PEOPLE v. BEHELER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Jerry Lain BEHELER, Defendant and Appellant.

Cr. 5136 (F000633).

Decided: March 19, 1984

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Julia Cline Newcomb, Deputy State Public Defender, Sacramento, for defendant and appellant. George Deukmejian, Former Atty. Gen., John K. Van de Kamp, Atty. Gen., Robert H. Philibosian and Daniel J. Kremer, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller, Janice Rogers Brown and Michael T. Garcia, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Appellant, Jerry Lain Beheler, was found guilty by jury of first degree murder with one special circumstance (killing in the attempted commission of an enumerated felony) and attempted robbery.

In an opinion filed December 16, 1982, modified January 12, 1983, we reversed appellant's conviction on all counts.   We held appellant was not properly advised of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

On July 6, 1983, the United States Supreme Court filed a per curiam decision in California v. Beheler (1983) 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 reversing this court's decision.   The majority concluded that Oregon v. Mathiason (1977) 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 controlled and remanded the case for “further proceedings not inconsistent with this opinion.” 1

Following remand, this court requested supplemental briefing on independent state grounds, collateral estoppel as it might apply upon retrial of appellant, the application of People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 and Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.

We reject and do not address appellant's contentions on independent state grounds.   Furthermore, we decline appellant's invitation to overturn the felony-murder rule on grounds left open in People v. Dillon, supra, 34 Cal.3d 441, 494–499, 194 Cal.Rptr. 390, 668 P.2d 697.   As we do not reverse appellant's conviction on these or other grounds, it is not necessary that we address the issue of collateral estoppel as it might apply on retrial of appellant.   However, for reasons hereinafter explained, we conclude the special circumstances finding should be stricken pursuant to Carlos v. Superior Court, supra, 35 Cal.3d 131, and the first degree felony murder conviction should be reduced to voluntary manslaughter pursuant to People v. Dillon, supra.2

FACTS

During most of the day on February 20, 1980, appellant, Jerry Beheler, stayed home drinking beer, talking and playing a domino game with his friends.   During the day, appellant and his friends alternately made trips to the nearby Palm Liquor store to buy more beer.   Staying at the Beheler home was appellant's half brother, Dannie Willbanks.   A recent friend of appellant, Roscoe Howard, stopped by with a third party named Keith in the late afternoon.   Subsequently, Keith and appellant made another trip to the Palm Liquor store.   While they were still in the parking lot, Peggy Dean approached them.   She asked Keith if he was interested in buying hashish.   Appellant testified that he refused Dean's offer as he did not have enough money.   However, on the night of the killing, he told Daniel Chavez he had bought some hash from a lady at the Palm Liquor store and had promised to return for more.   Appellant and Keith purchased quart bottles of malt liquor during this trip.   Keith and appellant returned home and the domino game continued.   Appellant, Willbanks, Roscoe Howard and Keith were playing the game.   Sometime during the evening, Keith left.

Later, Howard, Willbanks and appellant drove to Daniel Chavez' house.   Chavez and Howard were long-time neighbors and good friends.   However, Chavez had only known appellant for a short time.

Howard and appellant invited Chavez to come to appellant's house to go drinking and smoke some hash.   Chavez testified appellant said they had bought hash earlier from a lady at the Palm Liquor store and this lady was supposed to meet them at the store in one-half hour with an additional 50 grams.   Appellant and his friends then drove back to his home.   Chavez testified appellant was “pretty loaded” and had difficulty driving back to his house.   More beer was consumed by the men at appellant's home.

At appellant's home, Daniel Chavez noticed that Howard had a 357 magnum pistol with him.   Chavez recognized the gun as belonging to Howard's father.   In appellant's home, Chavez, Howard and appellant discussed returning to the liquor store and threatening Peggy Dean with the gun to get the hash.   Chavez testified that appellant came up with the idea.   Chavez testified that he and Howard did not want to threaten Peggy Dean with the gun.   They actually discussed several plans for taking the hash.   After Chavez, Howard and appellant decided they did not want to do the act, Willbanks volunteered.   Chavez said that appellant was too drunk to do it anyway.

Willbanks got the gun and started flashing it around.   He took all the bullets out except one and said he only needed one.   Howard told him not to be joking with the gun and took it from him;  Howard then loaded it back up.   Chavez testified appellant was too drunk to drive to the liquor store;  appellant's wife told Chavez “to take care of him.”

All four men left the house and got in appellant's car.   Danny Willbanks was driving.   He had the pistol on his lap.   Chavez was in the front passenger seat and appellant was in the rear seat behind Willbanks.   Howard sat behind Chavez.   Willbanks drove to Palm Liquor and pulled into the parking lot on the south side of the liquor store.   Two women and a man were sitting on the bumper poles along the south side of the store.   Peggy Dean got up and walked over to the car.   She said, “I didn't think you guys were going to show up.”   She handed Danny Willbanks a foil-wrapped bindle the size of a marble and told him she had “twelve more in her hand.”   Ms. Dean leaned in the car window and observed the gun on Willbanks' lap.   She asked what the gun was for.   Chavez told her it was for protection.   Willbanks pulled out the gun and pointed it at Ms. Dean and said, “Let me have it all.”   Ms. Dean recoiled and stepped back from the window and said to Willbanks, “You're not going to use that on me.”

Chavez and Howard urged Willbanks to leave the place with the one bindle he had.   Despite the warning, however, Willbanks pulled the trigger.   The bullet struck Peggy Dean just above her right eye, passed through the soft tissue of the brain and out of the back of her skull.   She crumpled to the pavement and a flow of bindles spilled from her hand.

Ms. Dean's companions were still sitting on the curb posts, immobile.   A pickup truck pulled into the parking lot and Chavez reached over and turned on the ignition.   He told Willbanks, “Let's get out of here.”   Finally, Willbanks put the car in gear and drove off.   He drove erratically—skidding and stopping—back to appellant's house.   Appellant sat silently in the back seat during the entire incident, including driving to and from the liquor store.   Chavez could not tell if he was awake or not.

Back at the house, Chavez told appellant's wife about the murder.   Willbanks lay against a wall in the house crying and repeating that he had killed Ms. Dean.

Appellant told Willbanks that he would have to leave.   Chavez and Howard told everyone not to mention this to the police, “Nobody knows nobody, man.”   Chavez and Howard took the gun into appellant's backyard to hide it.   They then took off running along the railroad tracks.   Howard disposed of the bullets along the way.   Appellant was not involved in the disposal of the weapon or bullets.

Howard and Chavez first went to Chavez' house where Chavez changed his shirt.   Then they went next door to Howard's house.   Later, they walked to a friend's house and spent the night.

Appellant and his wife went to a neighbor's house and briefly related the story.   They called the police who arrived almost immediately.   Deputy Lantz, who was investigating the scene at the Palm Liquor store parking lot, was ordered to respond to the neighbor's residence.   Appellant and his wife were both crying.   Appellant informed Lantz that he had been present at the time the victim had been shot.   His half brother had killed the woman at the Palm Liquor store parking lot and that the gun was in his backyard somewhere.   Appellant admitted the car they were in was his.   Described as cooperative, appellant gave the officers permission to search his yard and his automobile.   The gun was found in the backyard.   It was hidden under some leaves and brush and wrapped in a yellow cloth.   No Miranda rights were given to appellant.   Lantz could smell alcohol on appellant's breath and, in Lantz' opinion, appellant had more difficulty controlling his emotions “than perhaps he would have had he been totally sober.”   No tests were performed to test appellant's state of sobriety.

Later in the early morning hours of February 21, appellant agreed to go to the sheriff's office for a more detailed interview.   In addition, he took the sheriff's officers to the houses on Churchill Drive where Roscoe Howard and Daniel Chavez lived.

At the sheriff's department, appellant gave the investigators a detailed un-Mirandized taped statement.   The taped statement was introduced into evidence.3  Appellant told the officers his half brother, Danny Willbanks, had shot a woman in the parking lot of the Palm Liquor store.   He gave the officers several details regarding the alleged incident.   At one point, the taped interview concluded.   The officers then called appellant back into the interview room to ask him some more questions.   The officers got appellant to reaffirm that Danny Willbanks had a 357 magnum gun which he had gotten from Roscoe Howard.   The officers asked appellant why Willbanks got the pistol from Howard at that time.   Appellant responded, “it was for the purpose of robbery.”   Appellant admitted that the plan was to go down to the Palm Liquor store and take the “dope” away from Peggy Dean.   Appellant admitted that he knew the purpose of going to the Palm Liquor store was to rob Peggy Dean of hashish.   Appellant was not Mirandized at this time.   The officers asked appellant why he went along with Willbanks to go rob Peggy Dean.   Appellant replied, “I'm his brother.   I mean, if there's a way that I knew that I could have kept him from doing what he did I would have done it, if I'd have known that he was fixing to do what he had done I could have prevented it.   This was just something that was unforeseen.”   The officers also got appellant to admit that Roscoe Howard and Daniel Chavez knew about the robbery but that “None of us had any idea that he was going to kill this lady.”   The officer specifically asked appellant, “But they had an idea that he was going to rob her?”   Appellant replied, “Well, they knew that he was going to take her hashish.”   After the interview, appellant was returned to his home.

Later that day, appellant called Roscoe Howard and Daniel Chavez and convinced them to cooperate with law enforcement officials.   Chavez testified at trial that he and Roscoe Howard waited to cooperate with the officers because they wanted to see what happened to appellant after appellant told the story to the police.   Seeing that appellant was “out” after telling his story, they also agreed to come to the sheriff's office.   Appellant told Chavez and Howard to tell the truth.  “[The officers] just wanted statements.”

Several days later, the four men were arrested.   Appellant, Howard and Chavez waived their Miranda rights at that time and each gave a second tape-recorded statement substantially corroborating each other.   Appellant's second tape-recorded interview was also admitted into evidence.4

Appellant testified in his own behalf.   He estimated he and Willbanks drank a couple of cases of beer during the day and he started feeling the effects of alcohol as early as noon.   He testified he refused the victim's offer to sell hash earlier in the evening as he did not have enough money.   Later in the evening, he and his friends bought more quarts of beer four or five more times.   At trial, appellant's memory of the events at the liquor store was quite limited.   He remembered hearing a loud report from a gun.   He lifted his head in time to catch a glimpse of a gun.   Then he saw a woman slowly turn around and fall to the ground.   He did not recall a conversation in the car.   He did not remember the drive home.   But he did remember arriving back at the house.   He testified he did not actually learn of the planned robbery until after the shooting.

Dr. Sidney Cohen, a pharmacist and psychiatrist from UCLA, testified as to the effects of alcohol on the human mind.   He testified appellant was in a state of high intoxication throughout the day in question.   He testified that during the ride from his home to the liquor store appellant apparently passed out.   “He was actually in a stuporous condition.”   Dr. Cohen testified appellant suffered from diminished capacity on the day of the incident in question.

DISCUSSION

I

We first examine whether appellant's special-circumstance finding should be stricken.

Appellant was convicted of felony murder with special circumstances (robbery) and sentenced to life imprisonment without possibility of parole.   It is undisputed that no direct evidence supports an actual intent to kill, and the jury was not asked to make a finding on that issue.

Recently, the California Supreme Court in Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 held that the special circumstances-death penalty law does not apply to felony murders unless there is an actual intent to kill.   This limitation was deemed necessary by the court in order to avoid constitutional infirmity of the statute on cruel-and-unusual-punishment and equal-protection grounds, as well as to conform to the mandate of Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.   The Carlos decision is also in accord with Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, where the Supreme Court held that an accomplice who neither intends to kill nor contemplates the use of lethal force cannot be sentenced to death.

Carlos did not decide whether its own holding was retroactive or what standard of prejudice applied when the court failed to instruct on intent to kill.  (Carlos v. Superior Court, supra, 35 Cal.3d 131, 155, fn. 21, 197 Cal.Rptr. 79, 672 P.2d 862.)

Retroactivity.

Respondent contends that the Carlos opinion deliberately avoided any constitutional findings and, therefore, the “policy” of “orderly administration of justice” requires that Carlos be applied prospectively, citing People v. Yates (1983) 34 Cal.3d 644, 653–654, 194 Cal.Rptr. 765, 669 P.2d 1.   We disagree for the following reasons.

In the recent case of Donaldson v. Superior Court (1983) 35 Cal.3d 24, 196 Cal.Rptr. 704, 672 P.2d 110, the California Supreme Court held that “In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law.   If it does not establish a new rule or standard, but only elucidates and enforces prior law, no question of retroactivity arises.  [Citations.]”  (Id., at p. 36, 196 Cal.Rptr. 704, 672 P.2d 110.)   The court also explained that there is no issue of retroactivity when it resolves a conflict between lower court decisions or addressing an issue not previously presented to the courts.  “In all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”  (Id., at p. 37, 196 Cal.Rptr. 704, 672 P.2d 110.)   Thus, in deciding whether Carlos v. Superior Court applies to the instant case, it is necessary to make the threshold inquiry to determine whether Carlos established a “new” rule or standard which could be given nonretroactive application.

Recently, the United States Supreme Court has attempted to define the decisions involving a “clear break with the past” (Desist v. United States (1964) 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248) that raise an issue of retroactivity.   In United States v. Johnson (1982) 457 U.S. 537, 551, 102 S.Ct. 2579, 2588, 73 L.Ed.2d 202, the Supreme Court explained that “Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court [citations], or disapproves a practice this Court has arguably sanctioned in prior cases [citations], or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.”

 Applying the foregoing principles, we conclude no new rule of law was created by the Carlos decision, nor did it represent “a clear break with the past” under the test applied in Desist v. United States, supra, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248.

The Carlos decision involved a construction of the felony-murder provisions of the 1978 initiative.   The Supreme Court merely applied established principles of statutory interpretation, as well as findings regarding the intent of the drafters of the initiative and the manner in which it was presented to the voters, concluding that an intent to kill or aid in a killing is an element of the felony murder special circumstance.   The Carlos case represents the first time the Supreme Court has been presented with this particular issue applied to the 1978 initiative.   Thus, it is clear that no past precedent exists which could have been overruled.

Secondly, the Carlos decision does not disapprove a practice that the Supreme Court has arguably sanctioned in prior cases.   Although the statute was added by initiative in 1978, the statute's first construction by the Supreme Court was done in Carlos in December 1983.   Thus, it is clear that the court had not sanctioned a practice which permitted a true finding by a jury on the felony murder special circumstance absent a finding of intent to kill as to each defendant so charged.   Finally, because the Supreme Court has granted a hearing in every case which has construed the statute, it cannot be said that the Carlos decision overturned a widespread and longstanding practice expressly approved by a near-unanimous body of lower court authority.

Thus, from the principles set out in Desist and Johnson, as discussed above, Carlos is not a “clear break with the past” sufficient to constitute a new rule of law raising a retroactivity question.5

Standard of Prejudice.

Appellant argues that a per se reversal is required under California law.   Appellant asserts it is well established in California that withdrawal of an element of the charged offense from the jury's consideration requires reversal without regard to the strength of the evidence, citing People v. Modesto (1963) 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33 and People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.

It has also been argued in other cases that the appropriate standard to apply to error under Carlos is the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) 6 or the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243).

However, we do not find it necessary to address this issue at this time because even if Watson were the appropriate standard, we find appellant was prejudiced.   In the instant case, there was absolutely no evidence that appellant harbored an intent to kill.   Moreover, the evidence showed that appellant was too drunk to drive and sat throughout the entire incident in the back seat, possibly in a stuporous condition.

 The jury in the instant case was not instructed that appellant needed to harbor an intent to kill to be convicted of the special circumstance.   We believe that no matter what standard of prejudice is applied, the error would be prejudicial to appellant.   Thus, having found the Carlos decision to be retroactive, the special circumstance should be stricken.

II

Appellant next contends that the application of People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 requires modification of the judgment of appellant's conviction for first degree murder.   We agree.

The Supreme Court in Dillon rejected a two-fold attack on the first degree felony-murder rule, that is:  (1) that the rule is an uncodified common law rule that the Supreme Court should abolish, and (2) that, if on the contrary, it is embodied in a statute, the statute is unconstitutional in that it utilizes the conclusive presumption of a necessary element.   The court held that the first degree felony-murder rule was created by statutory enactment.   In addition, the court held that malice aforethought is not a necessary element of first degree felony murder and, therefore, malice is not conclusively “presumed” by operation of law.  (Id., at pp. 475–476, 194 Cal.Rptr. 390, 668 P.2d 697.)

The Dillon court went on, however, to express its concern “that first degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder ․ and that it condemns alike consequences that are highly probable, conceivably possible, or wholly [unforeseeable].”  (Id., at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.)

The court continued:

“Despite this broad factual spectrum, the Legislature has provided only one punishment scheme for all homicides occurring during the commission of or attempt to commit an offense listed in section 189:  regardless of the defendant's individual culpability with respect to that homicide, he must be adjudged a first degree murderer and sentenced to death or life imprisonment with or without possibility of parole—the identical punishment inflicted for deliberate and premeditated murder with malice aforethought.  (Pen.Code, § 190 et seq.)   As the record before us illustrates, however, in some first degree felony-murder cases this Procrustean penalty may violate the prohibition of the California Constitution against cruel or unusual punishments.  (Cal. Const., art. I, § 17.)”  (Ibid., emphasis added)

The Dillon court relied on In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and its progeny which have established that a statutory punishment may violate the constitutional prohibition forbidding cruel or unusual punishment if it is grossly disproportionate to the offense for which it is imposed.  (People v. Dillon, supra, 34 Cal.3d at p. 478, 194 Cal.Rptr. 390, 668 P.2d 697.)7 .

In Dillon, the defendant, a 17-year-old high school student, was charged with first degree felony murder and attempted robbery.   The prosecution arose when the defendant and several youthful offenders attempted to steal marijuana from a marijuana farm and the defendant panicked and fatally shot a man who was guarding the farm.   The jury found the defendant guilty as charged, even though it expressed reluctance to apply the felony-murder rule to the facts.   The California Supreme Court affirmed the judgment as to the attempted robbery conviction, modified the judgment as to the murder conviction by reducing the degree of the crime to second degree murder.  (Dillon, supra, at p. 488, 194 Cal.Rptr. 390, 668 P.2d 697.)

 The Dillon court weighed the life sentence for first degree murder against the circumstances of the crime and the culpability of the offender.   In regard to the first of these factors, the court recognized that, when viewed in the abstract, robbery-murder presents a very high level of danger, second only to deliberate and premeditated murder with malice aforethought.   However, the court held the court should consider not only the offense in the abstract, but also the “facts of the crime in question.”  (Id., at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   Thus, the court should consider the totality of the circumstances surrounding the commission of the offense, including such factors as motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.  (Ibid.)  The Dillon court noted that at trial the defendant took the stand and told the jury his side of the story, which presented a plausible picture of the “evolution of defendant's state of mind during these events—from youthful bravado, to uneasiness, to fear for his life, to panic.”  (Id., at p. 482, 194 Cal.Rptr. 390, 668 P.2d 697.)   In Dillon, after one of Dillon's companions accidentally discharged his shotgun, the victim circled behind defendant and the others and was approaching up the trail.   Dillon and his companions first heard the victim coming through the bushes and saw that he was carrying a shotgun.   When the victim drew near, defendant panicked and began rapidly firing his rifle at him.   Defendant stated that he just kept pulling the trigger because he was afraid the victim was going to shoot him and “I couldn't do anything.”  (Id., at p. 483, 194 Cal.Rptr. 390, 668 P.2d 697.)

Secondly, the court noted that the courts must also view “the nature of the offender” in the concrete rather than the abstract.  (Id., at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)  “This branch of the inquiry therefore focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”   A clinical psychologist testified that the defendant in Dillon was immature in a number of ways;  he functioned like a much younger child;  he did not have a prior record.

In addition, the Dillon court noted that the punishment inflicted on Dillon turned out to be far more severe than all the parties expected.   After the trial court committed Dillon to the Youth Authority and he took his appeal, the People collaterally attacked the commitment order on the ground of excessive jurisdiction.   The Court of Appeal held that at the time of the offense a minor convicted of first degree murder was ineligible as a matter of law from commitment to the Youth Authority.  (People v. Superior Court (Dillon)  (1981) 115 Cal.App.3d 687, 185 Cal.Rptr. 290.)   The appellate court therefore issued a writ of mandate directing the trial court to vacate the order of commitment and the court was left with no alternative but to sentence defendant to life imprisonment in state prison.

Moreover, the court in People v. Dillon expressly noted that the jury had specifically asked if they could bring in a verdict of second degree murder or manslaughter even if they found the killing occurred during an attempted robbery.   In his final remarks before discharging the jurors, the judge expressed sympathy with the jury's evident reluctance to apply the felony-murder rule to the facts.   Moreover, the foreman of the jury wrote to the judge two days later confirming the jury's unwillingness to return the verdict compelled by the felony-murder rule.   Thus, the California Supreme Court held that “both the judge and the jury manifestly believed that a sentence of life imprisonment as a first degree murderer was excessive in relation to defendant's true culpability:  as we have seen, they made strenuous but vain efforts to avoid imposing that punishment.”  (People v. Dillon, supra, 34 Cal.3d at p. 487, 194 Cal.Rptr. 390, 668 P.2d 697.)

The Supreme Court in Dillon specifically noted that the excessiveness of the defendant's punishment was underscored by the petty chastisements handed out to the six other youths who participated with him in the same offense:

“It is true that it was only defendant who actually pulled the trigger of his gun;  but several of his companions armed themselves with shotguns, and the remainder carried such weapons as a knife and a baseball bat.   Because their raid on the marijuana plantation was an elaborately prepared and concerted attempt evidenced by numerous overt acts, it appears they were all coconspirators in the venture.   At the very least they were aiders and abettors and hence principals in the commission of both the attempted robbery and the killing of Johnson.  (Pen.Code, § 31.)   Yet none was convicted of any degree of homicide whatsoever, and none was sentenced to state prison for any crime.   Instead, the one member of the group who was an adult was allowed to plead no contest to charges of conspiracy to commit robbery and being an accessory (i.e., after the fact) to a felony, and was put on three years' probation with one year in county jail.   Five of defendant's fellow minors were simply made wards of the court;  of these, only one was detained—in a juvenile education and training project—while the other four were put on probation and sent home.   In short, defendant received the heaviest penalty provided by law while those jointly responsible with him received the lightest—the proverbial slap on the wrist.”  (Id., at p. 488, 194 Cal.Rptr. 390, 668 P.2d 697, emphasis added.)

Accordingly, the court in Dillon “ ‘sought to bring the felony-murder rule into line with well-accepted criteria of individual accountability and proportionate punishment.’ ”  (Ibid.)  The court then held that the punishment of Dillon by a sentence of life imprisonment as a first degree murderer violated article I, section 17 of the California Constitution.  (Dillon, supra, at p. 489, 194 Cal.Rptr. 390, 668 P.2d 697.)   Nevertheless, because Dillon intentionally killed the victim without legally adequate provocation, the court found that he should be punished as a second degree murderer.  (Ibid.)

In the case at bar, appellant stresses the inherent unfairness of conviction and punishment of Beheler as a first degree murderer based on the felony-murder rule and vicarious liability law which precluded the jury from considering his actual mental culpability.   Appellant contends that considering the evidence in the light most favorable to the People, he actually assisted a voluntary manslaughter without appreciating that he was doing so.   Appellant asserts, “Surely culpability is less than one who knowingly assists a voluntary manslaughter.   Consequently, appellant contends that a reasonable disposition of this case would be to reduce his conviction for murder to involuntary manslaughter pursuant to People v. Dillon.

Respondent contends that the Dillon court's holding that appellate courts are entitled to modify first degree felony murder convictions should be narrowly construed, reminding us that in Dillon both the judge and jury felt the felony-murder rule operated too harshly in Dillon's case because of Dillon's youth and immaturity.   In general, respondent argues we should consider Dillon an exception, rather than the rule.   We agree and, indeed, point out that the felony-murder rule is still the law in this state.   However, we further point out that despite respondent's criticisms of the Dillon opinion, Dillon, likewise, is the law in this state.   Accordingly, we shall proceed to apply the Dillon factors to the instant case.

Nature of the offense.

 Obviously, robbery-murder presents a high level of danger, second only to deliberate and premeditated murder with malice aforethought.  (People v. Dillon, supra, 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   However, as stated above, the Dillon court held that a court should consider not only the offense in the abstract, but also the facts of the crime in question.   Accordingly, a court should consider the totality of the circumstances surrounding the commission of the offense, including motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.   In the instant case, considering the evidence in the light most favorable to the prosecution, appellant helped encourage the group to carry out a robbery of the victim's bindles of hashish.   Moreover, the group used appellant's car and he rode along in the back seat.   However, it is also undisputed that appellant had been drinking heavily throughout the entire day in question.   Indeed, he was intoxicated to the extent that his companions would not allow him to drive the car because of the way he had driven when returning from Chavez' home earlier in the evening in question.   It is undisputed that Willbanks acted solely on his own in shooting the victim.   Appellant did not participate in any overt acts during the robbery;  neither was he in a position to prevent the shooting, as perhaps Chavez was, sitting in the front passenger seat next to Willbanks.   The prosecution's chief witness could not even tell if appellant was asleep or not during the robbery.   Following the robbery and killing of Ms. Dean, appellant promptly called the police and assisted in the investigation to his maximum capacity.   As in Dillon, appellant took the stand and testified in his own behalf.

Nature of the offender.

As discussed above, the Dillon court pointed out that this factor focuses on whether the punishment is grossly disproportionate to the defendant's individual culpability by looking at his age, prior criminality, personal characteristics and state of mind.  (Dillon, supra, at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   In the instant case, appellant was 28 years old at the time of the instant offense, married with three children;  hence, there does not exist the same youthful age or immaturity factor as in Dillon where the defendant was 17.   Appellant had a clean record except for a drunk driving conviction.   Thus, as in Dillon, he “was not the prototype of a hardened criminal who poses a grave threat to society.”  (Id., at p. 488, 194 Cal.Rptr. 390, 668 P.2d 697;  see also In re Reed (1983) 33 Cal.3d 914, 191 Cal.Rptr. 658, 663 P.2d 216;  In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.)   In Dillon, the defendant's state of mind was such that he panicked;  here, appellant's inebriation was an important factor in considering his state of mind.   All of the evidence presented at trial indicates that appellant was at least in some state of intoxication throughout the day in question, including during the immediate events of the robbery and killing.   As mentioned above, Chavez himself testified that appellant was too drunk to drive the car.   Even the sheriff's officers testified that at the time they spoke with appellant there was some odor of alcohol about him and he was crying and extremely emotionally distraught.

Appellant's punishment versus that of his codefendants.

As mentioned above, the Supreme Court in Dillon specifically noted the fact that the punishment inflicted on Dillon was excessive compared to the punishment suffered by the other youths who participated with him in the offense.

In Dillon, Dillon's participants received what the court described as the lightest punishment, the “proverbial slap on the wrist.”   In the instant case, Willbanks did not receive a “proverbial slap on the wrist,” but he did receive an extremely light sentence compared to Beheler.   Willbanks received six years for the voluntary manslaughter conviction and another two years for a weapon-use enhancement.  (While the Willbanks jury agreed with Willbanks' diminished-capacity defense, Willbanks obviously was sober enough to drive, pull a trigger, and later escape on his motorcycle.)   Chavez, who was sober during the incident and possibly capable of reaching over to prevent the shooting, got off scot-free by receiving immunity.   Howard received the same sentence as Beheler, but it could be argued that Howard was more culpable than Beheler because Howard provided the murder weapon and was not as inebriated as Beheler.   While we recognize that “different juries may reach different results under any criminal statute” (Standefer v. United States (1980) 447 U.S. 10, 21, 100 S.Ct. 1999, 2006, 64 L.Ed.2d 689), we nonetheless note that the “layman's faith in the integrity of our legal institutions” (People v. Taylor (1974) 12 Cal.3d 686, 696, 117 Cal.Rptr. 70, 527 P.2d 622) is hampered when a triggerman gets off with six years, while an accomplice to a robbery, too drunk to even drive and quite likely in a stuporous condition during the events, is sentenced for first degree felony murder.

Was the punishment inflicted far more severe than the parties expected?

One of the points considered in Dillon was the fact that there was evidence in the record to support the conclusion that both the judge and the jury wished they did not have to convict and sentence on a first degree felony-murder theory.   In the instant case, the jury did have some difficulty understanding felony-murder instructions (CALJIC Nos. 8.21 and 8.79) and asked to be instructed further on the crime of “murder in the first degree.”   The judge acknowledged some factors in mitigation but pointed out that “the sentence is automatic.”   While the record on court or jury discontent is not the same as in Dillon, we point out that this factor should not be dispositive.   We reject respondent's contention that we should limit Dillon to cases where it appears on the record that the judge and jury felt the felony-murder rule operated too harshly.   We believe such a strict rule would negate the rationale behind the Dillon opinion, which is to stress the importance of individual accountability and proportionate punishment.  (People v. Dillon, supra, 34 Cal.3d at p. 488, 194 Cal.Rptr. 390, 668 P.2d 697.)   Moreover, such a rule would operate unfairly, punishing a possible Dillon-type defendant if his judge or jury were not as vocal on the record as in Dillon.

CONCLUSION

There can be no doubt that appellant was far less culpable in the instant case than was the defendant in Dillon.   The defendant in Dillon was the triggerman and shot the victim nine times.   Appellant, on the other hand, did not provide the gun, did not desire that the gun be used, and did not fire the fatal shot.

Recognizing that the felony-murder rule is still the law in California, but also recognizing that this court has a duty to apply the law as set forth in Dillon and In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, we believe appellant's crime should be reduced below that of first degree murder.   Appellant did not participate in any way in the killing of the victim, nor did he harbor any intent to kill.   He sat passively in the back seat of the car during the robbery, possibly in a stuporous condition.   Appellant's lack of prior criminality, his personal characteristics and his intoxicated state of mind during the events in question all point to a defendant who is not a hardened criminal who poses a grave threat to society.   Appellant's punishment was grossly excessive compared to the triggerman, who, unlike appellant, received the benefit of lesser-included-offense instructions and was convicted of voluntary manslaughter.   By striking the special circumstance, appellant's sentence would be reduced to 25 years to life.   We believe, under the circumstances of this case, this sentence would violate article I, section 17 of the Constitution.   Likewise, under these same circumstances, we believe a conviction of second degree murder, which brings a sentence of 15 years to life, would also violate this same article.   Accordingly, we reduce appellant's conviction to voluntary manslaughter.

We recognize that as Dillon was the triggerman, the Dillon court had an “easier” task of deciding how to modify his sentence.   Thus, because Dillon intentionally killed the victim, Dillon was punished as a second degree murderer (People v. Dillon, supra, 34 Cal.3d at p. 489, 194 Cal.Rptr. 390, 668 P.2d 697.)   However, the suggestion that Dillon applies only to triggermen because the courts, in appropriate cases, can more “easily” modify a defendant's crime to second degree murder is without merit.   Respondent argues that Dillon does not apply here because if appellant is guilty at all he is only guilty of first degree murder.   However, this ignores the rationale behind Dillon and In re Lynch, supra, which stresses the importance of individual accountability and proportionate punishment.

We do not wish this holding to be interpreted as meaning that all nontriggermen in felony murders should have their crimes modified pursuant to Dillon.   Such a rule would, of course, effectively eliminate the felony-murder rule.   However, we do wish to stress that, in unusual cases, there are circumstances, such as those in the case at bar, when application of Dillon principles is appropriate.

The judgment is affirmed as to the conviction of attempted robbery.   As to the conviction of murder, the judgment is modified by reducing the degree of the crime to voluntary manslaughter and, as so modified, is affirmed.   The cause is remanded to the trial court to pronounce judgment and sentence accordingly.

FOOTNOTES

1.   Justices Stevens, Brennan and Marshall dissented.

2.   We further reject appellant's contention that his conviction should be reversed pursuant to People v. Beeman (1984), 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   Although the appropriate instruction was not given, we believe that even if the stricter rule for constitutional error applies, the trial court's error to correctly instruct on specific intent in the aider and abettor instructions was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18.)

3.   It was stipulated that the transcript of the tape was an accurate version of the recording.

4.   Howard was subsequently tried and convicted of first degree felony murder.   This court reversed his conviction (prior to Beheler) on an almost identical Miranda violation.   However, this case is still pending before the United States Supreme Court (5 Crim. No. 5181).   Willbanks was subsequently convicted of voluntary manslaughter and acquitted of attempted robbery.   This court recently affirmed his conviction (5 Crim. No. F000693).

5.   Even if we were to assume the Carlos decision does establish a new rule of law, we believe it should be applied retroactively pursuant to the tests enumerated in Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and People v. Kaanehe (1977), 19 Cal.3d 1, 10, 136 Cal.Rptr. 409, 559 P.2d 1028.The Carlos decision has the effect of limiting application of the felony murder special circumstance to persons who intend to kill or aid in a killing.   This limitation was deemed necessary by the court in order to avoid constitutional infirmity of the statute on cruel-and-unusual-punishment and equal-protection grounds, as well as to conform to the mandate of Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859.   The Carlos decision is also in accord with Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, where the Supreme Court held that an accomplice who neither intends to kill nor contemplates the use of lethal force cannot be sentenced to death.   Thus, given that the rule in Carlos was established in order to avoid constitutional infirmity, it would appear unconstitutional to refuse retroactive application of the Carlos decision to appellant where the result for him would be a sentence of life imprisonment without possibility of parole, and where that sentence would be enforced, notwithstanding the dearth of evidence that he intended the victim be killed.

6.   See also Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 977–978, 74 L.Ed.2d 823.

7.   The court also relied on Enmund v. Florida, supra, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, which held that imposing the death sentence on a constructive aider and abettor to a robbery violated the federal constitutional prohibition against cruel and unusual punishment.

ZENOVICH, Associate Justice.

FRANSON, Acting P.J., and HAMLIN, J., concur.