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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin Terrazes PANIAGUA and Woodrow Wilson Wattie, Defendants and Appellants.

Cr. 11777.

Decided: January 04, 1967

Gilbert F. Nelson, Los Angeles, under appointment by Court of Appeal, for appellants. Thomas C. Lynch, Atty. Gen., William E. James, Asst, Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

Defendants Benjamin Paniagua and Woodrow Wattie appeal from judgments of conviction entered after a jury found them guilty of the crime of murder. Appellant Paniagua's crime was found to be murder in the first degree and his punishment was fixed as life imprisonment. Appellant Wattie was found guilty of second degree murder and he was sentenced to imprisonment for the term prescribed by law. A codefendant Robert Calvillo also was found guilty of second degree murder and sentenced to prison. He has not appealed.

Appellants contend that prejudicial error was committed (1) when the court admitted into evidence the statements given to the police by Wattie and Calvillo following their arrest; and (2) when the court received the testimony of a fellow prisoner concerning statements made to him by Paniagua in the county jail where both men were awaiting trial. Appellants argue that if these extrajudicial statements had not been received in evidence, it is reasonably probable that the jury might have found them guilty of the lesser offense of voluntary manslaughter. We find no merit in either of these contentions.

Quite apart from the admissions made by the several defendants in their extrajudicial statements, the direct evidence presented by the prosecution, and the inferences reasonably drawn therefrom, conclusively establish that each of the appellants was guilty of the crime of murder.

The record portrays an unusually sordid picture. It shows that these appellants spent the afternoon of February 10, 1965, drinking wine with the victim Frank Rochin in an area near a crossing of the Pacific Electric and Santa Fe railroad tracks. At approximately 4:30 p. m. on the afternoon appellants were seen placing wood upon a large and intense fire from which the victim's feet were protruding. An autopsy revealed that although the victim had sustained certain rather severe injuries to his head before he was placed under heavy bedsprings and set afire, the cause of death was heat burns of the head, torso, arms and legs. Contributing to death was a searing of the lining membranes of the larynx and a swelling of the air passages into the lungs causing him ‘to choke up and die.’ These findings definitely established that the deceased had been alive and breathing while in the fire.

Blood of the victim's type, as well as hairs from his head, were found upon appellants' shoes and clothing. A witness had observed appellants kicking something in ‘sort of a drainage ditch’ near the railroad tracks and thereafter carrying someone who was unable to walk to the spot where the victim was subsequently cremated. Later in the evening of February 10, 1965, police officers stopped a group of six or seven men, including Paniagua and Calvillo, walking in the area and inquired of them as to their activities that day. Paniagua denied that he had been near the railroad tracks, asserting that he had been home all day. Calvillo made similar false statements. When the men's hands were examined Paniagua's and Calvillo's were found to bear ‘grayish black smudges' resembling marks made by charcoal or ashes and ‘reddish brown spots.’ When asked about the latter spots Paniagua stated that he had ‘just killed a chicken.’

Paniagua and Calvillo were arrested and fully advised of their constitutional rights to remain silent, to have the assistance of counsel at all stages in the proceedings, that they need not answer any questions asked of them but if they did ‘anything said by them could be used in subsequent proceedings.’

Following his arrest, while Paniagua was seated alone in a room with a ‘one-way glass,’ he was seen licking his hands. In his subsequent statement to the police Paniagua admitted that he had been drinking wine at the scene of the murder but asserted that he had returned home at about 3 p. m. and cleaned up the yard. Subsequently he went for a walk with a friend and was arrested. When advised that samples of the bloodstains on his hands would be examined and if they were not chicken blood he would not be able to ‘fool’ the chemical tests, Paniagua said, ‘I don's care, because it doesn't prove anything anyway.’ Trousers, shoes and socks found in Paniagua's residence were stained with blood of the victim's type. The blood on Paniagua's hands was determined to be human blood although its type could not be ascertained.

Calvillo made a free and voluntary statement with full knowledge of his constitutional rights in which he admitted that he and appellants had been sharing wine purchased by the victim. He stated that ‘about 4:00 or 4:30’ the victim had refused to give Paniagua a drink from his most recently purchased bottle and therefore Paniagua took it from him. When the victim became angry and began calling his companion names, Paniagua hit him in the face, whereupon the victim fled, running along the side of the railroad tracks. The three defendants pursued him and when they caught him they knocked him down and kicked him repeatedly in the head and body. They then carried him back to the place where they had been drinking and where a fire was burning in a barrel.

Defendants then decided to ‘finish him off’ so that he ‘won't talk anymore.’ They covered him with boards, added the bedsprings and more boards over them and then ‘dumped the barrel of fire onto the pile of boards' and ‘he started burning up.’ The victim could be heard moaning while the flames consumed him.

After the parties had left the scene Wattie apparently suffered remorse and blamed Paniagua for what they had done and told him that he intended ‘to put the finger’ on him to the police. Paniagua then struck Wattie in the head several times with a rock and left him in a ditch beside the tracks while he returned to his house where he changed his shoes, socks and trousers.

The following evening appellant Wattie also made a statement to the police in the Los Angeles County General Hospital where he was being treated for the head injuries inflicted by Paniagua following the murder. His statement substantially corroborated that given by Calvillo except that he tried to cast the primary responsibility for the murder upon his companions. That is, although he admitted kicking the victim in the head and standing by the fire hearing the victim ‘grunting’ as the flames consumed him, he asserted that it was Calvillo's idea to burn the victim and that it was Calvillo who had put the fire from the barrel onto the victim's pyre. After they left the scene Wattie told Paniagua that he was going to ‘finger him’ and Paniagua hit him above the left eye, knocking him unconscious. At the time he made his statement Wattie said he was then ‘in control of’ his ‘senses' and that the medication he had been given was not pills that ‘put’ him ‘out’ and he remembered ‘everything’ he told the officers.

In addition to the foregoing evidence, the prosecution called one Glenn Walton as a witness. Walton testified that on June 4, 1965, he was a prisoner in the Los Angeles County Jail awaiting trial on charges of robbery and issuing checks without sufficient funds to honor them. He was in a ‘tank’ with some 35 other prisoners including Paniagua. Walton testified that although he had only completed the ninth grade in school, he had taken certain correspondence school law courses and intended to represent himself in his impending criminal cases. As a result the other inmates sometimes called him ‘lawyer’ and asked his opinion on various problems of their own. Walton testified that he never solicited these confidences since they interfered with his efforts to prepare his own case. He had never been asked by the police to obtain any information from his fellow prisoners and at the time of his conversations with Paniagua he had no intention of disclosing the contents thereof to the authorities.

During several conversations with Walton, Paniagua told him what evidence had been produced at his preliminary hearing and, based thereon, Paniagua expressed his opinion concerning the proof the prosecution would be able to make at his trial. He also told Walton the details of what actually had occurred. He told how he and two others had knocked the victim down and kicked and ‘stomped’ him; how they had carried him across the tracks and put him down by the can where they had a fire going that day; how they had piled wood on top of the victim and set it afire because he was ‘no good’ and they had to get rid of the body;' how the victim was moving and moaning and groaning while they were adding wood to the fire; how they had sat around the fire drinking wine for an hour or so while the body was being consumed by the flames; how, when they left the scene, Wattie had said that ‘they shouldn't have done that or something’ and Paniagua ‘got mad at that and hit him in the head;’ how he had then returned to his house and changed clothes and washed his hands to get the blood off.

Wattie was the only defendant who took the stand and he testified that he had been too drunk to remember the events surrounding the victim's death and had merely repeated to the officers who questioned him the facts they had already related to him.

Obviously the foregoing evidence abundantly sustains the jury's verdicts as to each appellant. In Paniagua's case the evidence establishes that the killing was wilful, deliberate and premeditated and further that the victim was intentionally killed by a method designed to produce pain and suffering sufficient to constitute torture. Murder so perpetrated is murder of the first degree. (Pen.Code, § 189.)

The intent to cause a victim to suffer in murder by torture may be inferred from the circumstances of the killing including the condition of the deceased's body and the admission of a defendant. (People v. Turville, 51 Cal.2d 620, 632, 335 P.2d 678; People v. Misquez, 152 Cal.App.2d 471, 480, 313 P.2d 206. See also People v. Martinez, 38 Cal.2d 556, 561, 241 P.2d 224, where the defendant poured gasoline on the victim and ignited it, and People v. Chavez, 50 Cal.2d 778, 789, 329 P.2d 907, where the defendants, to avenge ejection from a bar, poured gasoline on the floor and ignited it, killing a victim by asphyxia and severe burns.)

The necessary wilfulness, deliberation and premeditation may be inferred from a variety of circumstances. Such circumstances include considerations of the method causing death, the means of disposing of the body and efforts to prevent its identification, the conduct of a defendant prior to and after the crime, the lack of provocation, the act of dragging a victim from one place to another where a murderous attack is continued, and the persistence in continuing an ultimately fatal attack. (People v. Rittger, 54 Cal.2d 720, 730, 7 Cal.Rptr. 901, 355 P.2d 645; People v. Hills, 30 Cal.2d 694, 701, 185 P.2d 11; People v. Eggers, 30 Cal.2d 676, 686, 185 P.2d 1; People v. Morris, 174 Cal.App.2d 193, 197, 344 P.2d 333.) If the findings of fact which are implicit in the verdict are supported by the facts established and the reasonable inferences therefrom, then such findings are conclusive on appeal. (People v. Scott, 176 Cal.App.2d 458, 497, 1 Cal.Rptr. 600.)

Similarly, the facts established in the instant record are unquestionably sufficient to sustain the jury's determination that Wattie was guilty of murder in the second degree. Wattie admitted kicking the victim and blood and hairs from his head were found on Wattie's shoes. He was seen to assist the others in carrying the victim back to the fire, and even if his relatively self-serving explanation as to what transpired thereafter was to be accepted at face value, he concededly stood passively by while the victim of the joint assault in which he had participated was being burnt alive by his associates.

In assigning as error the receipt in evidence of Wattie and Calvillo's statements to the police following their arrest, appellants rely on the recent case of People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. Such reliance is misplaced. In Aranda the confession of a codefendant was erroneously received in evidence since it had not been obtained in a manner consistent with the rules enunciated in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. Since it was found necessary to reverse the judgment as to the codefendant, the question remained whether or not a reversal also was required as to Aranda who had not confessed and who had taken the stand during the trial and denied committing the crime with which he was charged. Our Supreme Court resolved this question in Aranda's favor stating at pages 63 Cal.2d 526–527, 47 Cal.Rptr. at pages 357–358, 407 P.2d at pages 269–270:

‘Whether or not these criticisms of the present rule [permitting individual confessions to be used in joint trials] require its abrogation, a question we consider later herein, they clearly foreclose any assumption that error in admitting a confession that implicates both defendants is rendered harmless to the nonconfessing defendant by an instruction that it should not be considered against him. At best, the rule permitting joint trials in such cases is a compromise between the policies in favor of joint trials and the policies underlying the exclusion of hearsay declarations against one who did not make them. When, however, the confession implicating both defendants is not admissible at all, there is no longer room for compromise. The risk of prejudicing the nonconfessing defendant can no longer be justified by the need for introducing the confession against the one who made it. Accordingly, we have held that the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant. [Citations.] The giving of such instructions, however, and the fact that the confession is only an accusation against the nondeclarant and thus lacks the shattering impact of a self-incriminatory statement by him (see People v. Parham,60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001) preclude holding that the error of admitting the confession is always prejudicial to the nondeclarant.

‘In the present case, however, it is reasonably probable that a result more favorable to Aranda would have been reached had Martinez's confession been excluded. The error therefore resulted in a miscarriage of justice. (Cal.Const., art. VI, § 4 1/2; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) There was a direct conflict in the evidence, and both defendants denied their guilt. In his argument to the jury, the prosecutor linked the cases of the two defendants together and in effect urged Martinez's confession as evidence against Aranda.’

In the instant case, however, the police had fully complied with the rules developed in People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and the incriminating statements given by Wattie and Calvillo were properly received in evidence against them. The jury was properly instructed to consider each extrajudicial statement only as it affected the defendant who made it. It is true that the court in Aranda, after determining the basic question there presented, proceeded to promulgate new rules intended to govern future trials involving jointly accused defendants, some of whom had given admissible confessions. These newly prescribed rules were expressly made nonretroactive and are inapplicable in the present case. As recently stated in People v. Haynes, 244 A.C.A. 660, 665–666, 53 Cal.Rptr. 530, 533–534:

‘The second argument is that, assuming that the statement was not only voluntary but also legally obtained, defendant Haynes was entitled to a separate trial or an editing under the rules of procedure first announced in Aranda. However, these special rules were not pronounced until five months after the trial in this case. The principles relied on in Johnson [Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882] for rejecting retroactivity for Miranda [Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] apply equally to prevent Aranda from being applied in any case tried before its filing where the statement involved was lawfully obtained. As we recently said, in an opinion thus anticipating Johnson (People v. Williams (1966) 239 Cal.App.2d 42, 45–46, 48 Cal.Rptr. 421): ‘It is to be noted that the court in Aranda does not hold that the change in the law applicable to section 1098 is to be considered as ‘constitutionally compelled,’ but states that the rules it sets up are ‘judicially declared rules of practice to implement section 1098.’ We interpret the Aranda decision as establishing ‘new rules' to be applied henceforth (from the date Aranda was filed) to cases which have not yet reached that stage of the proceedings, but as not necessarily compelling a reversal of cases therefore tried. Under the procedural rules applicable at the time of the trial in the instant case the trial court did not abuse its discretion in refusing to grant separate trials. [Citations.]’'

Appellants' contention regarding the asserted inadmissibility of the testimony of the witness Walton is Wholly unmeritorious since there is no evidence whatsoever to support the basic assumptions upon which it is based. That is, appellants argue that Paniagua's conversations with Walton were protected by the attorney-client privilege provided by Code of Civil Procedure, section 1881(2), and further, relying on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, that Walton was an agent for the prosecution who deliberately elicited Paniagua's statements from him in violation of his constitutional right to representation by counsel.

However, the only evidence on the subject, which was not controverted in any fashion by Paniagua, establishes that at all times Paniagua knew that Walton was not a lawyer, that Walton told him that he was not a lawyer, that Walton advised him to seek the advice of a lawyer and told him that he would be a fool to try to handle the case himself. We, therefore, need not consider appellants' abstract speculations concerning the possibility that an attorney-client privilege might exist where one person falsely claims to be an attorney and another person in reliance thereon divulges damaging information to him.

Similarly, there is no evidence tending to establish that Walton was an agent of the police. Walton clearly and convincingly testified that he had never sought any information from any prisoner and had no intention of communicating to the police the information they imparted to him at the time he received it. Walton testified that in discussing his own case with the officers after his conversations with Paniagua, he made some casual mention of Paniagua's case which led the officers to ask him to make a statement to them.1 He agreed to do so because he wanted ‘to straighten out’ his own life and believed that complete honesty was a necessary prerequisite there to. The police promised him no reward nor any leniency in connection with his own problems in return for his cooperation and he expected none. Since the undisputed facts in the instant case establish that Walton was not acting in cooperation or complicity with the state, Paniagua's statements to him clearly were outside the proscription of Massiah. (People v. Price, 63 Cal.2d 370, 378, 46 Cal.Rptr. 775, 406 P.2d 55; People v. Teale, 63 Cal.2d 178, 184–185, 195–196, 45 Cal.Rptr. 729, 404 P.2d 209; People v. Bowman, 240 A.C.A. 360, 365 et seq., 49 Cal.Rptr. 772; People v. Flores, 236 Cal.App.2d 807, 810–812, 46 Cal.Rptr. 412.)

Finding no error in the receipt of appellants' extrajudicial statements, we need not consider the arguments made by appellants concerning the effect of Article VI, section 4 1/2 of the California Constitution in connection with these assigned ‘errors.’ There is nothing in the recent case of People v. Conley, 64 A.C. 321, 335–336, 49 Cal.Rptr. 815, 411 P.2d 911, which would require a reversal in the instant case. Although this case was tried before the decision in Conley and therefore the suggested instruction set forth in footnote 4 was not given to the jury in the instant case, appellants concede that ‘manslaughter instructions were given as well as instructions on voluntary intoxication * * * [and] on the relationship of mental condition to specific intent.’

The judgments are affirmed.


1.  During Walton's cross-examination by appellant Paniagua's trial counsel, the following questions and answers were given:‘Q. Now, it is not clear to me just how this conversation turned with the officer on the robbery matter—turned to the homicide case which Mr. Paniagua was involved in. How did that come up, precisely, if you remember: A. I was saying something about—he said, ‘Well, you are handling your own case,’ is what the robbery officer said, and I said, ‘Yes.’ And said something—he said, ‘I bet you that you—* * *’—you know, better get a private counsel. And I told him I was thinking about it because I was being, you know, a lot of the time disturbed by the inmates in the jail while I was working on my own case. And I said there's one up there that kept bothering me quite often on a murder, and kept asking for legal advice, or some such. I said, ‘Guys like that * * * and I believe that was the way I termed it—I said, ‘Guys like that make it sort of rough,’ I said, ‘to work on my own case.’ So then some of the details of it came out and— Q. Just a minute now. That's what I am asking you. You say some of the details came out. How did they come out? A. Just in the manner I tried to explain to you. Q. Well, they just sort of boiled right out of you or out of the officer, or out of who? You say some of them came out. Now, I dont's understand it. A. Well, the remarks that I made were concerning people disturbing me while I was working on my own case. I just happened to mention one guy that had been disturbing me most that was in there for a murder charge, and he kept trying to elicit information or answers from me. Q. The officer then started asking you about the facts of the other man's case? A. No I had said something about it; he was in for killing a guy in Norwalk, burned him to death, and that he had said that he was going to beat it because the other guy had signed a confession, or something, but they were going to make him look bad in court. So then he told me just to sit there. He said, ‘Just sit there.’ And he said, ‘I will call somebody else.’ And that's when I spoke to Mr. Sholund. Q. Were you asked at that time if you would be willing to come down and testify against Mr. Paniagua? A. Yes. Q. When was that? A. That was after the statement was taken, I believe. Q. Did you ever ask the officer at any time if he would be willing to speak a good word for you or try to help you in the processing of your case? A. No, I did not. Q. You never asked him if he would help at all? A. No, I didn't.'

HERNDON, Justice.

ROTH, P. J., and FLEMING, J., concur.