identified Patty from her photograph.

The police returned to the Hopkins Street apartment.   Beardslee was taken to the police station where he gave a statement and was arrested.   Beardslee then led the police to Stacy's body near Hopland Grade in Lake County.

An autopsy was performed on the body of Stacy Benjamin by Dr. Karl Aagaard.   He noted bruises on her neck consistent with the victim being choked.   He also found evidence that her wrists had been taped together with adhesive tape.   Ligature marks appeared on the victim's neck.   However, Stacy was not killed by the ligature;  her death occurred because her throat had been cut by a knife and she had inhaled blood from the wound into her lungs, in effect drowning in her own blood.   Stacy did not die instantaneously and could have survived had she received prompt medical assistance.

Defendant was located and arrested at the apartment complex where his friend, George McLaren, lived.   The arresting officers seized a knife that defendant wore in a sheath on his belt.   A small amount of blood was found on the knife.   When defendant was being booked he spontaneously said, “[y]ou guys just don't understand.   I had to do it.   You don't realize—have you arrested Ed Geddling?”

Soria's testimony was corroborated by several witnesses.   The most important witness, Dixie Davis, testified that on the night of April 24, 1981 defendant had phoned her from Soria's apartment and told her he would be by later on.   He first had business to take care of;  he had to get rid of Stacy and Patty.   He also said that if anybody asked, to say he had been with her all weekend.

At approximately 2:00 a.m., defendant arrived with Stacy at Davis' apartment.   Defendant wanted to get some sleep and told Davis to watch Stacy because he did not want her to run off and tell the police.

On the following evening, April 25th, Davis was in a car with defendant and his friend, George McLaren.   Defendant told McLaren that Stacy's neck had been slit and that she was up in the canyons and it would be a long time before anybody found her.   Defendant laughed when he said this.   They then picked up Ed Geddling and defendant told him that he did not have to worry about Patty and Stacy any more.   Defendant repeated that Stacy was up in the canyon and her neck had been slit.

Defendant testified in his own behalf.   The most pertinent portion of his testimony was that at the time of the offenses, he was a heavy cocaine user and an occasional user of methamphetamine.   In 1979 he was involved in a serious motorcycle accident and sustained severe injuries.   His leg and ankle were crushed and he was hospitalized for four months during which time he was given a lot of Demerol and morphine.   For about a year after the accident he was unable to walk or to work.   He began using cocaine when he found that it helped relieve the pain from his injuries.   With the $30,000 insurance settlement he received as a result of his accident, defendant purchased large amounts of cocaine and he injected two to three grams a day.

Around Easter of 1981, defendant was in a car with Ed Geddling and Rickie Soria shooting cocaine.   It was Ed rather than defendant who talked about hurting or killing Patty and Stacy.

On April 24th, defendant had not slept for three days.   Soria called him and talked about setting up Patty and Stacy.   Defendant told her to call Ed Geddling, since it was Ed's business, not his.   He asked Soria if he could come over because he wanted to make sure that Stacy and Patty were not hurt.

In the Hopkins Street apartment defendant heard the story of how Stacy had ripped off Forrester and decided that she should give him back his money.   When the doorbell rang, he was holding the shotgun to scare the women;  he did not intend to shoot it.   Defendant did not want to take Patty to the hospital because he was afraid of the police.   He tried to get both Beardslee and Ed Geddling to take her, but they refused.

After Forrester, Soria and Beardslee left with Patty, defendant and Stacy ingested some more drugs.   When, after a long period of time, Forrester, Soria and Beardslee did not return, defendant thought something had gone wrong and asked Stacy whether she wanted to go to Dixie Davis' place with him.   Stacy agreed.

Defendant called Beardslee from Davis' apartment to find out what had happened.   Beardslee told him everything was fine.   Defendant asked Beardslee and Soria to come over because he and Stacy had decided to get some more drugs.   Stacy came willingly with them and gave defendant the money to purchase the cocaine in Pacifica.

It was not until after they all had used the cocaine that Beardslee told defendant that he and Forrester had killed Patty.   Based on what Beardslee had told him, defendant was afraid that Beardslee also wanted to kill Stacy.   Defendant telephoned Davis and told her to listen to the radio to see if Beardslee was telling the truth.   After his second call to Davis when he verified that Patty had been killed, defendant warned Stacy that Beardslee would probably try and kill her.   He explained that if she would go along with him, he would fake it and make it appear as though he had strangled her.

When Beardslee stopped the car and told Stacy to get out she complied.   Beardslee was going to kill her right there with a shotgun, but defendant said that would make too much noise and volunteered to take care of it.   He put his arm around Stacy and told her to “play it off good.”   He then went back to the car, got the wire, returned to Stacy, put the wire around her neck and hollered to Soria to leave.   As Soria was passing by, Stacy opened her eyes.   Beardslee saw this and kicked Stacy in the head.   Beardslee then took defendant's knife.   Defendant watched Beardslee put the knife to Stacy's neck and turned away.   Defendant helped Beardslee drag Stacy up a hill because he just wanted to get out of there.

The People called psychologist Steven Lerner in rebuttal.   Based upon the testimony of Davis, Soria and defendant, he concluded that defendant showed no evidence of toxic psychosis.   He also opined that at the time of Stacy's murder defendant had the capacity to formulate the intent to kill and to reflect upon the consequences.


Beeman Error

 Defendant contends that the trial court committed reversible error in failing to instruct the jury that, to be convicted as an aider and abettor, defendant must have shared the criminal intent of the direct perpetrator.   (People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The jury below was instructed with the Yarber (People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875) formulations of CALJIC Nos. 3.00 and 3.01.3

Defendant argues that in Beeman our Supreme Court specifically rejected the Yarber version of CALJIC No. 3.01, stating that although it added the word “intentionally,” the Yarber instruction is “sufficiently ambiguous to conceivably permit conviction upon a finding of an intentional act which aids, without necessarily requiring a finding of an intent to encourage or facilitate the criminal offense.”  (People v. Beeman, supra, 35 Cal.3d at pp. 560–561, 199 Cal.Rptr. 60, 674 P.2d 1318.)   This identical contention was made and rejected by this division in People v. Forbes (1985) 175 Cal.App.3d 807, 221 Cal.Rptr. 275 (hg. den. Mar. 13, 1986.)   Pointing out that the Beeman court had “no occasion to determine whether the Yarber instruction would have been adequate,” we stated:

“We do not view the Beeman court's comment as indicating that the giving of a Yarber instruction constitutes error.   The instruction is a vast improvement over the unmodified CALJIC No. 3.01 and, we believe, adequately conveys the requisite intent.   Stripped to its essentials, the Yarber instruction requires that the person, by his or her act or advice with knowledge of the unlawful purpose of the perpetrator, ‘intentionally aids, promotes, encourages or instigates' the crime.   With all due respect, we fail to see how the instruction even ‘conceivably’ permits a finding of an intentional act without a finding of intent to encourage or facilitate.   The adverb ‘intentionally’ immediately precedes the verbs ‘aids, promotes, encourages or instigates';  it does not modify the nouns ‘act or advice’ and, indeed, could not do so grammatically.

“What concerned the court in Beeman was that an improperly instructed jury could find it sufficient that the defendant intentionally acted and thereby facilitated or encouraged the crime, but without meaning to.   Thus, conviction could result from an intentional act which, by negligence or accident, aided the commission of the crime.  (Beeman, supra, 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   However, the Yarber instruction's inclusion of the word ‘intentionally’ precludes that result.   One cannot, in common understanding, intentionally aid, intentionally promote, intentionally encourage or intentionally instigate the commission of a crime by mere negligence or accident.”  (People v. Forbes, supra, 175 Cal.App.3d at pp. 814–815, 221 Cal.Rptr. 275, emphasis in original.)

Our views as expressed in Forbes have not changed.   We reject the defendant's contention.


CALJIC No. 2.11.5

 Defendant contends that the trial court erroneously instructed the jury on CALJIC No. 2.11.5,4 relating to the non-prosecution of others involved in the offense.   He maintains that this instruction undermined the instructions regarding accomplice testimony and unfairly restricted the jury's evaluation of Rickie Soria's testimony.   He claims it eroded the scope and intensity of scrutiny which should have been directed at Soria's testimony by precluding “extensive discussion” and “thorough consideration” which should have been devoted to an explanation of “why Soria was not being prosecuted for first degree murder.”   We agree that the instruction should not have been given so as to apply to Soria's testimony.

Although no reported case in California so states, the use note to CALJIC No. 2.11.5 provides that the instruction should not be used if the other person involved in the crime is a witness for either the prosecution or the defense.   This is because Evidence Code section 780, subdivision (f), permits the jury to consider, in evaluating the truthfulness of a witness' testimony, “[t]he existence or nonexistence of a bias, interest, or other motive.”   The jurors below were so instructed pursuant to CALJIC No. 2.20.  However, CALJIC No. 2.11.5, by barring the jury from considering why Soria was not being tried for first degree murder, prevented the jurors from considering why Soria testified as she did.   While the giving of CALJIC No. 2.11.5 would have been proper if it expressly applied only to Beardslee, Geddling and Forrester, as they did not testify at the trial, it was improper when applied to Soria.

 Nevertheless, we find the error nonprejudicial in this case.   Defendant's own testimony, as well as the testimony of Dixie Davis and John Burdette, placed him at the pertinent places at the critical times.   The crucial issue had to do with defendant's intent.   Burdette witnessed defendant making the garrote with which he strangled Stacy.   Defendant told Davis he was helping to set up Patty and Stacy and that he had to get rid of them.   While at Davis' apartment, defendant also told her that he wanted to keep Stacy from telling the police that Patty had been shot.   Davis saw defendant leave her apartment with Beardslee, Soria and Stacy.   Finally, Davis heard defendant tell George McLaren and Ed Geddling that Stacy's throat had been slit.   Given this amount of corroborative testimony, it cannot be said that if CALJIC No. 2.11.5 had not been given, a more favorable verdict result might have rendered.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)   Furthermore, Soria was cross-examined on her motivation for testifying for the prosecution and the jury, having been instructed pursuant to CALJIC 2.20, was thus enabled, indeed charged, to evaluate her truthfulness.


Admission of Tape–Recorded Interview

Over defendant's objection, the trial court permitted the prosecution to bolster the credibility of Rickie Soria through the admission of a tape recording of Soria's interview with the police on the day she was arrested.   It contained a description of the commission of the charged crimes which was nearly identical with the testimony which Soria gave at trial.   Defendant claims the recording was not admissible under Evidence Code section 791, subdivision (b), as asserted by the prosecutor, and that its introduction was prejudicial.

Evidence Code section 791 provides in part:  “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:  ․ (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”

Citing People v. Coleman (1969) 71 Cal.2d 1159, 1166, 80 Cal.Rptr. 920, 459 P.2d 248, defendant maintains that it is not sufficient that the extrajudicial statement was made prior to the witness' testimony in court;  it must also have been made prior to a time that the alleged bias or motive to fabricate arose.   From this correct legal principle he argues that Soria was motivated to tell her version of the facts as soon as she was arrested in order to shift blame to defendant.   Therefore, he concludes that her taped statement was inadmissible under Evidence Code section 791, subdivision (b).   Defendant's argument cannot withstand scrutiny.

 The mere asking of questions on cross-examination relating to whether a witness has been granted special benefits from the prosecution clearly constitutes an implied charge by the defense that the witness' motive for testifying for the prosecution is to secure the special benefits from the prosecution.  (People v. Pic'l (1981) 114 Cal.App.3d 824, 863, 171 Cal.Rptr. 106.)   If the prior consistent statement was made before the motive to fabricate arose, the statement is admissible pursuant to Evidence Code section 791, subdivision (b).  (Ibid.)   Moreover, “evidence of a prior statement of a witness that is consistent with the witness' trial testimony and becomes admissible pursuant to Evidence Code section 791 to support or rehabilitate the witness' credibility, also becomes admissible to prove the truth of the matter stated in the statement as an exception to the hearsay rule pursuant to the provisions of Evidence Code section 1236.”  (Ibid., fn. 12.)

 During trial defense counsel charged that Soria had changed her story, particularly about defendant's involvement.   Soria admitted that in exchange for being permitted to plead guilty to second degree murder she agreed to testify for the prosecution.   She also hoped to be committed to the California Youth Authority rather than state prison.   Defense counsel then argued to the court that Soria wanted to please the prosecution and that her interest in Youth Authority explained her reason for doing so.

At the time the prosecution sought to introduce the challenged tape recording, Officer Robert Morse testified that the recording was made on April 27, 1981 and had been recorded without any promises of leniency to Soria.   In overruling defendant's objection to introduction of the tape, the court concluded that defense counsel had attacked Soria's credibility by questioning her about the plea bargain and raised the issue of recent fabrication.   The court was correct in its reasoning and no error occurred.


Special Circumstances

The jury found the killing-of-a-witness special circumstance alleged against defendant to be true.  (Pen. Code, § 190.2, subd. (a)(10).)   Defendant challenges the finding on the grounds that the jury was not properly instructed.   He also maintains there was insufficient evidence to support the finding.

In charging the jury on the special circumstance allegations,5 the trial court gave the following general instruction based upon CALJIC No. 8.80 (1981 Revision);  “If the defendant was not the actual killer, it must be proved beyond a reasonable doubt 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 before you are permitted to find the alleged special circumstance of that first degree murder to be true as to the defendant.”

The court also instructed the jury on the killing-of-a-witness special circumstance pursuant to CALJIC No. 8.81.10.   It reads in pertinent part as follows:

“To find that the special circumstance, referred to in these instructions as murder of a witness to a crime, is true, each of the following facts must be proved:


“That if the person killed was Stacey [sic] Benjamin, she was a witness to one or more of the following crimes:

“a. Attempted robbery;

“b. Robbery;

“c. Conspiracy to commit robbery;

“d. Assault with a deadly weapon;

“e. Possession of a sawed-off shotgun;  or

“f. The murder of Paula Geddling.

“It must also be shown that the witness was intentionally killed for the purpose of preventing her testimony in a criminal proceeding, and that the killing was not committed during the commission or attempted commission of the crime to which the person killed was a witness.”

 We initially reject defendant's contention that CALJIC No. 8.80 (1981 Revision) was defective because its language is ambiguous and permits a conviction without proof that defendant acted with the intent to kill Stacy or to aid and abet a killing.   CALJIC 8.80 (1981 Revision) is based upon the language in Penal Code section 190.2, subdivision (b).6  The instruction, as given, informs the jury that if the defendant was not the perpetrator, it must be proved that he intentionally aided and/or assisted the actual killer in the commission of the murder.   Also as previously discussed, the issue of defendant's intent is raised by the giving of the Yarber version of CALJIC No. 3.01.   Thus, the jury necessarily determined that defendant had the requisite intent.

 The question of whether defendant murdered Stacy for the purpose of preventing her testimony in a criminal proceeding remains.   Defendant maintains among other things that the trial court did not properly instruct the jury that 1) if defendant was not the actual killer, he must have intended to aid in the killing for the purpose of preventing Stacy Benjamin from testifying in a criminal proceeding and 2) for a killing-of-a-witness special circumstance to apply, the jury must find that but for the purpose of preventing testimony, defendant would not have aided and abetted in the killing of Stacy Benjamin.7  Defendant also asserts that there was insufficient evidence to support a finding against him under the killing-of-a-witness special circumstance.   Crucial to the determination of these issues is the question of whether, after finding that an aider and abettor had the requisite intent to kill the victim, the jury must also find that the defendant aider and abettor personally intended to kill the victim to prevent her testimony.   We find that section 190.2, subdivision (a)(10), requires no such intent.

It is a cardinal rule of statutory construction that all parts of a statute must be read and considered as a whole so that the enactment may stand in its entirety.  (People v. Rankin (1959) 169 Cal.App.2d 150, 157, 337 P.2d 182.)

It is clear from the drafting of section 190.2 that the Legislature was aware that if it chose, it could make the imposition of special circumstance findings dependent on the defendant's personal conduct and mental state.   For instance, subdivision (a)(4) provides that special circumstances may be found where the murder was committed by means of a destructive device and “the defendant knew or reasonably should have known that his act or acts would create a great risk of death.”  (Emphasis added.)   Similarly, subdivisions (a)(7), (8) and (9) provide special circumstances for the killing of peace officers, federal law enforcement officers and firemen when the defendant knew or should have known that the victim was such a person.   Finally, the lying in wait special circumstance described in subdivision (a)(15) could only be applied to a defendant, whether the perpetrator or an aider and abettor, if that defendant had been found to be lying in wait.   In contrast, subdivision (a)(10) contains no requirement that it must be the defendant's purpose to prevent the victim from testifying.   Since the Legislature has made the defendant's personal conduct and mental state a factor in some special circumstances, we must conclude its failure to do so in subdivision (a)(10) evidences its intention that there is no requirement for an aider and abettor to share the perpetrator's motive in order for the special circumstance to be applicable.

We acknowledge that certain language employed by our Supreme Court in People v. Weidert (1985) 39 Cal.3d 836, 218 Cal.Rptr. 57, 705 P.2d 380 would suggest a conclusion contrary to that which we reach.   Specifically, the court states:  “The words of subdivision (a)(10) contemplate that it is an accused's subjective intent that is relevant in establishing a special circumstance finding under that statute.”  (Id. at p. 853, 218 Cal.Rptr. 57, 705 P.2d 380.)   However, Weidert is factually distinguishable in that the defendant was a perpetrator and not an aider and abettor.   Moreover, the principle issue presented to the Weidert court was “whether an individual who intentionally kills a witness for the purpose of preventing his or her testimony in a juvenile proceeding is subject to the death penalty or life imprisonment without the possibility of parole under the 1978 Briggs Initiative.”  (Id. at p. 840, 218 Cal.Rptr. 57, 705 P.2d 380, emphasis in original.)   The Supreme Court, finding that “Welfare and Institutions Code section 203 contains a clear directive that juvenile proceedings are not criminal proceedings,” determined that “the failure to except subdivision (a)(10) from the umbrella of section 203 controls the resolution of the present case.  [Citation.]”  (Id. at p. 846, 218 Cal.Rptr. 57, 705 P.2d 380, emphasis in original.)   Thus, the court's discussion of (a)(10) regarding “subjective intent” was unnecessary to the holding and constitutes dicta which we are not obliged to follow.  (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 337, 393 P.2d 689;  9 Witkin, Cal. Procedure (3d ed 1985) Appeal, § 783, pp 753–755.)

 Even if we found the legislative intent regarding subdivision (a)(10) to be otherwise, we note that the evidence before the fact trier amply supported a finding that defendant personally intended to prevent Stacy from testifying.   Defendant told Dixie Davis, and testified himself that when Beardslee and the others took Patty away, he kept Stacy with him to keep her from going to the police.   Defendant's concern regarding his own criminal liability was manifested at the very outset of this sordid affair.   His testimony revealed his unwillingness to take the wounded and heavily bleeding Patty to the hospital because he was afraid of going to jail.   Furthermore, Stacy was not murdered until after defendant had confirmed Patty's death by telephone call, thus providing a reasonable inference for greater incentive to do away with Stacy.   Clearly, the shotgun killing of Patty gave Beardslee equal incentive to murder Stacy who could provide evidence implicating him in that crime.   Defendant's insufficient evidence argument is without merit.

Imposition of Consecutive Sentences for Kidnapping and Murder

 Relying on Penal Code section 654,8 defendant finally argues that it was improper to impose consecutive sentences for the kidnapping and murder of Stacy Benjamin.   Respondent concedes that the fact that Stacy might have to be killed was contemplated when Patty was taken from Beardslee's apartment, inasmuch as Stacy was restrained to keep her from going to the police.   The asportation which began at that point and which culminated in Stacy's death was undoubtedly conducted for the purpose of eliminating the threat Stacy posed to defendant, Beardslee and the others.   Thus, the kidnapping and the murder constituted a course of conduct with a single criminal objective and although both convictions may stand, double punishment is prohibited.   Accordingly, the sentence imposed for violations of Penal Code section 207 should be stayed.

Imposition of sentence for count IV is stayed.   In all other respects, defendant's conviction is affirmed.


1.   Rickie Soria was charged with the murders of Patty Geddling and Stacy Benjamin and with special circumstances.   In return for her agreement to testify for the prosecution the district attorney permitted her to plead guilty to the second degree murder of Patty Geddling and dismissed the other charges against her.

2.   Prior to the arrival of Stacy and Patty, Soria had brought a sawed-off shotgun from Beardslee's car into the apartment.

3.   The following version of CALJIC No. 3.00 was given:  “The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted, if any, and equally guilty thereof include:  [¶] 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or [¶] 2. Those who, with knowledge of the unlawful purpose of the persons who directly and actively commit or attempt to commit the crime intentionally aid and abet in its commission or attempted commission;  [¶] 3. Or those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission.  [¶] One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.”The following version of CALJIC No. 3.01 was given:  “A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he intentionally aids, promotes, encourages or instigates by acts or advice the commission of such crime.  [¶] Mere presence at the scene of the crime, which does not in itself assist the commission of the come, does not amount to aiding and abetting.  [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”

4.   As given CALJIC No. 2.11.5 provided:  “There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial.  [¶] You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial, or whether he has been or will be prosecuted.”

5.   The multiple murder special circumstance was also alleged.  (Pen.Code, § 190.2, subd. (a)(3).)   However, this allegation was found not to be true, since defendant was acquitted of the murder of Patty Geddling.

6.   Penal Code section 190.2, subdivision (b) states in pertinent part:  “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, 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 one or more of the special circumstances enumerated in paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), or (19) of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.”All further statutory references are to the Penal Code unless otherwise indicated.

7.   These issues are currently before the Supreme Court in People v. Sanders, Crim. No. 22512.

8.   Penal Code section 654 provides in pertinent part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one.”

BENSON, Associate Justice.

ROUSE, Acting P.J., and SMITH, J., concur.

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