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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Theresa WILEY, Defendant and Appellant.

Cr. 13703.

Decided: December 03, 1975

Donavon R. Marble, San Francisco, for defendant and appellant (Under appointment by the Court of Appeal). Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Sanford Svetcov, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Theresa Wiley appeals from a judgment of imprisonment which was pronounced after a jury found her guilty of murder in the first degree (Pen.Code, § 187).

Police officers went to appellant's house in response to a report of a disturbance. There they found appellant and her husband arguing. Appellant was yelling and screaming, complaining that her husband had taken $31 of her money. She asked the officers to arrest her husband, but the officers declined to do that. Appellant then said, ‘If you don't get my $31 back, I am going to kill him.’ Officer Hendrix advised the husband to take a walk until appellant cooled off. The husband left the house, whereupon the officers departed.

When the husband returned, appellant resumed the argument. Appellant's brother, Andrew Henry, came in; he asked whether appellant wanted him to get the money back, and she replied that she did. Henry then started hitting the husband. In response to a request by Henry, appellant handed him a baseball bat, which he used to beat the victim on the head and shoulders. Henry then asked appellant to hand him a hammer, which she did. Henry struck the victim on the chest, legs and ankles with the hammer, and then resumed using the bat. Appellant testified that she then asked for the bat, stating: “Give me the bat. I'm going to hit him on the hand, because that is the hand which spent my money, which is his right hand,' so I hit him on the right hand with the bat.' She also struck Mr. Wiley on the knee.

Henry eventually departed. Appellant testified that she did not notice that the victim was not well until the following morning.

Finally, appellant summoned a friend, who located Henry; the baseball bat and a hammer were removed from under appellant's bed, wrapped in a pillowcase. Other friends removed and disposed of the bat and hammer. After a delay of several hours, Henry called the police. The victim had died of his injuries.

Appellant contends that the trial court should have given a limiting instruction concerning evidence of a tape recorded statement made by her brother. But the evidence was introduced by appellant; hence she cannot be heard to complain on appeal that the evidence was for some purposes inadmissible. (People v. Moran (1970) 1 Cal.3d 755, 762, 83 Cal.Rptr. 411, 463 P.2d 763; People v. Sirhan (1972) 7 Cal.3d 710, 746, 102 Cal.Rptr. 385, 497 P.2d 1121.) Once the statement was in evidence, it was proper for the prosecutor to comment on it. (People v. Vatelli (1971) 15 Cal.App.3d 54, 63–64, 92 Cal.Rptr. 763; People v. Hardy (1969) 271 Cal.App.2d 322, 330, 76 Cal.Rptr. 557.)

Appellant further complains that, although the tape contained statements that in prior fights appellant had shot the victim once and also had cut him once, the court did not sua sponte give an instruction that this evidence of other possible crimes was admissible only for limited purposes. Generally, the trial court must instruct the jury sua sponte that evidence of other crimes is admissible only for limited purposes. (People v. Williams (1970) 11 Cal.App.3d 970, 978, 90 Cal.Rptr. 292.) But there is no basis for recognizing such a duty as to evidence introduced by the defense. In that situation there is no reason to depart from the general rule that ‘absent [a] request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered.’ (People v. Nudd (1974) 12 Cal.3d 204, 209, 115 Cal.Rptr. 372, 375, 524 P.2d 844, 847 [U.S. cert. den.]; People v. Cantrell (1973) 8 Cal.3d 762, 683, 105 Cal.Rptr. 792, 504 P.2d 1256; People v. Perry (1972) 7 Cal.3d 756, 788, 103 Cal.Rptr. 161, 499 P.2d 129; People v. White (1958) 50 Cal.2d 428, 430–431, 325 P.2d 985.)

Appellant complains that the court should have given an unspecified limiting instruction concerning a baseball bat and hammer which were introduced in evidence by the People. But the court properly informed the jury that the bat and hammer were being admitted only for the purpose of illustration. ‘The trial court has broad discretionary powers to permit the use of demonstrative evidence. It is a practice of long-standing to permit witnesses in elaborating on their description of a physical item which is not actually present in court, to point out the similarity of things that are actually present in the courtroom. Such practice is proper. (Evid. Code, § 351; People v. Cavanaugh, 44 Cal.2d 252, 282 P.2d 53; People v. Ham, 7 Cal.App.3d 768, 86 Cal.Rptr. 906.)’ (People v. Reaves (1974) 42 Cal.App.3d 852, 858, 117 Cal.Rptr. 163, 166; see also People v. Ham (1970) 7 Cal.App.3d 768, 780, 86 Cal.Rptr. 906.)

Appellant contends that the court should have given sua sponte an instruction on circumstantial evidence (e. g., CALJIC No. 2.01). Circumstantial evidence is that evidence by which, through a process of inference, it is sought to prove the existence of other facts. (People v. Goldstein (1956) 139 Cal.App.2d 146, 152–153, 293 P.2d 495.) Where proof of an offense, or of an essential element of an offense, rests primarily or substantially on circumstantial evidence, the jury must be instructed on the use of circumstantial evidence, even in the absence of a request. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49, 286 P.2d 1; People v. Bender (1945) 27 Cal.2d 164, 175, 163 P.2d 8.) Murder by torture is proved by a showing that the defendant had the intent to inflict grievous pain and suffering upon the victim; such intent may be inferred from the condition of the victim's body and by the other circumstances of the case. (People v. Turville (1959) 51 Cal.2d 620, 632, 335 P.2d 678, 685 [overruled on unrelated point, People v. Morse, 60 Cal.2d 631 at 648–649, 36 Cal.Rptr. 201 at 212, 388 P.2d 33 at 44]; People v. Beyea (1974) 38 Cal.App.3d 176, 200–201, 113 Cal.Rptr. 254.) While there is language in a number of cases to the effect that ‘[w]hen a killing is perpetrated by means of torture, the means used is conclusive evidence of malice and premeditation, . . .’ (People v. Turville, supra; People v. Misquez (1957) 152 Cal.App.2d 471, 489, 313 P.2d 206; People v. Pickens (1961) 190 Cal.App.2d 138, 145, 11 Cal.Rptr. 795), the fact that torture precedes a killing does not compel a finding that the killing is murder of the first degree as a matter of law. (See Pen.Code, § 189.) The killing must be shown to be murder, which requires proof of either express or implied malice (People v. Mattison (1971) 4 Cal.3d 177, 182–183, 93 Cal.Rptr. 185, 481 P.2d 193). Therefore, the fact that the torture may have been proved by direct evidence does not necessarily prove all of the elements of murder.

The unlawful killing of a person with malice aforethought by means of torture is murder in the first degree. (Pen.Code, §§ 187, 189.) The People may rely on circumstantial evidence to prove the elements and occurrence of a crime. (People v. Sommerhalder (1973) 9 Cal.3d 290, 294, 107 Cal.Rptr. 289, 508 P.2d 289; People v. Teale (1969) 70 Cal.2d 497, 505, 75 Cal.Rptr. 172, 450 P.2d 564; People v. Dessauer (1952) 38 Cal.2d 547, 551, 241 P.2d 238; People v. Eggers (1947) 30 Cal.2d 676, 685–686, 185 P.2d 1.) Appellant's testimony as to her brother's beating her husband, and her own striking of her husband with a bat, provided direct evidence of those occurrences. Similarly, the pathologist's testimony that the death was caused by traumatic shock and his description of the injuries amounted to direct evidence of those facts. But all of this testimony is only circumstantial evidence of appellant's state of mind, i. e., her intent and malice; it was also circumstantial rather than direct evidence of whether appellant was aiding and abetting her brother. (See Pen.Code, § 31.) From the circumstantial evidence the jury drew inferences concerning appellant's intent, as contributing to the proof of appellant's guilt. Such reasoning from circumstantial evidence is necessary whenever direct evidence, such as a defendant's own admission of intent, is not forthcoming. The elements of intent to inflict pain, and malice, were proved primarily by circumstantial evidence and not direct evidence; the trial court's failure to give an instruction on the use of circumstantial evidence was error calling for reversal of the judgment.

Other contentions are discussed because they may recur upon a new trial. Appellant contends that the instruction defining murder by torture was erroneous and should not have been given. The court gave CALJIC No. 8.24:

‘Murder which is perpetrated by torture is murder of the first degree.

‘The essential elements of such a murder are (one) the act or acts which caused the death must involve a high degree of probability of death, and (two) the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose.

‘The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased, nor does it necessarily require any proof that the deceased suffered pain.’

Proof of murder by torture ‘must rest upon whether the assailant's intent was to cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. The test cannot be whether the victim merely suffered severe pain since presumably in most murders severe pain precedes death.’ (People v. Tubby (1949) 34 Cal.2d 72, 77, 207 P.2d 51, 54; People v. Misquez, supra, 152 Cal.App.2d 471, 480, 313 P.2d 206.) Torture has been defined as ‘the infliction of intense pain.’ (Webster's New Internat. Dict. (3d ed.).) In virtually every case where the defendants have been tried on the thoery of murder by torture, there has been evidence from which it could be proved or inferred that the victims suffered pain. (See People v. Turville, supra, 51 Cal.2d 620, 335 P.2d 678; People v. Washington (1969) 71 Cal.2d 1061, 80 Cal.Rptr. 567, 458 P.2d 479; People v. Chavez (1958) 50 Cal.2d 778, 329 P.2d 907; People v. Daugherty (1953) 40 Cal.2d 876, 256 P.2d 911; People v. Martinez (1952) 38 Cal.2d 556, 241 P.2d 224; People v. Beyea, supra, 38 Cal.App.3d 176, 113 Cal.Rptr. 254; People v. Aeschlimann (1972) 28 Cal.App.3d 460, 104 Cal.Rptr. 689.) Illustrative of the requirement that the victim have suffered pain to support a verdict of murder by torture is the statement from People v. Chavez, supra, 50 Cal.2d at page 789, 329 P.2d at page 914: ‘The death of one of the victims, who had been at the bar, was caused by asphyxia and by third and fourth degree burns involving the entire body surface, and the jury could reasonably have concluded that he suffered pain from burning. The evidence is amply sufficient to warrant instructions on the theory that murder was committed by means of torture.’ (Emphasis added.) Thus evidence must be presented from which the jury could infer that the victim did in fact suffer pain. Therefore, CALJIC No. 8.24 is incorrect in stating that the crime of murder by torture does not ‘require any proof that the deceased suffered pain.’

Appellant further asserts that the instruction on murder by torture should not have been given because there was no evidence showing that appellant intended that her husband should suffer pain. It is undisputed that the requisite intent is not conclusively shown by proof of the viciousness of the attack (see People v. Tubby, supra, 34 Cal.2d at pp. 76–78, 207 P.2d 51), by the condition of the body (see People v. Anderson (1965) 63 Cal.2d 351, 358, 46 Cal.Rptr. 763, 406 P.2d 43; People v. Beyea, supra, 38 Cal.App.3d at pp. 200–201, 113 Cal.Rptr. 254), by the method of killing (see People v. Caldwell (1955) 43 Cal.2d 864, 868–869, 279 P.2d 539), or by the abandonment of the victim (see People v. Kerr (1951) 37 Cal.2d 11, 14–15, 229 P.2d 777). Rather, all the circumstances surrounding the killing, including the abovementioned factors, are to be appraised to determine whether there is sufficient evidence to sustain the theory of murder by torture. (People v. Tubby, supra, 34 Cal.2d at pp. 77–78, 207 P.2d 51; People v. Beyea, supra, 38 Cal.App.3d at pp. 200–201, 113 Cal.Rptr. 254.) These circumstances include the fact that appellant's brother preceded his beating of the victim by asking appellant whether she wanted to get her money back from her husband; appellant replied in the affirmative. After the beating had begun, she provided her brother with the baseball bat and the hammer. She also admittedly struck the victim with the baseball bat for the purpose of punishing him for allegedly taking her money. The victim was subjected to sustained battering with fists, a baseball bat, and a hammer. This evidence, amplified by the pathologist's testimony concerning the condition of the victim's body, justified the murder-by-torture instruction.

The judgment is reversed.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and EMERSON,* J., Assigned, concur.