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

Marie BARR, As the Executrix of the Estate of Clifford Morgan, Petitioner, v. SUPERIOR COURT of the State of California, For the County of Los Angeles, Respondent. The PEOPLE of the State of California, by Their Attorney Robert H. PHILIBOSIAN, District Attorney For The County of Los Angeles, Real Parties in Interest.


Decided: November 04, 1985

Doland & Gould, Beverly Hills, for the Estate of Clifford Morgan. No appearance for respondent court. Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan, Deputy Dist. Atty., Eugene D. Tavris, Deputy Dist. Atty., for real parties in interest.

In this case we determine whether the term “conviction” as used in Probate Code section 258 applies when a person is found guilty of murder but dies before the entry of judgment.

Clifford Morgan committed the most unnatural crimes of murdering his wife and eight year old son.   Morgan took out several life insurance policies on the victims, then had them stabbed to death by two confederates in order to collect the insurance proceeds.   He was charged with conspiracy to commit murder, solicitation of murder, and two first degree murders with the special circumstances allegations that the murders were for financial gain, that he committed more than one murder, and that the murders were committed while lying in wait.   After a nine month trial, on September 6, 1983 the jury found Morgan and his accomplices guilty as charged.   On September 19 the court ruled that it would proceed to the penalty stage as to the two accomplices, but that because of Morgan's ill health “[p]roceedings as to said defendant MORGAN are held in abeyance until further order of court.”

Morgan moved for a mistrial and/or a new trial.   The motion was heard in his hospital room, and denied on January 30, 1984.   Morgan remained on “NO–GO MED” status until he died of bone cancer on June 2.   On August 10, 1984 the court noted in the minutes:  “Criminal proceedings are placed off calendar;  defendant is deceased.”

Earlier, Provident Alliance Life Insurance Company instituted legal proceedings to determine who, if anyone, should receive the life insurance proceeds.   In order to insure that Morgan's estate could not claim the money in that action, the District Attorney moved for entry of judgment in Morgan's prosecution.   At the January 15, 1985 hearing on the motion the Deputy District Attorney clarified his position:  “My belief is that we have on the record at this point in time a verdict and the verdict is guilty.   I do not know nor do I believe it is certain that we have a conviction because whether there are magic words or a magic statement or a magic act that has to be done by this Court, at least in my mind it is my belief that there has not been a judgment entered, and the position of the People would be a verdict, if you will, sanctified by the ruling of the magistrate;  that is, the judge together makes a conviction for the purposes of the Probate Code, and I think that that is the position of all other interested parties.”

The court granted the motion, saying that “this court is going to enter the judgment that it originally entered on January the 30th, 1984,” and specifically found that “Clifford Lee Morgan unlawfully and intentionally caused the death of his wife, Nancy Carol Morgan, and his son.”

Petitioner, executrix of Morgan's estate, sought a writ of prohibition and/or mandate.   We originally denied the petition, but the California Supreme Court transferred the matter back to this court with directions to issue an alternative writ.

 Probate Code section 258 states:  “No person who has unlawfully and intentionally caused the death of a decedent, and no person who has caused the death of a decedent in the perpetration or attempt to perpetrate arson, rape, burglary, mayhem, or any act punishable under Section 288, Penal Code, shall be entitled to succeed to any portion of the estate or to take under any will of the decedent;  but the portion thereof to which he would otherwise be entitled to succeed goes to the other persons entitled thereto under the provisions of this chapter or under the will of the decedent.   A conviction or acquittal on a charge of murder or voluntary manslaughter shall be a conclusive determination of the unlawfulness or lawfulness of a causing of death for the purpose of this section.”   This section was repealed effective January 1, 1985, but continues to apply to cases, such as the case at bench, in which the victim was killed before January 1, 1985.  (Prob.Code § 257.)   Section 258 applies to insurance proceeds.  (Estate of McGowan (1973) 35 Cal.App.3d 611, 615, 111 Cal.Rptr. 39.)   This is a particular instance of the fundamental principle of justice that no one may profit from his own wrong.   (Civ.Code § 3517.)   Morgan's death before the conclusion of the prosecution against him creates a question of first impression:  What constitutes a “conviction” under section 258?   If the jury verdict does not represent his conviction, did his death rob the trial court of the power to enter judgment on the verdict?

We note parenthetically that favoring petitioner would not settle the matter in petitioner's favor.   It would simply mean that the question of whether Morgan “unlawfully and intentionally caused the death” of his wife and child would have to be relitigated in the civil proceeding.  (Estate of Kramme (1978) 20 Cal.3d 567, 571–572, 143 Cal.Rptr. 542, 573 P.2d 1369.)

The courts have not authoritatively construed the word “conviction” in Probate Code section 258.   Generally, “the term ‘conviction’ has historically had, and continues to have, at least two accepted meanings:  (1) The jury verdict, and (2) the judgment following the verdict.”  (Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 413, 139 Cal.Rptr. 473.)   Thus, in the seventeenth century Lord Hale remarked:  “By conviction I conceive is intended not barely a conviction by verdict where no judgment is given, but it must be conviction by judgment.”  (1 Hale P.C. 686.)   Contrarily, the eminent Blackstone stated:  “If the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted.”  (4 Black.Com. 262.)   These two views have marched side by side through history into the California cases.

In People v. Goldstein (1867) 32 Cal. 432 the California Supreme Court held that the defendant's claim of a prior “conviction” was a valid defense to a subsequent prosecution even though no judgment had been pronounced.   Ex parte Brown (1885) 68 Cal. 176, 8 P. 829 held that “conviction” in the statute relating to bail during appeal meant the jury's finding of guilt.   People v. Ward (1901) 134 Cal. 301, 66 P. 372 determined that for purposes of impeaching witnesses “conviction” refers to the verdict, not the judgment on the verdict.  In re Anderson (1939) 34 Cal.App.2d 48, 92 P.2d 1020 decided that the constitutional section permitting the governor to grant pardon after “conviction” referred to the verdict.

On the other hand, In re Riccardi (1920) 182 Cal. 675, 189 P. 694 held that disbarment upon “conviction” of a morally turpid felony demands a final judgment, not a mere verdict.  Truchon v. Toomey (1953) 116 Cal.App.2d 736, 254 P.2d 638 held that the constitutional provisions disenfranchising persons “convicted” of an infamous crime required a judgment on the verdict.  Helena Rubenstein Internat. v. Younger (1977) 71 Cal.App.3d 406, 139 Cal.Rptr. 473 held that the law excluding from public office persons “convicted” of perjury similarly requires a judgment.  Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 194 Cal.Rptr. 717 held that the statute disqualifying a person “convicted” of a felony from employment as a peace officer requires entry of judgment.

 Petitioner rests her argument on Estate of Ladd (1979) 91 Cal.App.3d 219, 153 Cal.Rptr. 888.   In that case a mother killed her two sons.   At trial the court found her guilty of murder, but found that she was insane at the time of the killings.   On appeal, the court held that this amounted to an acquittal;  consequently, Probate Code section 258 did not bar her from being the sons' sole heir.   The court stated:  “Section 258, by terminating the inheritance rights of certain persons, imposes a civil penalty or disability upon these persons.   In the context of statutes or constitutional provisions imposing civil penalties or disabilities, the term ‘conviction’ has never been construed to mean a verdict or finding of guilt.   ‘Conviction’ takes place only after a determination of guilt and the pronouncement of judgment by the court.”  (Id. at p. 225, 153 Cal.Rptr. 888.)   Since the killer in Ladd was actually acquitted, the foregoing is dicta and not binding on us.   Nevertheless, we are persuaded that it accurately depicts the law concerning convictions which lead to civil penalties.  (See also Helena Rubenstein Internat. v. Younger, supra, 71 Cal.App.3d at p. 418, 139 Cal.Rptr. 473;  Boyll v. State Personnel Board, supra, 146 Cal.App.3d at p. 1074, 194 Cal.Rptr. 717.)   Thus, the jury's guilty verdict did not constitute a “conviction” in the context of Probate Code section 258.   We must therefore decide whether the trial court could validly enter judgment after Morgan's death.

Respondent points to the court's language at the hearing on respondent's motion for entry of judgment:  “[T]his Court is going to enter the judgment that it originally entered on January the 30th, 1984.”   Respondent urges us to hold that judgment was in fact entered on January 30, 1984, before Morgan's death.   Since this suggestion is at odds with respondent's position before the trial court, we ignore it.

 Preliminarily, we must address petitioner's contention that Morgan could not be convicted, because he could not be sentenced.   She quotes People v. Pineda (1967) 253 Cal.App.2d 443, 62 Cal.Rptr. 144:  “[T]he judgment in a criminal action is the record of the adjudication of guilt and the determination of the penalty.”  (Id. at p. 451, 62 Cal.Rptr. 144.)   (Emphasis added.)   However, Witkin is to the contrary:  “The terms ‘judgment’ and ‘sentence’ have for some purposes, e.g., appeal, been treated as synonymous.  [Citations.]  They are often distinguished, however, by using ‘judgment’ to refer to the adjudication of guilt, and ‘sentence’ to refer to the penalty.  [Citations.]”  (Witkin, Cal.Criminal Procedure (1963) § 614, p. 605.)   We do not have to consider this question, which to some degree reminds us of the scholastic philosophers' debate over how many angels could dance on the head of a pin.   In the ordinary course of events the entry will include the sentence.   This is because in the ordinary course of events the defendant will have survived to the day of judgment.   But when the defendant has died between verdict and entry of judgment, no sentence is required.   No sentence is possible—the defendant is beyond mundane punishment.   Cases like People v. Pineda which bind together sentence and conviction involve live defendants, and for that reason are not on point.   Therefore, the absence of any sentence is no bar to a conviction in this case.

 There is a final theoretical hurdle to jump before judgment may be entered after the defendant's death—the rule that the defendant's demise abates all proceedings in the prosecution against him.  (See Annot., (1962) 83 A.L.R.2d 864.)   In none of the California cases which apply this rule (People v. de St. Maurice (1913) 166 Cal. 201, 135 P. 952;  People v. Alexander (1929) 101 Cal.App. 394;  People v. Dail (1943) 22 Cal.2d 642, 140 P.2d 828;  People v. Bandy (1963) 216 Cal.App.2d 458, 31 Cal.Rptr. 10) are we favored with a reason:  “We need not amplify this plain proposition.”   (People v. de St. Maurice, supra, 166 Cal. at p. 202, 135 P. 952.)   We think that the rationale of abatement is a simple one—after defendant's death there is no point in continuing, just as the dancers leave the floor after the musicians have put down their instruments.   This pointlessness obtains in the usual case of death before entry of judgment.   The usual case does not implicate Probate Code section 258.   Here, however, we face policies, other than the futility of prosecuting the dead:  preventing the criminal or his estate from enjoying the fruits of his crime.   This policy expresses a fundamental principle of justice which is not lightly disregarded.   It is clear that Morgan could not have gotten the insurance proceeds had he lived.   Shall his estate get a windfall merely because he died inopportunely?   We think not.

We therefore conclude that the rule of abatement does not apply when it would frustrate the purpose of Probate Code section 258.   We hold that when a killer subject to section 258 dies after the trier of fact finds him guilty, the proceedings are not abated but the court may enter the judgment previously rendered, thereby “convicting” him under section 258.

We can swiftly deal with petitioner's additional contentions.

 Petitioner proposes that no judgment may be entered against Morgan because he cannot be present during sentencing.   Her authority is Penal Code section 1193, which states in part:  “1.   If the conviction be for a felony, the defendant must be personally present when judgment is pronounced against him, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his absence.”   “Pronouncement of judgment” means to orally impose a fine or imprisonment, and is distinguished from “entry of judgment” which means to make a record in the minutes.  (People v. Blackman (1963) 223 Cal.App.2d 303, 307, 35 Cal.Rptr. 761.)   As noted earlier, there is no sentence when the defendant has died.   There being no sentence, there is no pronouncement of judgment.  Section 1193, is therefore, by its own terms, inapplicable.   If it did somehow apply, the fact that defendant had died is surely an instance when “it will be in the interests of justice that judgment be pronounced in his absence.”

 Petitioner asserts that the court could not enter judgment because the law does not require idle acts.  (Civ.Code § 3532.)   The fact that the law does not require idle acts does not entail that it may not permit idle acts.   More to the point, the fact that petitioner was inspired to seek a writ shows that the entry of judgment was not an idle act.

 Finally, petitioner asserts that to enter judgment on a dead man is cruel and unusual punishment.  (U.S. Const., 8th Amend.)   Earthly courts cannot punish the dead, cruelly, unusually or otherwise.   Morgan faces only Divine retribution, if any;  and we express no opinion regarding the applicability of the Eighth Amendment in that jurisdiction.

Clifford Morgan was properly convicted of murder.   The alternative writ is discharged.   The petition for writ of prohibition and/or mandate is denied.

ROTH, Presiding Judge.

COMPTON and BEACH, JJ., concur.

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