PEOPLE v. CLANTON

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Court of Appeal, First District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donny CLANTON, Timothy White, and David Rogers, Defendants and Appellants.

No. A033947.

Decided: August 24, 1989

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Blair W. Hoffman, Deputy Atty. Gen., San Francisco, for plaintiffs and respondents. Karen L. Snell, Riordan & Rosenthal, San Francisco, for defendant and appellant, Donald Clanton. Maureen Kallins, San Francisco, for defendant and appellant, Timothy White. William Hassler, San Francisco, for defendant/appellant, David Rogers.

Appellants were convicted of second degree murder.   The victim, a stranger to them, was attacked in an unprovoked street altercation, apparently because he was believed to be a homosexual.

The crime had its origin in an idle meeting in a Vallejo parking lot on July 29, 1984.   Present were Donny Clanton, David Rogers, Timothy White, Douglas Barr and in another part of the lot, Roland Reyes and Kathy Kilgore.   The six were acquaintances.

It is clear from the evidence that Clanton, Rogers, Kilgore and Barr had decided to go to San Francisco prior to meeting at the parking lot.   Reyes testified that he had heard Rogers say, in effect, that the purpose of the trip was “gay bashing.”   It is unclear, however, whether the other appellants heard this statement.   At about 9:00 p.m. on the same date, the six were loitering about the corner of California and Polk Streets, when two men, John O'Connell and Andrew Woodward walked past.   As they did so, Clanton proposed that the group follow the two men.   All but Reyes and Kilgore did so.

Except for appellants, no one witnessed the attack that followed.   Woodward heard someone shout insulting anti–Gay epithets.   He then heard a “loud bang” followed—five to ten seconds later—by a “loud whack on the sidewalk,” and saw O'Connell lying on the sidewalk.

Woodward, not having seen the blow or blows, could not say who among appellants had struck O'Connell.   Likewise, the witness David Galey who heard a “thudding sound” and saw O'Connell laid out on the street was unable to identify his assailant.

Roland Reyes, however—who was a witness for the prosecution—saw Rogers step back—hands raised—from O'Connell as the latter fell.   Other evidence establishes White as having delivered a second—open-handed—blow to the victim.

Uncontradicted medical evidence proved that the fall to the pavement and not the two blows, killed O'Connell.   The actual cause of death was “cranial cerebral trauma.”   It was of forensic relevance that O'Connell was highly intoxicated at the time of the attack:  a blood sample drawn at the hospital shortly thereafter showed a blood alcohol level of 0.29 percent.

The San Francisco District Attorney charged appellants with the murder of O'Connell (Pen.Code, § 187).1  The information further alleged that Rogers and Clanton had personally used a deadly and dangerous weapon—a metal pipe (§ 12022, subd. (b)), but this enhancement was later stricken.   The information also alleged several counts of assault (§ 245, subd. (a)(1)), against different victims—all of which, as earlier stated, were resolved by plea or dismissed.

Jury trial commenced in October of 1985.   Appellants' motions for change of venue, made both before and during jury selection, were denied, as was their motion to sever the trials.

The People's case consisted of the testimony of Reyes, Kilgore, Galey, Woodward, and the Chief Medical Examiner for the City and County of San Francisco.   The defense called no witnesses.

Clanton, White, and Rogers were found guilty of second degree murder.   Barr was found not guilty.2  The trial court sentenced Clanton, White, and Rogers each to state prison for terms of 15 years to life on the murder convictions, with sentences for the assaults to run concurrently.

On appeal, Clanton and Rogers contend only that their convictions for murder should be reduced to involuntary manslaughter, and while White does not expressly make the same contention, he conceded at trial that he was guilty of involuntary manslaughter.

Defendant's principal contention of error centers on their claim that CALJIC No. 8.11 (4th ed.1983 Revision) 3 provides an incorrect statement of the concept of implied malice, and that the errors inherent in 8.11 were magnified by the prosecutor's comments on the instruction during closing argument.

The trial court read a modified form of CALJIC No. 8.11:  “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life by which is meant committing an act which one knows involves a high degree of probability that it will result in death, and who nonetheless commits such act or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”  (Emphasis added.)

Appellants argue that the instruction as given was erroneous.   We need only consider that issue tangentially, however, since we have concluded that, on the state of the evidentiary record below, no such instruction should have been given the jury.

The Legislature has provided little help in defining the requisite mental state of implied malice.  Penal Code section 188 states that malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Through the years, the courts have interchangeably used two phrases to define an act from which malice can be inferred:  (1) an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life (People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353);  and (2) an act with a high probability that it will result in death done for a base, antisocial purpose and with a wanton disregard for human life (People v. Poddar (1974) 10 Cal.3d 750, 755, fn. 6, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Washington (1965) 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130.)

While the correctness of CALJIC 8.11 as revised in 1983 has not been definitively resolved by the courts, our state high court in the seminal case of People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279, treated the two phrases as synonymous:  “We have said that second degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․'   (People v. Sedeno, supra, 10 Cal.3d at p. 719, 112 Cal.Rptr. 1, 518 P.2d 913, quoting from People v. Phillips, supra, 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.)   Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130].)”

Thereafter, the drafters of CALJIC revised instruction No. 8.11 to read in pertinent part as follows:  “Malice is implied [when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life] [or] when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

At least two courts have found this instruction “confusing” insofar as it suggests that the two phrases are alternative definitions.   But both courts declined to decide whether the instruction was erroneous, finding any error harmless.  (People v. Protopappas (1988) 201 Cal.App.3d 152, 163, 246 Cal.Rptr. 915;  People v. James (1987) 196 Cal.App.3d 272, 290, 241 Cal.Rptr. 691.)   Other authority has concluded that the use of the disjunctive “or” indicated that the two phrases were in fact synonymous and therefore the instruction was correct.  (People v. Flores (1986) 178 Cal.App.3d 74, 79–80, 223 Cal.Rptr. 465.)   The issue of whether subjective awareness is an element of implied malice—as People v. Watson seems to require (30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279)—and whether the instruction is therefore misleading are questions currently pending before the California Supreme Court.4

But in our view, those precise questions are not before us, since the trial court here modified CALJIC 8.11 by inserting language within the first definitional phrase which added the requirement of subjective awareness:  “An act which one knows involves a high probability that it will result in death․”   Effectively, the differences between the two phrases were eliminated, so that the instruction as given was correct:  it framed the definition of implied malice in terms long used by the California Supreme Court.   Whether the jury understood the two phrases as alternative or synonymous definitions seems to us irrelevant, especially in light of the fact that the prosecutor conceded that the first definitional phrase did not apply.

The graver question here is whether there was sufficient evidence to justify submission of the charge of second degree murder at all:  if not, the giving of it was error.

In closing argument, as just noted above, the prosecutor conceded that the first definitional phrase—an act involving a high degree of probability that it would result in death—did not apply:  he concededly could not show that the two blows to the face—one of them open-handed—involved a known high probability of death.5

In this, the prosecutor was apparently relying on the long-established rule that, absent aggravating circumstances such as a brutal beating, as a matter of law the striking of a person with one's hands is not an act involving a high probability of death.  (People v. Spring (1984) 153 Cal.App.3d 1199, 1204–1205, 200 Cal.Rptr. 849 [single punch to the victim, who died days later from subdural hematoma].)

Instead, the prosecutor relied upon the second definitional phrase, which refers to the “natural consequences of an act dangerous to life.”   Such reliance, however, is logically inconsistent, because both phrases commonly used in defining implied malice require more than a mere chance or risk of death:  the first refers to a “high probability that [the act] would result in death,” while the second speaks of “the natural consequences of [the act] are dangerous to life.”   And the two phrases, according to our highest authority, are synonymous.  (People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

This exact point was recognized by the CALJIC committee, which has now revised CALJIC 8.11 to refer to a crime in which “․ the natural consequences of the act are dangerous to human life.”   The committee explained the change as follows:  “[See] People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 49, 637 P.2d 279, 285, which posits that implied malice is capable of two different phraseologies.   In order to avoid any possible ambiguity, the Committee has concluded that only one definition should be utilized and has selected the one that is more comprehensible to the average juror.”  (CALJIC (5th ed.) Comment to 8.11, p. 306.)   Implicit in such reasoning is the notion that the two phrases used in the previous version were synonymous and interchangeable.

We are led inexorably to conclude that, since the two phrases are indeed synonymous, the prosecutor's concession that the evidence did not meet the first phrase is logically a concession that the evidence did not constitute implied malice at all.

We have no doubt whatever that the facts in the present case disclose “aggravating circumstances:”  The attack was unprovoked and seems clearly to have been motivated solely by the appellants' mindless homophobia.   But the presence of such circumstances, however reprehensible they may be, cannot support an inference that the isolated act of striking a person with bare hands in itself imports a high degree of probability that death will ensue.   Malice can be implied only when the beating is so brutal that death is a probable consequence.  “[T]o constitute murder there has to be either an intent to kill or such wanton and brutal use of the hands without provocation as to indicate they would cause death or serious injury so as to indicate an abandoned and malignant heart.”  (People v. Teixeira (1955) 136 Cal.App.2d 136, 150, 288 P.2d 535, cited in People v. Spring, supra, 153 Cal.App.3d at p. 1205, 200 Cal.Rptr. 849.)

That the attack on O'Connell was “malicious” in the sense of being motivated by ill-will is not the legal equivalent of “malice” as an element of murder.   Nothing in the circumstances of the attack supports the rational inference that appellants believed it “highly probable” that it would cause the victim's death.

In arguing to the contrary, the Attorney General relies upon the early case of People v. Efstathiou (1941) 47 Cal.App.2d 441, 118 P.2d 22.   There, the defendant hit the victim with his fist;  the latter fell to the concrete sidewalk and died from a fractured skull.   The cause of death was, as here, contact with the sidewalk, not the blows to the jaw.   The court upheld the jury's verdict of second degree murder citing the foreseeability of the fatal consequences which would follow a fall upon a concrete walk.  (Id. at p. 443, 118 P.2d 22.)

On closer analysis, however, the court's language is seen to have arisen in the context of defendant's argument that his punch was not the proximate cause of the death.   The court did not decide the question, which was never raised, whether malice could be implied from the blows alone.   Concerning malice, the court instead relied upon the fact that the defendant pursued the victim, his employer, who had fired him a short time before the attack.   Ignoring the question of whether malice could be inferred from a threat of striking with bare hands, the court reasoned that an actual intent to kill could be inferred from the defendant's pursuit of the victim.   The case is thus clearly distinguishable from that before us.

The evidence of legal malice on the present record is in our opinion inadequate to justify a finding of second degree murder.   It consists exclusively in striking two blows with bare hands, in a manner not calculated to kill.   Given such a record, the convictions of second-degree murder cannot stand.  (People v. Spring, supra, 153 Cal.App.3d at p. 1207, 200 Cal.Rptr. 849.)

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The judgments of second degree murder are modified to involuntary manslaughter as to each defendant, and the matter is remanded to the superior court for resentencing in accordance with this opinion.

I dissent from the majority's reduction of the sentence from second degree murder to involuntary manslaughter as to each defendant.

The majority is correct that a death resulting from a beating with bare fists is usually not considered murder.  (People v. Munn (1884) 65 Cal. 211, 213, 3 P. 650;  People v. Spring (1984) 153 Cal.App.3d 1199, 1205, 200 Cal.Rptr. 849;  see 1 Witkin & Epstein, Cal. Criminal Law (2d ed.1988) Crimes Against the Person, § 507, pp. 573–574.)  “Normally, hitting a person with the hands or feet does not constitute murder in any degree.  [Citations.]   But if death or great bodily harm is a reasonable or probable consequence of the beating the offense may be murder.  [Citation.]   Thus, to constitute murder there has to be either an intent to kill or such wanton and brutal use of the hands without provocation as to indicate that they would cause death or serious bodily injury so as to indicate an abandoned and malignant heart.”  (People v. Teixeira (1955) 136 Cal.App.2d 136, 150, 288 P.2d 535.)   Or, as the Supreme Court stated in Munn:  “[I]f the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought․”  (People v. Munn, supra, 65 Cal. at p. 213, 3 P. 650, emphasis added;  see also People v. Morgan (1969) 275 Cal.App.2d 603, 608, 79 Cal.Rptr. 911;  People v. McManis (1954) 122 Cal.App.2d 891, 898, 266 P.2d 134.)

The majority is also correct that in those cases where a murder conviction for a beating with the fists has been upheld, the primary aggravating circumstance appears to have been the brutality of the beating.  (See People v. Beyea (1974) 38 Cal.App.3d 176, 113 Cal.Rptr. 254;  People v. Cayer (1951) 102 Cal.App.2d 643, 228 P.2d 70;  People v. Efstathiou (1941) 47 Cal.App.2d 441, 118 P.2d 22.)   In two cases, however, murder convictions were affirmed based on facts somewhat similar to those in the present case.  (People v. Zankich (1961) 189 Cal.App.2d 54, 11 Cal.Rptr. 115;  People v. Alexander (1923) 62 Cal.App. 306, 216 P. 968.)

In Zankich, the victim was struck just once.   No one saw the blow.   The victim suffered a skull fracture and died.   The attack appears to have been unprovoked.   Defendant and the victim apparently did not know each other.

Whether Zankich is good authority is unclear.   The opinion mixes the concept of implied malice with the discredited theory of felony murder occurring in the course of a felonious assault.  (See People v. Ireland (1969) 70 Cal.2d 522, 539–540, 75 Cal.Rptr. 188, 450 P.2d 580;  People v. Spring, supra, 153 Cal.App.3d at p. 1205, 200 Cal.Rptr. 849.)

In Alexander, the two loitering defendants threw a rock that struck the victim as he walked past.   When the victim ignored the defendants, they chased him two blocks, where one defendant grabbed the victim's hand and then struck him in the face.   The victim's other hand was in his pocket.   The victim fell to the ground, struck his head and died.   He had offered no resistance, and the attack was unprovoked.   The Alexander court emphasized that by holding the victim's free hand, the defendant striking the blow must be presumed to have known the victim would be unable to break his fall.  (People v. Alexander, supra, 62 Cal.App. at p. 308, 216 P. 968.)

The majority principally relies on People v. Spring, supra, 153 Cal.App.3d 1199, 200 Cal.Rptr. 849.   There, the defendant, while in a delusional state, struck a 64–year-old priest in the face with a single punch.   The blow did not knock the priest off his feet.   Defendant knew the priest and generally had a good relationship with him.   The police initially listed the incident as a misdemeanor assault and battery.   The priest died 17 days later from a subdural hematoma caused by the punch.   Defendant was convicted of second degree murder.

The Court of Appeal reduced the conviction to involuntary manslaughter.   The Spring court found the single blow was not an act involving a high degree of probability that it would result in death.  (People v. Spring, supra, 153 Cal.App.3d at p. 1205, 200 Cal.Rptr. 849.)   Further, the court found some provocation (the priest was trying to bar defendant's entry into the rectory), and given defendant's delusional state, it could not be said defendant's punch sprang from an abandoned and malignant heart.  (Id. at p. 1206, 200 Cal.Rptr. 849.)

Though the general statements of law in Spring (from Munn and Teixeira) provide support for appellants' position, the facts do not.   In Spring, a single defendant confronted the victim.   The two knew each other.   There was a dispute and the victim physically tried to block defendant's entry into the building, making contact with defendant in the process.   There were no threats, and the punch was apparently a spontaneous reaction by the defendant.

Compare the facts of this case:  Four young men pursued an unsuspecting victim.   O'Connell was unknown to appellants, and the only conclusion one can draw from the evidence is that he was targeted because appellants believed he was a homosexual.   The attack was completely unprovoked.1  O'Connell appears to have had no opportunity to defend himself.   The attack caused O'Connell to fall backward into the street (whether the punches directly knocked O'Connell down or he stumbled a few seconds after appellants struck their blows is immaterial).   Kilgore testified that Rogers said he kicked O'Connell in addition to throwing a punch.   Appellants fled from the scene laughing.  (See People v. Ogg (1958) 159 Cal.App.2d 38, 51, 323 P.2d 117 [conduct after an attack may be considered in order to establish implied malice].)

Each appellant tries to distance himself from the conduct of his confederates.   In particular, White and Clanton point to the lack of evidence showing they heard Rogers's statement in Vallejo, and the trial court's admittance of that statement only against Rogers.   White and Clanton insist there is no evidence they planned to beat or harm anyone that day.   They had no idea Rodgers would throw a life threatening punch.   White points out he merely slapped O'Connell with his open hand.   He claims it was simply unfortunate happenstance that he and Reyes happened to meet up with the Kilgore group that day.

Viewing all the evidence presented, the trier of fact could find that when appellants attacked O'Connell, they were acting together with a common purpose.   When that purpose was determined does not necessarily matter.   Clanton made the statement at Chelsea Square and defendants, as a group, responded.   Two of them struck O'Connell.   All are criminally liable.  (Pen.Code, § 31;  People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.) 2

Though appellants did not inflict a terrific beating on O'Connell, it is my opinion that the circumstances of this case constitute “aggravating circumstances” (People v. Munn, supra, 65 Cal. at p. 213, 3 P. 650.) sufficient to elevate this crime to second degree murder.   The jury could find appellants knew their conduct was dangerous to life.   As the People contend, this was not a routine brawl or fist fight.   Indulging every relevant and tenable presumption in favor of sustaining the judgment of the trial court (People v. Spring, supra, 153 Cal.App.3d at p. 1204, 200 Cal.Rptr. 849), I believe sufficient evidence supports appellants' second degree murder convictions.

OPINION ON DENIAL OF REHEARING

In its Petition for Rehearing the Attorney General contends that we have entirely misunderstood critical evidence bearing on the force of the blows and the immediate and direct cause of the fatal head injury.

The contention is specious and misleading because, as uncontroverted evidence shows, the victim, who was inebriated (his blood alcohol was .29), remained standing for at least five and perhaps for ten seconds after being struck and before falling to the pavement.   It will thus be seen that the blow or blows delivered not only did not propel the victim forcibly to the pavement but arguably did not knock him to the pavement at all.

The point is hardly a trivial or merely semantical one.

And it is precisely in the circumstances just described that we find an impassable obstacle to affirming the jury's verdict in this case.   As our state's highest court has just reaffirmed in People v. Patterson (1989) 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549, implied malice has both a physical and a mental component, the latter of which requires evidence that the defendant “knows that his conduct endangers the life of another and ․ acts with a conscious disregard for life.”  (Id. at p. 626, 262 Cal.Rptr. 195, 778 P.2d 549.)   Citing its own precedent of People v. Watson with approval, the court concluded that implied malice is found only where the offense is one carrying with it a high probability that death will result.  (People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

We find no such evidence on the record before us.

FOOTNOTES

1.   All statutory references are to the Penal Code, unless otherwise noted.

2.   Hereafter, reference to appellants will mean Clanton, White, and Rogers, and will not include Barr.

3.   All CALJIC instructions referred to are from the fourth edition, unless otherwise noted.

4.   People v. Dellinger, (1988) 250 Cal.Rptr. 295, 758 P.2d 623.

5.   His exact words were:  “I'm not going to get up in front of you and argue that two blows to the face, even under all the circumstances presented here, involved a high degree of probability that it would result in death, because I don't think we can.   I don't think this definition of implied malice relates to the facts of this case.”

1.   The Spring court observed that Zankich was distinguishable from the case before it because of the unprovoked nature of the assault in Zankich and the fact the victim was a stranger to the defendant.   (People v. Spring, supra, 153 Cal.App.3d at p. 1205, 200 Cal.Rptr. 849.)

2.   Section 31 provides, in relevant part:  “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, ․ are principals in any crime so committed.”

NEWSOM, Associate Justice.

RACANELLI, P.J., concurs.

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