PEOPLE v. CORELLA

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

The PEOPLE, Plaintiff and Respondent, v. Rudy Oscar CORELLA, Defendant and Appellant.

Cr. 36262.

Decided: July 20, 1981

Law Offices of Bardales & Larkin and Peter Larkin, Long Beach, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., John R. Gorey and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Rudy Corella appeals from a judgment of conviction entered upon a jury verdict finding him guilty of first degree murder with personal use of a firearm (count I) and assault by means of force likely to produce great bodily injury with personal use of a firearm (count II).1

The facts in support of the verdict are simply stated.   On the afternoon of August 12, 1978, appellant and two companions approached victims Gabino Bermijo and Antonio Conchola, who were repairing an automobile at Bermijo's home.   Neither was armed, nor did they make any threatening gestures toward appellant and his companions.   Appellant's companions beat Bermijo.   Appellant, who was armed with a gun, shot at both men, wounding Conchola and killing Bermijo.   Appellant fled from the scene.   Approximately six weeks later he turned himself in to the police.

Appellant's defense, other than some attacks on the credibility of the People's witnesses, consisted of the testimony of his father that appellant had been with him in San Diego from 8:00 a. m. to 6:00 p. m. on August 12, 1978.   Appellant did not testify.

I. The trial court properly denied appellant's motion for disclosure of the identity of the informant.

During a hearing on a motion to suppress evidence, appellant learned of the existence of a confidential informant, who was a percipient witness.   He thereafter sought disclosure of the informant's identity.   An in camera hearing was held,2 after which the trial judge ruled that there was “no reasonable possibility that nondisclosure would deprive the defendant of a fair trial;  that the testimony of the informant would in no way exculpate the defendant or lead to any testimony that might reasonably exculpate the defendant․”

Appellant argues that disclosure was required simply because the informant was a material witness, citing Williams v. Superior Court (1974) 38 Cal.App.3d 412, 112 Cal.Rptr. 485.

 That was a case in which the prosecutor had failed to ask for an in camera hearing in the trial court.   The appellate court held that disclosure was required because the defendant had demonstrated a reasonable possibility that the informant was a material witness who could give evidence on the issue of guilt which might result in defendant's exoneration.   That standard is necessarily applicable when neither the defendant nor the trial court knows what testimony the informant might give.  (See People v. Borunda (1974) 11 Cal.3d 523, 529, 113 Cal.Rptr. 825, 522 P.2d 1.)

But the situation may be different after an in camera hearing, at which the informant may be questioned under oath and other confidential information may be furnished to the trial court.  Evidence Code section 1042, subdivision (d), which authorizes an in camera hearing for this purpose, states:  “The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”

An example of the application of this statutory rule is People v. McCarthy (1978) 79 Cal.App.3d 547, 144 Cal.Rptr. 822, holding that the in camera hearing supported the trial court's decision not to require disclosure.

Appellant calls our attention to a footnote in People v. Aguilera (1976) 61 Cal.App.3d 863, 870, 131 Cal.Rptr. 603, which reads as follows:  “Although the language of section 1042, subdivision (d) is mandatory, it is conceivable that the circumstances of a particular case might be such that it would be an idle act to conduct an in camera hearing:  for example, where the informant is a percipient witness to the crime charged.”

Aguilera was a case in which the trial court had refused to conduct an in camera hearing, and when the prosecutor refused to identify the informant, the trial court reduced the charge from possession of heroin for sale to simple possession.   The People appealed and the Court of Appeal reversed.   The footnote can be read as carrying an implication that if the informant was a percipient witness, his identity must be disclosed whether or not his testimony could benefit the defendant.   The text of the opinion makes it clear that the Aguilera court had no such idea.   In explaining the function of subdivision (d) of Evidence Code section 1042, the Aguilera court said at page 868:

“Under the statute the court is to hold an adversary hearing on the issue of disclosure, and, if requested by the People, an in camera hearing from which the defendant and defense counsel will be excluded.   The court is not to order disclosure, strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding ‘unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.’

“Since the crucial question as to disclosure is whether the informant could give testimony on the issue of guilt which would exonerate the defendant, the procedure contained in this statute is highly advantageous and provides a method of eliminating the ‘guessing game’ qualities which have often attended these determinations.  People v. Pacheco, [(1972) 27 Cal.App.3d 70, 103 Cal.Rptr. 583.]  It allows the prosecutor to produce the informant in camera so that the court can determine just what the informant knows, and whether his testimony would be material on the issue of guilt.   If his testimony at the in camera hearing shows that there is no reasonable possibility the informant could aid the defense, the public interest in nondisclosure of his identity can be preserved without any infringement on the defendant's right to a fair trial.  [Citations.]”

In the present appeal we have made the reporter's transcript of the in camera hearing a part of the record.   It includes the sworn testimony of the informant and other information supplied by a deputy district attorney.

 In this opinion we do not discuss the evidence received at the in camera hearing because to do so might have the effect of identifying the informant.   Our examination of this record satisfies us that there was no reasonable possibility that nondisclosure might have or did deprive appellant of a fair trial.3

II. The trial court properly denied appellant's motion to suppress his in-court identification by victim Conchola.

Prior to trial, appellant moved to suppress the in-court identification by victim Conchola.   The motion was made pursuant to Penal Code section 1538.5 and Evidence Code section 402, and was based on the theory that but for the arrest, which appellant claimed was illegal, there would be no court proceedings and therefore no in-court identification.   The trial court ruled that there was sufficient probable cause to arrest appellant without a warrant 4 and that there was no showing that the in-court identification was tainted by the photographs that were shown to the witness.

Appellant now argues for the first time that the photo display procedure was impermissibly suggestive.   He asserts that showing the same nine photographs to Conchola twice within three days, while he was seriously injured and in intensive care, “undoubtedly implanted these 9 faces within his mind.”

 Our examination of the record reveals the total absence of any evidence to support this contention.   The only evidence produced by appellant concerned the procedure itself.   He failed to demonstrate that anything about the procedure resulted in the impermissible suggestiveness which has been condemned by case law.   In the absence of any such evidence his contention is without merit.

III. Substantial evidence supports the verdict of first degree murder.

 Appellant next contends that the evidence is insufficient to support the verdict of first degree murder.   Our task in reviewing this contention is to determine, after review of the entire record, viewing the evidence in a light most favorable to respondent and presuming in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence, whether substantial evidence supports the finding of premeditation and deliberation.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Anderson (1968) 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942;  see Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.)

The concept of premeditation which serves to distinguish first from second degree murder had been explained as evidence which demonstrates that the killer's act was the result of careful thought and deliberate judgment, and that the act was carried out cooly and steadily, especially according to a preconceived design.  “ ‘The true test is not the duration of time as much as it is the extent of the reflection.   Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes ․ those homicides ․ which are the result of mere unconsidered or rash impulse hastily executed.’ ”  (People v. Velasquez (1980) 26 Cal.3d 425, 435, 162 Cal.Rptr. 306, 606 P.2d 341.)

Cases which have assessed the sufficiency of circumstantial evidence to support a finding of deliberation and premeditation have looked to such factors as the type of weapon used, the manner of its use, the nature of the victim's wounds, whether the attack was provoked and whether the deceased was armed with a weapon.  (See, e. g., People v. Cruz (1980) 26 Cal.3d 233, 245, 162 Cal.Rptr. 1, 605 P.2d 830;  People v. Salazar (1977) 74 Cal.App.3d 875, 885–886, 141 Cal.Rptr. 753;  People v. Orabuena (1976) 56 Cal.App.3d 540, 546, 128 Cal.Rptr. 474;  People v. Smith (1973) 33 Cal.App.3d 51, 66, 108 Cal.Rptr. 698;  People v. Lewis (1963) 217 Cal.App.2d 246, 259, 31 Cal.Rptr. 817.)

The formula set forth in People v. Anderson, supra, 70 Cal.2d 15, 26–27, 73 Cal.Rptr. 550, 447 P.2d 942, for assessing the sufficiency of the evidence of premeditation and deliberation uses three basic categories of circumstantial evidence of premeditation and deliberation:  (1) planning activity, (2) motive, and (3) manner of killing, i. e., facts showing that the killing was “so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design.’․”  (Id, at p. 27, 73 Cal.Rptr. 550, 447 P.2d 942.)   The Anderson opinion states that the court “sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”  (Ibid.)

 Appellant correctly points out that in the instant case there was no evidence of motive for the killing.   The evidence concerning planning activity is limited to two facts:  (1) appellant was armed with a loaded weapon which he carried in his waistband;  (2) he was accompanied by two companions who beat the unarmed victim before appellant shot him.   From this evidence the jury could reasonably infer that appellant and his companions had a preconceived plan at the time they approached the victims.   Appellant had obviously armed himself with a loaded gun.   The jury could reasonably infer that such activities were undertaken by him for the purpose of carrying out whatever plan he and his companions had agreed upon.   While this evidence is not great in quantum, it is strong enough to furnish a reasonable foundation for an inference of premeditation.

Moreover, it is supported by evidence of the third type set forth in Anderson, i. e., the manner of killing.   When appellant and his companions approached the unarmed victims, appellant remained somewhat behind the other two.   He pointed his gun at Conchola while his companions beat the other victim.   When Conchola tried to run away, appellant show him twice, then turned his gun on Bermijo, then again on Conchola.   He shot at least five times, with great accuracy.   Five of his bullets hit their targets.   One was fatal, and another nearly so.   This evidence describes actions that were cold and calculated.   There was no frenzy, no argument, no resistance, no passion.   Although the prosecution proved no motive for the killing, the evidence did not show a killing which was the result of an “ ‘unconsidered or rash impulse hastily executed.’ ”  (People v. Velasquez, supra, 26 Cal.3d 425, 435, 162 Cal.Rptr. 306, 606 P.2d 341.)   Substantial evidence clearly supports the jury finding of malice and premeditation within the meaning of California case law.

IV. The trial court did not err in failing to obtain a diagnostic report pursuant to Welfare and Institutions Code section 707.2.

Appellant contends that the trial court erred in not sending him to the California Youth Authority for a diagnostic report pursuant to Welfare and Institutions Code section 707.2.5  His argument is based on the assumption that he was eligible for commitment to the California Youth Authority under Welfare and Institutions Code section 1731.5, which empowers the court to commit to the Authority any person (with some exceptions) convicted of a public offense who was less than 21 years of age at the time of apprehension.   One of the exceptions is a person sentenced to prison for life.   In order to set this issue in proper context, we briefly review the relationship of appellant's case with the recent history of Penal Code section 190, which prescribes the punishment for murder.

In August 1978 when appellant's crime was committed, Penal Code section 190 provided that the penalty for first degree murder, absent a finding of special circumstances calling for a penalty of death or life imprisonment without possibility of parole, was “confinement in state prison for life.”   (Stats.1977, ch. 316, § 5, p. 1256.)   A person so sentenced became eligible for parole after serving seven years.  (Pen.Code, § 3046.)   A person sentenced to imprisonment for life under that section was not eligible for commitment to the Youth Authority.  (Welf. & Inst.Code, § 1731.5;  People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724, 135 Cal.Rptr. 392, 557 P.2d 976.)

In November 1978, prior to appellant's trial, the People of this state, by means of initiative process, repealed section 190 and enacted an identically numbered section which provided that the sentence for first degree murder, absent a finding of special circumstances, was to be “confinement in the state prison for a term of 25 years to life.”   A person so sentenced becomes eligible for parole after serving 16 years and 8 months.  (Pen.Code, § 2930–2932.)

On October 20, 1980, in In re Jeanice D., 28 Cal.3d 210, 221, 168 Cal.Rptr. 455, 617 P.2d 1087, the court held that the revised language of section 190 (“a term of 25 years to life”) created an indeterminate term, as distinguished from “imprisonment for life,” and that under the rule applied in People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401, a youth convicted of an offense carrying an indeterminate sentence with a possible life maximum does not fall within the “imprisonment for life” exclusion of Welfare and Institutions Code section 1731.5.

Since the 1978 revision of Penal Code section 190 has been in effect, Court of Appeal opinions have held that a minor sentenced to life imprisonment for murder under the former section 190 is not eligible for commitment to the Youth Authority.   They are People v. Eaker (1980) 100 Cal.App.3d 1007, 1015–1016, 161 Cal.Rptr. 417;  People v. Grisso (1980) 104 Cal.App.3d 380, 385, 163 Cal.Rptr. 547;  People v. Garcia (1981) 115 Cal.App.3d 85, 108, 171 Cal.Rptr. 169, and People v. Superior Court (Dillon) (1981) 115 Cal.App.3d 687, 173 Cal.Rptr. 544.

The procedural history of the Dillon case is particularly interesting as a reflection of the Supreme Court's view on the subject.

Dillon was convicted of first degree murder committed before the 1978 change in the law, and was under the age of 21 when apprehended.   The trial judge committed Dillon to the Youth Authority under Welfare and Institutions Code section 1731.5 in the belief that the newly enacted version of Penal Code section 190 would apply to him.   The People petitioned the Court of Appeal for a writ of mandate to compel the trial court to vacate the commitment.   The Court of Appeal ordered the writ to issue, holding in an opinion filed February 25, 1980, that the former version of section 190 was applicable, and that Dillon was not eligible for a Youth Authority commitment.

The Supreme Court granted a hearing and held the Dillon case until after it had decided In re Jeanice D., supra, 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087, on October 20, 1980.   Thereafter, the Supreme Court retransferred Dillon to the Court of Appeal “with directions to refile its prior opinion with appropriate reference to In re Jeanice D․”

The Court of Appeal did refile its opinion, as now reported in 115 Cal.App.3d 687, 173 Cal.Rptr. 544, pointing out that its decision was not inconsistent with Jeanice D.

 The law thus appears to be settled that appellant, like Dillon, was ineligible for commitment to the Youth Authority under section 1731.5.   This conclusion, however, does not end our inquiry as to whether the court erred in failing to refer defendant to the Youth Authority for diagnostic report pursuant to section 707.2.   The California Supreme Court specifically left this issue open in In re Jeanice D., supra, stating at page 214, 168 Cal.Rptr. 455, 617 P.2d 1087:

“․ we have no occasion in the instant case to determine whether section 707.2 additionally requires a trial court to remand for a diagnostic evaluation those minors who come within section 707.2's literal terms but who are statutorily ineligible for CYA commitment.  (See People v. Eaker (1980) 100 Cal.App.3d 1007, 1015–1016, 161 Cal.Rptr. 417;  People v. Grisso (1980) 104 Cal.App.3d 380, 385–386, 163 Cal.Rptr. at 547).”

In each of the cases cited by the Supreme Court a minor convicted in adult court of first degree murder without special circumstances, committed prior to November 1978, was referred to the Youth Authority for a diagnostic evaluation pursuant to section 707.2.   The diagnostic report for each advised that the defendant was a proper subject for treatment by the authority, but acknowledged that he was not eligible for such a commitment under section 1731.5.   Each defendant was sentenced to prison for life under former Penal Code section 190.   In each case the Court of Appeal held that the defendant was not eligible for a Youth Authority commitment.

The Grisso court (104 Cal.App.3d at p. 386, 163 Cal.Rptr. 547) noted that the Youth Authority's report was “useless inasmuch as [the defendant] could not be referred to the CYA by virtue of the exclusionary language of section 1731.5.”

We do not read either the Eaker or the Grisso opinion as indicating that the judgment would have been reversed if the trial court had failed to refer the defendant to the Youth Authority for the 90 day study and report referred to in section 707.2.   That issue was not before the court in either case.   The discussion in those cases simply acknowledges that the trial court, following a literal reading of the section, did obtain such a study and report.

The purpose of the report required by section 707.2 is to determine the minor's “amenability to training and treatment offered by the Youth Authority.”   It defies reason to require that the limited resources of the Youth Authority 6 be expended in analyzing and evaluating the minor's amenability to its program when there is no possibility under the law for him to partake of that training and treatment.   The report specified in section 707.2 would have served no purpose.   A reasonable interpretation of section 707.2, read with section 1731.5, is that the study and report are not required when the trial court has no jurisdiction to do anything but to commit the defendant to state prison for life.

The judgment is affirmed.

FOOTNOTES

1.   Appellant, who was 16 years old at the time of the crime, was tried as an adult after being found unfit for juvenile proceedings.

2.   The entire in camera proceedings consisted of three separate hearings.   At the first, on June 5, 1979, the trial court questioned the informant.   At the second, on June 8, 1979, the trial court questioned the informant based on questions submitted by the defense.   At the third, the prosecutor presented further information to the court without the presence of the informant.

3.   We take note of one stenographic error which should be mentioned to avoid possible confusion.   The decision of the trial court denying the motion for disclosure was announced in open court on June 11, 1979.   The reporter's transcript of this brief proceeding appears both in the open transcript and in the sealed transcript of the in camera proceeding.   In the open transcript the court is quoted as stating “that there is no reasonable probability that nondisclosure would deprive the defendant of a fair trial.”   In the sealed transcript the court is quoted as saying “no reasonable possibility,” which is the statutory language.Neither party has made any issue of the word which appears in the open transcript, and we conclude, with counsel, that the variation in transcription is inconsequential in the context of this case.

4.   There is no issue raised on appeal concerning the propriety of this ruling.

5.   Welfare and Institutions Code section 707.2 provides:“Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority.   No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.”

6.   In a report to the 1981 Superior Court Juvenile Practice and Procedure Institute, the Director of the Department of Youth Authority set forth the following statistics:  At the end of 1980, ten Youth Authority institutions and eight conservation camp programs were filled beyond total capacity.   The total ward population was approximately 150 over the Department's rated capacity, with the trend of increasing ward population expected to continue until at least 1982.  (Memorandum from Pearl S. West, Director, Cal. Dept. of Youth Authority, March 26, 1981, to Attendees of the 1981 Superior Court Juvenile Practice and Procedure Institute.)

FILES, Presiding Justice.

KINGSLEY and WOODS, JJ., concur. Hearing denied; BIRD, C.J., MOSK, J., dissenting.