PEOPLE v. DARWICHE

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rami Kamel DARWICHE, Defendant and Appellant.

Cr. 17080.

Decided: February 29, 1984

Carlton Lee Harpst, Anaheim, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John W. Carney, Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant Rami Kamel Darwiche appeals his conviction of robbery and first degree murder committed during the course of a robbery.

FACTS

Rami Kamel Darwiche and Sam Monsoor shared an apartment in Costa Mesa and were acquainted with the victim, Carl Lawson.   Lawson, a hairdresser and a jewelry dealer who routinely wore expensive jewelry, was a homosexual friend of Monsoor.   On April 13, 1982, Lawson had dinner with his business partner and roommate, Allan Crocoll.   According to Crocoll, Lawson was wearing a large amount of jewelry, carried mace, and had a .25 caliber pistol on the floor on the passenger side of his car.

Later that evening, Lawson drove Darwiche and Monsoor to the parking lot of Jojo's restaurant.   Darwiche was sitting in the back seat directly behind Lawson;  Monsoor was sitting in the front passenger seat.   Judith Wolfe, an occupant of another car in the parking lot, testified she noticed Lawson's car when she heard loud voices.   She saw the rear passenger striking the driver with a downward movement.   Shortly afterwards she heard three “popping” sounds and saw more scuffling.   A few minutes later, she heard two more “pops” and the struggle ended.   Wolfe then saw the front passenger get out of the car and pull the driver by his legs to the passenger side.   The rear passenger then moved into the driver's seat and drove away.   The driver of the car occupied by Wolfe corroborated her testimony.

Lawson's body was discovered in the car the next morning.   One of his rings was found on the floor and part of a plastic pistol grip was found under the rear seat.   He had been beaten and shot twice.

After the attack, Darwiche and Monsoor threw two guns into the ocean, disposed of clothing and other evidence, and drove to New York.   Monsoor then returned to California and Darwiche drove to Philadelphia.   Darwiche testified he returned a rental car in Philadelphia and found Monsoor's jacket in the trunk.   Inside the jacket, he found a bag containing Lawson's jewelry.   After returning the car, Darwiche took a bus to El Paso and spent a few days in Mexico.   On his return to Texas, he was arrested on an outstanding arrest warrant.   He had Lawson's jewelry with him.

The jury found Darwiche guilty of first degree murder and robbery.   It also found the special circumstance of murder committed during the commission of a robbery to be true.   In addition, the jury found Darwiche was armed but did not personally use a firearm during the commission of these crimes.   Darwiche was sentenced to life imprisonment without possibility of parole.   Monsoor was acquitted in a separate proceeding.

DISCUSSION

Darwiche contends:  (1) the trial court erred in not instructing the jury on the intent to kill required to find the special circumstance allegation to be true;l  (2) the jury was improperly instructed regarding the mens rea required of an aider and abettor;  (3) the evidence was insufficient to establish there was a robbery and the murder occurred during the commission of a robbery;  (4) the trial court erred in not giving a requested jury instruction on circumstantial evidence;  (5) the trial court abused its discretion in admitting a photograph into evidence;  (6) the prosecutor's crossexamination was improper;  (7) the trial court abused its discretion in denying Darwiche's motion to view the crime scene and the vehicle where the killing took place;  (8) the trial court erred in making certain comments to the jury;  (9) he was denied effective assistance of counsel;  (10) the evidence is insufficient to support a felony murder conviction;  (11) the acquittal of Monsoor bars his conviction;  (12) the trial court abused its discretion by refusing to strike the special circumstance finding;  and (13) the sentence imposed constitutes cruel and unusual punishment in violation of article I, section 17 of the California Constitution.   We hold Darwiche's contentions are without merit and affirm.

I.

 Darwiche first argues his conviction of murder with the special circumstance of felony murder is invalid because the trial court failed to instruct the jury to find he intended to kill Lawson.1  Penal Code section 190.22 , enacted by initiative in 1978, imposes either death or life imprisonment without parole for first degree murder convictions committed under specified special circumstances including murder committed during the course of a robbery.   Although the statute does not explicitly require the jury to find the defendant intended to kill, Darwiche correctly contends it should be construed to require the People to establish intent.

In Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, the defendant and Manuel Perez robbed a grocery store.   As they left the store, Perez engaged in a gun battle with an off-duty sheriff and Carlos left the scene to get his car.   While defendant was gone, the sheriff's daughter was killed.   The court analyzed the history of section 190.2, subdivision (a) and concluded the statute should be construed “to require an intent to kill or to aid in a killing as an element of the felony murder special circumstance.”  (Id., at p. 135, 197 Cal.Rptr. 79, 672 P.2d 862.)   Because the evidence at the preliminary hearing failed to establish Carlos intended to kill or aid in the killing, his trial on the special circumstance was barred.

In light of Carlos, the trial court's failure to instruct the jury to find Darwiche intended to kill or aid in the killing of Lawson was error.   The effect of the error, however, is unclear because the Carlos court did not decide whether its opinion should be applied retroactively.  (Id., at p. 154, fn. 21, 197 Cal.Rptr. 79, 672 P.2d 862.)   Relying primarily on People v. Mutch (1971) 4 Cal.3d 389, 93 Cal.Rptr. 721, 482 P.2d 633, Darwiche argues Carlos should be applied retroactively and the special circumstance finding should be stricken.

In Mutch, defendant was convicted under the amended section 209 of kidnapping for purposes of robbery.   Three years later, the California Supreme Court interpreted the Legislature's intent in amending section 209 in People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225.   According to the Daniels interpretation, defendant could not have been found guilty of violating section 209.   The Mutch court explained its construction of section 209 in Daniels did not redefine the crime of kidnapping to commit robbery.   Rather, Daniels “confirmed a substantive definition of crime duly promulgated by the Legislature.”  (Id., at pp. 394–395, 93 Cal.Rptr. 721, 482 P.2d 633.)   Because Daniels did not establish a new rule of law, it was applied retroactively and the judgment convicting defendant of violating section 209 was vacated.   The court did not need to “undertake the often perilous task of applying ․ the test of ‘retroactivity’ developed in a well-known series of decisions of the United States Supreme Court” because the statutory construction in Daniels did not reach constitutional dimensions.   (Ibid.)

 Darwiche argues we should follow the Mutch reasoning and apply Carlos retroactively.   Like Daniels, Carlos analyzed and interpreted the Legislature's intent in amending a statute.   The Carlos decision did not “redefine” the felony murder special circumstance but construed the statute to require a finding of intent to kill.   Because it did “not establish a new rule [of law] ․ but only elucidate[d] and enforce[d] prior law, no question of retroactivity arises” and “the ordinary assumption of retrospective operation [citations omitted] takes full effect.”  (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36–37, 196 Cal.Rptr. 704, 672 P.2d 110.)3  Therefore, we hold Carlos should be applied retroactively.

 The People contend any error due to failure to instruct the jury on the requirement of intent should be considered harmless.   Because Carlos did not reach any constitutional issues, the proper test of prejudice to apply is the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.   Therefore, Darwiche's conviction must be reversed only if it is reasonably probable that a result more favorable to him would have been reached if the jury had been instructed on the Carlos intent requirement.

 The evidence establishes Darwiche had met Lawson on three earlier occasions and had noticed he wore an unusually great amount of jewelry.   Darwiche had dinner plans on the evening of the murder, but postponed them when the opportunity arose to go out for a drink with Lawson and Monsoor.   According to an eyewitness, Darwiche took an active role in the assault on Lawson.   Testimony of a criminalist corroborated the eyewitness' testimony regarding the rear passenger (Darwiche) striking at the driver (Lawson) with a pistol.   After the murder, Darwiche calmly moved into the bloodied front seat and drove the car away slowly and cautiously.   The next day he went to work, asked for a week's salary in advance and arranged to take a leave of absence.   Based on this evidence, the jury could have concluded Darwiche intended to kill Lawson.   Because of Darwiche's active participation in the events of the evening, it is not reasonably probable the jury would have reached a different verdict if it had been instructed pursuant to Carlos.   Therefore, we hold the failure to instruct the jury to find Darwiche intended to kill or aid in the killing of Lawson before it found the special circumstance allegation to be true constituted harmless error.

II.

Darwiche next challenges the trial court's aiding and abetting instruction.   It stated:  “A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.   However, mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting, and mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”  (CALJIC No. 3.01 (1980 version).)  Darwiche argues the jury should also have been instructed that an aider and abettor must intend to aid and abet the perpetrator.

Three lines of cases have developed regarding the required mental state of an aider and abettor.   Darwiche relies on the line of cases following People v. Yarber (1979) 90 Cal.App.3d 895, 153 Cal.Rptr. 875 which require an aider and abettor to share the criminal intent of the perpetrator.   Another line of cases holds there is no separate intent requirement in aiding and abetting cases (People v. Green (1982) 130 Cal.App.3d 1, 181 Cal.Rptr. 507 and cases there cited.)   The Green court held “the only facts necessary to convict a person of aiding and abetting are (1) that the person aid in the commission of a crime (2) with knowledge of the perpetrator's unlawful purpose or intent.”  [Fn. omitted.] (Id., at p. 6, 181 Cal.Rptr. 507.)   Finally, a third line holds an instruction on intent is required “only where a reasonable inference can be drawn from the evidence that despite defendant's knowledge of the perpetrator's wrongful purpose, defendant acted for an independent lawful purpose.”  (People v. Francis (1982) 129 Cal.App.3d 241, 255–256, 180 Cal.Rptr. 873.)

In People v. Beeman 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, the California Supreme Court resolved the conflict by adopting the Yarber analysis.   It held CALJIC No. 3.01 was “erroneous” because it failed to instruct the jury to find the defendant intended to aid and abet.   The court stated “sound law ․ requires proof that an aider and abettor rendered aid with an intent or purpose of either committing, or of encouraging or facilitating, commission of the target offense.”  (Id., at p. 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)

 Because the court resolved a conflict between lower court decisions and did not establish a new rule or standard, no issue of retroactivity arises and “the ordinary assumption of retroactive operation” applies.  (Donaldson v. Superior Court, supra, 35 Cal.3d at p. 36–37, 196 Cal.Rptr. 704, 672 P.2d 110.)   Therefore, the only remaining issue is whether the trial court's failure to instruct the jury on the intent requirement constitutes reversible error.   The appropriate test of prejudice to apply is the People v. Watson, supra, 46 Cal.2d 818, 299 P.2d 243 harmless error test because Beeman does not address any constitutional issues.

 We hold the failure to instruct the jury on the intent requirement constituted harmless error.   As discussed above, the evidence established Darwiche was an active participant in the crime.   Therefore, it is not reasonably probable the jury would have reached a result more favorable to Darwiche had it been instructed on the requirement of intent to aid and abet the perpetrator.

III.

 Darwiche's third argument alleges there is insufficient evidence to establish a robbery occurred and the murder was committed during a robbery.   A review of the entire record in the light most favorable to the judgment below establishes there is substantial evidence to support the jury's finding of guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.)

As discussed above, Darwiche was acquainted with Lawson and knew he wore a lot of jewelry.   The attack on Lawson began with an assault accompanied by argument.   The next morning, Lawson's ring was found under a rear floor mat and most of Lawson's jewelry was missing.   Finally, when Darwiche was arrested three weeks later, he had Lawson's jewelry in his possession.   Based on this evidence, the jury could reasonably have found the initial attack was a robbery and the murder occurred during the commission of the robbery.

IV.

Darwiche next contends the trial court erred in refusing to give CALJIC No. 2.02 regarding the sufficiency of circumstantial evidence to prove specific intent.   The People argue the general instruction given on the sufficiency of circumstantial evidence (CALJIC No. 2.01) was adequate.

CALJIC No. 2.01 and 2.02 are “largely identical.”  (People v. Cook (1982) 135 Cal.App.3d 785, 795, 85 Cal.Rptr. 576.)   The Use Note to CALJIC No. 2.02 indicates it “․ is designed for use instead of Instruction 2.01 ․ [when] the only element of the offense which rests substantially or entirely on circumstantial evidence is the element of specific intent or mental state.”  (Emphasis added.)

 The trial court correctly concluded Darwiche's mental state was not the only issue affected by circumstantial evidence.   Besides his mental state, there was also no direct evidence that Darwiche took Lawson's property against his will.   Because the prosecution relied on circumstantial evidence to prove more than one element of the crime of robbery, CALJIC No. 2.01 was the appropriate instruction to give and the trial court did not err in refusing to give CALJIC No. 2.02.

V.

 Darwiche claims the trial court abused its discretion in admitting a photograph of the victim into evidence.  Evidence Code section 352 allows the trial court to exclude evidence if, after weighing the prejudicial effect against the probative value, it finds the probative value outweighs the danger of undue prejudice.  (People v. Green (1980) 27 Cal.3d 1, 25–26, 164 Cal.Rptr. 1, 609 P.2d 468.)   The trial court's decision will not be reversed on appeal unless there is a “manifest abuse of ․ discretion resulting in a miscarriage of justice.”  (People v. Wein (1977) 69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814.)

 The People offered several photographs of the victim taken at his autopsy into evidence.   Darwiche only objected to the admission of one photograph as irrelevant.   After finding the photograph was relevant to show the location of the wounds and the nature of the attack, the trial court stated the probative value outweighed the prejudice.   According to Green, the trial court applied the correct standard and Darwiche has failed to establish a “manifest abuse of discretion.”   We hold there was no error in admitting the photograph.

VI.

Darwiche's sixth contention alleges prosecutorial misconduct in “examining defendant regarding extrajudicial statements of the co-defendant.”   During crossexamination of Darwiche, the prosecutor asked if he agreed with Monsoor's version of the murder and robbery.   Darwiche's counsel objected to the question as hearsay and the objection was sustained.

In People v. Johnson (1978) 77 Cal.App.3d 866, 143 Cal.Rptr. 852, the trial court ruled defendant's statements regarding the discovery of a body would be excluded for all purposes.   Despite this ruling, the prosecutor attempted to crossexamine the defendant on the excluded issue.   The appellate court held a “prosecutor who improperly cross-examines a defendant in order to place inadmissible prejudicial evidence before the jury is guilty of misconduct.”   (Id., at p. 873, 143 Cal.Rptr. 852.)

 Although the prosecutor's question may have been improper, defense counsel promptly objected to the question as hearsay, the trial court promptly sustained the objection and the issue was not pursued.   The questioning does not amount to prosecutorial misconduct.

VII.

 Next, Darwiche claims the trial court abused its discretion in denying his motion to view the crime scene and the vehicle used in the crime.   Because it would be difficult to reconstruct the lighting conditions and there were many photographs of the crime scene and the vehicle, the trial court found the probative value of a view of the scene was outweighed by the “undue consumption of time.”   The denial of Darwiche's motion does not amount to a “manifest abuse of discretion.”  (People v. Green, supra, 27 Cal.3d 1, 25–26, 164 Cal.Rptr. 1, 609 P.2d 468.)

VIII.

Darwiche argues the trial judge erred in commenting on the evidence after denying the jury's request to view a 1978 Firebird.4  He contends the trial court should have given CALJIC No. 17.32 to remind the jury members to form their own opinions and disregard the judge's comments.

 The Use Note to CALJIC No. 17.32 indicates it should be given “if the judge comments on the evidence or the testimony or credibility of the witnesses.”   The “comment” is objectionable if it includes an analysis of the evidence which conveys an opinion of the judge.  (See People v. Brock (1967) 66 Cal.2d 645, 650, 58 Cal.Rptr. 321, 426 P.2d 889;  People v. Friend (1958) 50 Cal.2d 570, 576, 327 P.2d 97.)   The trial judge's comments here did not convey his opinion.   Therefore, there was no need to give CALJIC No. 17.32.

IX.

Darwiche also contends he was denied effective assistance of counsel because his trial counsel (1) did not bring a motion pursuant to People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, regarding a bus ticket purchased in Miami marked “California;”  (2) did not search for guns thrown into the ocean off the Newport pier;  and (3) failed to include items seized from his apartment in Costa Mesa in the initial motion to suppress evidence.   Darwiche has not shown his trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Therefore, his convictions will be affirmed because the record does not “affirmatively disclose[ ] that counsel had no rational tactical purpose for his act or omission.”  (People v. Fosselman (1983) 33 Cal.3d 572, 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)

 Defense counsel properly decided not to pursue the Hitch motion to retrieve the bus ticket because there was no reasonable probability the ticket had “substantial materiality” on the issue of guilt or innocence.  (People v. Garnica (1981) 121 Cal.App.3d 727, 733, 175 Cal.Rptr. 521.)   Thus, counsel acted in a manner to be expected of a reasonably competent attorney and Darwiche was not denied effective assistance of counsel on this ground.

 Failure to retrieve the guns from the ocean was also a tactical decision that did not deprive Darwiche of his right to effective assistance of counsel.   The existence of the guns was not an issue at trial.

 Finally, counsel's failure to attempt to suppress articles seized from Darwiche's apartment in the initial motion did not constitute ineffective assistance of counsel.   Counsel's decision had a “rational tactical purpose.”  (People v. Fosselman, supra, 33 Cal.3d at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)   His statements on the record indicate he felt the items seized would actually be useful to Darwiche's case and he would not object to the People's introduction of the items into evidence.   This was a tactical decision that later proved to be unwise.   The decision to not include the items in the initial motion to suppress, however, reflects the decision of competent counsel.

X.

 Darwiche claims his conviction is invalid because there is insufficient evidence to establish his conduct was the proximate cause of Lawson's death.   To justify a conviction for felony murder, “the act of killing must be committed by the defendant or his accomplice acting in furtherance of their common design.”  (People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 402 P.2d 130.)   A showing of proximate cause is only required when the killing is done by one other than the participants (i.e., the victim).  (See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136, 145 Cal.Rptr. 524, 577 P.2d 659;  In re Joe R. (1980) 27 Cal.3d 496, 507, 165 Cal.Rptr. 837, 612 P.2d 927.)

 Because either Darwiche or Monsoor actually fired the gun killing Lawson during the robbery, the act was one committed by the defendant or his accomplice in furtherance of their common design.   Therefore, a showing of proximate cause was not required and Darwiche's argument is without merit.

XI.

 The acquittal of Monsoor in a subsequent proceeding does not constitute a bar to Darwiche's conviction of murder.5  “It is well settled that where the same criminal act or transaction gives rise to criminal liability in more than one defendant, a judgment acquitting one defendant does not operate as res judicata in the prosecution of another defendant.  [Citations.]”  (People v. Scoglio (1969) 3 Cal.App.3d 1, 4, 82 Cal.Rptr. 869.)   The doctrine of collateral estoppel is equally inapplicable.   The doctrine has only been applied in criminal cases “(1) where some element of the crime must necessarily be imputed to the defendant from an acquitted codefendant;  and (2) where it would be legally impossible for the particular defendant to have committed the act charged unless his previously acquitted coconspirator were also guilty.”  (People v. Mata (1978) 85 Cal.App.3d 233, 237–238, 149 Cal.Rptr. 327.)   Although the verdict against Darwiche may appear to be inconsistent with the acquittal of Monsoor, the doctrine of collateral estoppel cannot be invoked to prevent this kind of inconsistency because neither of the above two situations arises in the present case.

XII.

 Darwiche's next contention alleges the trial court abused its discretion in refusing to strike the special circumstance finding in order to allow parole.  Penal Code section 1385 authorizes the trial court to exercise its discretion to strike a finding of special circumstances in order to further the interests of justice.  (People v. Williams (1981) 30 Cal.3d 470, 489, 179 Cal.Rptr. 443, 637 P.2d 1029.)

 There is no evidence to indicate the trial court abused its discretion in refusing to strike the special circumstance in this case.   The acquittal of Monsoor was considered by the trial court and determined to be insufficient to justify striking the special circumstance.   The exercise of the trial court's discretion will not be disturbed.

XIII.

Finally, Darwiche contends the sentence of life imprisonment without possibility of parole constitutes cruel and unusual punishment in violation of article I, section 17 of the California Constitution.   He relies on People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, in urging this court to consider Darwiche's age, prior criminality, personal characteristics and state of mind to determine whether the punishment imposed fits both the crime and the criminal.   Darwiche claims the trial court failed to consider he was 25 years old when he committed the crime, had one prior non-violent criminal offense on his record (receiving stolen property), had recently immigrated to this country from Lebanon and intended to attend school.   Because he claims the sentence is disproportionate to the crime, he believes his conviction should be reduced to second degree murder.

In Dillon, a divided Supreme Court affirmed the constitutionality of life without possibility of parole rule but held that in certain circumstances, the penalty of life without possibility of parole constitutes cruel and unusual punishment.  (People v. Dillon, supra, 34 Cal.3d at p. 489, 194 Cal.Rptr. 390, 668 P.2d 697.)   Due to the unusual fact situation, the court held imposing life without parole on an immature 17 year old high school student who had no prior criminal history was too harsh.   Although the defendant in Dillon was attempting to raid the victim's marijuana fields, the killing occurred only because the victim carried a shotgun, surprised the defendant and frightened him.   Another justification for reducing the sentence was the jury's stated reluctance to impose a life sentence.   In two notes to the judge, the jury asked if it was compelled, based on its findings, to find defendant guilty of first degree murder.

 There are no similar circumstances to warrant the reduction of Darwiche's sentence.   Darwiche was a mature, educated 25 year old man at the time of the murder.   Furthermore, the evidence indicated he was an active participant, if not the perpetrator of the crime.   He was not surprised or alarmed by the situation in contrast to the Dillon situation.   Finally, an extensive probation report concluded the sentence was appropriate.   Based on our review of the evidence, we hold the sentence does not constitute cruel and unusual punishment.

The judgment is AFFIRMED.

FOOTNOTES

1.   The court's modified version of CALJIC No. 8.27 read:  “If a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery, all persons who either directly and actively commit the act constituting such crime or who with knowledge of the unlawful purpose of the perpetrator of the crime aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.

2.   All references are to the Penal Code unless otherwise indicated.

3.   If a decision establishes a new standard or rule of law, the retroactive effect of the decision is determined under the tripartite test set forth in Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and explained in People v. Kaanehe (1977) 19 Cal.3d 1, 10, 136 Cal.Rptr. 409, 559 P.2d 1028 as follows:  “Whether a judicial decision establishing new ․ standards is to be given retroactive effect is customarily determined by weighing the following factors:  ‘(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards.’  ․ Decisions have generally been made fully retroactive only where the right vindicated is one which is essential to the integrity of the fact-finding process.   On the other hand, retroactivity is not customarily required when the interest to be vindicated is one which is merely collateral to a fair determination of guilt or innocence.  [Citation.]”   This test has been applied primarily in cases raising constitutional issues.   Although Carlos does not address constitutional issues, application of the test would nevertheless result in applying the Carlos decision retroactively because the intent requirement mandates a new finding of fact and serves to preclude the conviction of innocent persons.  “[I]f the rule relates to characteristics of the judicial system which are essential to minimizing convictions of the innocent, it will apply retroactively regardless of the reliance of prosecutors on former law, and regardless of the burden which retroactivity will place upon the judicial system.”  (In re Johnson (1970) 3 Cal.3d 404, 413, 90 Cal.Rptr. 569, 475 P.2d 841.)

4.   The trial judge said:  “As you will recall, there is no evidence of a physical view of a 1978 Firebird, with or without a t-top;  and I would remind you of an instruction that I gave a little earlier:  that neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence of [sic] who may appear to have some knowledge of these events, or to produce all objects or documents mentioned or suggested by the evidence.  [¶] And since, I guess—directly, I—we have no evidence from which to satisfy your request;  and so let me ask you to return to the jury deliberations.”

5.   Darwiche was convicted on January 16, 1982.   Monsoor was acquitted on May 6, 1982.

WALLIN, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.