PEOPLE v. GRANT

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Odis GRANT, Defendant and Appellant.

2 Crim. B006705.

Decided: December 13, 1985

Frank O. Bell, Jr., State Public Defender, Nancy Gaynor, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., Lauren E. Dana, Deputy Atty. Gen., for plaintiff and respondent.

Following a trial by jury, defendant and appellant Odis Grant was convicted of second degree murder (Pen.Code, § 187) and the allegation that appellant had used a deadly weapon within the meaning of Penal Code section 12022, subdivision (b), was found to be true.   Appellant was sentenced to state prison for the term prescribed by law and he appealed.   We affirm.

STATEMENT OF FACTS

On June 2, 1983, at approximately 10:00 to 10:30 p.m., Wilbert Charles arrived at the Keg Bar in Altadena.   Charles recognized the defendant Odis Grant in the bar when he arrived.   Some two hours later Charles recognized the victim Raleigh Floyd in the bar accompanied by Floyd's friend Jim Cone.   Everyone stayed until the bar closed at 2:00 a.m.

As Mr. Charles was getting into his car upon leaving, he saw Floyd and Cone walking across the street followed by Grant.   Charles offered Grant a ride home.   Grant got in the car and then immediately got out again, took a knife from his left side and went towards Floyd, swinging the knife in his hand.   Grant told Floyd, “ ‘You should have paid me․   Let's see how you take this, old man.’ ”   Grant swung at Floyd with the knife.   Floyd, unarmed, kicked at Grant.   Grant stabbed him in the chest with the knife.   Although the wound was not immediately disabling, it grazed Floyd's heart, and eventually caused him to fall to the ground and bleed to death.

After asking for and being refused a ride home by Charles, Grant walked away.

James Pennywell arrived at the Keg Bar at approximately 12:30 a.m.   He saw Grant and Floyd talking together in the bar.   As he left the bar at closing time, he saw Grant, Cone and Floyd standing together arguing.   Grant told Floyd he would “ ‘take him to his grave.’ ”   The three men stood in a circle and there was some pushing.   Grant swung at Floyd with a knife and missed.   Grant swung again and stabbed Floyd.   As Grant walked away he wiped the knife off on his shirt.   Grant asked both Charles and Pennywell for a ride and was refused by both.

The police were called and subsequently arrested Grant 20 to 30 minutes later, approximately three-fourths of a mile from the scene of the stabbing.   During the transportation of Grant to the station, Grant exclaimed, “ ‘The mother fucker was acting like a fool and I stomped him to the ground.’ ”

Grant's knife was found the next day on a lawn around the corner from the Keg Bar.   Blood was found on his shirt and pants.

Grant testified that he arrived at the Keg Bar at approximately 10:00 p.m.  He saw Floyd and Cone some time between midnight and 1:00 a.m.   Grant and Floyd had some discussion about $40 which Grant had loaned to Floyd several months earlier.

Grant testified he left the bar at approximately closing time and waited outside for Charles to give him a ride home.   Floyd and Cone approached him and the conversation began to get hostile.   Grant saw Charles in his car and got in, but got out again because Charles was not yet ready to go.   Grant and Floyd argued and Floyd knocked Grant down.   Floyd went back to his car, got in, then got right back out again and rushed back to Grant.

Grant further testified that Floyd kicked and hit him and he thought Floyd might have gone to his car to get a weapon, although he did not actually see a weapon.   Grant pulled his knife out and stabbed at Floyd.   He was not trying to hit Floyd with the knife, but was only defending himself.   He denied making the statements attributed to him by Charles and Pennywell.

CONTENTIONS

Grant contends:

1. The trial court erred in permitting his 1980 conviction for assault with a deadly weapon to be used for impeachment.

2. The trial court erred in giving instructions to the jury on implied malice which omitted the requirement that Grant be subjectively aware of the risk to life created by his actions.

3. The trial court erred in instructing the jurors that they could consider Grant's flight after the crime as evidence of his guilt.

DISCUSSION

IAdmission of the Prior Felony Conviction for Purposes of Impeachment Was Harmless Error

Prior to the trial, defense counsel moved to exclude evidence of Grant's prior conviction of assault with a deadly weapon for impeachment purposes.   The trial court ruled that it had no discretion to exclude the prior conviction pursuant to the provisions of Proposition 8 (Cal. Const., art. I, § 28, subd. (f), added by initiative measure effective June 1982).

“I am going to deny the motion.   I think Prop 8 lays to rest the duty of the court, the obligation of the court to consider Beagle [People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1]․  Under the days of Beagle, they might have been appropriate.”

In spite of the ruling, Grant testified in his own defense and was impeached by the prosecutor on cross-examination with the prior conviction.

In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the Supreme Court held that a trial court's discretion to exclude prior convictions under Evidence Code section 352 survives Proposition 8 and that, subject to that discretion, Proposition 8 authorizes the admission for purposes of impeachment of any felony conviction which necessarily involves moral turpitude, even if the immoral trait does not involve dishonesty.

 Under Castro, therefore, we must first consider whether the crime of assault with a deadly weapon involves moral turpitude.   In order to determine whether a prior felony conviction involves moral turpitude, we are not permitted to go behind the face of the conviction, but rather, we must determine whether a prior felony conviction involves moral turpitude from “the least adjudicated elements of the conviction․”  (Castro, supra, 38 Cal.3d at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.)

The Supreme Court in Castro equated moral turpitude with a “bad character” or a “general readiness to do evil.”   Although the Supreme Court did not specify precisely which crimes involve moral turpitude, it pointed out that prior convictions involving moral turpitude are those offenses which involve dishonesty or moral depravity other than dishonesty, such as child molestation, crimes of violence, torture, brutality and so on.  (Id., at pp. 314–315, 211 Cal.Rptr. 719, 696 P.2d 111.)

In addition, The Supreme Court suggested in a footnote that guidance on the moral turpitude question could be obtained from existing bodies of law.  (38 Cal.3d at p. 316, fn. 11, 211 Cal.Rptr. 719, 696 P.2d 111.)   The court gave two examples:  (1) an annotation at 23 A.L.R.Fed. 480 entitled, “What Constitutes ‘Crime Involving Moral Turpitude’ Within Meaning of §§ 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 USCS §§ 1182(a)(9), 1251(a)(4), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime),” dealing with the exclusion or deportation of aliens convicted of crimes;  and (2) 1 Witkin, California Procedure (3d. ed. 1985) Attorneys, section 375, page 424, dealing with attorneys' disciplinary proceedings.  (Castro, supra, at pp. 314–315, 211 Cal.Rptr. 719, 696 P.2d 111.)

Unfortunately, the two sources of authority to which Castro referred appear to be in conflict with each other.   It is well settled in California in the context of State Bar disciplinary proceedings that assault with a deadly weapon, as defined in Penal Code section 245, is not an offense which involves moral turpitude as a matter of law.   Whether assault with a deadly weapon involves moral turpitude is determined in these disciplinary proceedings by examining the underlying facts and circumstances of the crime.  (In re Rothrock (1940) 16 Cal.2d 449, 459, 106 P.2d 907;  In re Strick (1983) 34 Cal.3d 891, 902, 196 Cal.Rptr. 509, 671 P.2d 1251.)   The federal rule in the context of alien deportation proceedings, on the other hand, is almost invariably to the contrary.   The naturalization and deportation cases hold that assault with a deadly weapon involves moral turpitude without going behind the face of the record.  (Gonzales v. Barber (9th Cir.1953) 207 F.2d 398, 400, aff'd 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009.)

In light of the apparent conflict, we must decide which standard is most analogous to this situation.   The California attorney disciplinary cases are concerned with such moral turpitude as would reflect upon an attorney's moral fitness to practice law, whereas the federal cases involve such moral turpitude as would show that the alien was a “confirmed criminal” or had “a criminal heart and a criminal tendency.”  (Gonzales, supra, 207 F.2d at p. 400.)   Moreover, in deportation cases the court may not go behind the face of a conviction while in attorney displinary proceedings the question of moral turpitude is resolved after examining the circumstances of the crime.

For these reasons, we conclude that the moral turpitude involved in the use of prior felony convictions for purposes of impeachment (i.e., “bad character” or a “general readiness to do evil”) is more closely aligned with the federal deportation standard than with the California disciplinary standard.   This interpretation is also more consistent with the language of Castro indicating (38 Cal.3d at p. 315, 211 Cal.Rptr. 719, 696 P.2d 111) that, in general, crimes of violence involve moral turpitude.

 We hold, therefore, that assault with a deadly weapon is a crime of moral turpitude and thus within the broad discretion reposed in the trial court by Castro and Evidence Code section 352.   But here, as we have pointed out, the trial court believing that it had none, did not exercise its discretion.   In this it erred.

The Castro court utilized the Watson standard in determining the prejudice from this type of error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Castro, supra, 38 Cal.3d at p. 319, 211 Cal.Rptr. 719, 696 P.2d 111.)   In Castro, as in this case, the defendant took the stand despite the Beagle ruling.   It has long been the rule that the Watson standard applies to Beagle error, where the defendant testifies.  (People v. Rollo (1977) 20 Cal.3d 109, 115–121, 141 Cal.Rptr. 177, 569 P.2d 771.)   Here, the People's case was strong and the defense was weak.

It is undisputed that Grant killed the victim Floyd by stabbing him in the chest with a knife with a six-inch blade.   The only issues presented by the evidence were as to the degree of homicide (first, second, voluntary or involuntary manslaughter) and as to self-defense.

Prosecution witnesses testified that Grant told Floyd “ ‘Let's see how you take this old man’ ”, and that he (Grant) would take him (Floyd) to his grave.   There was also evidence that the altercation arose out of a dispute over a $40 debt which Floyd owed Grant.   In addition, an officer testified that while Grant was in custody in route to the station he stated, “ ‘The mother fucker was acting like a fool and I stomped him to the ground.’ ”

Prosecution witnesses also testified that Grant swung the knife at Floyd twice, missing him the first time and stabbing him the second time;  that he walked away, wiped the knife off on his shirt, and discarded the knife.

The only witness for the defense was the defendant himself.   Grant testified that Floyd went to his car and Grant thought that perhaps he had retrieved a weapon.   He also testified, however, that he never saw any weapon.   He further testified that Floyd and his companion Cone kicked and hit him and he was defending himself.   This testimony was not only uncorroborated but was also directly contradicted by the two prosecution eyewitnesses to the stabbing.

After a review of the entire record, we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of error.  (Cal. Const., art. VI, § 13;  People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)

II

The Instructions Given to the Jury On Implied Malice Were Proper

Grant argues the jury was not advised that implied malice required a finding that he was subjectively aware of the risk to life created by his actions.   Specifically, he claims the two jury instructions explaining implied malice, CALJIC Nos. 8.11 and 8.31 were erroneous as a matter of law.

Pursuant to CALJIC 8.11 (1983 Rev.) the jury was instructed as follows:

“Malice is implied [when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life.]”

Pursuant to CALJIC 8.31 (1981 Rev.) the jury was instructed as follows:

“Murder of the second degree is [also] the unlawful killing of a human being as the direct causal result of an intentional act, [involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life.]”

CALJIC 8.11 (1983 Rev.) has been revised to add the following language after the language set forth above:

“[or] [when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life].”

Similar bracketed language was added to CALJIC 8.31 (1981 Rev.).

The comments to the 1983 revision to CALJIC 8.11 state:

“The 1983 revisions are necessitated by ․ People v. Watson, 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279] [citations], which posits at p. 300 [179 Cal.Rptr. 43, 637 P.2d 279] that implied malice is capable of two different phraseologies.   The Committee expresses no opinion as to whether the requirement of a base, antisocial purpose for implied malice presently exists in view of the 1981 amendment to Penal Code § 188, nor whether the two concepts of implied malice are intended to be synonymous or alternatives.”

The 1981 amendment to Penal Code section 188 added the second paragraph which reads in part as follows:

“When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.”  (Emphasis added.)

It is this language which causes the committee to doubt whether there is any longer the requirement of a base, antisocial purpose.   We, like the committee, express no opinion on this issue.   However, if the requirement of a base antisocial purpose is deleted from the first concept of implied malice, we conclude that the two phraseologies are synonymous, both requiring a finding of a subjective awareness of the risk to life.1  Moreover, the term “wanton disregard for human life” presupposes that the defendant actually appreciated the risk involved, i.e., possessed a subjective awareness that his conduct endangered life, and needs no further definition.

 Therefore, we conclude that the jury instructions on implied malice, as given by the trial court, adequately advised the jury that implied malice requires a subjective awareness of the risk to life created by the defendant's actions.2

III

The Trial Court Properly Gave the Jury An Instruction Regarding Flight

Over objection by defense counsel, the trial court instructed the jury, per CALJIC 2.52 (1979 Rev.), that evidence of the defendant's flight could be considered by them in determining the question of the defendant's guilt.3  Grant contends that the trial court erred in giving a flight instruction because the evidence did not warrant the instruction.

 Penal Code section 1127c mandates the giving of a flight instruction in all cases “where evidence of flight of a defendant is relied upon as tending to show guilt.”   To justify the giving of an instruction on flight, the flight need not be either the physical act of running nor the reaching of a faraway haven.  (People v. Cannady (1972) 8 Cal.3d 379, 391, 105 Cal.Rptr. 129, 503 P.2d 585;  People v. Cooper (1979) 94 Cal.App.3d 672, 678, 156 Cal.Rptr. 646.)

 Whether a defendant's conduct constitutes flight is a question of fact to be determined by the jury.  (People v. Lutz (1980) 109 Cal.App.3d 489, 499, 167 Cal.Rptr. 309.)   The flight instruction assumes neither guilt nor flight.   It is for the jury to make those findings.  (People v. Cannady, supra, 8 Cal.3d at p. 392, 105 Cal.Rptr. 129, 503 P.2d 585.)

 In the present case, Grant walked away from the parking lot, after stabbing the victim Mr. Floyd and was arrested by the police approximately three-fourths of a mile from the scene and within 20 to 30 minutes of the stabbing.   We conclude that the evidence is sufficient to warrant the flight instruction given by the trial court.

CONCLUSION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   In People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279 the Supreme Court indicated that the two concepts set forth in the revised versions of CALJIC 8.11 and 8.31 are synonymous.   The language of the jury instructions is virtually identical to the language in Watson.  “We have said that second degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․'   (People v. Sedeno, supra, 10 Cal.3d [703] at p. 719 [112 Cal.Rptr. 1, 518 P.2d 913], quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [51 Cal.Rptr. 225, 414 P.2d 353].)  Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130].)”

2.   The revised CALJIC instructions Nos. 8.11 and 8.31 were impliedly approved by the Fourth District in People v. Dellinger (1984) 163 Cal.App.3d 284, 302–303, 209 Cal.Rptr. 503.

3.   CALJIC No. 2.52 states:“The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence.   The weight to which such circumstance is entitled is a matter for the jury to determine.”

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

KLEIN, P.J., and ARABIAN, J., concur.