PEOPLE v. MARSHALL

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. William MARSHALL, Defendant and Appellant.

Cr. 11801.

Decided: July 16, 1981

Quin A. Denvir, State Public Defender and Handy Horiye, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

Convicted of robbery (Pen.Code,1 s 211), murder in the first degree under the presence of special circumstances (s 187; s 190.2 subd. (a)(17)(i)), and findings he personally used a firearm to commit both crimes (s 12022.5),2 William Marshall alleges the court prejudicially erred by:

(1) admitting previously recorded testimony of an unavailable witness because (a) in a capital case this denies him the right of confrontation (Cal.Const., art. I, s 15); (b) since the previously recorded statement showed the robbery was to acquire guns in order to kill two police officers, the evidence should have been excluded under Evidence Code section 352 and, (c) it was not a prior inconsistent statement;

(2) failing to instruct sua sponte on the limited use of evidence of other crimes or acts;

(3) the jury instructions on attempt did not inform the jury how to determine when an attempt to rob terminates for the purposes of the felony murder rule; and

(4) concluding felony murder, without more, can establish both murder in the first degree and the special circumstance to impose the death penalty or life imprisonment without possibility of parole. He claims section 190.2 subdivision (a)(17) precludes this interpretation and, in any event, such result constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution and article I, section 17 of the California Constitution.

Each allegation is without merit.

BACKGROUND

Marshall shot and killed Claude Johnson, owner of a sporting goods store in Oceanside, California. Marshall told his friend, Jeffrey Hall, he needed a gun, and asked him to help him get one by robbery. When Hall refused, Marshall went alone to Johnson's store and waited for the customers to depart. Upon leaving, one customer overheard Marshall ask Johnson a question (although she did not understand its specific contents). Johnson inquired whether Marshall was old enough, Marshall produced some type of identification and Johnson commented “I guess you are old enough.”

From this point the facts are disputed. Marshall testified he intended to rob the sporting goods store and gave Johnson a false identification card in order to establish he was old enough to purchase a weapon. He says he abandoned his intent to rob when he saw Johnson was armed, but continued the subterfuge of purchasing a gun because, in his words, he was “puzzled” and “didn't know what to do.” To this time, Marshall contends Johnson had no reason to suspect Marshall had ever intended to rob him.

According to Marshall, trouble began when Johnson noticed the identification card was false, and Marshall produced his own military I. D. When Johnson became increasingly disturbed and threatened to report Marshall to the police, Marshall asked for his true identification back, stating he wanted to leave. Johnson, however, refused and began to write. Marshall then reached for his I. D., but Johnson pushed him away and they struggled. Marshall punched Johnson in the face twice, and Johnson reached for his gun.

Marshall, however, managed to maneuver behind Johnson as the struggle continued. Once in this position, a single shot was fired by Johnson, the bullet passing through Johnson's abdomen and thigh, finally lodging in Marshall's left leg. Johnson fell to the floor and began raising his pistol in Marshall's direction. Marshall claims he grabbed a different pistol from a holster behind the counter area and in self-defense, aimed it at Johnson and fired twice, one head shot at point blank range killing Johnson instantly.3

Marshall fled, leaving behind his true identification card.

On cross-examination he could not explain why, after getting back the false identification card but before presenting his own, he did not simply leave the store.

The prosecution offered substantial evidence and expert testimony to support its re-creation of the killing. It differs or adds to Marshall's version significantly in the following respects:

(1) Marshall placed the pistol barrel to Johnson's head, firing the fatal bullet in an execution style;

(2) The entire struggle lasted only one to two minutes;

(3) Blood, later observed on Marshall's forehead, was caused by “blowback” from Johnson's head wound in the instant following the fatal shot; and,

(4) The fatal shot, in the expert's opinion, was not an accident.

The prosecution presented evidence showing:

The victim normally carried a loaded .45 caliber automatic pistol in a hip holster under his shirt. This pistol was later found on Marshall, and proved to be the weapon firing the bullet in his leg; establishing Marshall had lain aside the actual death weapon opting instead to steal the .45 caliber pistol from Johnson's hand before fleeing the scene.

Before selling a weapon the first thing Johnson normally did was fill out a bill of sale in his receipt book. The book, found on the floor after the killing, contained the date 2/21/79, and on the line beneath that the letter “W.”

Also found at the scene was a metal box cutter similar to one found on Marshall two days before the homicide when Marshall was cited by two Oceanside police officers for drinking in public.

Marshall told one of the persons previously in the store, he had just shot the man in the store, suggesting “let's go back and rob the joint.” Later, Marshall asked this person to lie by telling the police he had not been at the sporting goods store.

After the killing, Marshall told Jeffrey Hall he had committed a robbery, gotten a gun and been shot, and that he had to kill a man. The same day he told another friend, Dorothy Mendez, that during the struggle he had said, “ ‘(m)an I don't want to kill you. Just lay down. Just lay there.’ ”

Mendez later repeated these statements at the preliminary hearing, reporting further Marshall told her he robbed Johnson for money and guns; wanting the guns to kill two police officers. Over objection, a transcript of this testimony was admitted at trial upon a showing of unavailability.

DISCUSSION

I

Marshall argues the jury instructions on attempt were inadequate and incomplete because they did not inform the jury when an attempt terminates for purposes of the felony murder rule. On the present facts, he claims, the trial court had a sua sponte duty to formulate an instruction as follows: if the victim Johnson at no time knew a robbery was being attempted, even though Marshall had in fact committed the crime of attempted robbery, but he thereafter abandoned his intent to rob before the killing occurred, then the crime of attempted robbery will have been completed before the killing, and the felony murder rule does not apply.

Marshall contends, under such circumstances, traditional analysis of attempt and felony murder do not apply.

Although we can envision a state of facts which, pursuant to this reasoning, might require such a sua sponte clarifying instruction to amplify the meaning of CALJIC No. 6.01,4 this is not that case. Marshall did not rely on this theory below, rather basing his defense solely on the premise he had abandoned his intent to rob before committing any direct act toward the ultimate commission of a crime. Thus, he argued there was no attempt committed.

Indeed, he requested a special instruction to cover the theory (CALJIC No. 6.02, mod.; see People v. Sears, 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847) and argued the premise in closing.5 To now place a sua sponte duty on the trial court to formulate an instruction encompassing an entirely different theory is an unreasonable and unjust burden. (People v. Flannel, supra, 25 Cal.3d 668, 681, 683, 160 Cal.Rptr. 84, 603 P.2d 1.)

Moreover, Marshall overlooks the determinative factor that in addition to felony murder he was convicted of robbery. (s 211.)

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Id.)

Here, clear evidence shows Johnson died immediately upon being shot in the head, before Marshall took the .45 caliber pistol and fled. Since “force” or “fear” may only be inflicted upon a living person the jury obviously rejected Marshall's theory of abandonment, and found the homicide committed in furtherance of a robbery. (Cf. People v. Green, 27 Cal.3d 1, 54, fn. 44, 164 Cal.Rptr. 1, 609 P.2d 468.) The problem to which he now speaks is simply not present.

Thus, while his reasoning might be significant had he been acquitted on the robbery count, but convicted of felony murder, with attempted robbery as the underlying felony, it has no relevance here where the jury found him guilty of robbery and rejected self-defense. There is substantial evidence supporting the verdict. The instructions were sufficient.

II

Marshall also cites error in the court's failing to instruct sua sponte under CALJIC No. 2.50:

“Evidence has been introduced for the purpose of showing that the defendant committed (crimes) other than for which he is on trial.

“Such evidence, if believed, was not received and may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes.

“You are not permitted to consider such evidence for any other purpose.”

At trial, evidence revealed Marshall was arrested three days before the murder by two Oceanside police officers for drinking in public. In addition, portions of the preliminary hearing transcript were introduced, where Dorothy Mendez stated Marshall told her he wanted a gun to kill two police officers. Marshall contends the jury should have been instructed sua sponte that they could not consider the two incidents to show his criminal propensity or bad character. (People v. Williams, 11 Cal.App.3d 970, 978, 90 Cal.Rptr. 292; People v. Kelley, 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457; but see People v. Jackson, 45 Cal.App.3d 67, 70, 119 Cal.Rptr. 71.)

First, Marshall ignores the trial court giving, at his request, a limiting instruction under CALJIC No. 2.09.6 The court need go no further. “The court, in the absence of a request, (is) not required to give an instruction limiting the purposes for which the evidence (can) be considered.” (People v. Holbrook, 45 Cal.2d 228, 233, 288 P.2d 1; People v. Weitz, 42 Cal.2d 338, 347, 267 P.2d 295; see also People v. Hokuf, 245 Cal.App.2d 394, 398, 53 Cal.Rptr. 828.)

Second, as previously noted, where a defendant feels a jury instruction requires amplification or clarification, he may not raise the issue for the first time on appeal, unless “the terms used have a technical meaning peculiar to the law.” (People v. Earnest, supra, 53 Cal.App.3d 734, 744, 126 Cal.Rptr. 107.) There is no such usage here.

Third, although CALJIC No. 2.50 refers to crimes only, Marshall asks that we expand its ambit by substituting the word “statement” for “crimes.” This modification is necessary in order for 2.50 to include the prosecution's introduction of Marshall's statement he wanted the guns to kill two police officers. We find no authority for his request, however. (Compare People v. Enos, 34 Cal.App.3d 25, 42, 109 Cal.Rptr. 876 where the court stated the word “act” rather than “crime” could have been substituted in the instruction.)

Fourth, the only crime referred to at trial, and to which Marshall now objects, as showing bad character and disposition to commit the instant homicide, is drinking in public. Thus, even assuming arguendo an instruction was required, given the overwhelming evidence assembled against him, failing to give the instruction here was harmless. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) The incident was, at most, trivial and inconsequential. While Marshall tries to twist, bend and stretch the facts of the incident in an attempt to argue there was also a crime of resisting arrest, he was simply not arrested for that crime. Moreover, his brief hesitation in exiting from his car cannot magically be transformed into resisting arrest. Even if such a transformation could occur, absent very strong prompting, the trial court is under no obligation to instruct sua sponte. (People v. Flannel, supra, 25 Cal.3d 668, 683, 160 Cal.Rptr. 84, 603 P.2d 1.)

III

Marshall next argues the trial court erred in admitting Dorothy Mendez' preliminary hearing testimony. Finding no express statutory prohibition he relies on the legislative purpose behind section 1335, in addition to the right to confrontation guaranteed by California Constitution, article I, section 15.

The section reads:

“When a defendant has been charged with a public offense triable in any court, he in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his right to counsel as provided by law, have witnesses examined conditionally in his or their behalf, as prescribed in this chapter.”

Although the section refers only to conditional examinations carried out pursuant to sections 1335-1345, Marshall argues the purpose behind the section will be frustrated unless its capital offense proscription is extended to all out-of-court testimony where the witness is absent from trial.

“(T)he evident purpose of section 1335 is to preserve to the fullest extent in a capital case a defendant's right to confront witnesses and that no defendant should be put to death upon the testimony of a witness whose demeanor was not observed by the trier of fact ” (Lee v. Superior Court, 58 Cal.App.3d 851, 853, 130 Cal.Rptr. 532.)

First, his true argument is that the Legislature meant what it did not say. By its language section 1335 refers exclusively to conditional examinations.

Second, in 1973 the Supreme Court held that use of a preliminary transcript in a capital case is permissible. (People v. Williams, 9 Cal.3d 24, 35, 106 Cal.Rptr. 622, 506 P.2d 998.) Although Williams involved an interpretation of the California Constitution, article I, section 13 prohibition against the use of depositions in a homicide case (declaring the section inapplicable to testimony taken at a preliminary hearing) the Legislature's failure to react to the Williams holding for more than eight years is strong evidence of agreement; (compare People v. Jefferson, 47 Cal.2d 438, 444-445, 303 P.2d 1024); and, Third, in a capital case, the court most recently in People v. Jackson, 28 Cal.3d 264, 168 Cal.Rptr. 603, 618 P.2d 149 allowed the introduction of preliminary hearing testimony taken of two witnesses who were unavailable at trial.

“Under California law, prior testimony may be introduced if, among other things, the declarant is unavailable as a witness. (Evid. Code, s 1291.) Unavailability may be established by showing that the declarant is ‘Absent from the hearing and the proponent of the statement has exercised reasonable diligence but has been unable to procure his attendance by the court's process.’ (s 240, subd. (a)(5).)” (People v. Jackson, supra, 28 Cal.3d 264, 311-312, 168 Cal.Rptr. 603, 618 P.2d 149.)

Substantial evidence supports the prosecution's unsuccessful “good-faith effort and reasonable diligence” in attempting to procure Mendez' attendance at trial (see People v. Salas, 58 Cal.App.3d 460, 469-470, 129 Cal.Rptr. 871), and the preliminary transcript was properly admitted. (See also People v. Enriquez, 19 Cal.3d 221, 235, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Williams, supra, 9 Cal.3d 24, 35, 106 Cal.Rptr. 622, 506 P.2d 998.)

IV

Marshall also objects to admitting Mendez' testimony that he wanted to rob Johnson in order to get a gun and kill two police officers: (1) because its prejudicial effect outweighs its probative value (Evid. Code, s 352); and (2) because it was not a prior inconsistent statement.

(1) “The trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. (Cal.Const., art. VI, s 13; Evid. Code, ss 352, 353, 354).” (People v. Wein, 69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814.)

Here, the court made a preliminary determination during the prosecution's case in chief reserving the option of finding the testimony admissible in rebuttal or for impeachment purposes.7 (See People v. Vidaurri, 103 Cal.App.3d 450, 163 Cal.Rptr. 57; cf. People v. Bagwell, 38 Cal.App.3d 127, 113 Cal.Rptr. 122.)

In his defense Marshall testified his fight with Johnson began only after he had abandoned his intent to rob the store, when he was trying to recover his identification card, and the killing was in self-defense. He also said he wanted the gun for protection, and could not remember making the above statement to Mendez.

After several discussions in chambers, the court ruled the statement admissible, both to show Marshall's strong motive in committing the homicide: thus, tending to rebut his claim of abandonment and self-defense; and as an impeaching prior inconsistent statement.

The test for admissibility is whether the proffered evidence tends “ ‘logically, naturally and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not.’ (Citations.) (P) Motive is a material fact.” (People v. Sykes, 44 Cal.2d 166, 170, 280 P.2d 769, quoting People v. Peete, 28 Cal.2d 306, 315, 169 P.2d 924; accord People v. Terry, 2 Cal.3d 362, 396, 85 Cal.Rptr. 409, 466 P.2d 961.)

Marshall contends, however, since he had already admitted his intent to rob in order to acquire guns and money, the exact reason for wanting a gun was immaterial to any remaining issue the prosecution needed to prove.

The existence of a strong motive for committing a crime tends to rebut any claim a defendant has abandoned his intention to commit that crime. Logically, one who plans a robbery for a highly specific secondary purpose (above and beyond obtaining the fruits of the robbery) is less likely to quickly abandon his attempt than one with no special motive. Indeed, the trial court recognized this purpose.8

The statement also tended to impeach Marshall's testimony he only wanted a weapon for protection.9

The court carefully balanced the probative value of the statement against its prejudicial effect reciting its reasoning at length into the record. There was no abuse of discretion.

(2) The court ruled further, Marshall's response (“I don't remember”) was implausible and, therefore, not bonafide.10 In normal circumstances, a witness' testimony that he does not remember is not “inconsistent” with a prior statement made by him describing what he does not remember (see People v. Sam, 71 Cal.2d 194, 208-210, 77 Cal.Rptr. 804, 454 P.2d 700), “a deliberately evasive ‘I don't remember’ constitutes an implied denial of the (statement), which is thus materially inconsistent in effect with the prior statement, rendering the prior statement admissible under Evidence Code section 1235.” (People v. O'Quinn, 109 Cal.App.3d 219, 224, 167 Cal.Rptr. 141, relying on People v. Green, 3 Cal.3d 981, 988, 92 Cal.Rptr. 494, 479 P.2d 998.)

Where the trial court's finding of evasiveness has a reasonable basis in the record its ruling should be given great deference. Thus, “even where the witness professes no recollection at all of the underlying events or of having made the statement” the evidence is admissible. (People v. O'Quinn, supra, 109 Cal.App.3d 219, 226, 167 Cal.Rptr. 141.)

As urged by Wigmore, “the unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes impregnable unless his flank can be exposed to an attack of this sort. An absolute rule of prohibition would do more harm than good, and the trial court should have discretion.” (IIIA Wigmore, Evidence (Chadbourn rev. ed. 1970), s 1043, p. 1061; fns. omitted; see also People v. Loyd, 71 Cal.App.3d Supp. 1, 139 Cal.Rptr. 693.)

Substantial evidence supports the court's conclusion Marshall's loss of memory was not bonafide. His response is an implied denial, rendering his testimony “materially inconsistent” with his prior statement. (See People v. Green, supra, 3 Cal.3d 981, 985, 989, 92 Cal.Rptr. 494, 479 P.2d 998; In re Johnny G., 25 Cal.3d 543, 554-555, fn. 6, 159 Cal.Rptr. 180, 601 P.2d 196.) The admission was proper.

V

Marshall's final arguments address the proper interpretation and constitutionality of section 190.2, subdivision (a)(17)(i), claiming the section must be limited to intentional homicides because imposing capital punishment for wholly unintentional killing constitutes cruel and unusual punishment under both the California and United States Constitutions.

The public enacted section 190.2 pursuant to initiative measure Proposition Seven, section 6, November 7, 1978. Previously, a killing during the commission or attempted commission of a robbery needed to be “wilful, deliberate and premeditated” in order to constitute a special circumstance justifying the death penalty or life imprisonment without possibility of parole. (Former s 190.2, subd. (c)(3); Stats. 1977, c. 316, s 9, p. 1257, repealed by s 5 of Proposition Seven.) Proposition Seven specifically deletes these requirements, stating instead:

“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:

“(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:

“(i) Robbery in violation of Section 211.” (Pen. Code, s 190.2, subd. (a) (17)(i), supra.)

By deleting the requirement of intentional killing from the previous statute we presume an intent to change the law. (People v. Perkins, 37 Cal.2d 62, 63-64, 230 P.2d 353; People v. Valentine, 28 Cal.2d 121, 142, 169 P.2d 1; People v. Schmel, 54 Cal.App.3d 46, 126 Cal.Rptr. 317; Gov. Code, s 9605.) “Changes in wording and phraseology are presumed to have been deliberately made․” (Estate of Simpson, 43 Cal.2d 594, 600, 275 P.2d 467.)11

Attempting to avoid the plain meaning of the statute, Marshall analyzes a variety of Penal Code sections and the subsections of section 190.2 itself, interpreting the whole in a manner, which if accepted, would render several phrases in Proposition Seven superfluous. On the basis of this strained process he argues the statute is at least ambiguous and must be construed most favorably to him. (Bowland v. Municipal Court, 18 Cal.3d 479, 488, 134 Cal.Rptr. 630, 556 P.2d 1081; see Reyes v. Superior Court, 75 Cal.App.3d 214, 218, 141 Cal.Rptr. 912; People v. Colver, 107 Cal.App.3d 277, 285, 165 Cal.Rptr. 614.)

Where the language of a statute is clear in itself the court should refrain from artificially adding to or altering it in order to accommodate a purpose not apparent on the statute's face. (See generally Code of Civ.Proc., s 1858.) “ ‘Certainly the court is not at liberty to seek hidden meanings not suggested by the statute or by the available extrinsic aids. (Citation.)’ ” (Hogya v. Superior Court, 75 Cal.App.3d 122, 133, 142 Cal.Rptr. 325, quoting People v. Knowles, 35 Cal.2d 175, 182-183, 217 P.2d 1.)

Here, there is no reasonable support for Marshall's interpretations. The subdivision's conspicuous deletion of the term “intentional” together with the express inclusion of the term within the definition of several other special circumstances listed in section 190.2, demonstrates the Electorate's intent to permit capital punishment for this class of unintentional killing. (See s 190.2, subds. (a)(1), (7)-(10), (13), (15), (16), (18), (19), and (b); People v. Kelly, supra, 117 Cal.App.3d 944, 949, 173 Cal.Rptr. 106.) If, in fact, this unambiguous language does not accurately reflect the Electorate's subjective intent, it is for that body, not this court, to so state.

We also reject Marshall's argument that application of the felony murder rule to both elevate an otherwise unintentional killing to first degree murder and to establish a special circumstance imposing life imprisonment without possibility of parole, involves an impermissible “dual use” of the same fact. (See rule 441 of the Cal. Rules of Court; see also s 654 prohibiting multiple punishments for the same offense.) There is no authority, statutory or otherwise, prohibiting the Legislature or Electorate from specifically providing for dual use of facts in this situation. Rules limiting dual uses, and forbidding multiple punishments are statutorily derived, not constitutional principles of law. Marshall is not being punished twice for the same offense, nor dually for the robbery and for the murder.

VI

Finally, Marshall's personal concern the death penalty may be imposed under the circumstances of a “wholly accidental” felony murder is misplaced: first, the death penalty was not sought in his case and is not in issue; and second, even if it were, the Proposition's severability clauses remove any possibility of prejudice because Marshall was not sentenced to death.

Here, the prosecution sought, and obtained, only the sentence of life imprisonment without parole. Marshall does not claim this sentence is cruel and unusual. He limits his attack to wholly unpremeditated, unintentional killings, made first degree only because of the felony murder rule in which a death sentence is imposed, contending that would be cruel and unusual because its “blanket” application may be imposed capriciously and arbitrarily. He then incorrectly argues the intertwining of death penalty and life without possibility of parole provisions within the same statute inextricably links them so striking the death penalty portion must also eliminate the lesser standard. He is wrong; the initiative contains a detailed and comprehensive severability clause specifically allowing excision of phrases within sections.12

Even if imposing the death penalty is unconstitutional as applied to an unintentional felony murder, an issue we do not decide, Marshall will not benefit in light of the severability clauses. (See also People v. Superior Court (Colbert), 78 Cal.App.3d 1023, 1028, 144 Cal.Rptr. 599.) Because Marshall does not contend his sentence of life imprisonment without possibility of parole constitutes cruel and unusual punishment we do not address that issue.

Judgment affirmed.

FOOTNOTES

FN1. All references are to the Penal Code unless otherwise specified..  FN1. All references are to the Penal Code unless otherwise specified.

2.  Marshall was sentenced to the term prescribed by law for first degree felony murder life imprisonment without possibility of parole together with a two-year enhancement under section 12022.5. The sentence on the robbery count was stayed pending the service of his sentence for murder.

3.  Marshall's testimony is conflicting as to whether this shot was fired as a result of his actually pulling the trigger a second time or striking Johnson's head with the barrel of the gun, accidentally discharging it.

4.  “If a person has once committed acts which constitute an attempt to commit a crime, he cannot avoid responsibility by not proceeding further with his intent to commit the crime, either by reason of voluntarily abandoning his purpose or because he was prevented or interfered with in completing the crime.” (CALJIC No. 6.01; but see People v. Earnest, 53 Cal.App.3d 734, 747, 126 Cal.Rptr. 107; People v. Flannel, 25 Cal.3d 668, 681, 683, 160 Cal.Rptr. 84, 603 P.2d 1.)

5.  “If a person intends to commit a crime, but before he commits any act toward the ultimate commission of the crime, he clearly and voluntarily abandons his original intent and makes no effort to accomplish it, the crime of attempt has not been committed. (P) If from all the evidence you believe that Defendant Marshall abandoned his attempt to rob Mr. Johnson before Mr. Marshall committed any direct act toward its perpetration, the Felony Murder Rule is not applicable, and the Defendant is thereafter entitled under the law to use deadly force to defend himself against any unlawful application of deadly force by Mr. Johnson. (CALJIC No. 6.02, mod.)

6.  The court instructed: “Certain evidence was admitted for a limited purpose. At the time this evidence was admitted, you were admonished it could not be considered by you for any purpose other than the limited purpose for which it was admitted. You are again instructed that you must not consider such evidence for any purpose except the limited purpose for which it was admitted.”It also instructed under CALJIC No. 2.13: “In this case, testimony given by a witness at a prior proceeding who was unavailable at this trial has been read to you from the reporter's transcript of that proceeding. You are to consider such testimony in the same light and in accordance with the same rules which you have been given as to the testimony of witnesses who have testified here in Court. Evidence that on some former occasion a witness made a statement or statements that were inconsistent or consistent with his testimony at this trial may be considered by you not only for the purpose of testing the credibility of the witness, but also as to the evidence of the truth of the facts as stated by the witness on such former occasion. (P) If you disbelieve a witness' testimony that he no longer remembers a certain event, such testimony may be inconsistent with a prior statement or statements made by him describing that event, but may not necessarily be inconsistent depending upon your interpretation of the evidence.”

7.  “(The court's) ruling is that as to the defense motion for the words ‘But the gun that he was going to use was to off two police officers,’ based on my viewing of that as to the potential prejudice outweighing the probative value of the People's case in chief as I read the exercise of judicial discretion, I must consider all the facts available to me. I do not have available to me at this time the nature, if any, of the defense. It may be relevant, and it may be probative either for rebuttal or impeachment if the Defendant takes the stand. That would be a separate and distinct ruling and issue at a later time. It may also be relevant and probative at the penalty phase, so this motion is narrowly confined the ruling is narrowly confined to excluding that from the People's case in chief only, and with that recitation on the record, that is the Court's ruling on the motion.” (Italics added.)

8.  “Well, certainly a material matter sought to be proved by the defense in this case is self-defense and the loss of the Defendant's zeal to commit a robbery because of having noticed the victim had a gun, according to the Defendant's testimony. It therefore, becomes very relevant, if one seeks to disprove that defense, as to what one's intent was going into that store, as to whether they would be that easily dissuaded by what the Defendant says had changed his course and his belief.”

9.  “THE COURT (stated): Well, it's very simple. First of all, the Defendant has said he only wanted a weapon for self-protection. That, of course, is clearly impeachable now because he told someone else he wanted a gun so he could kill two police officers so, number one, that is clearly proper impeachment which was not true at the time the Court had to initially rule.”

10.  Marshall's actual response was: “Q All right. Does that refresh your recollection with regard to what you told Dorothy Mendez about why you wanted to rob Mr. Johnson to get a gun? (P) A No, sir. Like I said, I told Dot several things to which I don't remember. Some of them are true. Some of them may not be. I can't say if I exactly said that or not, sir. (P) Q Are you saying that you didn't say this to Dorothy Mendez? (P) A I don't remember if I did or not, sir.”The court then ruled: “Well, nonetheless, I find that whether it is denied or whether it is admitted of course makes it a clear case when somebody either doesn't remember or exercises selective recall. Then the Court is put in a position to decide whether it is plausible that one would have a somewhat vague recollection as to whether it was said or not. It appears to me implausible that one who would make that statement would not remember whether it was made or not, regardless of the comments as to his condition; therefore, I view it in the context that it would permit a reading of that transcript to show a prior inconsistent statement, but I don't think any further questions are necessary with that ruling on that issue with that transcript of this witness at this time.”

11.  We find further support that specific intent to kill is no longer necessary to establish the special circumstance of felony murder (robbery) in the Attorney General's summary of the initiative. (See Amador Valley Joint Union High School Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 245-246, 149 Cal.Rptr. 239, 583 P.2d 1281; People v. Kelly, 117 Cal.App.3d 944, 948, 173 Cal.Rptr. 106.) It reads in relevant part: “Changes and expands categories of first degree murder for which penalties of death or confinement without possibility of parole may be imposed.” (Italics added, Voter's Pamphlet, 11/7/78, p. 32.) Moreover, the Proposition's legislative analysis further evidences an intent to change the special circumstance requirements: “(t)he proposition would also expand and modify the list of special circumstances which require either the death penalty or life without possibility of parole.” (Italics added; Voter's Pamphlet, 11/7/78, p. 32; see People v. Kelly, supra, 117 Cal.App.3d 944, 948, 173 Cal.Rptr. 106.) We take judicial notice of these documents. (Evid. Code s 452, subd. (c).)

12.  “Sec. 13. If any word, phrase, clause, or sentence in any section amended or added by this initiative, or any section or provision of this initiative, or application thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other word, phrase, clause, or sentence in any section amended or added by this initiative, or any other section, provisions or application of this initiative, which can be given effect without the invalid word, phrase, clause, sentence, section, provision or application and to this end the provisions of this initiative are declared to be severable.“Sec. 14. If any word, phrase, clause, or sentence in any section amended or added by this initiative or any section or provision of this initiative, or application thereof to any person or circumstance is held invalid a defendant who has been sentenced to death under the provisions of this initiative will instead be sentenced to life imprisonment, such life imprisonment shall be without the possibility of parole.“If any word, phrase, clause, or sentence in any section amended or added by this initiative or any section or provision of this initiative, or application thereof to any person or circumstance is held invalid a defendant who has been sentenced to confinement in the state prison for life without the possibility of parole under the provisions of this initiative shall instead be sentenced to a term of 25 years to life in a state prison.” (Voter's Pamphlet, 11/7/78, p. 46; see also the note following s 37.)

WORK, Associate Justice.

COLOGNE, Acting P. J., and LANGFORD, J.,* concur.