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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Richard GARCIA, Defendant and Appellant.

Crim. 39335.

Decided: June 29, 1982

Robert E. Moore, Glendale, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Daniel J. Kremer and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

After a jury trial appellant was found guilty of attempted robbery and first degree murder.   The alleged special circumstance to the effect that the murder was committed by defendant while he was an “accomplice” in the attempted robbery was found to be true.


On August 10, 1979, in the early evening, an automobile owned by appellant drove into a shopping center in Oxnard.   A man got out of the car and entered a liquor store, while the car was driven from the parking lot and parked in an alley.   A man approached the clerk in the liquor store and shot him.   The gunman fled the store, entered appellant's auto, and the driver drove off.   The clerk died of a gunshot wound to the chest caused by a dum-dum bullet (a bullet which is scored on the front of the bullet, and hence is more lethal and difficult to trace than a normal bullet).

Several days later appellant and another person were arrested while sitting in appellant's auto, and the murder weapon was found under a pillow on which appellant was sitting.   After appellant had waived his Miranda rights, he talked to Detectives Chatwin and Skeeters and denied being in town the night of August 10.   At the end of this first interview, appellant told the officers to talk to him after they talked to his nephew Orlando.

During a second interview, appellant told the detectives that Orlando wanted to get out of town because of pressure from a gang, Nuestra Familia, so appellant drove Orlando to the liquor store to commit the robbery.   Orlando took a gun with him, which appellant knew was loaded with dum-dum bullets.   Then appellant parked in the alley so he could not be identified.   When Orlando returned he told appellant that he had shot the clerk.

One of the detectives conducting the interview had used appellant as an informant in the past.   However, no promises were made to appellant other than that the detectives would be honest with him.   There seemed to be mutual trust.   In addition, the seriousness of the crime was emphasized to appellant.


Counsel for appellant candidly states that he has found no arguable issues of fact on this appeal, and that although counsel is not aware of any appellate case in which a partial “Wende” appeal has been permitted, counsel requests this court to review the entire record in conformity with, to the extent and for the purposes suggested by the California Supreme Court in People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.   Appellant's counsel then sets forth certain issues of law which he believes to be meritorious, which are considered infra.   The circumstances which motivated the Supreme Court to speak in Wende are not present here, especially since appellant's counsel does proceed to present and argue issues of law.  (In re Edward S.(1982) 133 ––– Cal.App.3d 154, 183 Cal.Rptr. 733.)   Since this case involves a sentence of life imprisonment without possibility of parole, we have examined certain portions of the record, in a search for the factual basis supporting the legal issues raised by appellant.   We are under no obligation to do so, and if the record were lengthy such a search would materially impede the other obligations which an appellate court is called upon to exercise in accordance with the constitutions of the United States and California, and applicable statutes and case law.

At the outset we have examined the clerk's transcript and find that the instruction CALJIC 8.84.2, which is condemned in People v. Ramos (1982) 30 Cal.3d 553, 590, 180 Cal.Rptr. 266, 639 P.2d 908 et seq., and People v. Haskett (1982) 30 Cal.3d 841, 861, 180 Cal.Rptr. 640, 640 P.2d 776, was not given by the trial court to the jury.  (Since Ramos and Haskett were decided subsequent to the submission of appellant's brief, appellant does not raise that point).

Appellant raises four contentions on appeal.

1. Did the trial court err in denying appellant's motion to suppress people's exhibits 51 and 52, i.e., the transcripts of post-arrest interviews with appellant by Officers Skeeters and Chatwin?

 We have read exhibits 51A and 52A in their entirety.   A full Miranda warning was given to appellant, and from his replies, it appears that he understood it.   The contention is made that appellant's confession was involuntary as a matter of law since an implied promise of leniency was made to appellant.   In one instance the detective stated:

“If you guys were doin' a robbery, he shot the guy, he panicked or whatever, that's the price he's gonna have to pay.   We're gonna focus our thing on him.   Orlando.  But there's no sense you going down the way he is, that, that far down with him, as a, as a trigger man․”

The detectives appealed to their past acquaintance with appellant, and stated that they would not fool or lie to him.

People v. Hill (1967) 66 Cal.2d 536, 58 Cal.Rptr. 340, 426 P.2d 908, is quite similar in its facts to the case at bar, and the law stated therein governs.   The court held at 549, 58 Cal.Rptr. 340, 426 P.2d 908:

“The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police.   Thus ‘advice or exhortation by a police officer to an accused to “tell the truth” or that “it would be better to tell the truth” unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary’ [Citation.]


“When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity.   On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible.   The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear.”

As in Hill, we agree with the trial court that the record fails to disclose that any improper inducements were held out to appellant.   The officers only pointed out those benefits which would naturally accrue to him if his true role in the crime was made known, but such benefits did not include leniency or favorable treatment by the state.   The facts here must be contrasted to those in People v. Jiminez (1978) 21 Cal.3d 595, 611–614, 147 Cal.Rptr. 172, 580 P.2d 672, where the defendant was given an implied promise of leniency.

Thus the trial court did not err in denying appellant's motion to suppress exhibits 51 and 52.   In denying the motion, the trial judge used the correct standard that he was satisfied beyond a reasonable doubt.

2. Did the trial court err in failing to instruct the jury that the burden was on the People to prove beyond a reasonable doubt the voluntary character of appellant's alleged post-arrest confessions?

Evidence Code section 402(b) assigns the responsibility of determining the admissibility of an admission or confession to the trial judge.   This preliminary fact, as defined in section 400, is determined as follows:  “․ but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.”  (Evid.Code § 402(b).)   Since the admissibility of an admission or confession does not fall under the scope of Evidence Code sections 403 or 404, it is determined in the fashion set forth in section 405:

“With respect to preliminary fact determinations not governed by Section 403 or 404:

“(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises.   The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.”

 People v. Jiminez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, supplies the rule of law to be used in California, namely, that the trial judge shall determine that the confession is voluntary beyond a reasonable doubt.   Once the trial judge so determines, as was done in the case at bar, is the issue of the voluntary nature of the confession to be considered again by the jury?   If so, should the jury be given a separate instruction that the burden of proof as to the voluntary nature of the confession must be beyond a reasonable doubt?   The answer to both these questions is in the negative.

Section 405(b) does not explicitly answer these questions, as it provides:

“(b) If a preliminary fact is also a fact in issue in the action:

“(1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact.

“(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact.”

Jiminez does supply the answer to these questions at 607–708, 147 Cal.Rptr. 172, 580 P.2d 672:

“Thus, once the trial court has determined that a confession is voluntary and therefore admissible, the jury does not redetermine the voluntariness issue under section 405 of the Evidence Code (as amended) and an appellate court must accept the trial court's resolution of conflicting evidence, unless the evidence relied on by the trial court is so improbable as to be entirely unworthy of belief.  [Citations.]


“Although a defendant must be allowed to present such evidence of coercion to show why his confession should not be believed, he is not, however, necessarily assured that in so doing he will prevail.   For it cannot be denied that a confession, which admits every element of the prosecution's case, is ordinarily given overwhelming weight by the jury, and therefore, the defendant may not always be able to convince the jury to disregard this most devastating evidence of his guilt which emanated from his own mouth [citation] even when this evidence should, in fact, be viewed with distrust.”  (Emphasis added.)

 Prior to the adoption of the Evidence Code in 1967, the proper procedure was for the issue of the voluntary nature of the confession to be submitted to the jury.  (People v. Culver (1973) 10 Cal.3d 542, 547, fn.8, 111 Cal.Rptr. 183, 516 P.2d 887.)   Subsequent to the adoption of the Evidence Code, the jury is no longer responsible to determine the issue of voluntariness although it hears the facts.  (People v. Jiminez, supra, 21 Cal.3d at pp. 607–608, 147 Cal.Rptr. 172, 580 P.2d 672.)   Jefferson, California Evidence Benchbook (1972) discusses the very point in section 25.3, page 342:

“․ The identity of X, instead of Z, as the hearsay declarant of the confession, is a preliminary-fact issue coming under Evid C § 403.   The jury makes the final determination of this issue․   But the trial judge's ruling on admissibility under Evid C § 405 is final.   The issue of whether X's Miranda rights were violated and whether his confession was voluntary is a preliminary-fact issue for final decision by the judge under Evid C § 405.   X is not entitled to have this issue submitted to the jury for determination․  (Emphasis in text.)

Hence, no instruction on the burden of proof as to the voluntary nature of the confession was required.

3. Did the trial court err in permitting the introduction of the testimony of People's witness, James Odra Smith?

 The trial court permitted James Odra Smith, a convicted felon awaiting retrial for murder, to testify to statements made by appellant to Smith while they were both in jail.   Appellant contends that the evidence shows that Smith was an “agent” of the Ventura sheriff's office and therefore should not have been permitted to testify to statements allegedly made by appellant.

Appellant failed to object to Smith's testimony at the trial and therefore should not be heard to raise this question for the first time on appeal.  (People v. Constancio (1979) 42 Cal.App.3d 533, 538–539, 116 Cal.Rptr. 910.)   However, at the request of appellant's counsel, we have examined the record at the places requested and we have determined that the record does not show that Smith was an agent of the police.

4. Did the trial court err in sentencing appellant to life imprisonment without possibility of parole as punishment for violation of Penal Code section 187 under the “special circumstance” found by the jury under section 190.2(a)(17)(i)?

 This case does not present the situation where someone is accidentally killed during the commission of a robbery.   Nor does it present the situation where the driver of a getaway car does not know that guns are being carried or that a shooting is contemplated.   Appellant selected the store to be robbed and sent his younger nephew into the store armed.   He knew the bullets were of a dum-dum type which causes far more damage to the human body than traditional bullets.   Therefore, since appellant is morally, actually and legally responsible for the death of the liquor store clerk the question of whether life imprisonment, without possibility of parole, is cruel and unusual punishment should not be a real problem.

In People v. Isitt (1976) 55 Cal.App.3d 23, 30–33, 127 Cal.Rptr. 279, defendant, age 17, kidnapped and robbed the victim, then shot and left her for dead.   The court refused to declare life imprisonment without possibility of parole to be cruel and unusual punishment.  In re Maston (1973) 33 Cal.App.3d 559, 562, 109 Cal.Rptr. 164, presented the situation in which the court considered whether life imprisonment without parole for aggravated kidnapping constituted cruel and unusual punishment, holding that it did not.   In Isitt and Maston, of course, the victims did not die, contrary to the situation in the case at bar.

For the reasons stated above, appellant was properly sentenced.

The judgment is affirmed.



LAVINE *, Associate Justice. FN* Assigned by Chairperson of the Judicial Counsel.

STEPHENS, Acting P. J., and HASTINGS, J., concur.