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

IN RE: JOE R., a Person Coming Under the Juvenile Court Law. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent,* v. JOE R., Defendant and Appellant.

Cr. 29881.

Decided: October 20, 1977

William T. Harter, Los Angeles, under appointment by the Court of Appeal, for appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr. and Gary R. Hahn, Deputy Attys. Gen., for petitioner and respondent.

In a petition filed in the juvenile court, it was alleged in paragraph I that Joe Horace R., a minor, committed a robbery on or about June 1, 1976, in violation of section 211 of the Penal Code. The victim involved was alleged to be Wayne L. Anderson. In paragraph II, it was alleged that the minor committed another robbery on the same date, thereby violating section 211 of the Penal Code. The victim who was set forth in paragraph II was Renard Murray. In paragraph III, it was alleged that, on the same date, the minor committed the offense of murder in violation of section 187 of the Penal Code. The victim murdered was alleged to be Michael Ryles.

The minor denied the allegations of the petition. The minor's motion to suppress evidence pursuant to Penal Code section 1538.5 was denied. A motion made by the minor for dismissal pursuant to Penal Code section 1118 was likewise denied. At the conclusion of the adjudicatory hearing the court found all of the allegations of the petition to be true and sustained the petition. The minor was found to be a person described by section 602 of the Welfare and Institutions Code. Thereafter, following a disposition hearing, the minor was declared to be a ward of the juvenile court under section 602 and was committed to the California Youth Authority. The minor has appealed from the orders of the juvenile court sustaining the petition and declaring him a ward of the juvenile court and committing him to the California Youth Authority.

On June 1, 1976, at approximately 20 minutes after midnight, Renard Murray was working as night manager of a Taco Bell food stand located at 60th Street and Crenshaw Boulevard in Los Angeles. At that time, two young males came up to the window of the Taco Bell. Each of the two males displayed pistols, dark in color, that had cylinders. Murray was forced to take money out of the cash register and put it in a Taco Bell bag. There was approximately $140 in the cash register, consisting of various denominations, including a large number of one dollar bills. Murray also gave the two males about $50 in change from a file cabinet in the office. The change was wrapped in rolls. Murray was also forced to surrender money which he had on his person. Thereafter, the minor was identified by Murray, from a group of twelve mug photographs, as being one of the two robbers. The minor was described by Murray as wearing a coat and a dark colored beanie.

On June 1, 1976, at approximately 45 minutes after midnight, Wayne Anderson was seated on a bus bench at the southeast corner of Vermont Avenue and Century Boulevard in Los Angeles. Anderson was confronted with two young males, one of whom was the minor, who was wearing a blue beanie. The minor's companion, subsequently determined to be Michael Ryles, pulled a gun on Anderson and announced that it was a robbery. The minor's companion directed Anderson to walk behind nearby buildings consisting of a gas station and a weight control building. As they walked, both the minor and his companion made threats to the effect that if Anderson did not do what he was told, he would be killed.

After getting to a location behind the buildings, the minor's companion ordered Anderson to give to the minor Anderson's coat and watch. Anderson complied and gave the minor his coat and watch. At one point in Anderson's testimony he stated that the minor made the statement that if Anderson didn't comply with what the companion wanted him to do, he the minor, would kill him. At another point in his testimony, Anderson stated that the minor's remarks were to the effect that if Anderson didn't comply with the companion's request, the companion would kill him. Anderson told the two males that he didn't have any money and the companion then motioned with his gun for Anderson to proceed into an alley where it was darker than the location where this conversation was taking place. Anderson grabbed for the gun which the minor's companion had displayed and a struggle ensued between Anderson and the companion; this struggle lasted no more than 10 seconds.

During the struggle, Anderson, who was near sighted, had his glasses knocked off from a blow to the back of his head. Anderson testified that he did not see who struck the blow, but knew that it was not the minor's companion, with whom he was wrestling for the gun, and that the only other person present was the minor, who was at that time in back of Anderson.

Anderson succeeded in wrestling the gun away from the companion and, as he did so, he saw the minor running away. Anderson fired the gun twice within five seconds after he had been hit in the back of the head. Ryles, the minor's companion, was killed from the shots.


Insufficiency of the Evidence To Sustain the Allegation of Murder

The minor contends that the evidence was insufficient to sustain the allegations of paragraph III of the petition, to wit, that the minor had committed the offense of murder. The issue raised is whether any one of three doctrines relating to murder is applicable under the facts of the instant case. The three doctrines are: (1) the felony-murder rule; (2) the vicarious liability rule; and (3) the rule involving the intentional commission of an act likely to cause death, with a conscious disregard for life. Each of these rules developed out of an analysis of the definition of murder.

The two component elements of the crime of murder are (1) its actus reus, homicide, and (2) its mens reus, malice.1 Malice has been defined as the ‘state of mind of one who has ‘an intent to kill or an intent with conscious disregard for life to commit acts likely to kill.’' (People v. Antick (1975) 15 Cal.3d 79, 87, 123 Cal.Rptr. 475, 479, 539 P.2d 43, 47.) For a person to be guilty of murder, he must be legally chargeable with the two component elements of the crime—(1) the act element of homicide and (2) the mental element of malice aforethought.

The felony-murder doctrine derives malice from the fact that the perpetrator of a homicide kills the victim in the perpetration of an inherently dangerous felony.2

It is conceded that the felonymurder doctrine is not applicable to the case at bench since the doctrine has been limited ‘to those cases in which the actual killing is committed by the defendant or his accomplice.’ (Antick, supra, 15 Cal.3d 79, 87, 123 Cal.Rptr. 475, 480, 539 P.2d 43, 48.) Where a killing is attributable to the acts of an accomplice, a defendant may be held responsible for the killing on the vicarious liability theory, based upon rules defining principles of criminal conspiracies. But for a defendant “[t]o be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design.” (Antick, supra, 15 Cal.3d 79, 88, 123 Cal.Rptr. 475, 480, 539 P.2d 43, 48.) (Emphasis in original.) The vicarious liability theory of murder cannot be applied to the minor in the case at bench because, under Antick, the accomplice Michael Ryles did not cause the death ‘of another human being.’ At best, Ryles, by reason of his acts, caused his own death.

The Attorney General argues that the minor may be held responsible for the killing of Ryles, his accomplice, by Anderson, the victim of the robbery, under the third murder rule—that a defendant is guilty of murder if he commits an act likely to cause death and with a conscious disregard for life, and the victim kills the accomplice in a reasonable response to defendant's (the minor's) act.

The Attorney General relies upon the case of In re Tyrone B. (1976) 58 Cal.App.3d 884, 130 Cal.Rptr. 245. In Tyrone B., a minor, with an accomplice, participated in attempting to rob a clerk in a store. Tyrone seized the clerk from the rear and shoved and stabbed him while Tyrone's accomplice struck the clerk with a shovel. The clerk pulled a gun and shot and killed Tyrone's accomplice. The Tyrone B. court held that Tyrone's conduct brought him within the principles set forth in Antick and People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130. The Tyrone B. court stated: ‘Where a defendant, with a conscious disregard for life, intentionally commits an act likely to cause death, and his victim kills in a reasonable response to such act, the defendant is guilty of murder.’ (In re Tyrone B., supra, 58 Cal.App.3d 884, 888, 130 Cal.Rptr. 245, 248.)

A case somewhat similar to In re Tyrone B. is that of People v. Velasquez, (1975) 53 Cal.App.3d 547, 126 Cal.Rptr. 11. In Velasquez, the defendant resisted arrest, managed to get the officer's baton from him and began striking the officer with the baton. The defendant's brother entered the affray and got a second officer's baton and began striking this officer with the baton. One of the officers involved pulled his weapon and killed the defendant's brother. The Velasquez court applied the same rationale as the Tyrone B. court and held that the defendant could be found guilty of murder. The theory advanced was that the conduct of the defendant in initiating a fight with the two officers was sufficient to establish the requisite degree of implied malice, (1) apart from the felony-murder doctrine, and (2) apart from the vicarious liability doctrine. Velasquez reasoned that the shooting of the defendant's brother by one of the officers was a reasonable and foreseeable response to the situation created by the intentional acts of the defendant.

It is to be noted that in Tyrone B. and Velasquez, the defendant used weapons against the victim who, in response thereto, shot the accomplice. In the case at bench, however, there is no evidence that the minor had, or used, any weapon upon Anderson, the robbery victim. The Attorney General makes the argument that the evidence establishes threats by the minor that he would kill Anderson if Anderson did not comply with the request or orders of the minor's accomplice, Ryles, and that the blow to the back of Anderson's head was committed by the minor and was of such intensity that it caused Anderson's glasses to be shaken loose from his face. It is the Attorney General's position that the words of threat used by the minor, Joe Horace R., and the use of his hands or fists, reasonably caused Anderson to fear for his life and kill the accomplice, Ryles.

In People v. Gilbert (1965) 63 Cal.2d 690, 704, 47 Cal.Rptr. 909, 917, 408 P.2d 365, 373, the court expressed the rule as follows: ‘When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim . . . kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant . . . committed with conscious disregard for life.’ (Emphasis added.)

The Antick court cites with approval this statement from Gilbert. (See Antick, supra, 15 Cal.3d 79, 87–88, 123 Cal.Rptr. 475, 539 P.2d 43.) In citing this statement of the rule from Gilbert, Antick does so, however, in the context of pointing out that ‘the felony-murder doctrine does not shield a defendant from criminal liability for murder when the elements of the crime, a homicide plus malice, can be established without resort to this doctrine.’ (Id. at p. 87, 123 Cal.Rptr. at p. 480, 539 P.2d at p. 48.) (Emphasis added.)

In Washington, the court defined malice as the state of mind of one who has ‘an intent to kill or an intent with conscious disregard for life to commit acts likely to kill.’ (Washington, supra, 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 445, 402 P.2d 130, 133.) (Emphasis added.) In view of the definition of ‘malice’ and the statement in Gilbert that defendant must intentionally commit an act ‘that is likely to cause death’ in order to obtain implied malice in the situation where the victim kills the accomplice, the malice element for murder is simply not present in the instant case.

The use by Joe Horace R. of his hands or fists to strike a single blow to the back of Anderson's head cannot be compared to the use of a knife to stab the victim that occurred in Tyrone B., or the use of a police officer's baton that occurred in Velasquez. The use of the hands or fists under the circumstances of the present case cannot reasonably be said to constitute the commission of an act ‘that is likely to cause death’ as required by Gilbert. We hold, therefore, that the trial court erred in sustaining the allegations of paragraph III of the petition which charged Joe Horace R., the minor, with the murder of Michael Ryles.


The Minor's Confession Was Not Voluntary

One of the minor's contentions is that the trial judge erred in admitting a confession made by him to the police. The basis of this contention rests on the premise that there was a violation of Miranda. The record indicates that the minor initially waived his Miranda rights and then talked with the officers, making exculpatory statements and denials. Before any statements of the minor were made that could be deemed a confession or admission of his participation in the Taco Bell robbery, or the incident involving the robbery of Anderson and the subsequent shooting of Ryles, the minor stated that that was all that he had to say; that that was all that he wanted to tell the officer.

Following these words by the minor, the officers indicated to the minor that they didn't believe his prior statements and then proceeded to tell him about the beanie being found in his room and the Taco Bell bag with money in it also being found in his room. The accusation made by the police officer of disbelief in the minor's exculpatory denials was made in a loud voice and agitated manner. It was at this time that the minor then confessed to participation in the two robberies but not in the murder.

We start with the principle set forth in Miranda v. Arizona (1966) 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, in which the United States Supreme Court stated: ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . .’ (Fn. omitted; emphasis added.)

The question involved in the instant case is whether the words used by the minor prior to making a confession constituted an invocation of the Fifth Amendment privilege. The rule of law is clear ‘that no particular form of words or conduct is necessary to constitute such an invocation.’ (People v. Burton (1971) 6 Cal.3d 375, 381–382, 99 Cal.Rptr. 1, 5, 491 P.2d 793, 797.)

The Attorney General argues that the minor's words did not constitute an emphatic refusal to talk further, and that they should be interpreted as an expression to the police officers that he would not change his prior story told the officers in spite of their assertions with respect to the evidence garnered against him. This argument is unacceptable in view of our high court's statement that ‘[t]o strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent.’ (People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 662, 464 P.2d 114, 118.)

The Attorney General also suggests that any ambiguity in meaning to be ascribed to the minor's words should be resolved against the minor because of the principle that the trial court's ruling on the voluntariness of a statement or confession should be upheld when supported by substantial evidence. But this latter principle must give way to the constitutional mandate of Miranda, as interpreted by the California Supreme Court in Randall and Burton. To accept the trial court's finding of voluntariness in the case at bench would be to disregard the admonition of Randall that we cannot demand of a suspect that, in order for him to assert the Fifth Amendment privilege, he must do so by words or conduct that amount to ‘unmistakable clarity.’ (Randall, supra, 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.)

Therefore, we hold that the trial judge's finding that the minor's confession was voluntary and not in violation of Miranda principles constitutes an abuse of discretion, since the minor's conduct ‘reasonably appears inconsistent with a present willingness on the part of [the minor] to discuss his case freely and completely with police at that time.’ (Randall, supra, 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 663, 464 P.2d 114, 119; fn. omitted.) (Emphasis in original.)

Finally, it is asserted by the Attorney General, that, even if the minor's confession was admitted in evidence in violation of Miranda principles, the error should be deemed harmless through application of the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The Attorney General points to evidence that establishes rather convincingly that the minor committed the two robberies charged in paragraphs I and II of the petition. The minor was positively identified by the respective victims of the two robberies, and some fruits of the two robberies were found by the police on the minor's person after his arrest.

It is true that the minor took the stand and, in his testimony, admitted participating with Michael Ryles in the Taco Bell robbery, charged in paragraph II of the petition, and in the Anderson robbery, charged in count I of the petition. Although the minor's testimony must be considered as the fruit of the invalid confession, the use of his testimony, in light of the other evidence of his commission of the two robberies, cannot be considered as having had any appreciable effect upon the trial court's decision.

We now consider the question of the appropriate standard for determining reversible error in the situation of a Miranda error. In People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, the California Supreme Court set forth a prejudicial-per-se rule of error in the case of the use of a defendant's statement obtained in violation of Miranda. ‘It is settled that the introduction of a confession obtained from a defendant in violation of constitutional guarantees is prejudicial per se and requires reversal regardless of other evidence of guilt.’ (Id. at p. 720, 68 Cal.Rptr. at p. 820, 441 P.2d at p. 628.) This view of automatic reversible error was followed in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 and in Randall and Burton.

The Chapman case was decided by the United States Supreme Court in 1967. In fashioning the harmless-constitutional-error rule, as contrasted with the prejudicial-perse rule of error, Chapman recognized that prior cases of the United States Supreme Court ‘have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, . . .’ (Chapman, supra, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705.) Prior-case examples of such infractions set forth by Chapman were Payne v. Arkansas (1958) 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (coerced confession); Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel); and Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (impartial judge).

Although Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided in 1966, the Chapman case, decided in 1967, did not refer to a violation of Miranda as being a federal constitutional infraction that was included within the automatic reversible error category. Also, in creating the harmless-constitutional-error rule that the beneficiary of a constitutional error must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or judgment obtained, Chapman said it was doing ‘no more than adhere to the meaning of our Fahy case.’

(Chapman, supra, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.) The Fahy case referred to in Chapman is Fahy v. Connecticut (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. In Fahy, the question presented was the effect of error in admitting in evidence against a criminal defendant relevant evidence in the form of material objects obtained from the defendant's home by a police officer through an unconstitutional search and seizure.

Is the constitutional right to be free from self-incrimination, involved in Miranda, of more fundamental significance than the constitutional right to be free from unreasonable search and seizure, involved in Fahy? It may reasonably be concluded that it is not, and that the harmless-constitutional-error rule of Chapman should be applicable to the error in admitting in evidence a defendant's admission or confession obtained in violation of Miranda principles.

The latest expression of the California Supreme Court on the effect of a Miranda error appears to be found in People v. Enriquez (1977) 19 Cal.3d 221, 239, 137 Cal.Rptr. 171, 182, 561 P.2d 261, 272, in which the court stated: ‘We conclude, in view of the foregoing, that the error in failing to suppress defendant's extrajudicial statements made without a proper Miranda admonition was, as to the assault with a deadly weapon conviction, harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710–711, 24 A.L.R.3d 1065].)’ Although Enriquez does not discuss whether it considers Chapman as changing the prejudicial-per-se rule for Miranda error as set forth in Fioritto, Ireland, Randall and Burton, we feel bound by Enriquez as it is apparently the latest decision of our high court on the subject.

Applying the Chapman rule, therefore, we find that the error in admitting evidence of the minor's statements—obtained in violation of Miranda principles—was harmless beyond a reasonable doubt.

Since we are required to reverse the trial court's order with respect to the murder charge against the minor, the trial court must hold a new dispositional hearing based upon the petition being sustained as to the two robbery charges but not the murder charge. We do not intend by this action to express any opinion regarding what is an appropriate disposition for the minor.

The order sustaining the allegations of the petition is affirmed insofar as paragraphs I and II are concerned and is reversed with respect to paragraph III. The order declaring the minor to be a ward of the juvenile court is affirmed except that the commitment of the minor to the Youth Authority is reversed and the juvenile court is directed to hold a new disposition hearing.


1.  Penal Code section 187, subdivision (a), provides: ‘Murder is the unlawful killing of a human being, . . . with malice aforethought.’

2.  First degree murder is defined by Penal Code section 189, which includes murder ‘which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288.’

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., and DUNN, J., concur.

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