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

The PEOPLE, Plaintiff and Respondent, v. Richard Peter AVALOS, Defendant and Appellant.

Cr. 41017.

Decided: February 19, 1985

Roberta Rhea, Torrence, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp and George Deukmajian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a conviction of murder with special circumstances and five other counts.   He was sentenced to state prison for life without possibility of parole.   We affirm the judgment on counts I, III, IV, V, and VIII but reverse the judgment on count II.

This court originally filed its opinion in this matter on July 16, 1982, 133 Cal.App.3d 947, 184 Cal.Rptr. 286.   On November 26, 1984, the Supreme Court retransferred the case to this court with directions to reconsider in the light of Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 and People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.   Having considered these two cases, we affirm and repeat our previous opinion.

The offenses charged all arose out of an attempt by defendant to rob a donut shop.   In the course of that event, defendant attempted to rob Jose Luis Trevino (the victim named in count I), his mother and his sister.   During the attempted robbery, he compelled the victim and the mother, at gun point, to leave the mother's car and approach the store.   The sister succeeded in going into a back room and alerting the sheriff's offices.   The deputies arrived before defendant had actually taken any money into his possession.   On the deputies' arrival, a confrontation began, during which defendant, using the victim as a shield, moved several feet.   The defendant opened fire, an exchange of shots ensued, and Trevino was killed by a bullet fired by one of the deputies.

Defendant was charged with: (count I) the murder of Jose Luis Trevino, in violation of section 187 of the Penal Code;  (count II) kidnapping Trevino for the purpose of robbery, in violation of section 209 of the Penal Code;  (count III) attempted robbery of the mother, in violation of sections 664 and 211 of the Penal Code;  (count IV) attempted robbery of the sister, in violation of sections 664 and 211 of the Penal Code;  (count V) attempted robbery of Trevino;  (count VI) assault with a deadly weapon on deputy Finley;  (count VII) assault with a deadly weapon on deputy Flaget;  and (count VIII) unlawful possession of a firearm by an ex-felon.   Use of a firearm was alleged as to the first seven counts.   In connection with count I (murder) two special circumstances were alleged:  (1) that the murder was committed during or in flight after a robbery;  and (2) that the murder was committed in connection with a kidnapping.   After a trial by jury, defendant was found guilty on counts I, II, III, IV, V, and VIII:  he was found not guilty on count VII and the jury was deadlocked on count VI, which ultimately was dismissed.   On the murder count, the jury found true the two special circumstances alleged.   At the penalty phase, the jury fixed the penalty as life without possibility of parole.   Defendant was sentenced to state prison for life without possibility of parole;  sentences on the other counts were ordered to run concurrently with the sentence on count I.

On this appeal, defendant does not, except as to certain procedural issues hereinafter discussed, attack the judgment on any of the counts except counts I and II.


Defendant concedes that, under the most recent California cases, the death of Trevino was murder, chargeable to him.  (Pizano v. Superior Court (1978) 21 Cal.3d 128, 145 Cal.Rptr. 524, 577 P.2d 659.)   His contention chiefly is that, under the facts of the case at bench, the special circumstances relied on by the People were not proved.   The applicable statutory provisions are the following portions of section 190.2 of the Penal Code:

“(a) the penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison in any case in which one or more of the following circumstances has been charged and specially found true․:  (17) the murder was committed while the defendant was engaged in ․ the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:  (i) Robbery in violation of section 211.  (ii) Kidnapping in violation of Section 207 and 209․  (b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting or assisting any actor in the commission of murder in the first degree shall suffer death of or confinement in state prison for a term of life without possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs ․ (17) of subdivision (a) of this section has been charged and specially found ․ to be true.”

 We agree with defendant that subdivision (b) of section 190.2 is not here applicable.   That provision, by its term, applies only to cases in which an actor has committed a murder as to which a defendant was an accomplice.   Here, there is no suggestion that the deputy sheriff who fired the fatal shot was guilty of murder in any degree.

 However, we cannot read subdivision (a) of section 190.2 as being limited to cases in which the defendant was the immediate killer.   We need not here repeat the rationale under which vicarious liability is imposed on one when a hostage has been killed by a police officer.   It is clear from a reading of Pizano that liability is imposed because the defendant has had a causal relationship to the death—i.e., his conduct was a cause of the death, and causation is not limited to pulling a trigger.   Here, the evidence shows that, in attempting to avoid apprehension by the deputy sheriffs, defendant had used Trevino as a hostage.   Trevino's death was a “murder” committed while defendant was engaged in at least one of the offenses listed in paragraph (17) of subdivision (a).

The special circumstances charged and found true in this case were:

(a) the attempted robbery of Trevino, his mother and his sister.   The record shows, and defendant does not deny, that he had attempted those three robberies and that he was attempting to escape when the sheriffs arrived.

(b) the second special circumstance alleged was that the murder occurred during a kidnapping.   We agree that the record does not support a finding that the defendant was committing a kidnapping as prohibited by either section 207 or 209 of the Penal Code.

 There were two asportations of Trevino:  one when he was marched from the mother's car to the food stand;  the second when defendant used Trevino as a shield while trying to escape from the deputies.   In neither case was the movement more than incidental to his robbery.   Clearly the first asportation did not increase the danger to Trevino.   In spite of the Attorney General's argument, neither did the second.   Trevino was in danger, at that time, not because he was moved, but because he was being used as a shield-hostage;  Trevino could as well have been shot and killed had he and defendant never moved.   Under People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, the movements herein involved did not amount to kidnapping.

It follows that the finding on the second special circumstance must be reversed and that the conviction and judgment on count II must also be reversed.

 However, the deletion of the finding on special circumstance number two does not require a reversal or modification of the judgment imposed on count I.   A single special circumstance, alleged and found true, is sufficient to support a judgment of imprisonment for life without possibility of parole.


 On reconsideration, defendant contends:  (1) that he cannot be sentenced to life in prison without the possibility of parole under Penal Code section 190.2(a)(17) as the jury was not instructed that before it could find the special circumstance to be true, it must find that the defendant intended the killing;  and, (2) that there is insufficient evidence to support such a finding even if made.

The law on this issue is clear.  Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, held that proof of intent to kill or to aid a killing was essential to a finding of a felony-murder special circumstance under the 1978 death penalty initiative.  (Pen.Code, § 190.2, subd. 6(17).)  (People v. Garcia (1984) 36 Cal.3d 539, 544, 205 Cal.Rptr. 265, 684 P.2d 826.)   Moreover, “an instruction on intent to kill is required when the special circumstance issue is tried to a jury.”  (People v. Garcia, supra, at 547, 205 Cal.Rptr. 265, 684 P.2d 826.)   Defendant contends that no instruction on his intent to kill was ever made.

We disagree.   Unlike Carlos and Garcia, here the jury was specifically instructed that before it could find the special circumstance to be true, it must find that defendant had the intent to kill.   Requested by both the People and the defendant, the court read to the jury CALJIC No. 8.80.   This instruction provides:

“A special circumstance must be proved beyond a reasonable doubt.

“If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true.

“[If the defendant, was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to the defendant.]”

Both the prosecution and the defense admitted that the defendant was not the actual killer, but that the victim had been killed by a bullet fired by one of the deputies.   Therefore, before finding the special circumstance to be true the jury must necessarily have found that the defendant intended to kill or aid in the killing.   The instruction given clearly placed the issue of intent before the jury as required by Garcia.   Consequently, we do not believe that the defendant was denied due process by the failure to instruct the jury on the issue of intent.

 Defendant further contends, however, that there is insufficient evidence to support this verdict.   We disagree.  “For a result to be caused ‘intentionally,’ the actor must either desire the result or know, to a substantial certainty, that the result will occur.  [Citation.]”  (People v. Velasquez (1980) 26 Cal.3d 425, 434, 162 Cal.Rptr. 306, 606 P.2d 341, vacated 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132, reinstated in full 28 Cal.3d 461, 171 Cal.Rptr. 507, 622 P.2d 952.)   Considerable evidence indicates that the defendant knew his hostage would be killed in a shoot-out with the police.   Told to drop his gun by the police, the defendant refused, stating, “You're going to have to kill us both.”   The defendant then opened fire on the police, knowing that his fire would be returned.   At this point, the defendant could no longer hope that his hostage might deter a response by the police.   Now the only purpose of the hostage was to absorb police bullets.   By maneuvering his hostage so that he would be killed when the police returned fire, the jury could reasonably conclude that the defendant intended this result.   We do not hold, therefore, that the jury was without substantial evidence in rendering its verdict.


Defendant here raises a series of other issues which we have considered and find to be without merit.

 (1) At trial, defendant attacked the pleading on the special circumstances.   He here contends that the overruling of that attack was error since, on the pleadings, the jury was told all the facts about the special circumstances, knowing that they might be called on to impose a death penalty.   Clearly, the jury was not so influenced, since it rejected imposing the death penalty.

 (2) Defendant contends that section 190.2 of the Penal Code is unconstitutionally vague.   We can see in that statute no vagueness.   We read it as clear and as having the meaning above ascribed to it.

 (3) Defendant contends that the imposition of either death or imprisonment without the possibility of parole is unconstitutionally excessive in a case where the defendant was not the immediate killer.   We can see no excess.   The rule herein involved is designed to restrain a violent criminal from doing acts which, in fact, cause a death.   As herein involved, the teaching is simple—do not use a shield-hostage in an escape.

 (4) At trial, defense counsel moved to exclude witnesses.   The motion was denied.   We see no error.   Whether to exclude witnesses is committed to the discretion of the trial judge.   Here nothing was suggested to the trial counsel other than the ever present possibility that a witness may be influenced as to detail by the testimony of others.   The rule here urged on us would require exclusion in every case in which more than one witness was to be called.   That is not the intent of the statute on exclusion.

  (5) During argument, the prosecutor read to the jury from the opinion of the Supreme Court in People v. Pizano.   Included in his reading was restatement of the facts of that case.   On objection, the prosecutor was ordered not to compare the case on trial with the facts of Pizano but the jury was not admonished nor was a mistrial granted.   We see no error.   It is not contested that Pizano declared the applicable law.   It was within the province of the trial court to determine whether the minor violation of the rules on argument on law was serious enough to call for further sanction.

 (6) Defendant requested giving of CALJIC 9.60 (false imprisonment by violence or menace).   The request was denied.   We see no reversible error.   We need not here decide whether a false imprisonment is an “included” offense within kidnapping.  (See People v. Brown ) (1974) 11 Cal.3d 784, 789, fn. 7, 114 Cal.Rptr. 426, 523 P.2d 226.)   Had kidnapping been the only special circumstance found, that issue would have been significant.   But, as we have said above, the judgment on count I does not rest on that alleged special circumstance.   A conviction of false imprisonment at best, would have imposed on defendant only a different concurrent term.

The judgment on count II is reversed;  the judgment on counts III, IV, V and VIII are affirmed.   The judgment on count I is modified by deleting all reference to kidnapping as a special circumstance;  as so modified it is affirmed.

 KINGSLEY, Acting Presiding Justice.

McCLOSKY and ARGUELLES, JJ., concur.

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