PEOPLE v. GIBSON

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Dale Clayton GIBSON, Defendant and Appellant.

Cr. 22536.

Decided: July 14, 1982

John M. Hanley, Sunnyvale, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ronald E. Niver, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Dale Clayton Gibson appeals from the judgment after his conviction by a jury of one count of first-degree murder (Pen.Code, §§ 187, 189) 1 with a pendent finding as a special circumstance that the murder was intentional and carried out for financial gain (§ 190.2, subd. (a)(1));  and one count of kidnapping (§ 207).   The People did not seek the death penalty (cf. § 190.3), and accordingly appellant was sentenced to life imprisonment without possibility of parole (cf. § 190.2, subd. (a)), with an additional consecutive term based upon a finding that a principal was armed with a firearm (§ 12022, subd. (a)), and a stayed term on the kidnap count.   We affirm the judgment and, on the suggestion of both parties, remand the case for reconsideration of the sentence.

The issues on appeal have to do almost exclusively with the convoluted procedural history of this case and with certain questions of law.   The facts of the case are essentially stipulated and they are as follows.

1. Facts

In the spring of 1979, appellant was a soldier stationed at Fort Ord.   He and his wife Darlene separated and Darlene filed for dissolution of the marriage.   Appellant developed a determination to win custody of their two children, by any means.   He was heard to say as much on various occasions.   Over a period of some days or weeks, he solicited several fellow soldiers to kill Darlene for a large sum of money.   One of them, Mark Watts, accepted the offer.   Watts became the principal witness for the prosecution on this case.

In the following weeks, appellant and Watts discussed means and methods at length, with appellant making the decisions.   On June 7 or 8, 1979, pursuant to the plan, Watts purchased a .303 Enfield rifle from a private person.   He and appellant then drove to several places, trying to find ammunition and a clip for the rifle.   Eventually, they found and purchased the ammunition and clip.

The general scheme was for Watts to offer Darlene a ride, with appellant either waiting hidden in the car or waiting to be picked up at a prearranged spot.   On the morning of June 9, the two men followed Darlene as she walked towards work;  but before they could initiate the abduction, Darlene found a ride with someone else.   Appellant and Watts spent the day test-firing the rifle, then drove to Darlene's place of employment.   Watts let appellant off near the parking lot and drove in by himself.

When Darlene emerged from the building, Watts offered her a ride home.   She accepted.   Watts drove to where appellant lay in wait and stopped the car, telling Darlene that something was wrong with the car's brakes.   Watts got out as if to fix the brakes;  appellant rushed up to the passenger's door, opened it and said, “Hello, Darla” and struck Darlene in the face with an aluminum pipe.   The two men got into the car on either side of Darlene.   Watts drove south on Highway 1, while appellant periodically struck his wife and argued with her.

At a remote spot near Big Sur, appellant directed Watts to stop the car.   Appellant stepped out and pulled Darlene out.   She struggled, causing both herself and appellant to fall over the side of the roadway and drop to a shelf about five feet below.   Appellant tried to push Darlene off the shelf but she escaped and started to run through the brush towards the ocean.   Appellant commanded Watts to get the rifle.   When Watts complied, appellant yelled “many times” the command to shoot Darlene.   Watts aimed the rifle and fired once.   The bullet struck the fleeing woman in the back of the head, killing her.   Watts testified that he killed Darlene “mostly ․ for the money.” 2

As to all the elements concerned in the convictions and special findings, the evidence was virtually undisputed.   Appellant's entire defense consisted of very weak alibi testimony from his father, who recalled having spoken with appellant on the telephone at about the time of the murder.   The prosecutor severely impeached that testimony on cross-examination.   Appellant did not testify.

2. Procedural History

This marks the sixth time a division of this court has faced the Gibson murder case.   The principal point of dispute has been the validity of the various “special circumstance” allegations which were charged in order to empower the court to impose a maximum penalty.3

On October 3, 1979, the People filed a complaint before a Monterey County magistrate (case no. 7232, “case 1”).   It charged appellant and Watts with first-degree murder, kidnap, conspiracy (§ 182), and three special circumstances (§ 190.2), to wit, subdivisions (a)(1) (“for financial gain”), (a)(15) (“while lying in wait”), and (a)(17)(ii) (“in the commission of ․ kidnapping”).   Watts' testimony was not then available.   As a result, the magistrate held the defendants to answer on the murder charge but found that there was insufficient evidence to support either the kidnap charge or any of the special circumstances.   The People promptly filed an information containing the original charges and allegations, with the exception that they deleted the conspiracy charge and added a fourth special circumstance allegation under subdivision (a)(14) (“heinous, atrocious,” etc.).   Appellant filed a section 995 motion to set aside the information;  and, the superior court, feeling itself bound by the magistrate's conclusions, struck the kidnap count and all the special circumstance allegations.

The People petitioned this court for a writ of mandate.   Division 3 of this court granted relief, ordering the superior court to reconsider the section 995 motion.  (People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551, 555, 161 Cal.Rptr. 923.)   On reconsideration, the superior court upheld the kidnap count and the kidnap special circumstance allegation.   Appellant petitioned for a writ of mandate and again this court's Division 3 granted relief, restraining the superior court from proceeding on either of the last two mentioned charges.  (Gibson v. Superior Court, 1 Civ. 48949, unpub. opn.).

The People then filed a second complaint (case no. 3712, “case 2”), this time charging appellant alone,4 concerning the same criminal episode.   Appellant's demurrer was overruled by the magistrate and once again he petitioned this court for a writ of mandate.   Division 3 denied relief without opinion.  (Gibson v. Municipal Court, 1 Civ. 50765.)   Case 2 proceeded to a preliminary hearing on November 20 and 24, 1980, which resulted in a holding order.   The People thereupon filed an information in case 2, alleging murder, kidnap, the special circumstances in section 190.2, subdivision (a)(1) [for financial gain], (a)(15) [lying in wait], and (a)(17)(ii) [kidnapping in violation of sections 207 and 209], and alleging specially that a principal in the crimes was armed with a firearm (§ 12022, subd. (a)).   The superior court consolidated cases 1 and 2 for trial.

Appellant moved to set aside the case-2 information.   The court struck the “lying in wait” allegation and upheld the balance of the information.5  Once again, appellant petitioned for a writ of mandate, and once again Division 3 denied the petition without opinion (Gibson, et al. v. Municipal Court, et al., 1 Civ. 51563.)

The nine-day jury trial followed shortly.   Of all the potential findings it might have made, the jury found in the People's favor on all but one, to wit, the special circumstance described in section 190.2, subdivision (a)(17)(ii), “committed while ․ engaged in ․ kidnapping.”   Thus, the single special circumstance which survived as a basis for the life-without-parole term was subdivision (a)(1), “for financial gain.”

3. Issues

(i) Jurisdiction Over Case 2

Appellant argues that the special circumstance finding and the kidnap conviction, both supported by the second information only, must be stricken.   He reasons that “the Municipal Court had no jurisdiction to proceed” on the second complaint, that its holding order was therefore void;  and therefore as a matter of law, the superior court had to grant his section 995 motion concerning the second information.   We note in passing that this claim was rejected before (1 Civ. 51563), but without opinion.   Thus, it is properly before us on appeal.  (People v. Medina (1972) 6 Cal.3d 484, 493, 99 Cal.Rptr. 630, 492 P.2d 686.)

It is the essence of appellant's argument that since at the time the People filed the complaint in case 2, the superior court already had operative jurisdiction over the parties and subject matter, by way of case 1, the magistrate had no jurisdiction to proceed.   The parties do not cite and we have not found any cases which have presented the same procedural setting or the same creative argument.   Nevertheless, we conclude the argument is without merit.

Appellant cites only two civil cases, both of which hold rather summarily that where the powers of two tribunals having concurrent jurisdiction are invoked to decide the same facts in a dispute involving the same parties, the tribunal in which jurisdiction was first invoked takes priority.6  (Morrisette v. Superior Court (1965) 236 Cal.App.2d 597, 599–600, 46 Cal.Rptr. 153;  Padula v. Superior Court (1965) 235 Cal.App.2d 567, 571, 45 Cal.Rptr. 500.)   We discern that this is a rule of exclusivity of jurisdiction in the first court.  (Cf. 1 Witkin, Cal.Procedure (2d ed. 1970), Jurisdiction, §§ 289–290, 302, pp. 829–831, 844;  accord:  Witkin, Cal.Crim.Procedure, § 27, pp. 31–32.)   Thus, appellant's argument has superficial appeal.

 However, we are not here faced with a conflict between courts of concurrent jurisdiction.   It was not “the Municipal Court” that acted in the second complaint, but an officer, drawn from the municipal court bench, who was acting in the statutory role of magistrate.  (Cf. §§ 807, 808.)   By statute, a magistrate, and only a magistrate, is empowered to conduct hearings and make findings and orders, which findings the Penal Code makes an absolute prerequisite to the People's invocation of the superior court process in a felony criminal case.  (Cf. § 806 [case triable in superior court must be commenced by complaint before magistrate];  § 858 et seq. [complaint and preliminary hearing provisions];  §§ 682, 737, 949 [superior court cases to be prosecuted by indictment or information];  §§ 738, 739 [information can be filed only after preliminary hearing and commitment, unless proceeding by indictment].)  It may be said, therefore, that to whatever extent a magistrate exercises his own “jurisdiction,” that jurisdiction is mutually exclusive with the jurisdiction of the superior court, or, for that matter, any court, including the one on which the magistrate normally sits as a judge.  (Cf. In re Geer (1980) 108 Cal.App.3d 1002, 1005–1006, 166 Cal.Rptr. 912;  Stanley v. Justice Court (1976) 55 Cal.App.3d 244, 248–249, 127 Cal.Rptr. 532;  Koski v. James (1975) 47 Cal.App.3d 349, 354–355, 120 Cal.Rptr. 754.)

We conclude, however, that the interests of conceptual precision are better served by the view that the “jurisdiction” exercised by the magistrate in preliminary examinations is actually that of the superior court in which the case would eventually be tried.   Section 859 is limited in its coverage to instances where the defendant is charged with an offense “over which the superior court has original jurisdiction ․”  (Emphasis added.)   The magistrate's jurisdiction is special and limited, and in fact cannot even be exercised by the superior court itself, qua superior court, but only by a magistrate.  (See again, In re Geer, supra, 108 Cal.App.3d 1002, at p. 1005, 166 Cal.Rptr. 912.)   Yet, it does no violence to these facts to recognize that the court whose jurisdiction is exercised by the magistrate is the superior court's.

 Of course, it follows that since it was the basic jurisdiction of the same court which was exercised simultaneously by the magistrate, in case 2, and the superior court, in case 1, neither tribunal was acting in excess of, or without jurisdiction.  (Cf. 1 Witkin, Cal.Procedure, supra, Jurisdiction, § 291, pp. 831–832 [where conflict is within the same court, “the problem is not one of jurisdiction but of pleading and trial practice.”] ) 7

Our conclusion is fortified by analogy to the case of Anderson v. Superior Court (1967) 66 Cal.2d 863, 864–867, 59 Cal.Rptr. 426, 428 P.2d 290.   There the superior court had overturned an indictment, ordering (cf. §§ 997, 998) the People to file the same charges by way of a complaint before a magistrate.   The People did so but at the same time exercised their statutory right (§ 1238) and appealed the order.   The Supreme Court frankly acknowledged that this procedure resulted (unlike the present case) in there being two technically exclusive jurisdictions functioning concurrently in the case.   Nevertheless, the court held that both proceedings could continue for a time, without jurisdictional impediment.   Our holding imposes considerably less stress on general principles of fundamental jurisdiction than did the Anderson holding.

Finally, we note that the practice followed in this case would appear to be the only reasonable one available, in light of the powers of magistrates and superior court judges to strike from a complaint or information only those special allegations which do not of themselves charge a public offense.  (Cf. Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 952–955, 153 Cal.Rptr. 720.)   As we read the Code, it would seem to be otherwise impossible for the People to pursue a subsequent complaint or information that charged no substantive offense but only special circumstance allegations under section 190.2.  (Cf. §§ 859, 872, 738.)   Yet the Code plainly gives them the power to resubmit the stricken issues in some fashion.  (§§ 998, 1388.)

In sum, we hold that in processing the case-2 complaint and holding appellant to answer upon its charges, the magistrate at all times acted within his valid jurisdiction.   Accordingly, the superior court properly denied the section 995 motion, and the trial, conviction, and judgment in case 2 were all effectual.

(ii) Postponement of Preliminary Hearing

Appellant argues that the magistrate's commitment order in case 2 was invalid, because the magistrate had previously violated appellant's rights under section 861 8 when he recessed and continued the preliminary hearing, over objection, for a period of four calendar days.   Respondent argues that the magistrate complied with the good cause/affidavit procedure of section 861 and that any error was not prejudicial.

 We are not persuaded by respondent's first point but the second is well taken.   The Supreme Court has recently declared that on appeal, where “irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense” are raised, reversal is required “only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error ․”  (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941;  see also Landrum v. Superior Court (1981) 30 Cal.3d 1, 6 fn. 5, 177 Cal.Rptr. 325, 634 P.2d 352.)   Appellant has made no effort to show actual prejudice, or that the trial was actually unfair;  he merely identifies the error.   There is no hint in the record of prejudice or unfairness even remotely connected with the section 861 error.   Manifestly, the error was not prejudicial.

(iii) Harassment

 Appellant refers to a number of rights, with the vague contention that “the procedures utilized in this case ․ denied [appellant] his constitutional and statutory rights to be free from harassment.”   With a single exception, appellant does not point to any instance or event that constituted a violation of his rights.   We conclude that had there been such instances, appellant would surely identify them.   Accordingly, we find this contention wholly meritless, although we do address each of the specific rights cited by appellant.

(a) Double Jeopardy

 Appellant refers to the constitutional right to be free from multiple prosecutions.   But the double jeopardy doctrine “is properly invoked only where there was a prior criminal proceeding which reached the jeopardy stage” (1 Witkin, Cal.Crimes, § 185, p. 178), i.e., which reached the stage of trial commencement or swearing of the jury (id., §§ 189–190, pp. 182–183).   Here only one trial was ever commenced and appellant's claim is inapposite.

(b) Speedy Trial

Again, appellant makes general reference to the right, without explaining with any particularity how his right was violated.   Presumably, he complains about the passage of some 15 months between the time the first information was filed and the time of trial.

 Generally speaking, a defendant is entitled to be tried within 60 days after the information is filed, unless he requests or consents to a delay or good cause is shown.  (§ 1382, subd. 2;  see generally Witkin, Cal.Crim.Procedure, supra, § 306–323, pp. 299–317.)   The 60-day period also runs after writ proceedings in the court of appeal.  (Id., 1978 Supp., § 310, at p. 413.)

 In this case, the larger share of the 15 months was consumed by appellant's own reasoned and reasonable decision seemingly to contest every conceivable pretrial issue before this court.   These proceedings led by natural course to the issuance of stays by Division 3—at the conclusion of each of which a new 60-day period commenced.   Also, in one of the later pretrial hearings, appellant conceded specifically that each delay up to that point had been predicated on his express waiver of the speedy trial right.

(c) Election Doctrine

 Outside the scope of constitutional and statutory rights, appellant makes reference to Anderson v. Superior Court, supra, 66 Cal.2d 863, 867, 59 Cal.Rptr. 426, 428 P.2d 290.   That case held that the People may appeal a section 995 dismissal at the same time as they file and pursue a new complaint on the same facts.   The court added, however, that so as “to foreclose the possibility of harassment of the defendant,” the People must in such a case elect which pleading they will pursue before the defendant is “called upon to defend an appeal and at the same time a trial ․”  (Id., at p. 867, 59 Cal.Rptr. 426, 428 P.2d 290, emphasis added.)   Here, of course, it was always understood that only a single trial would eventuate.

Moreover, much the same issue led the court in Ervin v. Superior Court (1981) 119 Cal.App.3d 78, 88, 173 Cal.Rptr. 208, to recommend the procedure employed in this case.   In Ervin, the defendant petitioned for a writ after the trial court denied his section 995 motion to dismiss one of several charges and all the alleged firearm and bodily injury enhancements.   Addressing the People's concerns about getting a crime charge separated from its appurtenant enhancement allegations because of a partial dismissal on a section 995 ruling, the court stated:  “[W]e see no bar to refiling the enhancement with the underlying charge in municipal court and either abandoning the original charge or merging the two informations once the later charge reached superior court.”  (Ibid.)  (Emphasis added.)   Appellant does not explain how the procedure approved in Ervin and utilized in this case worked any injustice or illegality.   No error is found and we approve the Ervin procedure.

(d) Right to Counsel

 Appellant contends that his right to effective assistance of counsel was violated because “counsel were forced to divide their efforts between different courts ․ simultaneously while respondent had no such problem ․”   Respondent points out that the People were represented at all stages by one attorney while appellant at all times had two.

With the exception of one unfounded claim of schedule conflict problems arising from asserted appearances in both cases simultaneously in different courts, appellant has failed to even suggest in what manner counsel were actually rendered ineffective.   In any event, on this point, he retains the right to file a habeas corpus petition and thereby establish a factual record.  (Cf. People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

(e) Bail

 Finally, appellant argues that it violated his constitutional rights for the court to set separate bail on each of the two informations, $125,000 in case 1 and $500,000 in case 2.   The general rules applicable are that:  (1) the trial court has broad discretion in the area of setting bail (see § 1275;  Witkin, Cal.Crim.Procedure, supra, §§ 155–157, pp. 147–150), and (2) in this capital case, the court had discretion to deny bail altogether ([former] § 1270, [current] § 1268a).   Neither prejudice nor abuse of discretion was demonstrated.

(iv) Meaning of Penal Code Section 190.2 Subdivisions (a)(1) and (b)

 Appellant argues that the special circumstances finding must be stricken either because there was no evidence that he personally acted “for financial gain,” or because section 190.2 is vague and ambiguous insofar as it purports to affect, under the “for financial gain” rubric, the hirer in a murder for hire situation.   We hold that the statutory language is clear, unambiguous, and specifically includes within its coverage the hirer.

Viewing the language of subdivisions (a)(1) and (b) (see fn. 3, ante ) in light of a murder for hire, it is of course immediately apparent that the hireling is liable for maximum punishment (i.e., death or life without parole) because subdivision (a)(1) describes his state of mind and his motive exactly.   But subdivision (b) describes the hirer with equal clarity.

Subdivision (b) is particularly applicable under the facts of this case:  every verb in the statute can be said to describe appellant's conduct.   Indeed, subdivision (b) differs from the general aid and abet statute (§ 31, see fn. 11, infra ) chiefly only insofar as it includes a series of terms which focus on one who commands, induces or solicits the crime, as distinguished from one who only assists in its commission and, unlike section 31, is specifically limited to homicides.   Its coverage is not limited to, but expressly and clearly includes, the hirer in a murder for hire.

Appellant proposes hypothetical meanings for the statutory scheme which are favorable to him but all of them share the characteristic of ignoring subdivision (b).   We leave for others to consider the moral question whether a hired killer is necessarily more culpable or reprehensible than the one who coolly and dispassionately hires him.

Appellant also proposes an analogy to People v. Green (1980) 27 Cal.3d 1, 61–62, 164 Cal.Rptr. 1, 609 P.2d 468, and Ario v. Superior Court (1981) 124 Cal.App.3d 285, 288–290, 177 Cal.Rptr. 265, which concern section 190.2 subdivision (a)(17) (fn. 3, ante ), addressing homicides committed “while the defendant was engaged in” one of certain enumerated felonies.  Green and Ario hold that, in order to avoid constitutional problems, it is necessary to avoid finding the special circumstances where the evidence shows that the other felony was only incidental to the homicide, rather than vice versa.   This qualification is required by the inherent flexibility of the term “while.”   Those cases are inapposite here.   Subdivision (a)(1) would seem to permit no such possibility of arbitrary application to a person for whom the statute was not really intended.

(v) Pleading Subdivision (b)

Appellant argues, inconsistently with the immediately preceding argument, that the special circumstance finding must be stricken because the information did not specifically plead section 190.2 subdivision (b), and therefore violated his constitutional right to notice of the potential liability to maximum punishment.   He cites cases reciting the basic principle of entitlement to pleading notice (e.g., People v. Pond (1955) 44 Cal.2d 665, 676, 284 P.2d 793), and a case involving the issue of whether a now-repealed special circumstance was applicable only where the defendant personally caused the death of the victim (People v. Valencia (1980) 112 Cal.App.3d 939, 942–944, 169 Cal.Rptr. 739).

People v. Valencia, supra, 112 Cal.App.3d 939, 169 Cal.Rptr. 739, has no application here.   It holds only that where the prosecutor's theory is that the jury must find personal commission of the murder, a vicarious-liability finding, otherwise permissible under the statute, is not permissible.   In the present case, it was obvious from the start that the People were not going to attempt to prove that appellant pulled the trigger.

 As regards the general doctrine of pleading notice, it is a particularly old and established rule in California that in order to convict a defendant as a principal for behavior amounting to aiding and abetting, the People need not allege aiding and abetting;  an allegation that the defendant committed the crime is sufficient.  (Cf. § 971 [as to “all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, ․ no other facts need be alleged ․ than are required in an accusatory pleading against a principal”];  see also People v. Nolan (1904) 144 Cal. 75, 78–80, 77 P. 774;  People v. Outeveras (1874) 48 Cal. 19, 21–26;  People v. Bohmer (1975) 46 Cal.App.3d 185, 199–200, 120 Cal.Rptr. 136.)

Section 971 is particularly determinative in this setting.  “[B]y the operation of” sections 31 and 190.2 subdivision (b), appellant was a principal, despite the fact that he did not pull the trigger.9

 Apart from these clear principles, it is certain that appellant had actual notice of the People's theory, by way of the totality of the evidence at the preliminary hearing.  (Cf. People v. Donnell (1976) 65 Cal.App.3d 227, 233, 135 Cal.Rptr. 217.)   Thus, any pleading deficiency was harmless.

(vi) Jury Instructions

 Appellant singles out one of the many instructions given in this case,10 and constructs two arguments around it.   Both are unavailing.

First, appellant identifies the error in reading the instruction and argues that it was prejudicial.   But it was entirely clear from the context of the instruction not only that “guilt” was the wrong word but that “motive” was the right one.   We are confident that the jurors immediately recognized this minor misstatement and allowed for it.   In addition, the instructions as a whole left no doubt that “absence of guilt” would require a not guilty verdict.   Under the circumstances there is no reasonable probability that a different result would have been reached in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. McCullough (1979) 100 Cal.App.3d 169, 182–183, 160 Cal.Rptr. 831.)

 Second, appellant argues that No. 2.51 was confusing because, while its essence is that motive need not be proved, in this case the prosecution did have to prove the motive of financial gain, in order to secure the special circumstance finding.   But the court dealt with this inherent problem in a correct manner.   It gave CALJIC No. 2.51, stating that motive “is not an element of any crime,” within a series of instructions on crimes in general and murder in particular.   Later, in a separate set of instructions which the court expressly directed to the special circumstance issue, it instructed that the motive of financial gain had to be proved beyond a reasonable doubt.   In short, the instructions were absolutely correct in this respect and could not reasonably have produced confusion.

(vii) Accomplice

 One Latimer testified that during the course of a conversation, appellant solicited him to murder Darlene and he declined.   Appellant speculated on means and methods of accomplishing the crime.   Latimer made two contributions, stating that to dispose of a body in water, it should be weighted and, in response to a direct question by appellant, speculating that appellant might obtain a weapon at the Fort Ord service battery.   Appellant now contends that Latimer was an accomplice which would necessitate an instruction that his testimony had to be corroborated by some evidence other than the testimony of accomplice Watts.11  The legal argument is correct but appellant completely misconstrues the evidence.

We have reviewed the evidence and we conclude that by no rational means can Latimer be considered an accomplice.   It is unclear whether Latimer was callous or simply did not take appellant seriously but it is undeniable that he neither instigated nor advised the crime and that he was not present or assisting at the time of its commission.  (Cf. People v. Villa (1957) 156 Cal.App.2d 128, 133–134, 318 P.2d 828;  see also People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198;  People v. Jones (1980) 108 Cal.App.3d 9, 15, 166 Cal.Rptr. 131.)   The trial court properly concluded that, as a matter of law, Latimer was not an accomplice and therefore properly refused to submit the issue to the jury.  (Cf. People v. Mayberry (1975) 15 Cal.3d 143, 159, 125 Cal.Rptr. 745, 542 P.2d 1337;  People v. Hoover (1974) 12 Cal.3d 875, 880, 117 Cal.Rptr. 672, 528 P.2d 760;  People v. Cisneros (1973) 34 Cal.App.3d 399, 413, 110 Cal.Rptr. 269.)

(viii) Deletions From Defense Exhibit

 The defense offered as an exhibit the transcript of Mark Watts' guilty plea proceedings, solely to impeach Watts with his prior inconsistent statements.   The court admitted the exhibit in part, deleting much extraneous and potentially prejudicial material.   Appellant now argues that a portion of the deleted material, not a statement by Watts, should have been admitted to show that Watts was preferentially treated by the prosecution, in that the prosecution cooperated in transferring Watts to an out-of-state prison.

We reject appellant's contention.   He failed to raise the theory below.  (Evid.Code, § 354.)   Had he raised it, a ruling excluding this completely marginal evidence would have been appropriate.  (Evid.Code, § 352.)   Also, appellant has not included the exhibit in the record on appeal and has failed to articulate how it evidenced preferential treatment.  (Cf. People v. Green (1979) 95 Cal.App.3d 991, 1001, 157 Cal.Rptr. 520;  People v. Clifton (1969) 270 Cal.App.2d 860, 862, 76 Cal.Rptr. 193.)

(ix) Verdict Form

 Appellant contends that the verdict form was improperly suggestive because it gave the jury options on guilt, degree of murder, premeditation, and each of the two special circumstances yet gave no such option on the “armed with a firearm” allegation.   The verdict form provided omitted the “was not” option from the usual “was/was not” language.   In a proper case, this argument would have merit but this is not such a case.   It is simply inconceivable that the jury could have believed appellant was guilty without also believing that the murder was committed with a firearm.   Any error was entirely harmless.

(x) Dismissing Special Circumstance Finding

 After appellant was sentenced, the Supreme Court decided People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.   In that special circumstances murder case, the trial court had expressed the desire to strike the special circumstance finding, under section 1385 (“in furtherance of justice”) in order to impose a 25-years-to-life sentence.   It concluded, however, that section 190.2 (fn. 3, ante ) overrode section 1385, leaving the court powerless to strike the finding.   On appeal, the Supreme Court concluded that trial judges do have the power to strike special circumstance findings under section 1385.  (Id., at p. 490, 179 Cal.Rptr. 443, 637 P.2d 1029.)

In the instant sentencing proceedings, appellant did advance the argument that the the court should strike the special circumstance finding and impose the lesser penalty.   The People concede that under these circumstances, the case should be remanded for reconsideration of appellant's motion.   We agree.   However, we express no opinion on the merits of the section 1385 motion in this case.

4. Disposition

The judgment of conviction is affirmed.   The cause is remanded solely for reconsideration of the motion to dismiss the special circumstance finding and further sentencing proceedings if and as required after the ruling on the motion.

FOOTNOTES

FOOTNOTE.  

1.   Further statutory references will be to the Penal Code, except as specifically provided otherwise.

2.   “Q:  Mr. Watts, why in God's name did you pull that trigger and shoot that lady?  [¶] A:  I guess mostly it was for the money.”Appellant eventually paid Watts $200 for the killing.

3.   Section 190 provides that three penalties are available for first-degree murder:  death, life imprisonment without possibility of parole, and a term of 25 years to life.   Section 190.2 provides that in order for either of the two more severe penalties to be available, it must be alleged and proved that one or more enumerated “special circumstances” attended to the murder.   Those parts of section 190.2 which are relevant to this opinion are set forth below:  “§ 190.2.  (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:  [¶] (1) The murder was intentional and carried out for financial gain.  ․ [¶] (14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim.  [¶] (15) The defendant intentionally killed the victim while lying in wait․  [¶] (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:  ․ [¶] (ii) Kidnapping in violation of Sections 207 and 209․  [¶] (b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer 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 special circumstances enumerated in paragraphs (1), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18) of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.”

4.   Watts had negotiated a plea, whereby he pleaded guilty to first-degree murder and received a sentence of 25 years to life.

5.   At the same hearing, the People bound themselves not to seek the death penalty.

6.   The classic example would be an auto accident or dissolution involving A and B, which leads to the lawsuits A v. B in county 1, and B v. A in county 2.

7.   The same ultimate result obtains under the alternative view expressed ante, at page 384.   Supposing that the “jurisdiction” of the magistrate is mutually exclusive with that of the superior court, it follows that insofar as the second complaint contained allegations not remaining in the first information, the superior court did not have jurisdiction over those allegations and there was no jurisdictional conflict.

8.   At the time of this preliminary hearing, section 861 read:  “The examination must be completed at one session, unless the magistrate, for good cause shown by affidavit, postpone it.   The postponement cannot be for more than two days at each time, nor more than six days in all, unless by consent or on motion of the defendant.”

9.   We note also that subdivision (b) is entirely analogous to section 31, and customarily section 31 is not pleaded in aid and abet situations.

10.   CALJIC No. 2.51, as given by the court (emphasis added):  “Motive is not an element of any crime charged and need not be shown.   However, you may consider motive or lack of motive as a circumstance in this case.   Presence of motive may tend to establish guilt.   Absence of guilt may tend to establish innocence.   You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.”The court apparently suffered a “slip of the tongue”;  where it said “guilt” the actual text of No. 2.51 reads “motive.”   There was no objection to the error below.

11.   The Penal Code provisions pertinent to this discussion are §§ 1111 and 31:  “§ 1111.   A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense;  and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.   An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”“§ 31.  All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”

BANCROFT, Associate Justice.* FN* Assigned by the Chairperson of the Judical Council.

ELKINGTON, Acting P. J., and NEWSOM, J., concur.