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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. David Phillip SHEPPARD, Defendant and Appellant.

Cr. 12713.

Decided: June 14, 1983

Allen R. Crown, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., A. Wells Petersen, Jay M. Bloom and J. Richard Haden, Deputy Attys. Gen., for plaintiff and respondent.


Defendant was found guilty of murder with special circumstances, two counts of kidnapping, attempted murder in the first degree and being armed with and using a firearm.   He was sentenced to state prison for life without possibility of parole.   Defendant appeals, contending a motion to disqualify the trial judge under Code of Civil Procedure section 170.6 was improperly denied;  the evidence does not support the special circumstance finding based on murder during the commission of a kidnapping;  the evidence does not support the special circumstance finding based on murder to prevent a witness' testimony.


The victims Stamps and Malone committed a burglary and attempted a kidnapping in North Carolina under the direction of defendant Sheppard and others.   Malone and Stamps told the North Carolina authorities in an interview conducted at the Riverside Police Department about the crimes they had committed in North Carolina.

Malone and Stamps implicated Sheppard and others in the crime.   Malone agreed to return to North Carolina to testify.   Stamps went back to North Carolina with the police and gave information implicating Sheppard, Malone and others.   The North Carolina police presented the information supplied by Stamps to the grand jury.   As a result of this testimony, the North Carolina grand jury indicted Sheppard, Malone, Stamps and others.   Stamps agreed to return if the case went to trial.   Stamps would have been a necessary witness to the crimes in North Carolina.   An article concerning the indictment of Sheppard, Malone, Stamps and others was publicized in the local press.   Stamps and his family were residents of the area in which the newspaper was distributed.

Sheppard went to Stamps' house and learned Stamps was in the custody of the Riverside police.   Stamps' mother said Stamps was at the police station and the North Carolina authorities wanted her to get her son to cooperate with them.   After receiving this information, Sheppard drove away.   Approximately a month later, Sheppard came to San Bernardino and registered in a motel under a phony name.   The day before the killing Sheppard and two others, Loible and Kidder, drove by Malone's house.   Malone did not appear to be at home.

The day of the killing two persons, Loible and Courtney, drove to Malone's house.   Stamps was at Malone's house.   They told Stamps they would like to trade a motorcycle for the car motor Stamps had for sale and asked if Stamps wanted to look at the motorcycle.   Stamps agreed.   Stamps and Malone joined Courtney and Loible and the four drove toward Rialto.   As the group drove toward Rialto, Courtney and Loible used false names in conversation with Stamps and Malone.

Courtney and Loible indicated they had some marijuana growing they needed to check and turned onto a dirt road.   As they turned, they changed the names they were using and began laughing.   Malone noticed a shotgun barrel sticking out of the bush about 50 yards down the road.   Malone advised Stamps of his discovery and reached for the door.   Loible and Courtney forced them at gunpoint to remain in the car.   The car stopped at the bush and Sheppard appeared holding a shotgun.   Sheppard got into the vehicle, ordered Stamps and Malone to shut up and told the driver to continue down the road.   Malone and Stamps were yelling and screaming during this period of time.   Sheppard stopped the vehicle further down the road and ordered Malone to get out of the car and lie down.   Sheppard was pointing the shotgun at Malone and Stamps.   Malone asked for his last cigarette.   Loible said, “You don't need no cigarette, you snitch.”   Malone ran, was shot in the back and arm, fell down and lay still to play dead.

Stamps refused to alight from the car and Sheppard told Loible and Courtney to “drag the son-of-a-bitch out of the car.”   Loible and Courtney dragged Stamps out of the car and Sheppard shot him twice.   Sheppard reloaded and shot Malone in the back for the second time as he stood directly over him.   Malone made it back to the avenue and flagged help.

Kidder had driven Sheppard to the murder scene earlier and dropped Sheppard off just before the car with the victims arrived.   Kidder saw Sheppard get behind the bush with the shotgun and later heard the shots.   After the killing, Sheppard returned to Kidder's truck with the shotgun.   Kidder left the area with Sheppard and observed a body lying beside the road.   Kidder later directed the officers to the location of the shotgun and shells where he had hidden them.

Malone, though seriously injured, recovered.   Stamps died.

The 170.6 Motion

The procedural history leading up to defendant's motion to disqualify Judge Williams under Code of Civil Procedure section 170.6 is interesting to say the least.   On November 9, 1979, Sheppard's case was assigned to Judge Williams for all purposes from the assignment calendar.   Williams had previously heard a motion for continuance on October 26, continuing the case until December 17.   This was a capital case and, as is usual in matters of this nature, a long round of motions commenced.1  Williams heard the following motions:  (1) A motion under Penal Code section 987.9 for investigative fees was referred to another court for hearing;  (2) a motion under 1334.3 for out-of-state witness fees was granted;  (3) a motion for change of venue was denied;  (4) a motion to suppress was granted in part and denied in part;  (5) a motion concerning the shackling of the defendant during trial was granted in part and denied in part;  (6) a motion regarding the unconstitutional confinement of defendant due to jail conditions was denied;  (7) motions for discovery, i.e., list of witnesses, jury lists, and other matters, were either stipulated to or taken off calendar;  (8) a motion under Code of Civil Procedure section 170, subdivision (d)(5), to disqualify Judge Williams for cause was filed on December 17, 1979, and denied on January 11, 1980;  (9) a motion in opposition to death-qualifying a jury was put over to a later date;  (10) a motion to exclude Malone's eyewitness identification of the defendant was denied;  (11) a motion for copies of the transcript proceedings was granted;  (12) motions to appoint expert psychiatric witnesses were granted;  (13) motions to stay proceedings pending ruling by the California Supreme Court on Hovey (Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301) were denied;  (14) a motion that voir dire not commence until Supreme Court rules on Hovey was denied;  (15) a motion that trial be stayed pending ruling on Hovey was denied.

At approximately this point, defendant filed a motion under 170.6 of Code of Civil Procedure to disqualify Judge Williams.   This motion was filed March 19, 1980, and considered by Judge Williams on March 26, 1980.   Judge Williams refused to honor the motion under 170.6 as being untimely.   His reasons stated for the record were:  The matter was assigned to his department from the master calendar for trial and for hearing on all pre-trial motions.   Since the motion to disqualify was not made before the master calendar judge, it was untimely pursuant to the rule in People v. Wilks (1978) 21 Cal.3d 460, 466, 146 Cal.Rptr. 364, 578 P.2d 1369.   Defendant contends the proper time to make the motion was five days before the date of trial, and Wilks does not apply.2  His challenge was filed more than five days before the trial setting date and was thus timely filed.

There is some language in Wilks which tends to support the argument Wilks does not apply.   In Wilks the cause was assigned from the master calendar to a trial court for trial “forthwith.”   The defendant there had to make the motion before the master calendar judge, presumably so another judge could be appointed if necessary with the least waste of time and resources.   Here, no particular trial date was set at the time of the assignment from the master calendar.  Villarruel v. Superior Court (1973) 35 Cal.App.3d 559, 562–564, 110 Cal.Rptr. 861;  and People v. Escobedo (1973) 35 Cal.App.3d 32, 38, 110 Cal.Rptr. 550, lend some support to defendant's theory, though there also seems to be some authority to the contrary.  (People v. Barger (1974) 40 Cal.App.3d 662, 669, 115 Cal.Rptr. 298;  Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 338–340, 106 Cal.Rptr. 247;  People v. Kennedy (1967) 256 Cal.App.2d 755, 763, 64 Cal.Rptr. 345.)   The denial of the motion based on the master calendar rule is tenuous at best.   We are not inclined to decide this issue solely on this ground.

 The court's having heard contested issues of fact provides a more cogent reason for denying the peremptory challenge.   Unquestionably the motions to suppress evidence and to exclude the identification testimony of an eyewitness involved contested issues of fact.   Evidence sought to be suppressed and the eyewitness identification were essential to the prosecution's case and related to the merits.   We agree with and adopt the holding set forth in In re Abdul Y. (1982) 130 Cal.App.3d 847, at page 860, 182 Cal.Rptr. 146.  “We therefore conclude that a pretrial hearing relates to the merits of a criminal action within the meaning of section 170.6 when it involves a determination of the admissibility of evidence tending to establish the guilt or innocence of the accused.”   The court's hearing and determining motions on contested issues of fact relating to the merits of the case precludes the defendant from asserting a challenge under section 170.6.   To hold otherwise would encourage the undesirable habit of “judge shopping.”   The trial court correctly denied defendant's motion to recuse itself.



Defendant argues it was error to allow the trier of fact to find a kidnapping special circumstance.   He claims the murder was not committed during the course of a kidnapping, but the kidnapping was merely “incidental to” the murder.  (People v. Green (1980) 27 Cal.3d 1, 60–62, 164 Cal.Rptr. 1, 609 P.2d 468, and People v. Thompson (1980) 27 Cal.3d 303, 321–322, 165 Cal.Rptr. 289, 611 P.2d 883.)

 Green and Thompson held a robbery which was only “incidental to” a murder could not be used as a special circumstance, since the murder was not committed during the course of a robbery.   Where a defendant, in performing the primary objectives of murdering the victim, happens to engage in ancillary conduct that might technically constitute a robbery, this ancillary conduct is not a rational basis for distinguishing between killers who deserve the death penalty and killers who do not.   Thus a robbery merely “incidental to” the primary objective of murder is not the sort of conduct upon which a special circumstance allegation may be based.

 The imposition of more severe punishment, e.g., the death penalty or life imprisonment without possibility of parole, must not be arbitrary or capricious.   The Legislature has created two categories of actions which seek to distinguish between murders which are in some rational way more reprehensible than others, and thus deserving of more severe punishment.   (Gregg v. Georgia (1976) 428 U.S. 153, 187–89 [96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883].)   The conduct surrounding the kidnapping special circumstance elevates defendant's crime into this most severe category.   This reprehensible conduct, when considered by the jury, provides a rational basis in distinguishing those murderers who deserve to be given the death penalty and those who do not.

Faced with this conduct we find no pressing need to rush pell mell to expand Green or Thompson beyond the facts there stated.   The robberies in Green and Thompson did not increase the risk of harm to the victims, or assist in accomplishing the killings, or make the killings easier.  (In fact, in Thompson, the court found there was insufficient evidence to prove any robbery took place.)   The robbery in Green was “a second thing to” the murder.  (People v. Green, supra, 27 Cal. 1, 61, 164 Cal.Rptr. 1, 609 P.2d 468.)

Here, the stated felony was kidnapping.   We note the Green court declined to decide the question whether the murder was committed during the commission of a kidnapping, as the court found no kidnapping had taken place there.   We squarely face the question avoided in Green.   Here, the kidnapping was not ancillary to the murder.   It was “the first thing to” the murder.   Defendant employed two thugs to kidnap Stamps and Malone and bring them to the execution site.   This action showed a ruthless preplanned killing.   This stratagem placed the victims in a more vulnerable position and was clearly calculated to help defendant and his cronies complete the killing without interference and to escape detection.   The kidnapping materially increased the risk of harm to the victims, and made the killing easier to pull off.   It is extremely doubtful the killing could have occurred in this case without a kidnapping as the victims would have been leery of going anywhere with Sheppard.   Such conduct, where the killing is made possible by the kidnapping, is precisely what the Legislature intended to condemn.   An exercise of discretion to impose the death penalty in such a case is not arbitrary or capricious, as the conduct provides a rational basis to distinguish between this defendant and others who have committed murder.   The jury's finding of this special circumstance was proper.3

Killing to Prevent a Witness' Testimony

The Legislature also provided a special circumstance authorizing death penalty or life without possibility of parole where the victim was a witness to a crime and was intentionally killed for the purpose of preventing his testimony in any criminal proceeding, and the killing was not committed during the crime of which he was a witness.   Sheppard contends the evidence is insufficient to demonstrate his conduct falls within the purview of this special circumstance.

 When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine if it contains substantial evidence, i.e., evidence that is credible and of solid value—on which a rational trier of fact could have found defendant guilty beyond a reasonable doubt.  (People v. Green, supra, 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)   A review of the record indicates substantial evidence to support the conclusion Sheppard intended to kill Stamps to prevent him from testifying in North Carolina.   The evidence shows Sheppard knew Stamps was responsible for his indictment and those of his family.   Stamps was willing to go back to North Carolina to testify against Sheppard.   The reference to Stamps and Malone as “snitches” indicated Sheppard knew they had given the authorities information and would continue to do so at the time of trial.   The jury could reasonably conclude Sheppard intended the killing as punishment for giving information and to prevent the further giving of information at the time of trial.   It is obvious Sheppard neither wanted to go to trial nor be faced with imprisonment in North Carolina and killed Stamps to prevent this occurrence.   The sentence of life without possibility of parole can be sustained on the basis of this special circumstance alone.


The judgment of conviction and sentence to life without possibility of parole are affirmed.


1.   Murder trials creep in their petty pace from day to day to the last syllable of recorded time—it is a tale told by an idiot full of sound and fury signifying nothing.  (With adaptations, Shakespeare:  Macbeth.)

2.   Code of Civil Procedure section 170.6 provides the normal time to make the motion is “Where the judge ․ who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date.”   An exception is provided, “if [the motion is] directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.”   The court in Wilks held a motion to disqualify was not timely because it was not made before the master calendar judge at the time the cause was assigned out for trial.

3.   We are mindful of Ario v. Superior Court (1981) 124 Cal.App.3d 285, 177 Cal.Rptr. 265, where on somewhat similar facts a different result was reached.   We are disinclined to follow Ario as we perceive the kidnapping in this case to be in such a special category it provides a rational basis upon which a jury may be adequately guided thus eliminating the risk of arbitrary and capricious action.Although the question has not been raised, query whether the analysis of Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, Green or Thompson really applies in this case, where the death penalty was not imposed.   These cases mandate that imposition of a penalty so grave as extinction of human life may not be arbitrary and capricious;  i.e., there must be some meaningful basis for distinguishing between defendants, so the unique penalty of death is not wantonly and freakishly imposed.   Sheppard did not suffer the death penalty, so his argument may be, constitutionally at any rate, without foundation.   He is entitled, however, to have the existing statutory requirements met in his case, even if the statutory rules are not constitutionally compelled.

RICKLES, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.