PEOPLE v. MOTHERSHED

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. William MOTHERSHED, Defendant and Appellant.

Cr. 42699.

Decided: August 25, 1983

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Daniel J. Mangarin, Deputy State Public Defender, for defendant and appellant. John K. Van De Kamp, Atty. Gen., William R. Weisman and Frederick Grab, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a conviction of first degree murder (count I) and two counts of robbery (counts II and III).   Defendant was found to have personally used a firearm in each of the three offenses.   The defendant was sentenced on count I (murder) to a term of life imprisonment without possibility of parole plus two years consecutive on the enhancement for use of a firearm.   On the remaining two counts of robbery plus the enhancements, the defendant was sentenced to an aggregate term of eight years and eight months consecutive to count I;  the sentences on counts II and III were stayed pending completion of the term on count I.1

STATEMENT OF FACTS

On December 22, 1980, at approximately 6:05 a.m., Mr. Suh was waiting on three customers at a 7-Eleven Store in the City of Van Nuys.   A person possessing a gun rushed in, jumped over the counter, and instructed the witnesses to look away.   The robber took money from the register and left.   This offense was charged as count III.   At trial, Mr. Suh stated that defendant was not the person who robbed him, and the other witness was unable to identify the defendant.

On December 24, 1980, at approximately 2:40 a.m., Mr. Sandhu was working at a 7-Eleven Store (not the same store as in count III).   A man holding a revolver came in, jumped over the counter, and took money from the cash register.   This offense was charged as count II.   Sandhu testified that the defendant was not the man who robbed him.

On December 24, 1980, at 3:46 a.m., the dispatcher at the San Fernando Police Department received a call from Officer Dennis Webb.   Officer Webb advised the dispatcher that he was getting out of his car to investigate a suspect who was possibly involved in a robbery an hour earlier.   Officer Webb described the suspect as a five feet four inch, slim built, blondish white male wearing a blue jacket.   Officer Harvey responded to the scene to assist Webb.   He found Officer Webb lying against a curb wounded, and proceeded to transport Webb to a hospital.   Officer Webb subsequently died of multiple gunshot wounds.   This comprises count I.

Subsequently, another individual was arrested and confessed.   This individual was later released.2  Further police investigation led to the arrest of defendant.

Melvin Stairs, Jr., a student at the university in New Mexico 3 and friend of the defendant, sold the defendant a gun and cartridges prior to the date of the offenses.   After defendant's arrest, he turned over to the police shell casings which had been previously fired from that gun.   Officer Christensen, a firearms identification expert, matched shell casings found at the scene of the homicide as having been fired from the same gun as that used to fire the shell casings found in New Mexico.   The gun was not recovered, defendant having in his confession said he dismantled the gun and threw the parts in different locations.

The defendant was arrested in New Mexico upon an arrest warrant for a burglary at the New Mexico campus museum.   During the interrogation process in New Mexico involving both the New Mexico and Los Angeles authorities, the defendant gave several detailed confessions of the robberies and the homicide, admitting he shot the officer three or more times after which he drove away in the police vehicle.

On appeal, except for the finding of a first degree murder committed in the perpetration of a robbery, defendant does not challenge the sufficiency of the evidence supporting the judgment.   Defendant contends that errors committed by the court and prosecution require reversal.   We consider the following assignments of error:

I.  Involuntary Confession and Violation of Fioritto-Pettingill Rule.   Defendant contends that (1) his confession was induced by threats or promises;  and (2) after he asked for counsel, he was subsequently interviewed in violation of the “Fioritto-Pettingill” 4 rule.

 1. Confession induced by threat or promise.

To understand the setting in which the officers in Los Angeles and the officers in New Mexico were involved in the interrogation process, a resume of the facts leading to the interview will be helpful.   Officer Gleason of the Los Angeles Sheriff's Department called Sergeant Trujillo, of the Socorro New Mexico Police Department, stating that in connection with a murder investigation they were looking for a person named “Mel” who lived at the college in New Mexico and owned a nine millimeter gun.   Sergeant Trujillo went to the college to interview a Melvin Stairs.   The Los Angeles officers came to New Mexico.   Sergeant Trujillo, continuing with the investigation, learned of Art Federer who was allegedly with the defendant when the two of them burglarized the New Mexico campus museum.   Sergeant Trujillo interviewed Federer.   Federer confessed that he and the defendant had committed the campus burglary.   Defendant was arrested by Sergeant Trujillo upon an arrest warrant for the campus museum burglary.   The Los Angeles officers sought to interview the defendant, first giving him the Miranda warnings.   When asked if he wanted to talk about the case, the defendant responded, “I don't see why not.”   When asked if he wanted an attorney present, the defendant said, “Yes, please.   I'm confused as fuck.”   The Los Angeles officers terminated the interview.   Defendant asked Officer Gleason what would happen next.   Officer Gleason, according to defendant's later testimony, said, “it depended largely upon how much I cooperated and that it could lead to the death penalty.”   The Los Angeles officers made several calls seeking an attorney, but were unsuccessful in reaching any;  there are only four or five attorneys in the area.

Within an hour Sergeant Trujillo, who knew of the defendant's prior request for an attorney, commenced an interview with the defendant concerning the campus burglary.   Sergeant Trujillo gave the defendant Miranda warnings and the defendant waived his rights, including having an attorney present.   Defendant later testified Sergeant Trujillo told him “he knew about the robbery in L.A. and the murder of the police officer.   And that I should confess to the L.A. officers.   He said that if I cooperated with him, that I would get off in five or six years, as opposed to getting the death penalty.”

Sergeant Trujillo testified he entered the interview room to talk to defendant for the sole purpose of discussing the campus burglary.   He gave defendant the Miranda rights and the defendant agreed to talk without an attorney.   After a conversation about the campus burglary, the defendant asked him to call in the Los Angeles authorities, stating:  “I would like for you to go and bring back and ask the Los Angeles authorities to come back.   I want to talk to them about the cop I shot.”

Officer Sett of the Los Angeles Sheriff's Homicide Bureau testified that when defendant was being transferred to the jail by Sergeant Trujillo, the defendant saw the Los Angeles officers and said to him he wanted to talk to the officers.   The Los Angeles officers made a call to the Los Angeles District Attorney's office to determine the propriety of talking to the defendant at this point.   The officers commenced a taped interview with the defendant in which the defendant stated he did not want an attorney present.

Sergeant Trujillo and Officer Gleason testified as to the initial conversations with the defendant.   There was no statement in their testimony regarding cooperation or threat of the death penalty.

The tape recording and transcription of defendant's confession are in evidence.   In the taped interview the defendant acknowledged that he was advised of his constitutional rights by both Sergeant Trujillo and Officer Gleason.   Defendant stated no threats or promises were made.   He wanted to talk about the case without an attorney being present.5

The defendant made a pretrial motion, pursuant to Penal Code section 1538.5,6 to suppress the confessions and for hearing under Evidence Code sections 402 and 405 to exclude the confessions.   The trial court took evidence from both the People and the defendant.   Upon completion of the evidence, the trial court made 10 findings and ruled the confessions were admissible.

To determine the merits of defendant's assertion that his confession was involuntary, we must follow the procedure set down in People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620:  “ ‘ “As a reviewing court it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found․  In exercising this function the court recognizes that the burden is on the prosecution to show that a confession was voluntarily given without previous inducement, intimidation or threat․”  [Citation.]   Thus in making an independent examination of the record to ascertain whether defendant's statements were voluntary we follow a practice of the United States Supreme Court which is both well established ․ and currently adhered to.   [Citations.]’  [Citations.]   With respect to conflicting testimony, of course, ‘we accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’  [Citations.]”  We observe that the trial court applied the proper test of “beyond a reasonable doubt” in determining voluntariness.

In the tape recorded confession the defendant stated that Sergeant Trujillo did nothing to cause the defendant to change his mind about talking to the officers.   No threats were made, nor were any promises.   The tape recording also contradicts the defendant's testimony regarding the nonadmonishment of rights.   Given the findings of the trial court it is evident that the trial court accepted the testimony of the People's witnesses and rejected the defendant's testimony as untrue.

 In our independent examination of the entire record we conclude that there was substantial evidence to support the trial court's findings (beyond a reasonable doubt) that the confession was freely and voluntarily given and that the defendant intelligently waived his rights.   A trial court's ruling on a Miranda issue will not be set aside unless it is palpably erroneous.   A ruling palpably erroneous is one lacking support of substantial evidence.  (In re Eric J. (1979) 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.)

 2. Violation of the Fioritto-Pettingill rule.

Defendant next asserts the confessions were inadmissible based upon the Fioritto-Pettingill rule prohibiting subsequent interrogations after the defendant initially declined to discuss the case with the officers.7

 (1) The California rule (Pettingill ), that a defendant who exercises his Miranda rights and refuses to be interviewed without an attorney may not be further interviewed, has no application to this case.   Here the second interview was by New Mexico law enforcement officers and took place in the State of New Mexico.   New Mexico law permits a reinterview after readvisement of the Miranda rights.   The defendant may then decide to change his mind and waive his rights even though he has previously refused to talk absent the presence of an attorney.  (State v. Greene (1977) 91 N.M. 207, 572 P.2d 935;  State v. Greene (1978) 92 N.M. 347, 588 P.2d 548.)   New Mexico follows the federal rule set down in Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313.

The California rule admitting evidence obtained from a search which is legal in another state though illegal in California bears a strong analogy to the case of the confession which was obtained in New Mexico, which was legal in New Mexico but possibly unlawful if obtained in California.   In People v. Blair (1979) 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738, the court held that evidence obtained in a search in the State of Pennsylvania, valid under federal and Pennsylvania law, though invalid in California, was admissible in a California prosecution.   The rationale of the Blair case is that the governmental interest in California's rule against an illegal search would not be served by excluding the evidence.   The same consideration attaches here.   We conclude the confession made in New Mexico is not barred by the California Pettingill rule.

 (2) A separate ground for not applying the Pettingill rule to the facts herein is the fact that the interview by the Los Angeles sheriff's officers was initiated at the request of the defendant.   While the defendant contends that Sergeant Trujillo's true objective was to assist the Los Angeles investigation and that Sergeant Trujillo was acting as an agent for the Los Angeles Sheriff's Department, the trial court specifically found to the contrary.   It is true that the investigation by Sergeant Trujillo of the New Mexico university museum burglary was being conducted at the same time the Los Angeles sheriff's officers were investigating the Los Angeles robberies and homicide.   The investigations paralleled each other because they led to the defendant as the perpetrator of both crimes.

Sergeant Trujillo, who knew of the defendant's prior request for an attorney, told the defendant he only wanted to talk about the New Mexico campus burglary.   During the conversation about the New Mexico burglary, the defendant, according to Sergeant Trujillo's testimony, said, “that he would like for me to call the Los Angeles authorities who had talked to him just before I did, back, and he would like to talk to them.  [¶] And I said well, I would ask them.   However, I was concerned about finishing my interview up.  [¶] He said all right.  [¶] I then finished my interview.  [¶] And he again requested to talk to his girl friend, Patty Stoll.   And then he said, ‘I would like for you to go and bring back and ask the Los Angeles authorities to come back.   I want to talk to them about the cop I shot.”   Sergeant Trujillo told the Los Angeles officers of defendant's request and then took the defendant to another location.   While walking to that other location, the defendant saw Los Angeles Deputy Sheriff Sett.   Deputy Sett testified the defendant said “he wanted to talk to us about the case again.”   Sergeant Sett replied, “Well, hold on.   We're going to make some phone calls and we'll let you know.”   The officer called the Los Angeles District Attorney's office for advice on this development before proceeding to interview the defendant.

A recognized exception to the Pettingill rule prohibiting a reinterview is where the defendant initiates the request for a further interview.  (See People v. Fioritto, supra, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and cases collected at 719–720, 68 Cal.Rptr. 817, 441 P.2d 625;  People v. Knight (1980) 111 Cal.App.3d 201, 204–205, 168 Cal.Rptr. 421.)   In none of the cases reviewed does the court reject the exception that a reinterview is permissible where the defendant initiates the request.   The facts here demonstrate that the request by the defendant to talk to the Los Angeles officers was initiated by the defendant during the interview with Sergeant Trujillo.   There were several taped confessions introduced into evidence.   Exhibit 50, a confession given on April 2, 1981, completely dispels any suggestion that the request by defendant to have Sergeant Trujillo call back the Los Angeles officers was the product of either the interview by Sergeant Trujillo or custodial compulsion.   In that taped interview,8 the defendant unequivocally recited that no promises or threats were made, and that he was advised of his Miranda rights.   Further, defendant acknowledges that the decision to talk to the Los Angeles officers was initiated by him.   The decision to waive his right to have an attorney present was his own.   Defendant stated that he originally requested an attorney because he “was confused,” but he soon lost that confusion and realized that an attorney was not necessary.

The second interview by the Los Angeles officers was at the request of the defendant and that request was made upon defendant's own initiative.

There was no error in the trial court's ruling that the confessions were voluntary and were not barred by the Pettingill rule.

II. Murder in the Commission of a Robbery.   Defendant contends that the felony-murder rule was inapplicable because the shooting occurred after he had reached a place of “temporary safety.”

The facts show the defendant left the scene of the robbery and commenced walking towards San Fernando.   About three miles from the place of the robbery Officer Webb saw the defendant who fit the description in a broadcast regarding a robbery that had taken place within the past hour and 20 minutes.   Officer Webb proceeded to stop the defendant.   The defendant later acknowledged he was afraid that he was being stopped for the robbery.   At this point, the officer and the defendant were walking toward the curb, with the officer slightly ahead.   The defendant thought the officer saw the weapon in his belt and proceeded to fire several shots striking and killing the officer.

Defendant's argument that he had reached a place of temporary safety is disputed by the fact that he was attempting to leave the area of the robbery, in this case by walking.   Time and distance are measurable only with respect to whether the same are divisible by the defendant reaching a place of safety, albeit temporary.   Here, defendant was still walking away from the scene of the robbery attempting to make his way to a place of safety but had not done so at the time the officer approached.

In People v. Ramos (1982) 30 Cal.3d 553, 586, 180 Cal.Rptr. 266, 639 P.2d 908, the court stated:  “It is well established that the crime of robbery continues beyond the point in time when the property is taken from the victim.”   Likewise, in People v. Laursen (1972) 8 Cal.3d 192, 199–200, 104 Cal.Rptr. 425, 501 P.2d 1145, the court states:  “This court has consistently recognized that ‘[r]obbery ․ is not confined to a fixed locus, but is frequently spread over a considerable distance and varying periods of time.’   [Citations.]  The assault of the victim, the seizure of his property and the robber's escape to a location of temporary safety are all phases in the commission of the crime of robbery linked not only by a proximity of time and distance, but a single-mindedness of the culprit's purpose as well.”

The rationale of the continuing robbery, that is until the robber reaches a place of temporary safety, is that until the place of safety is reached, the robber poses a continuous threat of danger to those who are victims of the robbery and those who pursue the robber.   The risk that the robber will carry out his armed threat continues until there is an alleviation of that threat by the robber reaching a point of safety.  (See People v. Laursen, supra, 8 Cal.3d at p. 200, fn. 6, 104 Cal.Rptr. 425, 501 P.2d 1145.)

Defendant relies upon People v. Ford (1966) 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132, for the proposition that the robber must be immediately pursued and challenged immediately upon the forcible taking.   The Ford case is easily distinguishable, as in the Laursen case the court stated:  “Compare People v. Ford (1966) 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132] in which it was found, on the basis of strong evidence, that the defendant did not intend to escape and, therefore, the kidnaping was not a means of perpetrating the robbery.”  (People v. Laursen, supra, 8 Cal.3d at p. 200, fn. 6, 104 Cal.Rptr. 425, 501 P.2d 1145.)   The facts in the Ford case show the robbery was committed many hours before the shooting and the officer did not even know of the robbery until after the defendant had been apprehended.   Furthermore, the defendant, in the Ford case, had driven aimlessly over great distances, spent some of the loot, and had won his way to places of safety before he committed the homicide.

 The pursuit need not be directly from the scene to the point of apprehension.   In People v. Salas (1972) 7 Cal.3d 812, 103 Cal.Rptr. 431, 500 P.2d 7, the officers heard a broadcast and went to a point where they believed they would and did intersect the defendants who were fleeing in an automobile.   The court held that the place of safety, a mile and one-half from the robbery, had not been reached.   In People v. Kendrick (1961) 56 Cal.2d 71, 14 Cal.Rptr. 13, 363 P.2d 13, the court held that stopping for a traffic investigation 48 minutes later falls within the rule that the defendants had not reached a place of safety.

 Of necessity, the doctrine of flight and pursuit depends for its resolution upon the facts of each case.   Here, defendant was walking from the area of the scene of the robbery, but had not reached a point where his person was outside the area of search for the fleeing felon.   Further, although defendant's parents lived within two miles of the robbery, he chose to continue from the scene to a point three miles away.   The defendant thus continued to flee and attempt to elude any pursuers.   The officer was in “pursuit” of this fleeing robber.

 The jury having been correctly instructed on the rules of when a murder is committed in the commission of a robbery, the conclusion of the jury is supported by the evidence and must be sustained on appeal.

III. Required Special Finding.   Defendant contends the trial court erred in denying a motion for new trial based on the “erroneous” submission to the jury of a special finding form (titled “First Degree Murder Findings”), requiring the jury to state the basis of their first degree verdict.

The defendant's claim of error is premised upon the special finding form which the court submitted to the jury.   Defendant submits that during the deliberations, the jury was not unanimous as to whether it was first degree murder.   They had agreed it was murder and that a robbery had taken place, but had not agreed on whether the murder was committed in the course of the robbery.   The unresolved question was whether the defendant had reached a point of safety, thus terminating the robbery.   The defendant submits that the jury, looking at the four-part special finding form,9 reasoned from the form that the robbery-murder section in the form most closely resembled the facts of the case and adopted that answer, although they were not unanimous in finding whether the defendant had reached a point of safety.

Defendant supports his assertion of the jury's action by a declaration of the foreperson, Mrs. Gladys Perry (hereinafter called the Perry declaration).   Defendant submits that the declaration, containing statements of the jurors' reasoning, is admissible as objective and corroborative evidence under section 1150 of the Evidence Code 10 when coupled with the special finding form.

The People admit that instructing the jury they were required to make a special finding if they found first degree murder, and the submission to the jury of the special finding form, were errors under section 1150 of the Penal Code,11 but submit this “error” was waived and was not prejudicial.

The defendant made a motion for a new trial and submitted the Perry declaration in support thereof.   The trial court gave no reasons for its denial of the motion for new trial.   Therefore, we proceed to examine the following bases for the ruling of the trial court:

1. The inadmissibility of the Perry declaration under the holding of People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132.

2. The effect of trial counsel's “acceptance” of the special verdict forms under the doctrine of waiver.

 1. The inadmissibility of the Perry declaration.

Defendant contends that the jury was induced by the special finding form into finding him guilty of first degree murder.   He bases this assertion upon the Perry declaration.   That declaration states that the jury had not come to a unanimous determination that the defendant was guilty of first degree murder.   They had concluded the defendant was guilty of murder and that a robbery had taken place, but were undecided whether the robbery was still in progress at the time of the murder.   The Perry declaration states that they resolved the question of degree by relying upon “the special finding form we felt most closely approximated the facts of the case.”   The declaration further stated that Mrs. Perry was inattentive when in the jury room jurors reread CALJIC No. 9.15, and declares:  “Had we considered the language of the instruction, specifically that instruction contained in CALJIC 9.15, before we reached a verdict under the felony-murder doctrine, I am sure that our verdict would not have been unanimous as to first degree murder.”   Other allegations of jurors' personal problems led to the verdict.

We consider the admissibility of the declaration of Gladys Perry, the foreperson of the jury, under the holding of People v. Hutchinson, supra, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132, permitting jurors' affidavits as proof of overt conduct, conditions, events, and statements, but not allowing affidavits “impugning his own or his fellow jurors' mental processes or reasons for assent or dissent.”  (People v. Hutchinson, supra, at p. 350, 78 Cal.Rptr. 196, 455 P.2d 132.)

The declaration herein falls directly within the Hutchinson rule, supra, that the jurors' affidavits remain incompetent to prove the subjective reasoning process which can neither be corroborated nor disproved.   Illustrative of the rule, that even when a corroborative fact may be admissible under Evidence Code section 1150 its effect cannot be demonstrated to show the mental process of the jury, is People v. Sutter (1982) 134 Cal.App.3d 806, 184 Cal.Rptr. 829.   There, a juror made an unauthorized visit to the scene of the crime.   The declaration of the unauthorized visit was admissible to show juror misconduct.   However, the portion of the affidavit relating to the juror's reasoning process as to how she was improperly swayed was deemed correctly disregarded by the trial court.

In People v. Elkins (1981) 123 Cal.App.3d 632, 176 Cal.Rptr. 729,12 the court considered an affidavit of a juror, which alleged that one of the jurors had misstated the law to the other jurors.   The court stated the trial court correctly excluded the affidavit related to the reasoning of the juror.   In doing so, the Elkins opinion, supra, at page 637, 176 Cal.Rptr. 729, refers to United States v. Stacey (9th Cir.1973) 475 F.2d 1119, 1121, which relates that “[i]t is true that some jurors had the knowledge that would enable them to testify, objectively, of incidents tending to indicate that other jurors may have misunderstood the court's instructions on the elements of offense.   However, the inquiry would still concern the mental process by which the jurors reached their decision and would therefore be barred by the nonimpeachment rule.”

A careful reading of the Perry declaration discloses that Mrs. Perry does not state the vote for the final verdict was not unanimous.   To the contrary, it clearly indicates the vote was unanimous for first degree based on a felony-murder.   All that the declaration states is that it was “not a unanimous reflection of how the jurors decided the evidence in this case.”   Her reasoning in this respect was that the finding of first degree based on felony murder was due to the fact that the form allowing for that finding most closely approximated the facts of this case.   Mrs. Perry now excuses her action by stating she was inattentive to the reading of CALJIC No. 9.15 (Robbery-When Still In Progress) and now understands the difference between first and second degree.

 While the Perry declaration stating the jurors considered the finding form may come within the purview of section 1150, subdivision (a) of the Evidence Code, the statements in the Perry declaration as to the effect of such form causing the jury to use it to reason to their verdict are not admissible.   Stated in the Hutchinson holding is the accepted rule that:  “No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”  (People v. Hutchinson, supra, 71 Cal.2d at p. 349, 78 Cal.Rptr. 196, 455 P.2d 132.)

 The balance of the Perry declaration relating that the jurors wanted to go home and such other personal problems falls directly within the rule that affidavits may not be used to impeach a verdict.  (See Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 385, 94 Cal.Rptr. 887.)   Mrs. Perry's declaration falls within the proscription of the Hutchinson rule and must be disregarded.

 2. Waiver

We next consider whether the admitted error of instructing (requiring) the jury to make a special finding in a criminal case was waived by the defendant.

Section 1150 of the Penal Code provides:  “The jury must render a general verdict, except that in a superior court, when they are in doubt as to the legal effect of the facts proved, they may ․ find a special verdict.”

 It has been held that there is no statutory authority for the court to submit, absent the request of the jury, a special verdict.   Furthermore, the court may not require the jury to return a special verdict, but must leave them free to do so or not, at their pleasure.  (People v. Perry (1972) 7 Cal.3d 756, 103 Cal.Rptr. 161, 499 P.2d 129.)

Here, the court told the jury they must complete the form if they found the defendant guilty of first degree murder.

Ordinarily, the defendant need not object to an instruction to preserve a later attack either by motion for a new trial or on appeal, if the defendant's substantial rights were affected.  (§ 1259.)   Here, we have more than a failure to object.   The defense counsel did more than remain silent when it came to the verdict forms.

Before the jury was instructed, the following colloquy took place:

“THE COURT:  The record will reflect that all counsel and the court examined the instructions.  [¶] Do counsel now deliberately and expressly, as a matter of trial tactics, object to instructions of all other included offenses as to all counts except 192.1, involuntary manslaughter, as an included offense within Count I?

“MR. LLOYD:  Yes, Your Honor.

“THE COURT:  All right.   Now, I will note for the record that counsel has objected to the following instructions which will be given from out of CALJIC:  2.52, 2.70 as amended, 2.71 and 8.81.17.  [¶] Have counsel examined the verdicts?

“MR. WATSON:  I have not.

“THE COURT:  All right.   Then before they are given to the jury I will ask counsel to examine them.

“MR. LLOYD:  Yes, Your Honor.

“THE COURT:  If they find anything they want to talk about, we'll do that before they are submitted to the jury.

“MR. LLOYD:  Thank you, Your Honor.”

After the jury was instructed, the court said:

“THE COURT:  Have counsel looked at the verdict forms?

“MR. JAFFE:  Yes.

“THE COURT:  Are they acceptable?

“MR. JAFFE:  Yes.

“MR. LLOYD:  Yes.”

Mr. Jaffe and Mr. Lloyd were both defense counsel for the defendant at the trial.

Trial counsel may very well, as a matter of trial tactics, have believed that if the jury were required to indicate the basis upon which they would render a verdict of first degree murder, then the jury might resolve the issue of degree in favor of the defendant.   Defense counsel may have believed that the jury would not find first degree murder solely upon the defendant's confession which indicated that the shots were fired in “panic” and not with premeditation and deliberation.   Counsel may have believed that the jury would not conclude that the homicide was committed during the commission of a robbery, considering the fact that the homicide occurred over an hour and twenty minutes after the robbery and at a place three miles from the place of the robbery.   If the jury had to pinpoint and concentrate on the individual basis for first degree murder then counsel might have believed they would not reach a verdict of first degree on any grounds.   Furthermore, having the jury indicate their specific finding would enable counsel to attack the sufficiency of the evidence on that particular ground in a motion for a new trial or on appeal.   This is in fact the very thing that happened.   Here, the jury's finding of robbery-murder necessarily excludes supporting the verdict on the theory of premeditation and deliberation.13  Had the verdict been only a general one, then the court on review might find the evidence supported the guilty verdict on either or both theories.   Now the defendant may, and does, attack the record on the one and only basis of a robbery-murder.   Thus, the defendant, by the requirement of a finding, obtained a distinct advantage on appeal.

 As has been observed, counsel cannot gamble on the outcome, then complain of the error on appeal (People v. Adame (1973) 36 Cal.App.3d 402, 409–410, 111 Cal.Rptr. 462.)

 Defendant points to the cases of United States v. Spock (1st Cir.1969) 416 F.2d 165, and United States v. Wilson (6th Cir.1980) 629 F.2d 439, as indicating that the giving of special findings constituted prejudicial error.   However, the federal cases demonstrate that the reluctance of federal courts to allow special verdicts or interrogatories is not without qualification.   It is first not a per se proscription against use of interrogatories.   Further, it requires that counsel make a timely objection to the use of interrogatories or suggest changes or additions.   The failure of counsel to object or seek additions or corrections is deemed a waiver.   (United States v. Palmeri (3rd Cir.1980) 630 F.2d 192, 202;  United States v. Desmond (3rd Cir.1982) 670 F.2d 414.)   In United States v. Desmond, supra, the court found that the giving of special findings did not constitute reversible error.   The court found there was a waiver where the trial court offered counsel the opportunity to suggest changes, but he did not do so.   In the instant case, counsel were asked to look over the verdict forms and they responded they were “acceptable.”   Here, no objection was made to either the instruction or the “finding” form.

The Desmond opinion expresses reasons similar to ours why defense counsel would not only fail to object, but find favorable reasons for concurring in the giving of special interrogatories.   The opinion relates:  “There are other situations in which it is conceivable that special findings may be beneficial to a defendant.   They can decrease the likelihood of jury confusion and aid the defendant in a complex case․  [¶] The theoretical advantage of a defendant of a general verdict must be evaluated by the trial lawyer who is on the scene and can weigh the intangibles of the trial atmosphere far better than we.   Defense counsel may well have believed that highlighting willfulness in the interrogatories as an element of the offense would focus the jury's attention on the truly significant issue at trial.   He apparently believes that the interrogatories would not harm defendant and might help him.   We cannot fault such defense strategy in hindsight and cannot overlook the significance of experienced trial counsel's lack of objection.”  (United States v. Desmond, supra, 670 F.2d at pp. 418–419.)

 We find defense counsel's conduct amounted to a waiver.

 In the reply brief defendant raises failure to object to the special finding as a possible denial of effective assistance of counsel, citing People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.   In our view defense counsel made a reasoned choice by not objecting.   The jury, required to concentrate on the requirements for first degree murder, did not find first degree murder based upon premeditation and deliberation.   As we have noted, the defense tactic or strategy also benefited the defendant on appeal because the verdict can only be sustained on the basis of a felony-robbery murder.   We see no benefit to the defense whatsoever if an objection to the special finding had been made and sustained.   As a consequence of what we conclude was a sound tactical decision, the defendant has not demonstrated that “counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.14

 3. The submission to the jury of the special form did not produce prejudicial misconduct by the jury.

Defendant asserts, based on the Perry declaration, that the finding form misled the jury into finding first degree murder.   The Perry declaration reads:  “Our verdict of first degree murder was mistakenly found on our reliance on the verdict form itself which we felt most closely approximated the facts of the case, and was not based on a unanimous finding that the robbery was still in progress at the time of the murder.”   The defendant contends this was jury misconduct.

 We conclude that the form itself was not the cause of any alleged “misconduct.”   Furthermore, we conclude that there was no prejudicial misconduct committed by the jury.

The instruction to the jury commenced with the wording:  “If you should find the defendant guilty of First Degree Murder it shall be your duty to complete a form indicating your findings, if any, on which type of Murder the defendant committed.”

The language is clear that the determination of first degree murder was to be made before the finding form could be filled out.   The wording of the finding form which the jury signed states:  “All jurors agree the murder was a First Degree Felony Murder that was committed in the perpetration of Robbery.”

It is clear from the Perry declaration that the jury was unanimous in voting for a verdict of first degree murder.   The jury also unanimously voted that the first degree murder was based upon felony robbery-murder.

There is nothing in the finding form that compelled the jury to reach any verdict or any certain verdict.   The language in the finding form was nonassertive and nonsuggestive.   There is no merit to the defendant's assertion that there was jury misconduct based upon the manner in which the finding form was structured.   To demonstrate the noninfluence of the finding form, we may contrast it with a type of special finding or interrogatory that does lead the jury to a result.   In the case of United States v. Spock, supra, 416 F.2d 165, 182, the court condemned findings that led to a certain verdict.  “․ By a progression of questions each of which seems to require an answer unfavorable to the defendant, a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted.   The result may be accomplished by a majority of the jury, but the course has been initiated by the judge, and directed by him through the frame of the questions.”  (See United States v. Desmond, supra, 670 F.2d at p. 419, quoting the language of United States v. Spock, supra.) 15

To assert that the finding form was the cause of the jury's agreeing to a verdict when they were allegedly not unanimous is to find cause and effect where there is none.   Supportive of this conclusion is the fact that the jurors as part of their general verdict were to make a finding of “true” or “not true” as to the allegations of the special circumstances.   One of the special circumstances that the jury found true was the allegation set forth in the verdict form “that the murder was committed ․ while the defendant was engaged in immediate flight after having committed and attempted to commit the crime of robbery.”

The language in the special finding of degree and the wording in the special circumstance allegation are very similar.   Defendant cannot and does not contend that the wording of the special circumstance allegation led the jury to find first degree.   It follows that similar language in the special finding did not lead to jury misconduct.

The general instructions told the jury what proven facts would constitute murder of the first or second degree.   The instructions told the jury when there would be premeditation and deliberation and/or felony robbery-murder.   Defendant asserts neither error in the instructions nor that they were contradictory in any manner with the special finding form.

As we have noted in part 2 hereinabove, the use of the special finding was extremely beneficial to the defendant, for now he need only deal with the verdict of first degree murder based upon the felony robbery-murder doctrine.

 It is invalid to assert jury misconduct based upon the finding form.   To say that the jury committed misconduct in voting for a verdict of first degree murder based on a felony robbery-murder when they were not unanimous is an attempt by the jury to impeach its own verdict and this it cannot do.   (People v. Hutchinson, supra, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132.)

 On motion for new trial the trial judge was entitled to weigh the effect of the “error” or asserted misconduct of the jury, and determine whether it had any prejudicial effect.   On appeal, we review the contention under the standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.   Upon a review of the entire record we are persuaded that the verdict would have been the same with or without the special verdict form and that any “error” was harmless beyond a reasonable doubt.16

IV. “Doyle” Error.   Defendant contends the prosecution committed reversible error in eliciting testimony that the defendant requested an attorney upon being advised of his Miranda rights.

Defendant contends that the prosecution committed reversible error in bringing to the attention of the jury the fact that the defendant had initially requested the presence of an attorney when advised of his Miranda rights.   The defendant contends that the jury's learning of his request for an attorney gave rise to an inference of guilt.   The error of telling the jury of defendant's assertion of his Miranda rights is popularly called “Doyle” error, referring to the case of Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

The People submit that telling the jury the defendant initially requested an attorney, under the facts here, created no adverse inference and was harmless beyond a reasonable doubt.

The record shows that the deputy district attorney told the jury in his opening statement that when the defendant was advised of his Miranda rights by the Los Angeles sheriff's officers, he said, “I'll talk to you, but, I think I'd like a lawyer first.”   On one occasion the officer-witness testified the defendant, when asked if he wanted to talk to them, answered, “I don't see why not” and when asked if he wanted a lawyer or not, said, “Yes, please.”   The same statements were repeated in other testimony.

The defense made no objection to any of those statements, nor any motion to strike, nor did they request the jury be admonished.

At a later point and after the defense commenced cross-examination of the officer, the defense made a motion for mistrial based upon alleged “Griffin” 17 error.   The motion was denied.

We commence our analysis of the asserted “Doyle error” in this case by reference to the citation of United States v. Hale (1975) 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, quoted in the opinion in Doyle v. Ohio, supra, 426 U.S. 610, at page 619, 96 S.Ct. 2240, at page 2245, 49 L.Ed.2d 91.   The court in Doyle observes:  “Mr. Justice White, concurring in the judgment in United States v. Hale, supra, 422 U.S. at 182–183, 95 S.Ct. at 2139–2140, put it very well:  ‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony․  Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial.   Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’   (Doyle v. Ohio, supra, 426 U.S. at p. 619, 96 S.Ct. at p. 2245.)

Footnote 10 states:  “The dissenting opinion relies on the fact that petitioners in this case, when cross-examined about their silence, did not offer reliance on Miranda warnings as a justification.   But the error we perceive lies in the cross-examination on this question, thereby implying an inconsistency that the jury might construe as evidence of guilt.   After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.”  (Doyle v. Ohio, supra, at p. 619, 96 S.Ct. at p. 2245.)

 Any reference to defendant's silence or request for an attorney after the Miranda warnings, must be deemed to be error and of constitutional dimension under the due process clause, but it is not reversible error per se.   Rather, the error is to be measured by the test in Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, to wit, whether the prosecution has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”  (Id., at p. 24, 87 S.Ct. at p. 828.)

We note the following factors present in the within cause:

(1) The reference to the request for an attorney was not treated by the defense during the trial as a serious matter nor one of prejudice.   The fact that the defendant had requested an attorney was clearly identified in the pretrial hearing on the motion to suppress the confession.   The presentation of evidence in that hearing was extensive and contained most of the references which were later presented in the trial, hereinabove referred to.   There was no motion in limine to exclude from the confessions the reference to a request for an attorney.   Such motions are common to cases involving an Aranda situation.  (People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.)   In the Aranda confessions, it is commonplace for the court to excise from a confession the offensive material and present only the remainder to the jury.   It could easily have been done in this case had the defense made the motion.   If the reference to the request for an attorney had been excised, it would have in no way impaired the context of the remainder which would be admissible.

We accept for the purpose of this discussion that failure to object may not be deemed a waiver of Doyle error, but failure to object is nevertheless a consideration when viewed with the fact that the error was of such slight effect that admonition could have cured it.18  Certainly, defense counsel did not consider the error of such prejudicial magnitude because they not only did not object to any of this evidence, but did not even raise the error in the written motion for new trial.

(2) There was no adverse “comment” by the district attorney, nor was the matter emphasized by any argument.   The defendant did not take the stand;  hence there was no attempt to impeach the defendant by his earlier request for counsel.   This is in contrast to the cases where the earlier invocation of the Miranda rights was used in cross-examination to impeach the defendant's testimony:  Doyle v. Ohio, supra, 426 U.S. at p. 619, 96 S.Ct. at p. 2245;  United States v. Hale, supra, 422 U.S. at 177, 95 S.Ct. at 2137;  and United States v. Impson, supra, 531 F.2d 274.

In People v. Modesto (1967) 66 Cal.2d 695, 59 Cal.Rptr. 124, 427 P.2d 788, the court evaluated the effect of a “Griffin” error as follows:  “We recognize that ‘the Fifth Amendment ․ forbids' not only all ‘instructions by the court that [the accused's] silence is evidence of guilt’ but also any ‘comment by the prosecution on the accused's silence’ ( [Griffin v. California,] 380 U.S. at p. 615 [85 S.Ct. at p. 1233, 14 L.Ed.2d at p. 110].)   Nonetheless, in assessing the possibility that a particular comment contributed to a conviction we must focus upon the extent to which the comment itself might have increased the jury's inclination to treat the defendant's silence as an indication of his guilt.   The risk that a comment will have this effect may become considerable if either the court or the prosecution ‘solemnizes the silence of the accused into evidence against him’ (380 U.S. at p. 614 [85 S.Ct. at p. 1232, 14 L.Ed.2d at p. 110] ) by telling the jury ‘that from the failure of [the defendant] to testify ․ the inferences from the facts in evidence [should] be drawn in favor of the State’ ( [Chapman v. California,] 386 U.S. at p. 25 [87 S.Ct. at p. 828, 17 L.Ed.2d at p. 711] ).   A forbidden comment, however, is less likely to affect the ‘substantial rights' of a defendant (386 U.S. at p. 23 [87 S.Ct. at p. 827, 17 L.Ed.2d at p. 710] ) if that comment merely notes the defendant's silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable.   As the court pointed out in Griffin, absent such a suggestion ‘the inference of guilt is not always so natural or irresistible.’  (380 U.S. at pp. 614–615 [85 S.Ct. at p. 1232–1233, 14 L.Ed.2d at p. 110];  cf. Bruno v. United States (1939) 308 U.S. 287, 294 [60 S.Ct. 198, 200, 84 L.Ed. 257, 261].)   We do not mean to imply that a prohibited comment is necessarily or even ordinarily harmless so long as it is unaccompanied by a statement that silence implies guilt;  we simply note that the absence of any such statement tends to mitigate the independently damaging effect of a comment uttered in violation of the Griffin rule.”   (People v. Modesto, supra, 66 Cal.2d at p. 713, 59 Cal.Rptr. 124, 427 P.2d 788;  fns. omitted.)  (Emphasis in original.)

(3) A further demonstration of the innocuous effect of the defendant's asking for a lawyer is that he began his statement to the officer by saying, “I'll talk to you,” or as the other witness testified when first asked if he would talk to them, “I don't see why not.”   Thus, the impression was given that he was not hiding behind the Miranda protection, but merely wanted an attorney present when he talked to the officer.   The additional fact that negates any guilty inference is that the defendant soon thereafter asked to talk to the Los Angeles officers and within an hour did talk to the Los Angeles officers, giving up his right to have an attorney present.   There followed a complete confession.   Given the fact that a confession is a very strong indication of guilt, the effect of the possible indication of guilt from the fact that defendant asked for a lawyer fades to insignificance.

 Tested by the rule of harmless error beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) upon our review of the entire record, we conclude that the testimony that the defendant asked for an attorney had no derogatory implication of guilt and it had no bearing on the outcome of the case;  thus it was harmless beyond a reasonable doubt.

V. Validity of the Felony-Murder Rule.***

VI. Continuous Pursuit Requirement.

VII. Life Imprisonment Without Parole.

VIII. Required Ruling on “Williams” Motion.

IX. Dual Use of Facts.

The judgment of conviction is affirmed.   The cause is remanded to the trial court for the sole purpose of resentencing the defendant on counts II and III.

APPENDIX A

APPENDIX B

(The cassette tape recording, People's Exhibit 50, was played as follows:)

“The date is April the 2nd, 1981. We are in the offices of the sheriff of Socorro County and present are Jack DeLavigne, myself, John Watson, both from the district attorney's office in Los Angeles, and William Mothershed. And with his permission we're tape recording the conversation we're having.

“Is that correct, Mr. Mothershed?

“THE DEFENDANT: Yes.

“MR. WATSON: Is it okay if I call you Bill?

“THE DEFENDANT: Sure.

“MR. WATSON: Okay.

“Bill, what we want to talk to you about goes back to the events of a couple of days ago when people from Los Angeles came to talk to you; okay?

“THE DEFENDANT: Yes.

“MR. WATSON: Do you have that in mind? Do you remember who it first was you first talked to from Los Angeles?

“THE DEFENDANT: A policeman named Al Sett.

“MR. WATSON: Okay. And they told you they were from the sheriffs department there?

“THE DEFENDANT: Yes.

“MR. WATSON: When was that conversation, when did you talk to him?

“THE DEFENDANT: It was sometime around noon, day before yesterday?

“MR. WATSON: Now, basically what was said during that conversation?

“THE DEFENDANT: I was read my rights. I agreed to talk with them without an attorney and they simply asked me details about the case.

“MR. WATSON: Now, had you talked to them earlier that same day?

“THE DEFENDANT: I talked to them twice that day. Once earlier I invoked power of attorney. I later rejected that and agreed to talk to him — to them without an attorney.

“MR. WATSON: Okay.

“Now, when you, in the first conversation, when you told them that you did want an attorney present, did the conversation stop then?

“THE DEFENDANT: Almost immediately.

“MR. WATSON: Okay.

“And what do you remember being said between the time you said you wanted a lawyer and when they left the room?

“THE DEFENDANT: They simply told me that they would get me an attorney and until then was — they couldn't talk to me about the case.

“MR. WATSON: Okay.

“Now after they left, you talked to Sergeant Trujillo, did you not?

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“And was that just a little while later? How much later?

“THE DEFENDANT: Immediately.

“MR. WATSON: Okay.

“And did Sergeant Trujillo also advise you of your rights?

“THE DEFENDANT: Yes, he did.

“MR. WATSON: Did he tell you what he wanted to talk to you about?

“THE DEFENDANT: He was willing to talk about anything I wanted to talk about. Specifically, he wanted to talk about the Socorro case.

“MR. WATSON: Okay.

“And that's when he told you he was there to talk about the burglary?

“THE DEFENDANT: Yes.

“RM. WATSON: He advised you of your rights at that time?

“THE DEFENDANT: Yes, he did.

“MR. WATSON: Okay.

“He'd also advised you of his (sic) rights when you were arrested, did he not? Out at the school?

“THE DEFENDANT: No, but he asked no questions.

“MR. WATSON: Okay.

“He didn't read to you from a card out at the school, did you, that you remember?

“Okay. Now, you then began to talk to Sergeant Trujillo about the burglary, did you not?

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“At some point in talking with Sergeant Trujillo did the subject of the Los Angeles case come up?

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“Who brought that up?

“THE DEFENDANT: I did.

“MR. WATSON: And tell me what you said to bring it up?

“THE DEFENDANT: I simply decided that I was wrong, I did not need an attorney and I was wondering if he could get the gentlemen from Los Angeles back inside.

“MR. WATSON: What made you decide that you wanted to talk about the Los Angeles case or what made you decide that you didn't want an attorney?

“THE DEFENDANT: When I decided that I wanted an attorney, I was incredibly confused, I soon lost that confusion and realized that an an attorney wasn't necessary.

“MR. WATSON: Did anything specific happen to make you become no longer confused?

“THE DEFENDANT: No.

“MR. WATSON: You just sorted things out in your own mind?

“THE DEFENDANT: Yes.

“MR. WATSON: And therefore it wasn't anything that Sergeant Trujillo said to you?

“THE DEFENDANT: No.

“MR. WATSON: It wasn't anything that any — anybody said to you?

“THE DEFENDANT: No, it wasn't.

“MR. WATSON: It was just — you'd had some time to think about it?

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“Eventually Sergeant Trujillo did go and then the Los Angeles police officers came back.

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“And did they advise you of your rights?

“THE DEFENDANT: They advised me of all of my rights again and asked me to — asked me if I wanted to change my answer to the attorney.

“MR. WATSON: (Unintelligible.)

“THE DEFENDANT: They didn't ask me if I wanted change my answer, they asked me that same question again and I changed my answer.

“They asked me to scratch out the answer they had written on the card and write my own answer. And sign the card. And I did.

“MR. WATSON: Okay.

“Now, has anybody ever, since you've been arrested on the 31st until right now, has anybody ever threatened you?

“THE DEFENDANT: Not once.

“MR. WATSON: 'Not once,' is that what you said?

“THE DEFENDANT: Yes.

“MR. WATSON: Has anybody ever promised you anything in order to get you to talk or to get you to do anything?

“THE DEFENDANT: Not once.

“MR. WATSON: Okay.

“MR. DELAVIGNE: Have they ever made any threats against anyone you know in order to get you to make a statement?

“THE DEFENDANT: No.

“MR. WATSON: Okay.

“So is this statement correct, you're talking to these police officers because you decided it was the thing that you wanted to do?

“THE DEFENDANT: Yes.

“MR. WATSON: Okay.

“MR. DELAVIGNE: Do you feel better that we talked?

“THE DEFENDANT: Yes.

“MR. DELAVIGNE: In your own mind?

“MR. WATSON: Okay. Because you nodded your head up and down you also meant that as a yes.

“THE DEFENDANT: Yes.

“MR. WATSON: I'm just saying that because the tape — it's okay — the tape recorder.

“Okay. We've been asking the questions or I've been asking the questions.

“Is there anything that you want to ask me, anything you want to say?

“THE DEFENDANT: I think they've answered all my questions.. I'm just trying to get it over with.

“MR. WATSON: Well, at this point then I'm going to terminate the tape recording.

“Thank you, Bill.”

FOOTNOTES

FOOTNOTE.  

1.   The record as to the stay of count III is uncertain;  however, the judgment shows that defendant was sent to prison only on count I.

2.   It appears this individual was seeking to avoid extradition to Texas and Arizona and had been in a mental hospital.

3.   The campus, college or university hereafter referred to is the New Mexico Institute of Mining and Technology at Socorro, New Mexico.

4.   People v. Fioritto (1968) 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 441 P.2d 625;  People v. Pettingill (1978) 21 Cal.3d 231, 237, 145 Cal.Rptr. 861, 578 P.2d 108.

5.   See Appendix A, pages 134–136, for a verbatim transcript of a part of that taped confession.

6.   All references are to the Penal Code unless otherwise noted.

7.   The case of People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, reaffirms the rule in Pettingill prohibiting a reinterview after defendant has invoked his Miranda rights.   However, the applicability of the Pettingill rule to a valid confession under the law of another state where a reinterview is permitted (part (1) herein), or to the exception to Pettingill where the defendant initiates the request for a reinterview (part (2) herein) are not involved in the Smith decision.

8.   See Appendix B, pages 2173–2178, for a verbatim transcript of that tape.

9.   The jury was instructed:  “If you should find the defendant guilty of First Degree Murder it shall be your duty to complete a form indicating your findings, if any, on what type of First Degree Murder the defendant committed.”The form provided to and returned by the jury was as follows:L1-2    “First Degree Murder FindingsL1-2    “All jurors agree the murder was wilful, pre-meditated and deliberate First Degree Murder.☐ L1-2    “All jurors agree the murder was a First Degree Felony Murder that was committed in the perpetration of Robbery.☑ L1-2    “All jurors agree the murder was both wilful, pre-meditated and deliberate First Degree Murder and First Degree Felony Murder that was committed in the perpetration of Robbery.☐ L1-2    “All jurors find the defendant guilty of First Degree Murder, but cannot agree as to which type of First Degree Murder.”☐     “This 28 day of April, 1982,/s/ Gladys Perry.-    FOREMAN”

10.   Evidence Code section 1150 provides:  “(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.   No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.  [¶] (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.”

11.   Penal Code section 1150 provides:  “The jury must render a general verdict, except that in a superior court, when they are in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict.”

12.   Cited with approval in People v. Romero (1982) 31 Cal.3d 685, 695, 183 Cal.Rptr. 663, 646 P.2d 824.

13.   See Stone v. Superior Court (1982) 31 Cal.3d 503, 519–520, 183 Cal.Rptr. 647, 646 P.2d 809.   The Stone case is not similar in legal effect for here we have no showing that the jury was unanimous in a determination that there was no first degree murder based upon premeditation and deliberation.   However, the technique suggested of dual verdict forms is not dissimilar to what was done here.  (See CALJIC No. 17.12.)

14.   We do not in any way suggest that a special verdict is authorized except as provided in section 1150 of the Penal Code.

15.   For the purpose of this case we have treated special findings as included within the purview of section 1150 of the Penal Code, which refers to a special verdict.   As noted in the text herein, a special finding, unlike a special verdict, does not lead by a progression of findings or questions to a conclusion of law or to a verdict.

16.   We do not in any way suggest that a special verdict or findings are desirable or recommended.

17.   Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

18.   We recognize the argument that an admonishment might emphasize what may in the first instance not be viewed as a glaring and prejudicial statement.  (See United States v. Impson (5th Cir.1976) 531 F.2d 274.)   It is unnecessary to speculate on this possibility because no admonishment was requested or given.   Such a possibility would present itself if the fact defendant asked for an attorney was brought up in cross-examination of a defendant-witness.  (See People v. Fabert (1982) 127 Cal.App.3d 604, 611, 179 Cal.Rptr. 702, where the court in a Griffin-Doyle-error situation noted the failure to admonish, and People v. Vargas (1973) 9 Cal.3d 470, 479, 108 Cal.Rptr. 15, 509 P.2d 959, where an admonishment was given.)

FOOTNOTE.   Issues V–IX were not certified for publication.

ACKERMAN, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.

AMERIAN, Acting P.J., and SCHNEIDER,**** J., concur.

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