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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Edward WATERBURY, Defendant and Appellant.

Cr. 14379.

Decided: May 16, 1983

Quin Denvir, State Public Defender, and Rosendo Pena, Jr., under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., A. Wells Petersen, Jay M. Bloom and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.


Defendant Thomas Edward Waterbury appeals from a judgment of conviction of first degree murder following jury trial.   The jury found defendant used a firearm to commit the crime.1  It also found true a “special circumstance” allegation, i.e., defendant carried out the murder for financial gain.2  The court sentenced defendant to life imprisonment without possibility of parole plus a two-year enhancement for the firearm use.


Because the greater portion of defendant's contentions on appeal involve suppression of evidence issues, this statement of facts reflects the evidence produced at the suppression hearing.   In reviewing that evidence, we resolve all conflicts and draw all reasonable inferences in favor of the prevailing party.   Facts relevant to defendant's other contentions will be set forth under the discussion of those contentions.

At 12 minutes to 5 a.m. on December 24, 1980, a call came in to the Rialto police station regarding “an incident” at 1144 North Lancewood.   Officer Virgil Adams and Reserve Officer Robert Collier were dispatched to the scene.   Within two minutes they arrived.

The front door was open.   As Officer Adams walked into the front room, he saw defendant crouched on the floor, wounded.3  Adams immediately called for paramedics and spoke briefly with the defendant.   Defendant said he had been wounded by an intruder.   He also mentioned that his wife was injured and that his assailant was a Mexican male.   Adams walked down the hall to the master bedroom where he found defendant's wife in the bed, mortally wounded.   Adams returned to the living room.

In a few moments Rialto police Sergeant Donald Athearn arrived.   Athearn found both Adams and Collier attending to the defendant.   One of them told Athearn that a neighbor had told them there was an eight- or ten-year-old child in the house.   Athearn went to the bedroom, took a quick look, and returned.   Adams mentioned that he believed a suspect had come in the sliding glass kitchen door.   Athearn went to the kitchen to examine the door.   He looked around the kitchen quickly and apparently then looked around the two east bedrooms to view the closets.   He then went to the master bedroom again where he observed Mrs. Waterbury and then returned to the living room.

The child had not yet been found.   Athearn went back to the master bedroom where there were two closets, both with sliding doors.   The doors to the north closet were closed.   One of the sliding doors to the east closet was open.   Athearn opened the north closet doors.   Clothes hung fully across the clothes pole.   In order to get a look into the closet, Athearn brushed back some clothes.   In doing so, he felt a heavy object inside a pocket in an insulated vest.   He thought it might be a gun.   Athearn opened the pocket.   Inside he saw a small caliber gun with the slide action locked in the rear position exposing the chamber.   He took the gun out to ascertain whether it was loaded then put it back.  (At trial it was later established the vest belonged to defendant.)

When Detective Earl Jolliff arrived around 6 a.m., Athearn told him that the defendant's story “wasn't what happened.”   Athearn told Jolliff he had found a firearm in the closet of the bedroom in the pocket of a jacket.   Athearn also told Jolliff he did not know whether the gun was loaded or not.

Jolliff decided to get a warrant.   A deputy district attorney came and wrote out the warrant and the two of them took it to a municipal court judge in Rialto.   The affidavit supporting the warrant stated:

“Thomas Waterbury told Sgt. Athearn that he and Debra Waterbury had been sleeping in the southwest bedroom when Thomas Waterbury was awakened by what he thought were two gunshots.   Thomas Waterbury raised up in bed and felt a pain in his chest and saw a male Mexican, no further description.   Medical aid was then summoned.

“Sgt. Athearn advised your affiant that he did a further preliminary search of the residence for further victims and suspects.   Sgt. Athearn advised that he made a cursory search for suspects and victims in the closet of the southwest bedroom and felt, in a jacket in that closet, an object which he believed, based upon his experience, was a handgun.   Sgt. Athearn looked into an open flap on the jacket and observed what appeared to be a handgun in the firing position.”

The affidavit was signed by Jolliff.

The warrant issued commanding immediate search of the residence, a 1970 Volkswagen, and a 1980 Jeep, both parked outside.   The warrant authorized a search for “1. Any firearms, handguns, rifles, or weapons;  [¶] 2. Any articles of clothing;  3. Any articles of personal property tending to establish the identity of persons in control of the places where such property may be found, consisting in part of and including, but not limited to, rent receipts, utility company receipts, cancelled mail envelopes, vehicle registrations, and keys.”   The search, pursuant to the warrant, turned up a brown vinyl purse in the living room, with its contents dumped upon a couch.   Further searching revealed defendant's wallet on top of a dresser in the master bedroom and Mrs. Waterbury's wallet inside a closed dresser drawer in another bedroom.   A Zales jewelry business card with a description of a bridal set was found apparently inside defendant's wallet.

Defendant had been arrested on the morning of December 24 and was thereafter released.   On January 28, a neighbor of defendant's called the district attorney's office.   The neighbor spoke with Investigator Jerry Prieto.   The neighbor said the Sunday before the shooting he had spoken to defendant.   Defendant had stopped in front of the neighbor's house and they had greeted each other.   There was a female and an eight- or nine-year-old boy in the car.   The defendant told the neighbor the female was his wife and her name was Shovkat, and the boy was their son.   The neighbor also told Prieto that he had earlier seen the woman at the residence.

This was the first time Prieto had heard the name “Shovkat.”   He called Mrs. Waterbury's father to see if “Shovkat” was familiar to members of the victim's family.   The father told Prieto that Shovkat was a good friend of defendant's and told him where she worked.

The very next day Prieto and Investigator Richard Moyer paid Shovkat Aghazadeh a visit at the savings and loan in Santa Monica where she worked.   Both officers were in plain clothes.   They went to the manager's office;  the assistant manager then came out, went to Shovkat and told her that two gentlemen wanted to see her.   Shovkat thought they were customers.   She stepped in the office, and one of the officers closed the door.   Prieto immediately showed her his badge and told her they were from the Rialto Police Department.   They then advised her of her Miranda rights and asked if she understood them.   She said she did and was willing to talk with them.

Moyer noticed a ring on her hand.   Moyer asked if defendant gave her the ring.   She said yes.   She also mentioned in the course of the conversation that while the ring was not an engagement or wedding ring she had told the girls she worked with that she was “engaged.”   Prieto mentioned that there had been a reported burglary at defendant's house and wanted to see the ring so as to make sure it was not Mrs. Waterbury's.   She took the ring off her finger and gave it to Moyer.   The officers asked her if they could show it to the family to make sure it was not Mrs. Waterbury's ring.   She said yes and then asked if she could get it back.   Prieto said she could.   Moyer at this point concluded the ring was of great evidentiary value because it was evidence of the reason for the killing—a love triangle.

Shovkat also related how she had met defendant when he and she had worked at another savings and loan and admitted having an affair with him before he got married.   She denied any affair after his marriage.   She also specifically said she did not spend the evening before the shooting with defendant but refused to answer the question whether defendant was at her residence the day before the murder.   She said the last time she saw defendant before the shooting was the weekend before, not the night before.   She admitted “spend [ing] the night” with defendant after his release from jail, but refused to answer the officers' question as to whether she had had sex with him that evening.

Finally the officers asked her if she would agree to come with them to the police department to let them take her picture and her fingerprints because “we found fingerprints at the scene.” 4  Shovkat said “Sure” and got her purse out of a drawer.   Believing it was necessary for the officers' safety, Prieto asked her for the purse.   She said, “No.   There is nothing in it but you can take it.”   She gave it to him and he gave it to Moyer.   Before leaving Shovkat also agreed to take a lie detector test after being told that while the officers could not “force” her to take it, it could show her “innocence.”

They went to the Santa Monica police station where Shovkat's fingerprints were taken.   From there the three went to a local Zale's jewelry store in a Santa Monica shopping mall and had lunch at the mall.   They then went to Shovkat's apartment.   Inside the apartment, the officers gave Shovkat her purse back.   They asked if they could look inside to make sure there were no weapons.   She said yes and they opened it.   Moyer asked “Is there anything else in here that we should not see?”   She replied, “No.   Go ahead and look.   There is nothing in there.”   They found a bank book with both her and defendant's name on it and two receipts of savings and loan checks, one with defendant's attorney's name on it, the other with defendant's name on it.   The officers took these into possession.   They then set off for Rialto for the lie detector test.

At a nearby sheriff's office, Shovkat answered questions hooked up to a polygraph machine.   The machine was operated by Sergeant Jo Webster, a woman.   Feeling more comfortable with a woman interrogator, Shovkat admitted that the last time she saw defendant was the night before the killing.

After the polygraph interrogation, Prieto and Moyer asked yet more questions.   Much of the conversation was of the classic “you're withholding something/no, I've told you all I know” variety.   Eventually, after references to the likelihood of her going to jail, losing her child because of it, and the imminency of her booking, Shovkat admitted to having had sex with defendant during his marriage as well as the night she spent with him after his release from jail.


The defendant makes eight separate arguments on appeal.   One, he argues that the gun found in the vest should have been suppressed because it was found during a search conducted without a warrant and without exigent circumstances.   Two, the evidence found in the execution of the warrant should have been suppressed because, without the gun, there was no probable cause to support the warrant.   Three, the affidavit supporting the warrant was insufficient to establish probable cause to seize items tending to establish who was in control of the premises to be searched.   Four, the warrant was overbroad because it allowed seizure of any items establishing control of the premises.   Five, Shovkat's statements to the police should have been suppressed because they were the fruit of an unlawful detention and/or arrest.   Six, the trial court erred in giving two jury instructions, CALJIC Nos. 2.04 and 2.03.   Seven, the special circumstances finding that the crime was committed for financial gain cannot stand because the jury was not instructed on the use of circumstantial evidence to prove a special circumstance.   Eight, the case of People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, demands that the matter be remanded to the trial court if the conviction for murder is not reversed and if the sentence of life without possibility of parole is not stricken.   The People oppose each of these contentions and additionally request the abstract of judgment to be corrected so that the two-year enhancement for firearm use is served prior to the life sentence.   We consider each of these contentions in order.


 Sergeant Athearn discovered the gun in the vest during the course of a warrantless search for a child reportedly in the house.   At trial it turned out that the gun had been purchased by defendant the month before the killing and was registered in his name.   Further, a criminalist testified that the bullets which killed Mrs. Waterbury had been fired by the gun.   The essence of defendant's contention is that no exception to the warrant requirement permitted a search of the vest for the gun at the time it was discovered.   Specifically, defendant argues that since a search warrant could have been easily and conveniently obtained the exigent circumstance exception is not available.   This argument is a bit puzzling because, of course, a search warrant was obtained when the gun was discovered and the gun was seized pursuant to the warrant.

In any event, however, it is well settled that police may seize evidence in plain view during the course of legitimate emergency activity.  (Mincey v. Arizona (1978) 437 U.S. 385, 393, 98 S.Ct. 2408, 2413–2414, 57 L.Ed.2d 290;  Michigan v. Tyler (1978) 436 U.S. 499, 509–510, 98 S.Ct. 1942, 1949–1950, 56 L.Ed.2d 486;  People v. Roberts (1956) 47 Cal.2d 374, 380, 303 P.2d 721;  People v. Hill (1974) 12 Cal.3d 731, 754–757, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.)   The defendant himself concedes that emergency situations will “excuse a warrantless search for victims (or other persons needing aid ).”  (Emphasis added.)   In the present case, two persons had been shot less than an hour before.   A child had been reported inside the house.   The child might have been injured and lying comatose in need of medical assistance inside the closed closet in the master bedroom.   Thus, Sergeant Athearn was amply justified in going to the closet and searching for the child.   Given the physical layout and nature of sliding door closets, it was necessary, in order to ascertain whether or not a child was in the closet, to brush back some clothing.   In the course of doing that, Athearn inadvertently discovered that the vest contained what felt like a gun.   Two people had been shot with a gun and one of them was dead.   A homicide had been committed.   Whether or not the object was a gun which might be involved in the crime was obviously a highly relevant investigatory inquiry, and the minimal intrusion on privacy involved in looking into the vest pocket was fully justified by the circumstances.   Once the gun was seen its subsequent seizure by warrant was both proper and inevitable.

Athearn's looking into the vest pocket to find out whether what he felt was indeed a gun is analogous to the police conduct in discovering a gun approved by our Supreme Court in People v. Chavers (1983) 33 Cal.3d 462, 471, 189 Cal.Rptr. 169, 658 P.2d 96.  Chavers held that a gun was within “plain view” for constitutional purposes when it was inadvertently discovered through the otherwise legitimate handling of an opaque plastic shaving kit found in the glove compartment of the defendant's car at the time of his arrest.   The court stated that, having inadvertently discovered the gun through the sense of touch, the officer had every right to open the container.

The following language from Chavers bears directly on this case:  “Although the inadvertent discovery in this case resulted from the police officer's sense of touch, the knowledge that he thereby gained was as meaningful and accurate as if the container had been transparent and he had seen the gun within the container.”  (Ibid.;  emphasis added.)   In the present case, as in Chavers, the officer discovered the gun in the course of handling an object which he had a legitimate right to handle.   The gun was thus within the scope of the officer's “inadvertent plain feel.” 5

Defendant principally relies on People v. Roberts, supra, 47 Cal.2d 374, 303 P.2d 721, for the proposition that Athearn could not “rummage” through defendant's clothing searching for the child because “[t]he privilege to enter to render aid does not, of course, justify a search of the premises for some other purpose.”  (47 Cal.2d at p. 378, 303 P.2d 721.)   However, Roberts actually supports the legitimacy of Athearn's conduct in confirming that the object in the vest was a handgun.  Roberts upheld as reasonable a police officer's picking up a table model radio, turning it over and noting the serial number on the bottom after he had entered an apartment without a warrant because he heard several groans suggesting a person was in distress.   The court stated that the officer, knowing that five table model radios had recently been stolen, had the right to pick up the radio and examine it “for the purpose of dispelling or confirming his suspicions” that it was stolen.  (47 Cal.2d at p. 380, 303 P.2d 721.)   In the present case, similar to Roberts, the officer was legitimately where he was because of a need to locate the child and possibly render aid, and, like Roberts, the officer came across an object that might be involved in a crime he knew had already been committed.   The discovery of the gun in the present case was therefore not unlawful;  indeed looking into the pocket was more reasonable than examining the radio in Roberts because the officer's action was more closely connected to the exigency.6


Defendant's second argument, that the warrant and evidence seized thereunder were the fruit of an illegally seized gun, hinges on the proposition the gun was illegally seized.   As we have just seen, the gun was not illegally seized.   Defendant's second contention therefore fails.


 Defendant argues that the affidavit did not articulate explicitly or by inference the nexus between articles establishing control of the residence and the crimes under investigation.   Such a nexus, he maintains, is required by Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.

A nexus between “articles establishing control” and the crimes under investigation, however, was established by implication from the facts set forth in the affidavit.   The affidavit related that someone had been shot and that a gun, which could have been the murder weapon, was seen in a jacket in a bedroom closet in the house.   Evidence of who was in possession and control of the house was relevant to establish who might be responsible for the gun being on the premises and who might have had access to it.


 Defendant contends the warrant's language allowing seizure of any items establishing control of the premises was so overbroad that it in effect allowed for a general exploratory search.   A warrant allowing search for “papers, documents and effects which show possession, dominion and control of said premises, including but not limited to probation and parole orders, rent receipts, cancelled mail envelopes, monogrammed clothing and keys” was upheld against an overbreadth challenge in People v. Senkir (1972) 26 Cal.App.3d 411, 416, 420–421, 103 Cal.Rptr. 138.   While the description in Senkir apparently did not use the word “any,” the language certainly would have allowed seizure of “any” items showing possession (“including but not limited to”).   Contrary to defendant's assertion, the fact that in Senkir the crime involved controlled substances, whereas here the crimes were burglary and/or murder, is not controlling.   While possession or control of premises is frequently important in a narcotics case, possession or control was also important here because the police had found a gun—possibly the murder weapon—on the premises and needed to know whose it was and who might have had access to it.

In any event the trial court suppressed most of the evidence the officers seized pursuant to the “evidence of control” language.   The two items not suppressed of which defendant mainly complains were the victim's wallet and defendant's wallet.   However, the wallets would have been seizable as evidence of the crime in plain sight even if the warrant had not authorized seizure of “articles establishing control.”  (See People v. Hill, supra, 12 Cal.3d at pp. 761–764, 117 Cal.Rptr. 393, 528 P.2d 1.)

That the wallets would probably have evidentiary value was apparent.   The fact they were still on the premises was itself relevant to prove or disprove defendant's claim a burglary had occurred.   If they had money in them, they would strongly tend to undermine defendant's story.   Moreover, the wife's wallet was seizable for an independent reason.   It was found in a drawer.   The officer who opened the drawer had every right to open it, because the warrant also gave him the right to search for firearms.   It was thus in plain view of where the police officer had a right to be.   The very fact that the officers saw it there—not its contents—was important.   The wallet's being in a drawer while many other items from the wife's purse had been dumped out on a couch tended to undercut defendant's story of a burglar.   A burglar would not likely have taken time to put the wallet away in a drawer, so its presence in the drawer suggested defendant himself had hidden it.

 Defendant also focuses on the fact that some evidence that would allow the officers to conclude the Waterburys were in fact the occupants of the premises was found before the police found the wallets.   It is contended that the continued search after the discovery of some evidence confirming possession was unreasonable.   This argument, however, reduces to absurdity:  it would mean that the police would have to discontinue any search upon finding the first item of evidence which could arguably fulfill the purpose of the search.   The police would thus face the continual quandry of when they collected “enough” evidence to have fulfilled any given directive in a warrant.   When the police have the right, as they had under the warrant, to search for items establishing control of the premises they have the right to search for all such items, even though there might be some duplication.


The trial court suppressed Shovkat's statements made during the lie detector test.   In arguing that the other statements made earlier by Shovkat to the police, as well as the ring and items taken from her purse, should also have been suppressed, defendant concentrates mostly on establishing that the police encounter with Shovkat amounted to a “detention,” not a mere contact.   We accept that as true for purposes of decision.  (Cf. In re Tony C. (1978) 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 582 P.2d 957;  People v. Gee (1982) 130 Cal.App.3d 174, 179–181, 181 Cal.Rptr. 524;  see also People v. Campbell (1981) 118 Cal.App.3d 588, 594, 173 Cal.Rptr. 442.)   However, we do not agree with defendant's contention the evidence resulting from the detention was required to be suppressed because the officers did not have probable cause to detain Shovkat.

 Probable cause is not the standard for the reasonableness of detentions.   The standard, as Tony C. reveals, is something less than probable cause:  “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation] to suspect the same criminal activity and the same involvement by the person in question.”  (21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted.)

 Thus, to detain Shovkat initially, the officers only needed “specific and articulable facts” raising suspicion of some activity relating to crime having taken place, and Shovkat's involvement in that crime.   Under that standard, Officers Prieto and Moyer unquestionably had valid reason to “detain” Shovkat for investigative questioning.   There had obviously been a crime and there were facts from which it could reasonably be suspected that Shovkat was “involved.”   The victim was defendant's wife, murdered in her own home—but defendant had introduced Shovkat to a neighbor claiming she was his wife.   He had also told the neighbor Shovkat's eight-year-old boy was their son.   The police thus had reason to suspect that a love triangle was involved in the killing.   The police did not need evidence linking Shovkat to the actual killing—the test under Tony C. is involvement.   Of course, once the officers talked to Shovkat in the office at the savings and loan her connection to the case became even more readily apparent and further questioning was justified.  (See People v. Gale (1973) 9 Cal.3d 788, 795–796, 108 Cal.Rptr. 852, 511 P.2d 1204.)   She was wearing an engagement ring—and she admitted, after proper Miranda warnings, that defendant had given her the ring and that she had told her co-workers that she was engaged.   She also told the police she did not want to tell them whether or not defendant was at her home the day before he murdered his wife.

 The trial court determined the evidence gained from Shovkat after the interview at the savings and loan office—namely, the passbook with defendant's name on it, the receipts and her admissions about her relationship with defendant and spending the night with him before the murder, were all the products of consent.   That determination is supported by substantial evidence.   Actually, defendant does not assert that the evidence will not support a finding of consent.   Rather, he argues that Shovkat's consent was “inextricably bound up with her illegal detention.”   However, as we have concluded, the detention was not illegal.   Thus, the evidence gained during the course of Shovkat's detention and not otherwise suppressed was properly admitted.


Defendant contends that the trial court erred in giving two jury instructions, CALJIC Nos. 2.04 and 2.03, because the evidence did not support those instructions.   Instruction 2.04 allows the jury to infer a consciousness of guilt from an attempt to fabricate evidence to be produced at the trial,7 and instruction 2.03 allows the jury to infer a consciousness of guilt from false or misleading statements made by the defendant concerning the charge upon which he is being tried.8  Defendant maintains that by giving CALJIC 2.04, the court led the jury to think there was either more evidence against appellant than could be produced in court procedure or that they had missed something during the trial.   By giving CALJIC 2.03, defendant maintains, the court improperly cast specific doubt on defendant's own credibility as a witness, singling out his testimony as somehow more suspect than that given by prosecution witnesses.


 Defendant contends that giving CALJIC No. 2.04 was improper because such an instruction had no support in the record.   We disagree:  the record contains abundant support for the instruction.   In the first place, defendant's self-inflicted wound represents a fabrication;  it was obviously done in order to support the alibi that an intruder shot Mrs. Waterbury.   In the second place, the contents of the victim's purse were dumped on the couch in the front room, but the wallet was hidden in a drawer.   This action also manifested an intent to fabricate evidence.   In the third place, there was the testimony of David Tompkins, defendant's close friend, which was reasonably susceptible of the inference that defendant had pressured Tompkins to color his trial testimony favorably to defendant.9


 The essence of defendant's contention regarding CALJIC 2.03 is that it should not have been given because his testimony at trial was consistent with his pretrial statements.   The only evidence, he maintains, that he made inconsistent statements was the inconsistency of his statements with the prosecution's case.   He points out, and we certainly agree, that the instruction should not be given when the only inconsistency in statements is with the prosecution's case.  (See People v. Green (1980) 27 Cal.3d 1, 40–41, 164 Cal.Rptr. 1, 609 P.2d 468.)

 In point of fact, however, defendant made a very significant pretrial statement to the police that contradicted his testimony at trial.   Specifically, he originally told Officer Adams on the morning of the shooting that neither he nor his wife owned a handgun, nor did he have any knowledge of a gun in the residence.   Yet defendant testified at trial that he had bought a handgun, registered in his own name, which he gave to his wife, and which she kept in her purse.   It was this gun, of course, found in defendant's vest pocket, that was the murder weapon.

The instruction was properly given.


 The evidence that defendant committed the murder for financial gain was entirely circumstantial,10 and defendant contends reversal is required because the trial court failed sua sponte to give an instruction relating the law concerning the use of circumstantial evidence specifically to the issue of the truth or falsity of the special circumstance allegation.   We believe not.   The instructions given were sufficient to cover the point, and if defendant wanted a special instruction specifically relating the general instructions to the particular issue of the truth or falsity of the special circumstance allegation, he should have requested that.  (Cf. People v. Ramos (1982) 30 Cal.3d 553, 583, 189 Cal.Rptr. 266, 639 P.2d 908, cert. gr. California v. Ramos (1982) 459 U.S. 821, 103 S.Ct. 49, 74 L.Ed.2d 56;  People v. Radil (1977) 76 Cal.App.3d 702, 707–709, 142 Cal.Rptr. 233;  also cf. People v. Jurado (1981) 115 Cal.App.3d 470, 493–494, 171 Cal.Rptr. 509.)

In its general instructions relating to direct and circumstantial evidence and before reaching its instructions relating to the elements of the crime and the special circumstance allegation the court informed the jury:  “․ Both direct evidence and circumstantial evidence are acceptable as means of proof.   Neither is entitled to any greater weight than the other.

“However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime, but, two, cannot be reconciled with any other rational conclusion.

“Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt.  [¶] In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.

“Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant's innocence and reject that interpretation which points to his guilt.  [¶] If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.

“The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act.   But you may not find the defendant guilty of the offense charged unless the proved circumstances not only are consistent with the theory that he had the required specific intent or mental state but cannot be reconciled with any other rational conclusion.

“Also, if the evidence as to any such specific intent or mental state is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to the absence of the specific intent or mental state, it is your duty to adopt that interpretation which points to the absence of the specific intent or mental state.  [¶] If, on the other hand, one interpretation of the evidence as to such specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable.”  (Emphasis added.)

Thereafter the court proceeded to give a number of other instructions of general application and finally instructed on the elements of first degree murder and the special circumstance.   With respect to the latter the jury was instructed substantially in the language of CALJIC 8.80, 8.81.1 and 8.83.2 that if they should find the defendant guilty of murder of the first degree they must then determine if the murder was committed for financial gain;  that the special circumstance must be proved beyond a reasonable doubt and that if they should have a reasonable doubt as to whether or not the special circumstance allegation was true, it was their duty to find it not true;  that to find the special circumstance allegation true the prosecution must have proved that the murder was intentional and that it was committed for financial gain;  and that in the jury's deliberations the subject of penalty or punishment should not be discussed or considered.

The instructions given by the court with respect to circumstantial evidence quoted above were substantially in the language of CALJIC 2.01 and 2.02 and defendant does not fault their sufficiency with respect to the issues of guilt generally or the specific intent to kill.   His contention is that the trial court should have sua sponte either repeated the circumstantial evidence instructions with respect to the special circumstance issue or formulated an instruction informing the jury of the applicability of the circumstantial evidence principles to the special circumstance issue.   He acknowledges the general rule that the sufficiency of jury instructions will be determined on the basis of the instructions as a whole, but he urges the jury must have failed to understand that principle in this case because during their deliberations they sent a note to the judge signed by the foreman which read:  “We can't agree on motive for the special circumstance (financial gain)[.]  Is this contradictory to a guilty decision or a not guilty decision?”

We do not perceive that the jury's note or its content indicates a failure on the part of the jury to understand that the court's instructions relating to circumstantial evidence applied not only to the defendant's guilt but also to the special circumstance allegation.   In fact, the contrary is true.   Viewed in light of the ultimate verdict the note suggests the jury had already reached tentative agreement on defendant's guilt;  that they were not unanimous on the special circumstance at that point;  and that they were in doubt only as to whether a finding of not true as to the special circumstance would be inconsistent with their determination of guilt on the substantive offense.

The court wrote on the note, “please reread instructions numbered 8.80—in particular[;] 8.81.1[,] and 8.83.2” and in fact those instructions were reread to the jury.   The court then asked the members of the jury whether the rereading of those instructions answered their questions or whether they still had questions.   All jurors indicated that their questions had been answered by the court's rereading the instructions.

Defendant, of course, points out that in the circumstantial evidence instructions given by the court reference was made several times to the use of circumstantial evidence as to the defendant's “guilt” and he argues the jury must therefore have understood the circumstantial evidence instructions as being limited to the issue of guilt.   We believe not.

In the first place, the point in the overall jury instruction at which these particular instructions were given is of some significance.   The court instructed first on principles of law of general applicability.   This must have been apparent to the jury.   The circumstantial evidence instructions were well within that part of the instructions and should have been understood by the jury to be generally applicable to what would follow.   Secondly, the circumstantial evidence instructions were in essence repeated twice, once with respect to guilt and the second time with respect to “specific intent” or “mental state.”   Throughout the second part of the instructions, as we have indicated by italicizing the words, ante, reference was made numerous times to the “mental state.”   And certainly the jury was aware that the question whether defendant committed the murder for financial gain involved his mental state, his motive.11  Thus, if the jury followed the instructions, as it is presumed they did, they applied the circumstantial evidence rules to the issue of defendant's mental state, i.e., whether he committed the murder for financial gain.

It is true that in the part about irreconcilability with any other rational conclusion, the instruction referred not only to “specific intent or mental state” but also to “guilty of the offense charged.”   However, the information consisted of but a single count in which all the “charges,” both the substantive offense and the special circumstance and gun use allegations were included, and in all probability jurors would think of all three as being included within “the offense charged.”   In any event, we think it entirely unrealistic to assume and not reasonably possible in fact that the jury understood the general instructions regarding the use of circumstantial evidence as being applicable only to proof of the substantive offense.

Defendant's reliance on People v. Salas (1976) 58 Cal.App.3d 460, 129 Cal.Rptr. 8711, is unwarranted.   In Salas the defendant was charged with robbery coupled with an allegation that in the commission of the robbery he inflicted great bodily injury on the victim with the specific intent to do so.   Thus, two specific intents were at issue:  the specific intent permanently to deprive the owner of his property and the specific intent to inflict great bodily injury on the victim.   The problem was that the trial court gave instructions on the use of circumstantial evidence in respect to the issue of specific intent, but it expressly related the instructions to the specific intent “to permanently deprive the owner oe owner of his property” and did not give such instructions or indicate their applicability to the other specific intent, the intent to inflict great bodily injury on the victim.   In a divided opi court held “that the giving of CALJIC instruction No. 2.02 with respect to the effect of circumstantial evidence in its relation to proof of the specific intent for the crime of robbery itself, without giving the same instruction with respect to the effect of circumstantial evidence in its relation to proof of the specific intent to commit great bodily injury (charged under Pen.Code, § 213), [constituted] prejudicial error.   The failure of the court to give CALJIC instruction No. 2.02 with respect to the issue of defendant's specific intent to inflict great bodily injury on the victim might well have led the jury to conclude that it could find that defendant possessed such intent by the circumstantial evidence introduced without giving consideration to the requirement that the proved circumstances were not only consistent with the hypothesis that he had such specific intent, but were irreconcilable with any other rational conclusion.   Such a conclusion is inescapable since the jury was instructed that the opposite was required for a finding of the specific intent to permanently deprive the owner of his property as an element of the offense of robbery itself.”  (58 Cal.App.3d at pp. 474–475, 129 Cal.Rptr. 871.)

In the case at bench the circumstantial evidence instructions given the jury were not expressly limited to one specific intent rather than another.   They were given as generally applicable both to the issue of guilt and the issues of “specific intent” and “mental state.”   The case at bench in this regard is like People v. Ramos, supra, 30 Cal.3d at page 583, 189 Cal.Rptr. 266, 639 P.2d 908, and People v. Radil, supra, 76 Cal.App.3d at pages 707-709, 142 Cal.Rptr. 233, in both of which the courts rejected claims of prejudicial error for failure of the court sua sponte to give a special instruction relating the circumstantial evidence rules to a particular issue.

 The trial court must instruct sua sponte on the general principles of law relevant to the issues raised by the evidence.  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)   The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.  (Id.;  People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)   Conversely, there is generally no sua sponte duty to refine, amplify or clarify jury instructions.  (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, 174 Cal.Rptr. 816.)   In the present case, the jury was instructed on the general principles of law applicable to the issues, including the rules relating to the sufficiency of circumstantial evidence.   If defendant desired an instruction specially relating those principles to the special circumstance allegation he should have requested such an instruction.  (Cf. People v. Ramos, supra, 30 Cal.3d at p. 583, 189 Cal.Rptr. 266, 639 P.2d 908;  People v. Jurado, supra, 115 Cal.App.3d at pp. 493–494, 171 Cal.Rptr. 509.)


Finally defendant contends the case must be remanded for resentencing in light of People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.   We agree.

Williams held a trial court has discretion to strike a special circumstance finding pursuant to Penal Code section 1385 “in furtherance of justice” so as to allow for the possibility of parole.  (30 Cal.3d at p. 489, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The Williams decision came down almost two months after defendant was sentenced in this case, and defendant points to a number of statements by the prosecutor, defense counsel and the court indicating that all of them believed that the only possible sentence in this case was life without possibility of parole because the jury had found true the special circumstance allegation.

 An appellate court generally indulges all presumptions in favor of the regularity and propriety of the proceedings in the trial court, but in view of the comments referred to by defendant it appears reasonably probable that neither the court nor the attorneys were aware of the authority of the court to strike the special circumstance finding and it is virtually a certainty that the court did not consider whether or not it should exercise its discretion in that regard.   In view of the significance of the question, it is appropriate to vacate the sentence and remand the case to the trial court so that it may exercise its discretion.   We of course express no opinion nor indicate, by implication or otherwise, the manner in which the trial court's discretion should be exercised.

Another matter that has been brought to our attention may also be corrected on remand.   While defendant was sentenced to an additional two years as a firearm use enhancement under Penal Code section 12022.5, the abstract of judgment does not specifically state that the additional two years is to be served before the commencement of the life sentence (see Pen.Code, § 669).   After resentencing, the abstract can be made to reflect clearly the requirements of Penal Code section 669 if that is appropriate.


The sentence is vacated, and the case is remanded to the trial court so that it may exercise its discretion under People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, and thereafter resentence defendant.   In all other respects the judgment is affirmed.


1.   Penal Code section 12022.5 provides that any person who personally uses a firearm in the commission of a felony shall be punished by an additional term of imprisonment for two years, unless use of a firearm is an element of the offense of which he was convicted.

2.   Penal Code section 190.2(a) provides that a defendant found guilty of murder in the first degree who is also found guilty of one or more of a number of enumerated “special circumstances” shall be confined in state prison for a term of life without possibility of parole or shall be put to death.   One of the enumerated special circumstances is that the “murder was intentional and carried out for financial gain.”

3.   At the suppression hearing Officer Adams did not disclose the nature of the wound.   At trial it was revealed to be a chest wound.

4.   Prieto admitted at the suppression hearing that no one had taken fingerprints at the scene, though one handprint was taken from one of the vehicles parked in front of defendant's residence.   No issue about Shovkat's consent having been gained through trickery is raised on appeal.

5.   The phrase is from Chief Justice Bird's dissenting and concurring opinion in Chavers.  (33 Cal.3d at p. 477, fn. 5, 189 Cal.Rptr. 169, 658 P.2d 96.)

6.   The Attorney General, in his brief on the various suppression issues, asserts that the trial court's “ruling” must be upheld if it is supported by “substantial evidence.”   The Attorney General has advanced this proposition in a number of cases in this court and, evidently, in cases before other California Courts of Appeal.  (See People v. Justin (1983) 140 Cal.App.3d 729, 735, 189 Cal.Rptr. 662.)   For support, the Attorney General relies on People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.  Lawler, however, only says that an appellate court must uphold whatever facts are found by the trial judge if they are supported by substantial evidence.   It does not say the trial court's conclusion a search was reasonable and therefore constitutional is to be reviewed under the substantial evidence standard.   In fact, Lawler holds that the issue of whether a search is unreasonable within the meaning of the Fourth Amendment is a question of law and that the ultimate responsibility rests with the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.

7.   The actual instruction was:  “If you find that the defendant tried to fabricate evidence to be produced at the trial, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt.   However, such attempt is not sufficient to prove guilt and its weight and significance, if any, are matters for your determination.”

8.   The actual instruction was:  “If you find that before this trial the defendant made false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but it is not sufficient of itself to prove guilt.  [¶] The weight to be given to such a circumstance and its significance, if any, are matters for your determination.”

9.   At trial the prosecution called David Tompkins, defendant's close friend for 10 years.   Tompkins testified that defendant and Shovkat dated while defendant was married.   He observed them holding hands, putting their arms around each other and kissing up until the time that defendant's wife was killed.   He also testified that Shovkat told him that defendant asked her to marry him on more than one occasion and that defendant had told her that the house in which he lived with his wife was really for her because he was going to get a divorce.   And he testified that on the morning of the shooting Shovkat had called him and asked if defendant was serious about her.Tompkins also indicated that he had “very mixed feelings” about his testimony.   When asked, by the prosecutor, why he felt it was necessary to come forward with his evidence, he said:“Well, I've had very mixed feelings about this from the beginning, but I just feel that no matter, you know, Tom has done quite a lot for me, but I don't feel that I could lie and I don't feel I could live with myself if I didn't tell everything I knew.  [¶] Now, to top it off, at first we wrote letters to each other, talked a few times on the phone.   I visited him at prison.   But each time he would tell me how much he needed my testimony, you know, his life depends on it.  [¶] And I just couldn't take that any more.   And that kind of thing I gradually realized that coming forth and telling the truth was what I had to do.  [¶] Then recently when I heard that, okay, the lawyer intended to come up with some kind of an affair between me and Debbie, that was kind of the final, final thing.”  (Emphasis added.)

10.   The evidence was that defendant and his wife purchased reciprocal five-year term life insurance policies of $100,000.   Defendant was the named beneficiary on the wife's policy.   About a month after the killing, the defendant went to the claims department of the insurance company to claim benefits on his wife's death and was given a claim form.   Further, defendant's friend, Mr. Tompkins, testified that Shovkat had told him that defendant had told her that the home into which defendant and his wife had recently moved was really for Shovkat.   In fact, defendant told Shovkat that she would be able to move in by Christmas (the day before the killing).   The house purchase was financed in part apparently with the assistance of the wife's parents.

11.   Indeed, defendant refers to the mental element embodied within the special circumstance as being “the specific intent” to obtain financial gain.

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.

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