PEOPLE v. WEIDERT

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. David D. WEIDERT, Defendant and Appellant.

Cr. 6096 (F000903).

Decided: January 10, 1984

Quin Denvir, State Public Defender, Eric J. Coffill, Deputy State Public Defender, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, Linda A. Cabatic and Roger Venturi, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THE CASE

Defendant was charged by information with kidnaping (Pen.Code, § 207) and murder (Pen.Code, § 187).1  The People alleged two special circumstances:  (1) that the murder had occurred while defendant was engaged in a kidnaping (§ 190.2, subd. (a)(17)), and (2) that the murder was committed to prevent the victim from testifying in a criminal proceeding (§ 190.2, subd. (a)(10)).

Defendant moved to strike the second special circumstance because no criminal proceeding was pending against defendant in which the victim could have been a witness, i.e., even though the victim had witnessed a burglary, it had been committed when defendant was a juvenile and therefore the victim could not have been a witness in a criminal proceeding.   Additionally, defendant demurred to the first special circumstance on constitutional grounds.   The trial court overruled defendant's demurrer and denied his motion to strike.

The jury found defendant guilty of both kidnaping and murder in the first degree and found both special circumstances true.   Prior to sentencing, defendant moved for a new trial and to strike the special circumstances findings, contending both were contrary to law and to the evidence.   The trial court denied both motions.   Defendant was then sentenced to life imprisonment without the possibility of parole.   This appeal follows.

On appeal, defendant contends the trial court erred in instructing the jury on the first special circumstance.   He also asserts that there is insufficient evidence to support the finding that the second special circumstance was true.   Additionally, defendant argues that (1) his motion for mistrial should have been granted, (2) the People impermissibly commented upon defendant's failure to testify, and (3) the matter must be remanded to the trial court to exercise its discretion pursuant to People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029 on whether to strike the finding of two special circumstances.

We will vacate the findings that the two special circumstances are true and reverse the judgment insofar as it relates to penalty.   This makes it unnecessary to discuss defendant's third argument relevant to People v. Williams, supra.   We affirm the judgment of conviction of kidnaping and first degree murder.

THE FACTS

On June 18, 1980, the office of Dr. David Joseph Edwards was burglarized.   Dr. Edwards undertook his own investigation and focused upon the janitorial service he employed at the time of the burglary.   The investigation prompted Michael Morganti to come to Dr. Edwards' office and to confess his involvement in the burglary.   According to Morganti, he had acted as a lookout for defendant, who was then employed by the janitorial service.   Later Morganti pleaded guilty to petty theft based upon his involvement in the burglary.

During Dr. Edwards' investigation, he discussed the burglary with defendant and stated his suspicions on three separate occasions.   On the last occasion Edwards told defendant that he had an eyewitness to the crime, Morganti.   Edwards testified that when defendant learned this “the whole tenure [sic ] of this [the conversation] changed.   He [defendant] became very angry;  a stern voice, and he belted out—he says, ‘Listen,’ he says, ‘Nobody is going to believe that idiot in Court.   Nobody's going to believe him.   I'll see to it that they don't.’ ”

In November 1980 defendant encountered 17-year-old John A. (John), having previously told John that it would be worth more to him if he waited for defendant than if John went to work at his regularly scheduled construction job.   Thereafter, defendant told John that defendant wanted to kill Morganti so that Morganti could not testify against him in connection with the burglary of Dr. Edwards' office.   About one month before this conversation, defendant had told John that defendant had hired someone to kill Morganti but had not paid him.   John responded he knew someone who would commit the murder for defendant.   About the same time as the earlier conversation and in the presence of John, defendant had told another juvenile, Rodney G. (Rodney), of defendant's intention to “get” Morganti.

Defendant and John subsequently lured Morganti from his apartment and forced him into a van, tying his hands behind his back.   Defendant then drove to an isolated location in the mountains where defendant, aided by John, stabbed and beat Morganti and left him for dead in a shallow grave.   Morganti died of suffocation.

DISCUSSION

I. Should the special circumstance finding that defendant committed the murder while he was engaged in the commission of a kidnaping be set aside?

Defendant contends there are three reasons why this court should vacate the jury's finding on the first special circumstance alleged, i.e., that defendant committed the murder while engaged in a kidnaping.   We find it necessary to consider only defendant's first contention.

The People concede the jury's finding on the first special circumstance cannot be sustained because of instructional error relating to this special circumstance.   We accept that concession in the belief it is compelled by the trial court's failure to give CALJIC No. 8.81.17 as modified to encompass the rule of People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468.

 The text of the instruction which the trial court gave the jury on the first special circumstance is set forth below at footnote 3.2  In brackets is the modified paragraph required by People v. Green.   The People prepared and submitted a copy of CALJIC No. 8.81.17 without the modified paragraph.   The trial court gave the instruction in the form submitted.   Nothing in the record reveals that defense counsel objected or called the court's attention to the defect in the instruction as submitted.   Nonetheless, the trial court was not excused from its sua sponte duty to instruct upon all applicable principles of law.  (People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311.)   These included the principle articulated in People v. Green, supra, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, as interpreted in People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, that if the kidnaping were merely incidental to the murder or ancillary to it, with no separate purpose, there can properly be no determination that the murder was committed while the defendant was engaged in the commission of a kidnaping.

 Since the jury was not properly instructed on all the applicable principles they were required to consider in order to find the first special circumstance true, the finding on that special circumstance must be set aside.   Moreover, the jury's finding that the second special circumstance was also true leaves little doubt that, had it been properly instructed, the jury would have rejected the first special circumstance.

 Notwithstanding such instructional error relating to the first special circumstance, defendant does not argue that such error requires reversal of his conviction of kidnaping and first degree murder.   We agree that under the appropriate standard enunciated in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the trial court's error in instructing the jury on the first special circumstance was harmless beyond a reasonable doubt with respect to defendant's conviction of first degree murder.   The jury's finding that the victim was killed in order to prevent his testimony in a criminal proceeding—i.e., the second special circumstance alleged—shows of necessity that the jury accepted the prosecution's argument that the evidence demonstrated the killing was premeditated and deliberate, a traditional first degree murder.   Thus the prosecution sustained a higher burden in proving such premeditation and deliberation than would have been required to prove that the killing had occurred while defendant was committing a kidnaping.   This is true without regard to the conclusion we later reach on the true nature of the proceeding in which the victim was expected to testify.

II. Should the special circumstance finding that defendant committed the murder to prevent the victim from testifying in a criminal proceeding be set aside?

The issue presented is whether there is substantial evidence to support the jury's finding that defendant violated section 190.2, subdivision (a)(10).   That section provides in pertinent part:

“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:

“․

“(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his testimony in any criminal proceeding, ․”

On appeal, defendant renews the argument he twice made unsuccessfully to the trial court.   He contends that, since he committed a burglary while under age 18 and thus subject to the jurisdiction of the juvenile court, he did not commit an act which would result in a criminal proceeding.   As a juvenile, his act would result in a wardship proceeding pursuant to Welfare and Institutions Code section 602.

Although we must ultimately resolve the issue raised by defendant concerning the nature of a juvenile proceeding with respect to section 190.2, subdivision (a)(10), we do not believe that resolution of this issue is absolutely determinative.   We believe that the purpose of the California electorate in adopting the initiative measure of November 7, 1978, which included the present version of section 190.2, was to provide more severe punishment for criminals guilty of certain egregious and excessively reprehensible criminal acts.   Therefore, in order to give effect to this purpose, our initial inquiry must focus on the defendant's intent in killing Morganti, as established by the evidence presented at trial.   We believe that this inquiry is necessary to guarantee that punishment pursuant to section 190.2, and particularly subdivision (a)(10), is determined on the basis of a criminal defendant's culpability and not upon the fortuitous circumstances of the killing.

 Section 190.2, subdivision (a)(10), provides for a greater penalty when the witness was intentionally killed “for the purpose of preventing his testimony in any criminal proceeding, ․”  (Emphasis added.)   Defendant errs in focusing solely on the words “criminal proceeding” to the exclusion of “the purpose” of the individual committing the murder.   If the evidence presented at trial proves that a murder was committed for the purpose of preventing testimony in a criminal proceeding, i.e., if the prosecution proves beyond a reasonable doubt that the defendant believed himself to be exposed to criminal prosecution and intentionally killed another to prevent that person from testifying in any resultant criminal proceeding, it is irrelevant whether, as in the instant case, an actual adult criminal proceeding is unlikely, as opposed to a juvenile proceeding pursuant to Welfare and Institutions Code section 602.   The only relevance of an actual prior and ongoing criminal proceeding is that it may strengthen the inference of the existence of the proscribed purpose;  conversely, the prosecution does not have the benefit of this inference when a criminal proceeding has not yet commenced.   To hold otherwise would reward those who expeditiously murder witnesses to a criminal act prior to the inception of actual criminal proceedings.

The individuals who should be subjected to the greater punishment mandated by section 190.2, subdivision (a)(10), are those who consciously believe their act of murder is committed to prevent testimony in a criminal proceeding, regardless of the actual existence of an ongoing criminal proceeding.   This construction of the statute is consistent with those statutes pertaining to the intimidation of witnesses, sections 136, 136 1/212, 136.1, 136.2, 136.5, 137, and 138.   A “witness” is defined in section 136, subdivision (2), as:

“[A]ny natural person, (i) having knowledge of the existence or nonexistence of facts relating to any crime, or (ii) whose declaration under oath is received or has been received as evidence for any purpose, or (iii) who has reported any crime to any peace officer, prosecutor, probation or parole officer, correctional officer or judicial officer, or (iv) who has been served with a subpoena issued under the authority of any court in the state, or of any other state or of the United States, or (v) who would be believed by any reasonable person to be an individual described in subparagraphs (i) to (iv), inclusive.”  (Emphasis added.)

Clearly, no ongoing criminal proceeding is required under section 136;  in fact, it is not even necessary that a person, to come within that definition, be an actual “witness” so long as a reasonable person would believe him to be.   This court has previously held that no ongoing criminal proceeding is necessary to impose liability for the destruction of evidence pursuant to section 135 (People v. Fields (1980) 105 Cal.App.3d 341, 164 Cal.Rptr. 336);  it would be anomalous to now hold that enhanced punishment for the intentional murder of another, believed by the killer to be a witness to a crime and killed for the purpose of preventing testimony in a criminal proceeding, depends solely upon the fortuity of an actual, ongoing criminal proceeding.

We therefore reject defendant's argument that we should disregard his intent and focus only on the technical nature of the proceeding at which the victim, Morganti, might have testified.   The only reasonable and logical interpretation of the statute, and the one which we adopt, provides for punishment of the truly culpable whether or not, as in defendant's case, the prior criminal act might result in juvenile rather than adult proceedings.

 We may not, however, ignore the express provision of section 190.2, subdivision (a)(10), that the purpose of the murder is to prevent testimony in a criminal proceeding.   Substantial evidence in the instant case supports a finding that defendant's purpose in killing Morganti was to prevent Morganti from testifying.   However, there is virtually no evidence that defendant believed himself to be exposed to adult criminal process;  thus there is no substantial evidence that defendant's purpose was to prevent Morganti from testifying in a criminal proceeding.   Despite defendant's challenge to this special circumstance prior to trial and on the same basis, the only direct evidence presented to the jury about the nature of the proceeding in which defendant might expect Morganti to testify suggested only a juvenile proceeding, i.e., the chief deputy district attorney in charge of the juvenile division testified that he planned to file a petition charging burglary against defendant.   Although not part of the evidence presented to the jury, the record before this court makes clear the fact that an offer of juvenile disposition of the burglary charge had, in fact, been communicated to defendant by his attorney.   There was only one reference to defendant's belief about that proceeding made before the jury, i.e., that the most defendant would have gotten was “parole.”   Standing alone, defendant's statement concerning “parole” is ambiguous at best;  considered with the evidence offered by the juvenile prosecutor, there is insufficient evidence to support the jury's verdict on this special circumstance.   The failure of the trial court to instruct the jury 3 that defendant's belief as to the nature of the proceeding was an issue they must determine constitutes a failure to instruct on all applicable principles of law as required by People v. Wickersham, supra, 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, unless defendant's purpose to prevent the victim's testimony in a criminal proceeding would sustain a finding that the second special circumstance was true even if that proceeding were a juvenile court proceeding.   Thus, as a matter of law, we are required to decide whether a juvenile court proceeding is a criminal proceeding for purposes of section 190.2, subdivision (a)(10).

 Defendant argues that, since he committed a burglary while he was under age 18 and subject to the jurisdiction of the juvenile court, he did not commit an act which could result in a criminal proceeding.   Because his act would result primarily in wardship proceeding, pursuant to Welfare and Institutions Code section 6024 (section 602 proceedings), he contends no criminal proceeding existed.

The People counter that there is no practical difference between a section 602 juvenile proceeding and a criminal proceeding.   An adjudication of a minor to be a ward of the court under that statute is a legal fiction and in fact is the conviction of a crime.   Focusing on the true nature of a juvenile proceeding, the People contend section 190.2, subdivision (a)(10), applies to both criminal and juvenile proceedings.

The People primarily rely on three cases to establish their proposition that section 602 proceedings are in reality criminal proceedings.   One of those cases, In re Jerald C. (1982) 33 Cal.3d 1, 187 Cal.Rptr. 562, 654 P.2d 745, will not be discussed because the Supreme Court has recently granted a rehearing.   The other two cases are In re Mikkelsen (1964) 226 Cal.App.2d 467, 471, 38 Cal.Rptr. 106, and In re Gregory K. (1980) 106 Cal.App.3d 164, 168, 165 Cal.Rptr. 35.

The court in In re Mikkelsen, supra, 226 Cal.App.2d 467, 38 Cal.Rptr. 106 commented on the nature of wardship proceedings as follows:

“However, the importance of due process in juvenile proceedings was recognized long before the recent revisions of the Juvenile Court Act.  ‘While the juvenile court law provides that adjudication of a minor to be a ward of the court shall not be deemed to be a conviction of crime, nevertheless, for all practical purposes, this is a legal fiction, presenting a challenge to credulity and doing violence to reason.   Courts cannot and will not shut their eyes and ears to everyday contemporary happenings.

“ ‘It is common knowledge that such an adjudication when based upon a charge of committing an act that amounts to a felony, is a blight upon the character of and is a serious impediment to the future of such minor.’  [Citations omitted.]”  (Id., at p. 471, 38 Cal.Rptr. 106.)

In deciding the weight to be given this language from Mikkelsen in our resolution of the issue raised by defendant, we consider it significant that the court in Mikkelsen was justifying application of the due process clause in a juvenile proceeding and not attempting to define the nature of such a proceeding in the first instance.   The Mikkelsen case predated In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 and In re Dennis M. (1969) 70 Cal.2d 444, 75 Cal.Rptr. 1, 450 P.2d 296.   The latter cases carefully distinguish the nature of a juvenile proceeding.   The court in In re Dennis M. stated:

“We meet at the outset a contention advanced by appellant at oral argument:  i.e., that the United States Supreme Court decision in In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428], compels the state to establish the facts supporting a charge of juvenile delinquency by the criminal standard of proof ‘beyond a reasonable doubt.’   We do not so read Gault.   It is true, of course, that the decision inaugurated a sweeping constitutional reform of the rights of juveniles in this country.   It drew from the teaching of earlier cases the fundamental proposition that ‘neither the Fourteenth Amendment nor the Bill of Rights is for adults alone’ (387 U.S. at p. 13 [87 S.Ct. at p. 1436, 18 L.Ed. at p. 538] ), and laid down specific guidelines for implementing those guarantees in juvenile proceedings.   Yet in so doing the court took repeated pains to limit its holding by warning that ‘We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state.   We do not even consider the entire process relating to juvenile “delinquents.” ’ ”  (In re Dennis M., supra, at p. 450, 75 Cal.Rptr. 1, 450 P.2d 296, emphasis added.)

In In re Gregory K., supra, 106 Cal.App.3d 164, 165 Cal.Rptr. 35, the court held that payment of costs of detention by the parent when the juvenile was involuntarily in custody violated the due process standard.   That case focused on the rights of the parent when ordered to pay the costs of detaining his minor child.   The court's discussion of the nature of the juvenile proceeding is as follows:

“In Espinoza [County of Alameda v. Espinoza (1966) 243 Cal.App.2d 534, 52 Cal.Rptr. 480] the court acknowledged the existence, but rejected the validity, of a widely held belief that under current practices juvenile court proceedings involving petitions under Welfare and Institutions Code section 602 are in reality criminal proceedings and the claim that such proceedings are ‘for the protection of the minor’ is pure fiction.2

While we do not quarrel with the court's logic in In re Gregory K., it is not persuasive in resolving the issue before this court.

Whatever may be the belief of this court, and the Mikkelsen, Gregory K. and Espinoza courts, about the true nature of section 602 juvenile court proceedings under current practices, this court cannot ignore the language of Welfare and Institutions Code section 203:

“An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”

As quoted above, this section was in effect at the time of the adoption by initiative measure on November 7, 1978, of the present version of section 190.2 and at the time defendant burglarized Dr. Edwards' office in June 1980, and the section remains in effect today.   We must assume the drafters of the initiative had existing laws in mind when drafting the amendments to section 190.2.  (See Estate of McDill (1975) 14 Cal.3d 831, 837–838, 122 Cal.Rptr. 754, 537 P.2d 874.)   Moreover, the California Supreme Court has recently affirmed that Welfare and Institutions Code section 203 means exactly what it says, that a juvenile proceeding shall not be deemed a criminal proceeding.  (In re Joseph B. (1983) 34 Cal.3d 952, 955, 196 Cal.Rptr. 348, 671 P.2d 852.)

Case law confirms the basic philosophical underpinnings of a juvenile proceeding which support the legislative declaration in Welfare and Institutions Code section 203.   The court in In re Dennis J. (1977) 72 Cal.App.3d 755, 140 Cal.Rptr. 463 pointed out, “The concept and operation of the juvenile court law is unlike that of the adult court.   The former, is designed to deal with a status, to wit;  [sic ] delinquency, manifested by criminal conduct on one or more occasions.   The adult court on the other hand, though the objective of rehabilitation is present, deals with specific offenses with prescribed punishments ․”  (Id., at p. 760, 140 Cal.Rptr. 463;  see also In re James P. (1981) 115 Cal.App.3d 681, 685, 171 Cal.Rptr. 466;  In re Leonard R. (1977) 76 Cal.App.3d 100, 104, 142 Cal.Rptr. 632;  In re Ricardo M. (1975) 52 Cal.App.3d 744, 748–749, 125 Cal.Rptr. 291.)

Having concluded that a juvenile proceeding is not a criminal proceeding for purposes of section 190.2, subdivision (a)(10), as a matter of law, and in light of the prosecution's failure to prove that defendant, believing himself to be subject to adult criminal process, killed Morganti for the purpose of preventing Morganti's testimony in a criminal proceeding, we are required to set aside the jury's finding on the second special circumstance.

III–IV.5

We affirm the judgment convicting defendant of first degree murder and kidnaping.   Both findings of “special circumstances” elevating the murder to one requiring life imprisonment without possibility of parole are set aside.   Therefore, the judgment is reversed insofar as it relates to penalty.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specifically indicated.

2.     “If you were to find that the special circumstance referred to in these instructions as murder in the commission of a kidnap is true, it must be proved that the murder was committed while the defendant was engaged in the commission or attempted commission of a kidnap.”  “[2. That the murder was committed in order to carry out or advance the commission of the crime of _ or to facilitate the escape therefrom or to avoid detection.   In other words, the special circumstance referred to in these instructions is not established if the [attempted] _ was merely incidental to the commission of the murder.]”

3.   The court charged the jury as to the elements of the second special circumstance as follows:  “To find that the special circumstance referred to in these instructions as murder of a witness to crime is true, each of the following facts must be proved:  (1) that the person killed was a witness to a crime, and (2) that the witness was intentionally killed for the purpose of preventing his testimony in a criminal proceeding, and (3) that the killing was not committed during the commission or attempted commission of the crime to which the person killed was a witness.

4.   Welfare and Institutions Code section 602 provides:  “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”

2.   Whatever the validity of that belief in 1966 when the Espinoza opinion was filed, it is certainly true today.   Under today's procedure, cases in the juvenile court are captioned ‘The People v. (the minor).’   We do not feel compelled, however, in this case to address the broader question of whether that change in philosophy and approach results in a denial of equal protection of the law when neither the individual nor his family is required to pay for the cost of detaining him as a result of adult criminal proceedings against him while in the case of a juvenile similarly situated, the duty does exist.”  (In re Gregory K., supra, at p. 168, 165 Cal.Rptr. 35.)

5.   Parts III and IV are not published because they do not meet the standards for publication contained in California Rules of Court, rule 976(b).

HAMLIN, Associate Justice.

ZENOVICH, Acting P.J., and WOOLPERT, J., concur.