The PEOPLE, Plaintiff and Respondent, v. Manuel Castillo PEREZ, Defendant and Appellant.
STATEMENT OF THE CASE
On June 20, 1980, a jury found appellant Manuel Perez guilty, as charged, of the murder of Jennifer Slagle in the first degree (count I, Penal Code section 187),1 of robbery (counts II and III, section 211), and of assault on Donald T. Slagle with great bodily injury and with a deadly weapon (count IV, section 245(b). The jury further found, as true, the special circumstance allegation.2 With respect to all four counts, the use of a firearm allegation was also found to be true. (§§ 12022.5, 1203.06, subd. a, (1).) Subsequently, the jury, after deliberations during the penalty phase of appellant's trial, returned a penalty verdict fixing the penalty at life in prison without possibility of parole.
On July 29, 1980, the sentencing hearing was conducted. At that time appellant's motion for a new trial was denied. Among the grounds asserted in support of this motion was error in failing to instruct, as requested, that the special circumstance allegation could be found true only if the jury also found that appellant or his accomplice fired the lethal bullet.
Appellant was sentenced to life in prison without possibility of parole on count I. A consecutive sentence of two years for the firearm use enhancement was imposed as to this count. Appellant was also sentenced to consecutive sentences of one year for count II and an upper term of five years on count III. With respect to count IV, appellant was sentenced to the upper term of five years to run concurrent to counts I and II. The sentences as to counts III and IV and the enhancement as to III and IV were stayed pending completion of the sentences on counts I and II at which time the stay is to become permanent.
Appellant herein appeals from the judgment of conviction on all four counts and from the special circumstance and use allegations which were found to be true.
STATEMENT OF FACTS
Stated in a light most favorable to the judgment below (People v. Johnson  26 Cal.3d 557, 162 Cal.Rptr. 431, 606 P.2d 738), the following emerged during the guilt phase of appellant's trial:
At approximately 7 p. m., on November 17, 1979, Mr. Slagle, an off-duty reserve deputy sheriff, observed appellant and an accomplice enter a Safeway store just ahead of Slagle and his three-year old daughter, Jennifer. Slagle observed one of the men pull a ski mask over his face and pull out what appeared to be a four-inch revolver. The other man (later positively identified as appellant by Slagle and other eyewitnesses) was unmasked but was also observed bearing a firearm. As soon as Slagle observed appellant and the masked man draw their guns, he backed out of the entry way of the store and took himself and his daughter to the rear of a car parked adjacent to the store.
Once inside the store, appellant and his accomplice went to separate checkstands where the grocery checkers, Mrs. Canfield and Mrs. Slater, were ordered, at gunpoint to place the money from the registers in bags from the store. Once they seized the money, appellant and his accomplice met at one of the checkstands and ran out of the store together.
Appellant was the first one out of the store and he was seen running diagonally out into the parking lane in a southeasterly direction. Slagle was waiting for appellant and his accomplice. His daughter was crouched down immediately to Slagle's left, by the rear right wheel of the car.
As soon as Slagle saw that appellant was in an area clear of bystanders, he called out to appellant. He identified himself as a police officer and ordered appellant and his accomplice to freeze. Appellant, however, drew his weapon and pointed it at Slagle. Slagle responded by shooting at appellant twice. Appellant continued to move away and fired back at Slagle several times. Appellant was about 15 to 20 feet from Slagle at this point. Slagle believed that he hit appellant because appellant lurched and stumbled as if injured. Another eyewitness saw appellant fall to the ground and get up holding his stomach or left side. Slagle fired two more rounds at appellant and noticed that his daughter was standing up and facing him, to the left of his field of fire, about five to six feet away. The next thing Slagle recalled was taking cover from the incoming rounds of fire directed at him. It was after this onslaught of fire that Slagle discovered his daughter had been hit and was lying face down on the ground with her head towards him.
Slagle then pursued appellant and fired his remaining two rounds at appellant. Appellant made his way to a waiting car and climbed into the passenger side of the car. The car then proceeded away from the area.
Jennifer was rushed to the hospital where she died of a gunshot wound to the head some 45 minutes later. None of the eyewitnesses to the robbery or to the ensuing gun battle saw who shot Jennifer. It is also uncertain what type of weapon appellant used. Slagle said appellant wielded a sawed-off shotgun. Another eyewitness told police that appellant had a rifle or a long-barreled gun. Other eyewitnesses described appellant's firearm as a handgun. Appellant's accomplice, the masked robber, was never observed firing his revolver.
The medical examiner who performed the autopsy on Jennifer testified that the lethal bullet entered the left superior aspect of Jennifer's head and exited the head posteriorly. Jennifer also had a through-and-through bullet wound in her left arm. It is uncertain whether a single bullet or whether two bullets caused the head and arm wounds. The examiner did not find any sooting indicative of a firing range of less than 18 inches.
A criminalist testified that he had been unable to find any gun powder residue on Jennifer's jacket which would generally be present if a handgun were used from a maximum range of three to four feet away or, if a rifle were used, from four to five feet away. The facts show that Jennifer could have been as much as four to six feet away from her father when she was hit. During the shootout, appellant and Slagle were approximately 17 to 22 feet away from each other. However, fragments taken from Jennifer's head wounds appeared most similar to the bullets used by Slagle. A bullet taken from the floor of the store did not match the bullets used by Slagle.
Damaging testimony against appellant was given by Mr. Lowden, a jail house informant who was in jail (for a probation violation) with appellant, shortly after appellant's arrest.3 While the two men were together on the bus and in the courthouse, appellant told him that he had been arrested for robbery and murder. During this conversation, appellant told Lowden that he and his friend planned the robbery of the Safeway store for about a week and that he was shot by a police officer while leaving the store with the money.
Appellant told Lowden that he exchanged fire with the police officer after the officer began firing in response to the shots initially fired by appellant's friend. When the police officer changed positions, appellant was unable to shoot at him so he shot the little girl who was out in the open. Appellant shot her to divert the attention of the police officer so that appellant could get away, but the officer chased him a short distance before the officer turned back.
Appellant then told Lowden how he made his way to the get-away car where his friend was waiting. Because he was bleeding profusely, appellant had his friend take him to the County General Hospital where appellant was treated. After he was treated, appellant took a rack of medicine and left the hospital. Appellant had a through-and-through wound to the right side of his abdomen. Appellant, however, was forced to return to the hospital later that evening because of profuse bleeding. Appellant then told Lowden that his sister later checked him out of the hospital against medical advice. While they were in the hospital parking lot attempting to get appellant into the car, they were approached by police officers who asked appellant's sister if appellant's name was Manuel Perez. She replied “No,” and the police officers went inside the hospital.
According to the testimony of Officer Kirby, he interviewed appellant on the evening of the robbery-murder. Although Officer Kirby had received no reports of shootings in his patrol area that evening, he testified that appellant claimed that he was shot while walking to his sister's house (in the officer's patrol area). Appellant claimed he heard, but did not see, a car speed away. Nor, claimed appellant, did he see the person who shot him.
At trial, this story appellant related to Officer Kirby served as appellant's alibi defense.
Appellant contends that the judgment of conviction must be reversed on grounds that: (1) Inflammatory photographs were erroneously admitted; (2) instructions on flight, felony murder, premeditation, and special circumstance were erroneously given; (3) the special circumstances described under section 190.2, subdivision (a)(17) require an intent to kill before the special circumstance allegations may be found to be true; (4) the jury must find that an aider and abettor have an intent to kill before a section 190.2, subdivision (a)(17)(i) robbery special circumstance allegation may be found to be true as to the aider and abettor; (5) the jury must find that a principal fired the shot that killed the victim before a robbery special circumstance may be found to be true under section 190.2, subdivision (a)(17), where the prosecution proceeds under alternate theories of felony murder, premeditated murder and implied malice; and, (6) the penalty of life without possibility of parole within the meaning of section 190.2 is unconstitutional on various asserted grounds.
We turn first to the errors appellant asserts were committed during the guilt phase of his trial.
A. The Photographs of the Victim in Life.
Appellant contends that the photograph of Jennifer Slagle, taken on her third birthday, was erroneously admitted over his objections at trial. Specifically, he now asserts that this photograph was irrelevant and unduly prejudicial because it served merely to “arouse the passions of the jury” against him.
While appellant objected to the admissibility of this photograph, no specific grounds were stated at trial. Under Evidence Code section 353, it is well settled that an appellate court will not set aside a verdict “by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; ․” Accordingly, we do not now pass upon the propriety of the discretion exercised by the trial court in admitting this photo into evidence. (People v. Welch  8 Cal.3d 106, 114–115, 104 Cal.Rptr. 217, 501 P.2d 225.)
B. The Autopsy Photograph Showing the Victim's Headwounds.
Appellant also contends that the autopsy photograph of the victim's posterior headwound was erroneously admitted over his objection that the photograph was more prejudicial than it was probative. We disagree.
“The trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. [Citations.]” (People v. Wein  69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814.) Appellant was charged with the murder of Jennifer Slagle with malice aforethought; the jury was instructed on the alternative theories of premeditated murder, felony murder and implied malice. The photograph in question bore on the issue of appellant's requisite state of mind towards the victim, i.e., did he possess malice? The photograph also served to clarify and illustrate expert testimony and served as well to aid the jury in determining who fired the fatal shot.4
Although this photograph is unpleasant to view, we conclude that there was no error in admitting it.
II. Jury Instructions
A. Was There Sufficient Evidence of Premeditation and Deliberation to Support a Jury Instruction on Premeditated First-Degree Murder? 5
We answer this question in the affirmative.
“ ‘It is settled that in criminal cases ․ the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]’ ․” (People v. Sedeno  10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Saddler  24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130.) The test on appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Johnson  26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) “It is our function to determine whether there is substantial evidence, including inferences reasonably deduced from facts and evidence, to support the judgment ․” (People v. Mulqueen  9 Cal.App.3d 532, 540, 88 Cal.Rptr. 235.) The facts reviewed in a light most favorable to the prosecution clearly indicate that there is substantial evidence from which the jury could find that appellant murdered Jennifer Slagle in the perpetration of the robbery and in the furtherance thereof. There is also substantial evidence from which the jury could conclude that appellant deliberately and with premeditation shot and killed the child.
The court granted the prosecution's request for CALJIC 8.20 “because of the testimony of Mr. Lowden.” Mr. Lowden, a friend of appellant, testified that on the jail bus on the way to appellant's arraignment on December 31, 1979, appellant told him that “he was trying to shoot [the girl],” that “he [did shoot] the girl,” and that “he knew he hit [her].” According to Mr. Lowden, appellant told him that he shot Jennifer Slagle to divert the police officer's attention “so he could get away.” This testimony provided a sufficient basis from which the jury could find that appellant deliberately and with premeditation shot Jennifer Slagle. It was manifestly proper for the court to give the jury an instruction on premeditation and deliberation.6
Despite this evidence, appellant contends that because he told Lowden that he didn't want to hurt anyone, Lowden's testimony did not establish that he ever intended to kill anyone. Appellant asserts that the evidence only established that “the deliberate shooting [was] accompanied by a premeditated intent to wound.” This position is meritless and belies the circumstances adduced by the evidence. Appellant's statement to Lowden that he didn't intend to hurt anyone was, at best, a self-serving statement in light of his admission to Mr. Lowden that he shot the girl to prevent apprehension.
B. Did the Trial Court Err in Instructing the Jury on Felony Murder? 7
Appellant contends that the jury should not have been instructed on first degree felony murder because the felony-murder doctrine “has no continuing validity in California.” Appellant further contends that the felony-murder rule (§ 189) is violative of the due process clause of the California and United States Constitutions (U.S.Const., 14th Amend.; Cal.Const., art. I, § 15). These contentions are without merit.8
Appellant's contention that the felony-murder rule has no continuing validity in California, is in essence a request of this court to take a course which deviates from precedent established by our State Supreme Court and from the law. Appellant unpersuasively argues that the felony-murder rule in California is derived from common law alone and thus requests this court to follow the Aaron decision. (People v. Aaron  409 Mich. 672, 299 N.W.2d 304.)
In Aaron, the Michigan Supreme Court held that the issue of malice must be submitted to the jury. The court arrived at this decision by reasoning that the felony-murder doctrine had not been adopted in Michigan either by statute or judicial decisions.
We cannot follow the Aaron decision as appellant suggests because, in California, the felony-murder rule is statutory. (§ 189; People v. Burton  6 Cal.3d 375, 387–388, 99 Cal.Rptr. 1, 491 P.2d 793.) The felony-murder rule in this state represents the considered legislative judgment that the purpose of felony murder responsibility is to deter felons from killing. This purpose outweighs the usual policy of examining the individual state of mind of each person causing an unlawful killing. (In re Jesse L.  131 Cal.App.3d 202, 218, 182 Cal.Rptr. 396.)
Moreover, appellant's request, in effect, that we deviate from precedent is directed to the wrong forum. We are bound by the decisions of our Supreme Court (People v. Triggs  8 Cal.3d 884, 890–891, 106 Cal.Rptr. 408, 506 P.2d 232) which have repeatedly upheld the validity of the felony-murder rule. (See People v. Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Antick  15 Cal.3d 79, 87, 123 Cal.Rptr. 475, 539 P.2d 43.)
Nor are we compelled to find here, as appellant urges, that the felony-murder rule is unconstitutional. (§ 189.) Appellant's argument that the conclusive presumption of malice of the felony-murder rule is violative of substantive and procedural due process reflects his misconception of the nature of the rule. Section 189 does not create an evidentiary presumption of malice. The felony-murder rule simply “dispenses with premeditation and malice as elements of first degree murder.” (See People v. Johnson  38 Cal.App.3d 1, 8, 112 Cal.Rptr. 834; People v. Avalos  98 Cal.App.3d 701, 719, 159 Cal.Rptr. 736.)
C. Was There Sufficient Evidence of Flight to Support an Instruction that Flight Could Be Considered by the Jury on the Question of Appellant's Guilt? 9
We conclude that there was sufficient evidence to support the instruction on flight which was given.
Under People v. Anjell (1979) 100 Cal.App.3d 189, 199–202, 160 Cal.Rptr. 699 and People v. Salazar (1980) 108 Cal.App.3d 992, 997–998, 167 Cal.Rptr. 38, appellant asserts the instruction on flight was erroneously given because his identity as one of the perpetrators of the robbery was at issue both by virtue of his denial as one of the perpetrators and his alibi defense. Respondent, however, argues that while appellant's identity as one of the perpetrators was at issue, his identity was not at issue “with regard to his actions while in and out of the County General Hospital.” In so arguing, respondent apparently concedes under Anjell that absent appellant's actions while in and out of the hospital, the CALJIC instruction on flight would have constituted error. We, however, do not accept that concession.
The court in Anjell held that an instruction on flight was erroneously given where the defendant's identity as one of the robbers was contested and where there was no evidence of flight. The evidence relied on by the prosecution in that case as instances of conduct demonstrating flight were: (1) the robbers fled the scene of the crimes, (2) appellant had made statements about his going to Mexico, and (3) statements by his wife that appellant was “leaving to get better employment.” (People v. Anjell, supra, 100 Cal.App.3d at p. 199, 160 Cal.Rptr. 699.) Clearly, under Anjell, an instruction on flight is erroneously given where the evidence merely shows that the perpetrators of the crime left the scene and/or where the defendant verbalizes a desire to leave the jurisdiction. In Salazar, an instruction on flight was erroneously given where the defendant's identity was at issue and the evidence merely showed that the kidnapper disappeared.
However, an instruction on flight may be appropriate where the evidence establishes that the perpetrator of the crime charged is observed running from the scene of the crime even where the defendant's identity is contested. (Cf. People v. Caudillo  101 Cal.App.3d 122, 125, 161 Cal.Rptr. 293 and People v. Vasquez  94 Cal.App.3d 42, 45, 156 Cal.Rptr. 235.
Under the facts in the instant case, the challenged instruction on flight was clearly warranted. Eye witnesses testified that the perpetrators ran out of the store and were running when Mr. Slagle identified himself as a police officer and commanded the robbers to “freeze” or “stop”. The robbers, however, did not stop on command and a gun battle then ensued between one of the robbers, later identified as appellant, and Mr. Slagle. The robber who exchanged gun fire with Mr. Slagle was wounded during the exchange and, after Jennifer Slagle was shot through the head, the robber managed to leave the scene and make his way to a car which was parked nearby. When the wounded robber got in on the passenger side of the car, the car proceeded away from the scene.
Thus, the facts of the case at bar are readily distinguishable from those found in Anjell and Salazar. Here, after a police officer commanded them to halt, the perpetrators fought and fled. It was manifestly proper for the trial court to give the jury an instruction on flight even though the identity of the robbers was contested.
III. Special Circumstances
A. Must the Prosecution Establish Appellant's Guilt of an Intentional Killing Before a Special Circumstance Allegation of Murder Committed During the Commission or Attempted Commission of the Enumerated Felonies under Section 190.2, Subdivision (a)(17) May be Found True? 10
We answer this question in the negative.11
Where the language of the statute is clear in itself, the court should refrain from artificially adding to or altering it in order to accommodate a purpose not apparent on the statutes' face. (See generally Code Civ.Proc., § 1858.) “ ‘Certainly the court is not at liberty to seek hidden meanings not suggested by the statute or by the available extrinsic aids. [Citation.]’ ” (Hogya v. Superior Court  75 Cal.App.3d 122, 133, 142 Cal.Rptr. 325.) The rules of statutory construction as applied to subdivision (17)(i) do not require a finding of intent to kill before the special circumstance described by this subdivision may be found true.
There is no language in section 190.2, subdivision (a)(17)(i) that requires the murder be intentional. In other of the enumerated special circumstances under section 190.2, subdivision (a) the term “intentional” is specifically utilized. (See § 190.2, subds. (a)(1), (7–10), (13,) (15,) (16,) (18,) (19,) and subd. (b).) This is a clear suggestion of a legislative attitude that intent to kill is not required under subdivision (a)(17).
The legislative history of section 190.2, subdivision (a)(17)(i) further supports our conclusion that intent to kill is not required. Section 190.2 was enacted by the public pursuant to initiative measure Proposition 7, section 6, November 7, 1978. Previously, under former section 190.2, subdivision (3) (Stats.1977, ch. 316, § 9, p. 1257, repealed by § 5 of Prop. 7), a killing during the commission or attempted commission of a robbery must have been “willful, deliberate and premeditated” in order to constitute a special circumstance justifying the death penalty or life in prison without possibility of parole. These requirements were specifically deleted by Proposition 7. We must presume, then, that the deletion of the requirement of intentional killing reflects a will to change the law. (People v. Schmel  54 Cal.App.3d 46, 51, 126 Cal.Rptr. 317.) Indeed, the Attorney General's summary of the initiative further supports our conclusion that specific intent to kill is no longer necessary to establish the special circumstances of felony murder (robbery). (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization  22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.) This summary reads in pertinent part: “Changes and expands categories of first degree murder for which penalties of death or confinement without possibility of parole may be imposed.” (Emphasis added; Voters Pamphlet, Nov. 7, 1978, p. 32.) The proposition's legislative analysis suggests a change in the special circumstance requirements in that it states “[T]he proposition would also expand and modify the list of special circumstances which require either the death penalty or life without the possibility of parole․” (Emphasis added; Voters Pamphlet, Nov. 7, 1978, p. 32.)
However, appellant contends that even if intent to kill is not required by section 190.2, subdivision (a)(17), special circumstances based on the enumerated felonies would be established automatically by a finding of guilt on the theory of felony-murder. Appellant then suggests that section 190.4, subdivision (a), would thus become an exercise in futility. Appellant argues that this is an inconsistency which can be eliminated only by an interpretation that first degree murder (intentional killing) must be established independently of the underlying felony.
Section 190.4, subdivision (a), requires the trier of fact to make a special finding on the truth of each of the alleged special circumstances where the trier of fact has found the defendant guilty of first degree murder.12 Section 190.1, subdivision (a), states, inter alia,
“A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows: [¶] (a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.”
The language of these sections fails to support appellant's arguments. Here, the jury found appellant guilty of murder and found it to be murder of the first degree under section 189. Accordingly, the existence of the special circumstance allegation must also have been found by the jury “at the same time” it determined appellant's guilt of first degree murder in that the murder was committed during the commission of the robbery. In so doing, the jury followed the mandate of section 190.1, subdivision (a), which requires the jury to make the finding of first degree murder and if first degree murder is established, the jury must, at the same time, determine whether the special circumstance exists.
By virtue of its wording, section 190.1 encompasses those situations where deliberations beyond that of establishing first degree murder must be conducted to establish the special circumstance allegation, as well as those situations where the findings of first degree murder also establish the existence of the special circumstance such as under section 190.2, subdivision (a)(17)(i). The former situation would exist, for example, under the special circumstance described in section 190.2, subdivision (a)(1). In that situation, the existence of the special circumstance would not be established “at the same time” that a finding of first degree murder is made. Rather, the determination of first degree murder would be made and then the truth of the special circumstance would be considered.
C. Even if a Finding of Intent to Kill is Not Required Before a Special Circumstance Allegation May Be Found True, Does the Law Require that an Aider and Abettor Must Be Found to Have Harbored an Intent to Kill Before the Robbery Special Circumstance May Be Found True?
We answer this question in the negative.
Appellant contends that even if a finding of intent to kill is not required before a special circumstance allegation may be found true, the law requires that an aider or abettor must be found to have harbored an intent to kill before the robbery special circumstance may be found true. Appellant seeks to support this argument by referring to the language of section 190.2, subdivision (b), which imposes the death penalty or life in prison without possibility of parole upon “[e]very person whether or not the actual killer found guilty of intentionally aiding, abetting ․ any actor in the commission of murder in the first degree ․”
Appellant first urges that “an accomplice”, as used in subdivision (a)(17), merely refers to persons who are not perpetrators of the underlying felony but who are the actual killers. Appellant then argues that the special circumstance liability of aiders and abettors to the killing is, therefore, governed solely by section 190.2, subdivision (b), which requires that the aider and abettor have intentionally aided and abetted in the killing before the special circumstance allegation may be found true.
We do not construe section 190.2, subdivision (b) as requiring proof that a defendant harbored an intent to kill while aiding and abetting another in the commission of murder in the first degree. To do so would be in abrogation of the rules of statutory construction. “ ‘We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them.” [Citations.] “If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.” [Citation]; ․ “When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.” [Citations.] Moreover, the various parts of the statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]’ [Citation.]” (People v. Alderson  86 Cal.App.3d 274, 280, 150 Cal.Rptr. 189.)
With the foregoing principles in mind we conclude that where a defendant is culpable for a murder under the first degree felony-murder rule, the language of section 190.2, subdivision (b) requires only that the defendant intentionally aided and abetted the underlying felony and not that he shared an intent to kill with the perpetrator of the murder.
Section 190.2, subdivision (b), expressly provides that a defendant may be sentenced to death or life in prison without possibility of parole if he intentionally aids and abets in the commission of murder of the first degree “in any case in which one or more of the special circumstances enumerated in paragraph ․ (17) ․ of subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.” As earlier discussed, there is no requirement under subdivision (a)(17) that a killing be intentional if it occurs “while the defendant was engaged in or was an accomplice in the commission of [a] felony.”
Contrary to appellant's assertion, a fair reading of subdivision (a)(17) provides that an “accomplice” is culpable for a murder committed in the course of committing any of the enumerated felonies. Thus, once the special circumstance that a “murder was committed while the defendant ․ was an accomplice in the commission of [the robbery]” is found true, section 190.2, subdivision (b), when read in context of the entire statute, requires that the defendant be sentenced to death or life in prison without possibility of parole if he intentionally aided and abetted the underlying felony. We conclude, then, that error was not committed because an instruction that an aider and abettor harbor a specific intent to kill was not required.
D. Where the Jury Was Instructed on Alternative Theories of Felony Murder, Premeditated Murder, and Implied Malice, Should the Jury Have Been Instructed As Well That They Could Not Find the Robbery Special Circumstance Allegation to be True Unless It Also Found That Either Appellant or His Accomplice Fired the Lethal Bullet?
This question is answered in the affirmative.
In the case at bar, it is possible that the jury verdict of first degree murder was based upon the implied malice (or vicarious liability) theory of first degree murder. Appellant requested an instruction that the jury could not find as true the robbery special circumstance allegation unless it also concluded that either appellant or his accomplice fired the lethal bullet. This request was erroneously refused.13
While we hold that a specific intent to kill is not required in order to find as true a special circumstance allegation under subdivision (a)(17), we cannot extend the scope of application of section 190.2, subdivision (a)(17) to situations where neither the defendant nor his accomplice fired the lethal bullet.
A defendant may be found guilty of first degree murder where someone other than himself or his accomplice kills another under an implied malice theory of culpability. (Pizano v. Superior Court  21 Cal.3d 128, 136–140, 145 Cal.Rptr. 524, 577 P.2d 659.) Under this theory a requisite element of murder, malice aforethought, is implied under section 188 when the conduct of the defendant or his accomplice sets in motion a chain of events which foreseeably provoke or induce the killing of the victim by another. (Pizano v. Superior Court, supra; People v. Gilbert  63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.)
The facts in this case were sufficient to support an implied malice theory of culpability, as well as a felony-murder theory of culpability. The felony-murder doctrine, however, may not be invoked when the killing is not committed by the defendant or his accomplice. (People v. Washington  62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Antick, supra, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43; Taylor v. Superior Court  3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131; Pizano v. Superior Court, supra, 21 Cal.3d 128, 145 Cal.Rptr. 524, 577 P.2d 659.) The language of subdivision (a)(17) relates to felony murder or to murder committed during the course or attempted course of certain enumerated felonies. It follows, then, that the special circumstances described by subdivision (a)(17) may not be found true unless the jury also finds that the defendant or his accomplice was the actual killer. Thus, error was committed insofar as the jury was not instructed that the special circumstance allegation could not be found true in this case unless it also found that either appellant or his accomplice fired the lethal shot. Appellant requested an instruction to this effect, but the court refused to give it. Since the jury could have found appellant guilty of first degree murder under the implied malice theory of first degree murder, the cause must be remanded to the trial court for retrial on the special circumstance allegation in count I.
Because we reverse for the reasons given, we need not, and do not, reach the other points urged on us by appellant.
The judgment is affirmed insofar as it finds appellant guilty of: (1) murder in the first degree (count I); (2) robbery (counts II and III); and (3) assault with great bodily injury and with a deadly weapon (count IV). The judgment is also affirmed to the extent it finds true the use allegations in counts I, II, III and IV. It is reversed for retrial on the special circumstance allegation in count I.
1. All references are to the Penal Code, unless otherwise noted.
2. “We further find that the special circumstance that the murder of Jennifer Marie Slagle was committed by the defendant Manuel Perez while engaged in the commission of, attempted commission of, and the immediate flight after committing and attempting to commit the crime of Robbery in violation of Section 211 of the Penal Code to be true.”
3. As a child, Lowden knew appellant. In 1978, Lowden ran into appellant again at Griffith Park. The next time they saw each other was in the Sheriff's bus where they sat together while being transported from county jail to the Pasadena Courthouse.
4. The 4″‘ x 4″‘ color photograph depicts the exit wound on the back of the victim's head which was created by the lethal bullet. The wound itself shows an irregularly shaped mass of red and white tissue composed of blood, skull fragments and brain matter.
5. The instruction given was CALJIC 8.20 (1979 rev.):“All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. [¶] The word ‘willful,’ as used in this instruction, means intentional. [¶] The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”
6. Indeed, instructions on premeditation and deliberation have been upheld “on the basis of circumstantial evidence where a felon faced with apprehension killed a police officer.” (People v. Salas  7 Cal.3d 812, 824, 103 Cal.Rptr. 431, 500 P.2d 7; see also People v. Robillard  55 Cal.2d 88, 93–96, 10 Cal.Rptr. 167, 358 P.2d 295.) Here, of course we have more than the mere act of appellant shooting at the victim's father; we have Mr. Lowden's testimony that appellant shot the victim to prevent apprehension by creating a diversion.
7. The instruction given was based on CALJIC 8.21 and read:“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime is murder of the first degree only if you find that the defendant or his accomplice fired the lethal bullet that caused the death of JENNIFER MARIE SLAGLE. [¶] You must agree unanimously and be satisfied beyond a reasonable doubt that either the defendant or his accomplice fired the lethal bullet that caused the death of JENNIFER MARIE SLAGLE. [¶] The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.”
8. The jury was instructed on the theories of deliberate and premeditated murder, first degree felony murder and implied malice. The jury returned a verdict of first degree murder without specifying the theory of first degree murder it accepted as the basis of its verdict. Accordingly, for purposes of this issue, we address appellant's contentions as if the cause had been decided under the felony-murder rule. (See People v. Green  27 Cal.3d 1, 69–71, 164 Cal.Rptr. 1, 609 P.2d 468.)
9. The instruction given on flight was CALJIC 2.52 (1979 rev.).“The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
10. Section 190.2, subdivision (a)(17)(i) provides:“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true: [¶] (17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies: [¶] (i) Robbery in violation of Section 211.”
11. This issue is currently pending before the California Supreme Court in People v. Kelly (1981) 117 Cal.App.3d 944, modified 118 Cal.App.3d 701a, 173 Cal.Rptr. 106, hg. granted Aug. 6, 1981, and in People v. Peralta, Crim. 22701 (2 Crim. 38859).
12. Section 190.4, subdivision (a) states, in pertinent part:“(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial ․”
13. The requested instruction reads:“Defendant has been charged with committing murder in [sic] while engaged in the commission of a robbery in violation of section 211 of the Penal Code. Unless you find that one of the principals committing the robbery charged fired the shot which killed Jennifer Slagle, you must find that the special circumstance charged—that the murder was committed in the commission of a robbery—not to be true.”
AMERIAN, Associate Justice.
KINGSLEY, Acting P. J., and McCLOSKY, J., concur.