PEOPLE v. BENARD

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. David Anthony BENARD, Defendant and Appellant.

Cr. 10159.

Decided: March 18, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Russell I. Lynn and Jeffrey J. Stuetz, Deputy State Public Defenders, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel Kremer, Asst. Atty. Gen., Michael D. Wellington and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant was found guilty of murder in the first degree with special circumstances and was sentenced to life imprisonment without possibility of parole.   He was also found guilty of robbery, possession of a sawed-off shotgun, attempted murder, burglary, unlawful driving and taking of a vehicle, and receiving stolen property.   Defendant pled guilty to possession of a concealable firearm by an ex-felon.   Armed and use allegations were found true in connection with the murder, robbery, and attempted murder charges.   A great bodily injury allegation was found true for the robbery charge.   On appeal, defendant challenges his conviction and, alternatively, his sentence.

FACTS

Leonard Dean was driving home in his pickup truck on Mockingbird Canyon Road late at night on June 29, 1977.   He spotted defendant standing next to a car with its hood up.   Dean stopped in response to defendant's attempts to wave him down.   After a brief conversation, Dean agreed to drive defendant home.   But, when Dean opened the passenger door, defendant pointed a handgun at him and announced, “This is a gun.”   Dean immediately stepped on the gas and ducked.   As Dean sped away, defendant fired about four shots, three of which hit the truck.   Dean was not hit.

Less than two months later, on August 14, a house in Sunnymead was burglarized and ransacked.   Among the many items stolen were a yellow Pinto automobile, a .22 rifle, and a box of .357 magnum shells.

One week after the burglary, in the early morning of August 21, Victor Sam, 24 years old, left his wife and week-old baby to drive to his job in the infirmary at the California Rehabilitation Center.   Defendant and an accomplice had parked the stolen Pinto crossways on Gavilan Road with its hood up and attempted to wave down passing cars.   Sam stopped.   Defendant and his accomplice forced Sam off the road and robbed him.   In going through Sam's wallet, defendant found an identification card which indicated that Sam was a correctional officer.   Defendant, who had been paroled six months earlier, told his accomplice that Sam was “one of those mother-fuckers who was fucking with my mind when I was in jail.”   Defendant directed his accomplice to leave and then shot Sam in the back of the head with a shotgun.   After three days of searching, Sam's body was found by his father with an empty shotgun casing at Sam's feet.

Defendant was arrested at 8:30 p. m. on the same day that Sam's body was discovered.   Los Angeles County Deputy Sheriff Lee noticed defendant and another man sitting in the yellow Pinto, which was stopped in a motel parking lot in Lynwood.   The parking lot had numerous parking stalls perpendicular to the street.   The entrance to the lot from the street was a driveway which extended along the entire area of the stalls, approximately 40 or 50 feet.   The Pinto was parked perpendicular to the stalls, blocking entry into one or two of the stalls.   Believing the Pinto to be illegally parked, Lee detained the car for the purpose of writing a citation.   As he approached the car, Lee detected the smell of burnt marijuana coming through the open window on the driver's side.   Lee asked both men to leave the car so that he could search for the source of the odor.   Defendant became irate and demanded the presence of his attorney.   Lee called for a backup unit and radio-checked the Pinto and its license plate.   Lee was informed that the Pinto was a stolen vehicle and that the license plate was from a stolen Lincoln Continental.   The Pinto was then searched.   A sawed-off rifle and a box of .357 magnum shells were recovered from the car's interior, and the sawed-off shotgun that was used to kill Victor Sam was found in the trunk.

In his report of the arrest, Lee mistakenly listed the wrong Lynwood traffic ordinance as the one which defendant had violated.   At the preliminary hearing, Lee stated that he had in fact relied on section 19153, which deals with parking in public off-street parking lots.   In the pretrial hearing in superior court, Lee testified that he had also believed that a state Vehicle Code section was applicable, but that he cited defendant for the Lynwood ordinance violation because, “Inasmuch as we were in the City of Lynwood I felt it was applicable to the city ordinance rather than the vehicle code.”

SUPPRESSION MOTION

Defendant's arrest and the search of the Pinto are challenged on two grounds.   First, it is contended that the original detention of the car was improper because no traffic violation had been committed.   Second, defendant asserts that the odor of burnt marijuana alone was insufficient to establish probable cause to search the car.

In response to defendant's detention argument, the People take an entirely different position on appeal than they did in the trial court.   At the suppression hearing, the deputy district attorney successfully argued the reasonableness of the police conduct in detaining the Pinto for an assumed parking violation.   Now, for the first time, the People assert that there was no detention at all until after the smell of marijuana was detected and they make no response to defendant's contentions concerning the illegality of detaining a car for a violation of inapplicable parking laws.   Defendant asks this court to treat the People's silence as an abandonment of support for the trial court's finding of a proper detention.   We will not do so.   Regardless of the quality of the respondent's brief, it remains the appellant's burden to show reversible error.   Although the People have failed to assist this court in analyzing the issue, we conclude that defendant has not succeeded in showing that the trial court erred in finding a valid detention.

“[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.”  (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   Defendant disputes the objective reasonableness of Deputy Sheriff Lee's suspicion because, defendant claims, no parking violation had occurred.   The cited Lynwood ordinance applies only to public parking lots and the Vehicle Code section mentioned by Lee prohibits parking “[i]n front of a public or private driveway ․”  (Veh.Code, § 22500, subd. (e);  emphasis added.)

 We do not decide whether defendant actually violated any parking ordinance or statute, because we hold that Lee's suspicion was objectively reasonable in any event.   On this issue, “[t]he guiding principle ․ is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.’ ”  (In re Tony C., supra, 21 Cal.3d, at p. 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   It is clear that a detention for even a minor traffic violation is legal.  (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205;  People v. Torralva (1971) 17 Cal.App.3d 686, 689, 94 Cal.Rptr. 900;  People v. Doerr (1968) 266 Cal.App.2d 36, 39, 71 Cal.Rptr. 889.)   In this case, Lee believed that the Pinto was illegally parked, since it was blocking access from a public street to a couple of parking stalls in a motel's parking lot.   This belief was reasonable.   Had the motel parking lot been a public lot, the Pinto would have been parked in violation of the Lynwood ordinance.   Additionally, it is a close question whether or not defendant was parked in front of a private driveway within the meaning of Vehicle Code section 22500, subdivision (e).   We refuse to rule that it is unreasonable for a police officer to minimally invade a citizen's personal security by approaching and detaining a stationary automobile that is parked in an abnormal manner, which manner of parking could reasonably be believed to be violative of the law, merely because it is later determined that no actual parking violation has occurred.   To hold otherwise would require the police to obtain an unduly precise expertise in the minutiae of the traffic laws.

Defendant's reliance on People v. Teresinski (1982) 30 Cal.3d 822, 180 Cal.Rptr. 617, 640 P.2d 733 is unavailing.   There, the Supreme Court left open the question of “whether under exceptional circumstances an officer's reasonable mistake of law might validate police conduct because in this case the officer's mistake cannot be found reasonable.”  (Id., at p. 831–832, 180 Cal.Rptr. 617, 640 P.2d 753 [typed opinion p. 11].)   Here, as we have already discussed, Lee's mistake of law, if any, was objectively reasonable.   Moreover, we believe that this objectively reasonable mistake of law should not cause the suppression of evidence.   Because Deputy Sheriff Lee's suspicion of a parking violation was objectively reasonable, the detention of the car was proper under the express standards of In re Tony C.

 Defendant next contends that, even if the original detention was proper, the subsequent detection of the odor of burnt marijuana alone was insufficient to give Deputy Lee probable cause to search the Pinto.   Defendant asserts that there must have been additional evidence that marijuana was in the place to be searched.   In support of this proposed rule, he cites three opinions from other states, including one dissenting and one plurality opinion.   This authority is insufficient to compel us to deviate from the well established rule in California that the odor of fresh, burning, or burnt marijuana is enough to establish probable cause to search or arrest.  (People v. Cook (1975) 13 Cal.3d 663, 668, 119 Cal.Rptr. 500, 532 P.2d 148 cert. den., 423 U.S. 870, 96 S.Ct. 135, [46 L.Ed.2d 100];  Mann v. Superior Court (1970) 3 Cal.3d 1, 7, 88 Cal.Rptr. 380, 472 P.2d 468, cert. den. (1971) 400 U.S. 1023 [91 S.Ct. 588, 27 L.Ed.2d 635];  People v. Lovejoy (1970) 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94;  People v. Rice (1970) 10 Cal.App.3d 730, 740, 89 Cal.Rptr. 200;  People v. Peterson (1970) 9 Cal.App.3d 627, 633, 88 Cal.Rptr. 597;  People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826–827, 84 Cal.Rptr. 78;  People v. Christensen (1969) 2 Cal.App.3d 546, 548, 83 Cal.Rptr. 17;   People v. Nichols (1969) 1 Cal.App.3d 173, 175, 81 Cal.Rptr. 481.)

The trial court did not err in denying defendant's motion to suppress.

SEVERANCE OF ATTEMPTED MURDER CHARGE

Defendant alleges that the trial court erred in denying his motion to sever the charge of the attempted murder of Leonard Dean.   He claims that he was prejudiced by having that charge tried in the same trial which determined his guilt of the murder of Victor Sam.   There was no error.

 The potential harm to a defendant in trying more than one offense before the same jury is that the jury, after determining that defendant is guilty of one offense, may improperly consider that guilt as evidence of a character trait of the defendant in assessing defendant's culpability for the remaining offenses.   Thus, while “[a]n accusatory pleading may charge ․ two or more different offenses of the same class of crimes ․,” the trial court may, “in the interests of justice and for good cause shown, ․ order that the different offenses ․ be tried separately ․”  (Pen.Code, § 954.)   However, once the trial court has exercised its discretion and denied a severance motion, deference is accorded to the trial court's decision.   Indeed, the Supreme Court has held that “denial of the motion will be disturbed on appeal only for abuse of discretion resulting in substantial prejudice to the defendant.”  (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.)

 In evaluating the prejudice to the defendant in not having separate trials on different charged crimes, first reference is often made to what the effect of Evidence Code section 1101 would have been had the severance motion been granted.   If evidence of the uncharged offense would have been admissible in the separate trial of the other charge, defendant has not been prejudiced by the denial of the severance.  (People v. Matson, supra, 13 Cal.3d, at p. 40, 117 Cal.Rptr. 664, 528 P.2d 752;  People v. Jackson (1980) 102 Cal.App.3d 620, 624, 162 Cal.Rptr. 574.)

 Section 1101, subdivision (a) contains a general proscription against using evidence of specific instances of a defendant's conduct (e.g., an uncharged crime) to prove his conduct on a specified occasion (e.g., the charged crime).   However, subdivision (b) allows such evidence “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”   In the present case, had the severance motion been granted, in defendant's separate trial for murder, evidence of defendant's attempted murder of Leonard Dean would have been admissible to show defendant's identity as the murderer of Victor Sam.

Evidence of an uncharged crime will ordinarily be admissible if the modus operandi of that crime is distinctive and similar to the modus operandi of the charged crime.  (People v. Matson, supra, 13 Cal.3d, at p. 40, 117 Cal.Rptr. 664, 528 P.2d 752;  People v. Haston (1968) 69 Cal.2d 233, 244–247, 70 Cal.Rptr. 419, 444 P.2d 91.)  “Thus it may be said that the inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.”  (People v. Haston, supra, 69 Cal.2d, at p. 246, 70 Cal.Rptr. 419, 444 P.2d 91.)

The modi operandi of the Dean attempted murder and the Sam murder are similarly distinctive.   Both crimes were committed by a man faking car trouble and waving down passing motorists.   Both were committed late at night or early in the morning, when traffic is light.   Both were committed on rural roads.   The two crimes were committed at locations in the same area of Riverside County.   The marks common to the two crimes are so distinctive that the probative value of admitting evidence of one in a trial for the other clearly outweighs the prejudicial effect.   The trial court did not abuse its discretion in denying the severance motion.  (See also People v. Poon (1981) 125 Cal.App.3d 55, 72–73, 178 Cal.Rptr. 375.) 1

Defendant's reliance on Coleman v. Superior Court, supra, 116 Cal.App.3d 129, 172 Cal.Rptr. 86, is misplaced.   The Coleman court's analysis of the severance issue is the same that we apply here.   However, the facts in Coleman yielded a different result.   In that case, the uncharged offenses would not have been admissible in a severed trial, because the probative value of the crimes would have been minimal and the prejudice great.  (Id., at pp. 137–138, 172 Cal.Rptr. 86.)

SPECIAL CIRCUMSTANCE FINDING

 In addition to finding defendant guilty of first degree murder, the jury also found that the murder was willful, deliberate and premeditated and was committed during the commission and attempted commission of a robbery.   This special circumstance finding (former Pen.Code, § 190.2(c)(3)(i)) meant that defendant would be punished by either death or imprisonment for life without possibility of parole.  (Former Pen.Code, § 190.2.) 2  Defendant contends that the finding must be reversed because the jury was not properly instructed and because there is insufficient evidence to support the finding.   The special circumstance finding will stand.

Defendant relies on People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 and People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883.   Both cases reversed findings of the identical special circumstance at issue here on the ground that there was insufficient evidence in the record to support the finding.   In Green, the victim's clothes and other personal effects were taken from her both before and after the murder as part of an attempt to conceal her identity.   In Thompson, an intruder, although originally demanding money, told the two victims, “You know why I'm here and you know who sent me.”   He then shot the victims, killing one, and left the house only with one victim's car keys, which were soon after discarded without having been used.

The Green court found that even though the defendant had committed both murder and robbery, the murder had not been committed during the commission of the robbery.  (27 Cal.3d, at pp. 59–62, 164 Cal.Rptr. 1, 609 P.2d 468.)   Instead, the court held, the crime was “a robbery in the commission of a murder.”  (Id., at p. 60, 164 Cal.Rptr. 1, 609 P.2d 468.)   Former section 190.2(c)(3) “expressed a legislative belief that it was not unconstitutionally arbitrary to expose to the death penalty those defendants who killed in cold blood in order to advance an independent felonious purpose, e.g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape.  [¶] The Legislature's goal is not achieved, however, when the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder ․ because its sole object is to facilitate or conceal the primary crime.”  (Id., at p. 61, 164 Cal.Rptr. 1, 609 P.2d 468.)

In Thompson, the court reiterated that “[a] murder is not committed during a robbery within the meaning of the statute unless the accused has ‘killed in cold blood in order to advance an independent felonious purpose, e.g., [has] carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape.’ ”  (27 Cal.3d, at p. 322, 165 Cal.Rptr. 829, 611 P.2d 883, emphasis added in Thompson.)   The Thompson court found insufficient evidence to support the special circumstance finding, because the record established “at most a suspicion that appellant had an intent to steal independent of his intent to kill.”  (Id., at p. 324, 165 Cal.Rptr. 829, 611 P.2d 883.)

The situation in the present case is exactly the opposite of the Green and Thompson cases;  it is precisely the type of murder that the drafters of the 1977 legislation intended to be punishable by the most severe penalties.   Unlike Thompson, there is no doubt that defendant “had an intent to steal independent of his intent to kill.”   The plan clearly was to rob any Good Samaritan who stopped to offer assistance to defendant and his accomplice.   Indeed, this case presents the very situation that both Green and Thompson hypothetically held to be covered by the statute, “an execution-style slaying of the victim of ․ a holdup ․”   The robbery here was not “merely incidental to the murder,” it was the sole reason that the murder ever occurred.

Defendant stresses the language in Green and Thompson that the murder must have been committed “in order to advance an independent felonious purpose,” and asserts that the killing was of a correctional officer for purposes of revenge and not of a robbery victim in furtherance of a robbery.   The assertion is irrelevant.   It does not matter for what reason defendant committed the premeditated murder of his robbery victim, whether it was because defendant wanted to eliminate a potential witness against him, because the victim was a correctional officer, or just because defendant did not like the victim's looks.   Regardless of the reason, the murder was committed during the commission of a robbery.   The Supreme Court in Green and Thompson were rightly concerned that a defendant not be exposed to the death penalty if a robbery was merely a means to achieve a defendant's primary goal of murder, thus the requirement that the robbery be an “independent felonious purpose.”   Here, the defendant's trap was meant to snare victims to be robbed, not correctional officers to be murdered and incidentally robbed.

 Defendant also claims that the jury should have been instructed concerning the principles of the divisibility of crimes.3  His theory is that the robbery had already ended when Sam was murdered.   A jury instruction based on this theory was not requested by defendant.   He now contends that the trial court had the duty to give such instruction sua sponte.   The Supreme Court has held that even “in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence․”  (People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.)   But even a requested instruction need not be given if the evidence to support it is “minimal and insubstantial.”  (Id., at p. 684, 160 Cal.Rptr. 84, 603 P.2d 1.)   Such is the case here.   This can be seen by applying to the facts a jury instruction defendant now proposes should have been given, which is set out in a footnote.4  There is no evidence in the record that the robbery was completed before the murder.   Defendant had not escaped with Sam's property before shooting him;  instead he murdered Sam at the same place as, and soon after, the robbery.5  The trial court had no sua sponte duty to instruct on the divisibility of crimes.

IMPEACHMENT OF EXPERT WITNESSES

 The defense in this case was that of diminished capacity because of chronic use of PCP.   One defense witness was Dr. David Smith, a physician with an expertise in the disease process caused by toxic drugs.   He testified that defendant had a long history of multiple drug abuse.   Dr. Smith felt that defendant, at the time of the killing, “was in stage one of PCP acute toxicity with substantial confusion, impaired judgment, and impaired memory of acts, and the thinking process.”

The cross-examination of Dr. Smith began as follows:

“By Mr. Webster [prosecution]:  Q. Mr. Smith, are you against the death penalty?

“Mr. Earley [defense]:  I would object.

“The Court:  What would be the materiality?

“Mr. Webster:  Motivation in testifying in a particular way.

“The Court:  All right.   For that limited particular purpose only.   You may answer the question.

“The Witness:  Yes.

“The Court:  Ladies and gentlemen of the jury, the question and answer are limited for the sole purpose of deciding the credibility of the witness, and you must not consider it for no other purpose [sic].   Do you understand that?”

Defendant claims that this impeachment constitutes reversible error, because punishment is not a relevant consideration during the guilt phase of a trial.   Indeed, the jury was instructed, “In your deliberations the subject of penalty or punishment is not to be discussed or considered by you.   That is a matter which must not in any way affect your verdict or affect your finding as to the special circumstance[s] charged in this case.”   By asking Dr. Smith his personal position on the death penalty, defendant asserts, the prosecution “tempted” the jury to disobey the instruction.   The cross-examination was proper.

Evidence Code section 780 states that the “jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including ․ [¶] (f) The existence or nonexistence of a bias, interest, or other motive.”   The challenged questioning was clearly admissible under this section.   Since it was possible that defendant could be sentenced to death, the jury might reasonably believe that Dr. Smith's beliefs against capital punishment were a motivation for his pro-defense testimony.   It is unlikely that the evidence was considered for any other purpose.   Moreover, the court's immediate admonition further reduced the possibility that the jury made improper use of the testimony.

 Defendant also complains of other testimony elicited from expert witnesses by the prosecution.   However, no objections were made to these questions.   The contentions may not be raised for the first time on appeal.  (Evid.Code, § 353, subd. (a);  People v. Green, supra, 27 Cal.3d 1, 22, 164 Cal.Rptr. 1, 609 P.2d 468.)   Defendant's invocation of the exception to the general rule, that failure to object does not preclude review if the error is “so gross in character as to result in a denial of due process” (People v. Mills (1978) 81 Cal.App.3d 171, 176, 146 Cal.Rptr. 411), is clearly inapplicable here.

VALIDITY OF URGENCY CLAUSE OF 1977 LEGISLATION

On August 11, 1977, the Legislature enacted as an urgency statute the legislation under which defendant was convicted and sentenced.  (Stats.1977, ch. 316, § 26, p. 1266.)   Because of the urgency clause, the statute went into effect immediately upon its enactment instead of on January 1, 1978.  (Cal.Const., art. IV, § 8, subd. (c).)  Defendant murdered Victor Sam on August 21, 1977, between the times when the legislation was enacted and when it would have gone into effect had no urgency clause been attached.   It is claimed on two separate grounds that the urgency clause was invalid and that defendant therefore could not have been sentenced under the 1977 statutes.6  He seeks a modification of his sentence from life without possibility of parole to life imprisonment.7

 Defendant's first argument is that the urgency clause was invalid because it precluded a referendum on a death penalty law, the possibility of such referendum being constitutionally required.   Defendant is correct that the 1977 statutes, being urgency legislation, could not have been subject to a referendum.  Section 9(a) of article II of the California Constitution states that “[t]he referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes ․”  (Emphasis added.)   However, defendant is incorrect that the Constitution gives the electors the right to seek a referendum on all death penalty legislation.

In People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 cert. den., 406 U.S. 958 [92 S.Ct. 2060, 32 L.Ed.2d 344], the Supreme Court held capital punishment violative of the state Constitution.   In response, an initiative added section 27 to article I of the Constitution, which section provided that the death penalty did not violate the state Constitution.   The first portion of section 27 states, “All statutes of this state in effect on February 17, 1972 [the day before the Anderson decision was filed], requiring, authorizing, imposing, or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum.”  (Emphasis added.)   It is upon this provision, and especially the emphasized language, that defendant bases his contention that all death penalty laws must be reviewable by referendum and, hence, cannot be enacted as urgency statutes.   Defendant notes that section 27 authorizes amendment or repeal by statute, but does not expressly authorize amendment or repeal by urgency statute.   He also stresses that section 27 expressly made death penalty legislation “subject to ․ referendum.”

Section 27 does not require that all death penalty legislation be subject to a referendum.   By its terms the section applied only to those death penalty laws in effect on February 17, 1972, and which were, in effect, reenacted by the initiative.   Because of the Anderson decision, the status of those laws was in doubt and it was uncertain whether a post-Anderson amendment of the state Constitution only to authorize the death penalty in general would revitalize those particular pre-Anderson death penalty laws.8  Therefore, it is reasonable to assume that the purpose of the first portion of section 27 was to insure that those laws were in fact revitalized, i.e., “in full force and effect.”   The drafters wanted to insure that the reenacted statutes would be treated no differently than other legislation, hence they were “subject to legislative amendment or repeal by statute, initiative, or referendum.”   The drafters were not proposing to place any limitations on the Legislature's power to enact future death penalty legislation.9  (See People v. Frierson (1979) 25 Cal.3d 142, 184–186, 158 Cal.Rptr. 281, 599 P.2d 587.)

Support for our interpretation is found in the ballot pamphlet for the election at which section 27 was approved by the voters as Proposition 17.10  The analysis by the Legislative Counsel stated that if Proposition 17 were adopted, “every statutory law of California relating to the death penalty that was rendered ineffective by the decision of the California Supreme Court would be reinstated (subject to amendment or repeal) insofar as their validity under the California Constitution is concerned.”  (Ballot Pamp., Gen. Elec. (Nov. 7, 1972) p. 42, emphasis added.)

Because the law under which defendant was sentenced was not in effect on February 17, 1972, the voters did not have to be given the opportunity to repeal it by referendum.

 Defendant's second argument is that the 1977 urgency legislation violated section 8(d) of article IV of the state Constitution which provides in part that “[a]n urgency statute may not ․ change the salary, term, or duties of any office ․”   It is claimed that part of the urgency legislation changed the duties of the Supreme Court.  Penal code section 190.6 (Stats. 1977, ch. 316, § 14, p. 1262) requires that “in all cases in which a sentence of death has been imposed, the appeal to the State Supreme Court must be decided and an opinion reaching the merits must be filed within 150 days of certification of the entire record by the sentencing court.   In any case in which this time requirement is not met, the Chief Justice of the Supreme Court shall state on the record the extraordinary and compelling circumstances causing the delay and the facts supporting these circumstances.”

Prior cases construing section 8(d) of article IV and its similar predecessor compel us to conclude that section 190.6 has not changed any duties of the Supreme Court, but only the procedures under which one of its duties is to be carried out.11  (Flournoy v. Priest (1971) 5 Cal.3d 350, 354–355, 95 Cal.Rptr. 793, 486 P.2d 689;  Martin v. Riley (1942) 20 Cal.2d 28, 37–38, 123 P.2d 488;  Davis v. County of Los Angeles (1938) 12 Cal.2d 412, 423–424, 84 P.2d 1034;  Stockburger v. Jordan (1938) 10 Cal.2d 636, 643–648, 76 P.2d 671;  Behneman v. Alameda-Contra Costa Transit Dist. (1960) 182 Cal.App.2d 687, 692–693, 6 Cal.Rptr. 382.)   This is not a case where an officer “is given quite extensive powers” which constitue “a material and substantial addition to [his or her] duties.”  (Stockburger v. Jordan, supra, 10 Cal.2d, at pp. 643, 647, 76 P.2d 671.)   The Supreme Court already had the duty to review all death penalty sentences before section 190.6 was enacted.12  Section 190.6 merely requires that duty to be performed in a manner different than the court might otherwise perform it.   The 1977 legislation is similar to the urgency statute considered in Davis v. County of Los Angeles, supra, in that section 190.6 does “not impose undue or material and substantial additional burdens or duties upon the officers mentioned, different in nature from those already required of them by law.”  (Id., 12 Cal.2d, at p. 424, 84 P.2d 1034.) 13

Defendant was properly sentenced under the 1977 murder penalty legislation.

JURY PANEL COMPOSITION

Two prospective jurors were excused for cause because they stated that under no circumstances would they vote for the death penalty at a penalty hearing.   They did indicate, however, that they could be fair and impartial jurors at the phase of the trial which determined defendant's guilt or innocence.   Defendant contends that their exclusion denied him of his constitutional right to a jury made up of a fair cross-section of the community.   He concedes, however, that people are properly excluded from a jury if their attitudes toward capital punishment would affect their impartiality on the question of a defendant's guilt and that the state may exclude from a jury in the penalty phase those persons unalterably opposed to capital punishment.   Defendant asserts, therefore, that otherwise unbiased persons should not be excluded from a guilt phase jury simply because of their views on the death penalty and that, if necessary, a new jury should be impanelled for the penalty phase of the trial.14

 The Supreme Court dealt with the same general issue in Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301.   The court there surveyed the pertinent decisions of the United States Supreme Court and concluded that three separate analyses were relevant in determining a defendant's right to have a guilt phase jury that includes persons who unequivocally oppose capital punishment but could nevertheless impartially decide the defendant's guilt or innocence (the so-called “guilt phase includables”).   The first theory, based on Witherspoon v. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776], examines whether a jury which excludes “guilt phase includables” is “ ‘less than neutral with respect to guilt.’ ”  (28 Cal.3d, at p. 17, 168 Cal.Rptr. 128, 616 P.2d 1301.)   The second theory, based on Ballew v. Georgia (1978) 435 U.S. 223 [98 S.Ct. 1029, 55 L.Ed.2d 234], determines “whether the interests protected by the Sixth Amendment are significantly inhibited by the disqualification at the guilt phase of all the ‘guilt phase includable’ jurors.”  (28 Cal.3d, at p. 18, 168 Cal.Rptr. 128, 616 P.2d 1301.)   The third theory, based on Taylor v. Louisiana (1975) 419 U.S. 522 [95 S.Ct. 692, 42 L.Ed.2d 690] and Duren v. Missouri (1979) 439 U.S. 357 [99 S.Ct. 664, 58 L.Ed.2d 579], focuses on whether a constitutionally cognizable class has been excluded from the jury.   Under this third theory, which Hovey terms the “pure cross section analysis,” the nonneutrality of a jury is presumed if such a class of people has been excluded.15  (28 Cal.3d, at pp. 17, fn. 38, 20, fn. 45, 168 Cal.Rptr. 128, 616 P.2d 1301.)

Hovey rejected the petitioner's claims under the first two theories, finding that he had made an insufficient evidentiary showing of prejudice.  (28 Cal.3d, at p. 68, 168 Cal.Rptr. 128, 616 P.2d 1301.)   Since defendant here has made no greater showing on these theories than the petitioner in Hovey, we are bound by that court's decision on the Witherspoon and Ballew analyses and we believe that further discussion of these theories, so fully considered in Hovey (id., at pp. 16–69, 168 Cal.Rptr. 128, 616 P.2d 1301), would serve no purpose.   However, the Supreme Court expressly did not evaluate the petitioner's claims under the pure cross section analysis.   (Id., at p. 17, fn. 38, 168 Cal.Rptr. 128, 616 P.2d 1301.)   It is upon this theory that defendant here primarily relies.   We conclude that defendant's contention of a constitutional violation also fails under the pure cross section analysis.

 Defendant claims that “guilt phase includables” comprise a constitutionally cognizable class for purposes of the Taylor-Duren analysis.   We disagree.16  (See also People v. Pacheco (1981) 116 Cal.App.3d 617, 630, 172 Cal.Rptr. 269.)  Taylor found the “fair-cross-section” requirement to be “fundamental to the jury trial guaranteed by the Sixth Amendment” (419 U.S., at p. 530, 95 S.Ct., at p. 697) and held that that requirement was violated by the systematic exclusion of women (id., at p. 531, 95 S.Ct. at p. 698).   The court's decision was based on “the judgment that women are sufficiently numerous and distinct from men ․”  (Id.)  However, Taylor did not set forth any comprehensive definition of a constitutionally cognizable or distinctive group.   Such a definition was delineated by the California Supreme Court in Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595.

Rubio stated that two requirements must be met to qualify a group as cognizable.  “First, its members must share a common perspective arising from their life experience in the group, i.e., a perspective gained precisely because they are members of that group.   It is not enough to find a characteristic possessed by some persons in the community but not by others;  the characteristic must also impart to its possessors a common social or psychological outlook on human events.”  (24 Cal.3d, at p. 98, 154 Cal.Rptr. 734, 593 P.2d 595, original emphasis.)   Second, it must be shown “that no other members of the community are capable of adequately representing the perspective of the group assertedly excluded.”  (Id.)

We conclude that “guilt phase includables” do not meet the first Rubio requirement.17  They are the reverse of a cognizable group.   Instead of having a common perspective because of their group membership, they have become members of a group because they share a common opinion.   Manifestly, a particular opinion on one issue cannot be both the single qualification for membership in a group and the common perspective which arises from life experience in that group.   It is possible that “guilt phase includables” also have a common perspective broader than their mutual feelings about capital punishment, i.e., “a common social or psychological outlook on human events.”   However, such a common outlook cannot be said to have been caused by membership in the “guilt phase includable” group.   Thus, “guilt phase includables” are unlike women (Duren v. Missouri, supra, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579;  Taylor v. Louisiana, supra, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690), blacks (Peters v. Kiff (1972) 407 U.S. 493 [92 S.Ct. 2163, 33 L.Ed.2d 83];  People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748), daily wage earners (cf. Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [66 S.Ct. 984, 90 L.Ed. 1181]), or any other “economic, sexual, social, religious, racial, political, or geographical” group (Adams v. Superior Court, supra, 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 524 P.2d 375) which may not be excluded.   Their exclusion did not deny defendant his right to a fair-cross-sectional jury.

MULTIPLE PUNISHMENT

 Penal Code section 654 provides that “[a]n 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 ․”   Defendant claims violations of the multiple punishment proscription in three pairs of crimes:  possession of a sawed-off shotgun (Pen.Code, § 12020) and ex-felon in possession of a concealable firearm (Pen.Code, § 12021), unlawful driving or taking of a vehicle (Veh.Code, § 10851) and burglary (Pen.Code, § 459), and possession of a sawed-off shotgun and murder (Pen.Code, § 187).   The People concede that multiple punishment was improper for the first two pairs of crimes.  (See People v. Perry (1974) 42 Cal.App.3d 451, 456–457, 116 Cal.Rptr. 863 (possession of a sawed-off rifle and ex-felon in possession of a concealable firearm);  People v. Bauer (1969) 1 Cal.3d 368, 375–378, 82 Cal.Rptr. 357, 461 P.2d 637 cert. den. (1970) 400 U.S. 927, [91 S.Ct. 190, 27 L.Ed.2d 187] (robbery and auto theft).)   The People contend, however, that defendant was properly sentenced for possession of a sawed-off shotgun and murder.   We disagree.

“The ‘act’ necessary to invoke section 654 need not be an act in the ordinary sense that it is a separate, identifiable, physical incident, but may be ‘a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654.   The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ ”  (In re Adams (1975) 14 Cal.3d 629, 634, 122 Cal.Rptr. 73, 536 P.2d 473.)   More specifically, “a defendant may not be punished both for possession of a weapon and for another offense in which the weapon is used, where the evidence does not show possession for any other purpose.”  (People v. Jurado (1972) 25 Cal.App.3d 1027, 1033, 102 Cal.Rptr. 498.)

The People attempt to justify punishment for both possession of the shotgun and murder by pointing to evidence that defendant traded a camera for the shotgun about two weeks prior to the murder.   This is not enough.   Clearly, every person who commits a crime with a weapon will have possession of the weapon for some amount of time prior to the crime.   However, the pre-crime time of possession cannot, without more, support separate punishment for illegal possession of the weapon.   The “more” that is necessary is a showing that the illegal possession was not incident to the crime committed with the weapon, but arose from an independent intent and objective.  (Cf. People v. Patterson (1979) 88 Cal.App.3d 742, 754–756, 152 Cal.Rptr. 183;  People v. Coleman (1973) 32 Cal.App.3d 853, 858–859, 108 Cal.Rptr. 573.)   In the present case, the evidence discloses that defendant obtained the sawed-off shotgun sometime prior to the robbery and murder of Victor Sam, but the People refer to no evidence that indicates that defendant's motive for obtaining the weapon was anything other than to commit the robbery.   Thus, the evidence does not show possession of the shotgun for any other purpose than for use in committing the robbery and murder.  (See also People v. Garcia (1978) 86 Cal.App.3d 314, 317, 150 Cal.Rptr. 93.)

DISPOSITION

Defendant was sentenced to the middle term of two years for burglary (Pen.Code, §§ 461(2), 18) and to the upper term of three years for unlawful driving or taking of a vehicle (Veh.Code, § 10851, Pen.Code, § 18).   The punishment for the burglary being less severe than for the unlawful driving or taking of a vehicle, and since defendant may not be punished for both crimes, its execution must be stayed.  (People v. Milan (1973) 9 Cal.3d 185, 197, 107 Cal.Rptr. 68, 507 P.2d 968.)   Additionally, the penalty for murder is more severe than that imposed for either possession of a sawed-off shotgun or ex-felon in possession of a concealable firearm, and since defendant may not be punished for both murder and either of the weapons possession crimes, the execution of the sentences on both possession counts must be also stayed.  (Id.)  In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Even if evidence of the attempted murder would not have been admissible under section 1101(b) in a separate murder trial, defendant would still not necessarily have shown an abuse of discretion, because a “judge's discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses.”  (People v. Matson, supra, 13 Cal.3d, at p. 41, 117 Cal.Rptr. 664, 528 P.2d 752.)   This is so because the additional factors of avoiding the needless harassment of defendant and the waste of public funds in multiple trials weigh in favor of joinder.   (Id.)  A defendant must therefore “make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial.”  (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 139, 172 Cal.Rptr. 86, cert. den., 451 U.S. 988 [101 S.Ct. 2325, 68 L.Ed.2d 846].)

2.   Defendant was sentenced under the murder penalty statutes which were enacted in 1977.   Section 190.2 read in pertinent part:  “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for life without possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found ․ to be true:  ․ [¶] (c) The defendant was personally present during the commission of the act or acts causing death, and with intent to cause death physically aided or committed such act or acts causing death and any of the following additional circumstances exists:  ․ [¶] (3) The murder was willful, deliberate, and premeditated and was committed during the commission or attempted commission of any of the following crimes:  [¶] (i) Robbery in violation of Section 211 ․”  (Stats. 1977, ch. 316, § 9, p. 1257.)

3.   The jurors were instructed that, in order to find the special circumstance true, they had to find, inter alia, “[t]hat the murder was committed during the [commission] [or] [attempted commission] of a robbery.”   No definition of “during the commission” was given.

4.   CALJIC No. 9.15, fourth edition 1979, provides:  “The commission of the crime of robbery is not confined to a fixed place or a limited period of time.  [¶] A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in hot flight, that is, while in possession of the stolen property he is fleeing in an attempt to escape.   Likewise it is still in progress so long as he is still being immediately pursued in an attempt to capture him or regain the stolen property.  [¶] A robbery is complete when the perpetrator has eluded his pursuers, if any;  has reached a place of temporary safety and is in unchallenged possession of the stolen property after having effected an escape with such property.”

5.   Recently, in ruling that substantial evidence supported a robbery special circumstance finding, the Supreme Court stated, “It is well established that the crime of robbery continues beyond the point in time when the property is taken from the victim.  [Citation.]   In the instant case, the killing occurred at the same location as the robbery and within a short time after the money was taken from the safe.”  (People v. Ramos (1982) 30 Cal.3d 553, 586–587, 180 Cal.Rptr. 266, 639 P.2d 908.)

6.   In People v. Teron (1979) 23 Cal.3d 103, 115–119, 151 Cal.Rptr. 633, 588 P.2d 733, disapproved on another point in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837 the Supreme Court held that the 1977 death penalty statutes did not apply to crimes committed before the effective date of the statutes.

7.   Prior to the 1977 legislation, any person found guilty of first degree murder with one or more special circumstances was automatically sentenced to death.   With no special circumstances, a first degree murderer was sentenced to life imprisonment, unless the murder was perpetrated by means of torture with the intent to kill, in which case the sentence was life without possibility of parole.  (Former Pen.Code, § 190, Stats. 1976, ch. 1139, § 133, p. 5098.)   The California Supreme Court held that the provision mandating automatic capital punishment violated the Eighth and Fourteenth Amendments.  (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101.)

8.   The United States Supreme Court has stated that “[a]n unconstitutional Act is not a law;  it confers no rights;  it imposes no duties;  it affords no protection;  it creates no office;  it is, in legal contemplation, as inoperative as though it had never been passed.”  (Norton v. Shelby County (1886) 118 U.S. 425, 442 [6 S.Ct. 1121, 1125, 30 L.Ed. 178], emphasis added;  but see Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371, 374 [60 S.Ct. 317, 318, 84 L.Ed. 329];  Lemon v. Kurtzman (1973) 411 U.S. 192, 198–199 [93 S.Ct. 1463, 1468–69, 36 L.Ed.2d 151].)

9.   Indeed the language at issue may have been inserted for just the opposite reason—to make sure that the Legislature would not be unduly hampered in enacting future death penalty laws.  Section 10(c) of article 2 of the state Constitution requires a legislative amendment or repeal of an initiative statute to be approved by the electors, “unless the initiative statute permits amendment or repeal without their approval.”   Thus, by expressly making the reenacted-by-initiative statutes “subject to legislative amendment or repeal by statute ․,” the drafters meant to allow future Legislatures to be able to change those statutes without voter approval.   This intent may have been why the supporters of Proposition 17 argued that the initiative “will also allow the Legislature to revise our laws so as to conform them to the United States Supreme Court decision authorizing the death penalty if certain guidelines are followed.”  (Ballot Pamp., Gen. Elec. (Nov. 7, 1972) p. 42.)

10.   The ballot pamphlet is a proper aid in determining the meaning of this initiative.  (People v. Frierson supra, 25 Cal.3d, at p. 185, 158 Cal.Rptr. 281, 599 P.2d 587.)

11.   Because we find no change in the duties of any office, and because the point has not been raised by the parties, we need not consider the effect on the entire 1977 death penalty legislation of finding one of its sections invalid as an urgency statute, i.e., whether the entire legislation or just the particular offending section would not be effective immediately, or at all.

12.   Section 11 of article VI of the state Constitution, which gives the Supreme Court “appellate jurisdiction when judgment of death has been pronounced,” and Penal Code section 1239, subdivision (b), which makes an appeal automatic “[w]hen upon any plea a judgment of death is rendered,” both predate Penal Code section 190.6.

13.   The general law on this subject as stated in Martin v. Riley, supra, 20 Cal.2d, at pp. 37–38, 123 P.2d 488 further supports our holding:  “An addition or subtraction in relation to the volume of the duties required to be performed by an officer, which does not substantially affect the primary duties of his office, is not such a change of duties as would prevent immediate effectiveness of legislation properly declared to be urgent.   The changes here enacted are for the most part merely additions to similar duties already imposed by law upon the particular officers.   It may be said that if the duty thus prescribed is one which falls within the primary duties a particular officer is required to perform, generally it would not be a change of his duties specifically to require him to perform it.”

14.   Defendant made these same contentions during the jury selection process and has thus preserved this issue for appeal.  (Cf. People v. Haskett (Feb. 18, 1982, Crim. 21136) 30 Cal.3d 841, –––, 180 Cal.Rptr. 640, 640 P.2d 776.)

15.   Once it has been shown that a “distinctive” group has been systematically excluded, to uphold the procedure “requires that a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process ․ that result in the disproportionate exclusion of a distinctive group.”  (Duren v. Missouri, supra, 439 U.S., at pp. 367–368, 99 S.Ct., at pp. 670–71.)

16.   Because we find that no constitutionally distinctive group has been excluded from the jury, it is unnecessary to reach the second step of the analysis, i.e., whether the state has a significant interest in the exclusion.  (See fn. 15, ante.)

17.   While four justices agreed on the result in Rubio, only two signed the lead opinion.   Defendant thus questions whether the second Rubio requirement is valid.   We need not decide this question, since the requirement is inapplicable here.   No question is raised, however, as to the propriety of the first requirement, which is but an elaboration on an earlier statement of the law in Adams v. Superior Court (1974) 12 Cal.3d 55, 60, 115 Cal.Rptr. 247, 524 P.2d 375.

MORRIS, Acting Presiding Justice.

KAUFMAN and GARDNER,** JJ., concur.

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