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

PEOPLE of the State of California, Plaintiff and Respondent, v. Erick RUSSELL, Defendant and Appellant.

Crim. 43601.

Decided: May 31, 1985

Seymour I. Cohen, Torrance, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Donald F. Roeschke and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

Appellant was found guilty of murder in the first degree in that the murder was committed while appellant was engaged in the commission of a robbery.   The special circumstance allegation of Penal Code section 190.2, subdivision (a)(17)(i) was also found to be true.   The jury also found appellant guilty of robbery, infliction of great bodily harm, and use of a handgun in the commission of a crime.   Appellant waived his right to a penalty phase hearing after the district attorney agreed not to pursue the death penalty.   Accordingly, appellant was sentenced to life without possibility of parole.   We affirm.


Appellant's contentions raise several issues:  (1) the constitutionality of the felony murder rule;  (2) the constitutionality of the special circumstance provision for felony murder;  (3) the retroactivity of Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862;  (4) the standard of prejudice to be applied to cases tried before Carlos;  (5) error in the waiver and agreement form;  (6) sufficiency of the evidence;  and (7) the propriety of sentencing appellant to an additional two years for a use allegation when life without possibility of parole has been imposed.

Appellant raises several contentions.   We considered appellant's contentions and by our opinion previously rendered and filed May 8, 1984, we rejected appellant's contentions and we affirmed.   Among those contentions was the same issue of intent to commit murder considered in Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, decided subsequent to the trial of this case but before the case came before us on appeal.   In our previous opinion we answered the several contentions of appellant but indicated that the application of Carlos was then prospective only and hence inapplicable to appellant's case.   After our decision was filed, our state Supreme Court granted hearing to appellant.   Thereafter that same court filed its opinion in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, and thereafter in November 1984 retransferred the case to this court for reconsideration in the light of Carlos v. Superior Court, supra, and People v. Garcia, supra.

For the reason that we previously considered all of appellant's several contentions and answered them in our original opinion, we will not dwell at length on those issues not affected by the Carlos and Garcia decisions.   We here reconsider in the light of Carlos and Garcia the issues raised by appellant and which are affected by those cases.


On October 2, 1981, as the victim left a bank, appellant came up behind her, grabbed her around the neck, put a gun to her back and shot her through the heart, took her purse and left the scene.   There were witnesses to various aspects and parts of the actual shooting and who identified appellant.   Some witnesses had difficulty in identifying him and some were unable to identify appellant as the assailant.


 (1) The felony murder rule (Pen.Code, § 189) 1 is constitutional.  (People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.)

 (2) The “special circumstances” statute (Pen.Code, § 190.2) is valid, provided the holdings of Carlos and Garcia are observed.   Intent to kill must be demonstrated as to all defendants charged with felony murder, both actual killers and accomplices, who face the death penalty or the imposition of life without possibility of parole.  (Carlos v. Superior Court, supra, 35 Cal.3d 131, 154, 197 Cal.Rptr. 79, 672 P.2d 862.)   The Carlos court left the statute and its effect modified by the court's interpretation.   It did not invalidate the statute as unconstitutional holding, rather, that its interpretation gave it constitutionality.

(3) The Retroactivity of Carlos

Garcia holds that Carlos is applicable to all cases not yet final at the time of the decision.  (People v. Garcia, supra, 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.)   Accordingly, the instant matter must be tested in the light of and under the rule of Carlos.

(4) The Standard of Prejudice to be Applied

Carlos renders the instruction given on the special circumstance of felony murder (CALJIC 8.81.17) 2 erroneous when read together with the instruction given on first degree felony murder (CALJIC 8.21) which read as given:  “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission of or attempt to commit the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.  [¶] The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.”  (Emphasis added.)

 The absence of an instruction limiting the death penalty or life without possibility of parole to cases of intentional killing during a felony murder is not error per se requiring automatic reversal.  (Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823.)  “Automatic reversal” is deemed limited to “ ‘any case involving the violation of a right guaranteed by the Federal Constitution.’ ”  (Id., at p. 82, 103 S.Ct. at 975.)

In Garcia the court observes the teachings of Connecticut v. Johnson and explains that a jury instruction, or an error of omission, which takes an issue completely from the jury, is reversible per se.   The Garcia court further observes that Connecticut v. Johnson describes two exceptions to a per se reversal rule, and adds that “[I]n People v. Sedeno, supra, 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913, we explained that ‘in some circumstances it is possible to determine that although an instruction ․ was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.   In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant․’  [Fn. omitted.]   We believe that, in an appropriate case, the United States Supreme Court would accept this exception to the automatic reversal standard.”  (Id., 36 Cal.3d at pp. 554–555, 205 Cal.Rptr. 265, 684 P.2d 826.)

The Garcia court also states:  “[t]o avoid possible misunderstanding, we reiterate that we decide the present case on the basis of federal precedent.   We take no position on whether, in the absence of controlling federal authority, we would apply the California prejudicial per se test of [People v.] Modesto [59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33] or some other, less stringent, test.”  (Id., at p. 555, fn. 10, 205 Cal.Rptr. 265, 684 P.2d 826.)

In Garcia the court does not clearly depart from a test announced in People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446, a case involving an erroneous murder instruction inapplicable to the case.   There the California Supreme Court held that the standard of prejudice to be applied is that of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and that:  “The court's erroneous instructions in the present case, however, were not prejudicial.”  (People v. Murtishaw, at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446.)   The court explained there that the defendant was convicted of the first degree murders of three people and that “in light of the evidence presented it is virtually certain that the jury found defendant intended to kill these victims.”  (Ibid.)  The opinion explains:  “Defendant's assault on [another person but who was not killed] cannot be distinguished from his slaying of [that person's] companions․   It is inconceivable that the jury, having rejected defendant's claim of diminished capacity, would find that defendant had no intent to kill.   Applying the test of prejudice established in People v. Watson, [supra ] 46 Cal.2d 818, 836 [299 P.2d 243]—whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error—we find the error nonprejudicial.”  (People v. Murtishaw, supra, at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Ramos (1982) 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908, reversed on other grounds in California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.)

The Garcia opinion goes on to explain its current view of a correct exception to the per se reversal rule based on the cases of People v. Cantrell (1973) 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256 and People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267.   The court quotes from those cases as follows:  “ ‘[t]he rule requiring the court to instruct the jury upon every material question upon which there is any evidence whatsoever deserving of consideration [citing Modesto ] does not imply instructions should be given on issues and questions not raised by the evidence.’ ”  (People v. Garcia, supra, 36 Cal.3d 539, 555, 205 Cal.Rptr. 265, 684 P.2d 826.)   Again:  “ ‘ “a defendant has a constitutional right to have the jury determine every material issue presented by the evidence” ․ and that the failure to instruct on such issue is prejudicial per se.   Such a “material issue” is “presented by the evidence” within the meaning of those cases when the record contains “any evidence deserving of any consideration whatsoever relative to it․   In the instant case we hold as a matter of law that the defendant's acts constituted section 209 kidnaping under [People v.] Daniels [ (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225] ․ and that there is no evidence worthy of consideration to the contrary.” ’ ”   (Id., at pp. 555–556, 205 Cal.Rptr. 265, 684 P.2d 826.)

The court in Garcia observes that there may also be cases where the parties have recognized that an intent to kill was an issue, presented all evidence at their command on that issue and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.   In such a case the reasoning of Cantrell and Thornton may avoid a meaningless retrial.  (Id., at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)

The language of Garcia teaches also that the discussion relative to the issue of intent as an element of first degree murder is applicable to the issue of a finding of special circumstance upon which death or life imprisonment without possibility of parole applies.

 Irrespective of the strong contrary view expressed in the concurring opinion therein, Garcia, nonetheless, permits the reviewing court to determine as a matter of law that the special circumstance of intent to commit murder is established by the evidence which it has reviewed.   In such event, the matter need not be retried by the jury on that issue.

Accordingly, applying these guidelines to the instant matter we again affirm the judgment of conviction and the finding of special circumstance.

 In the instant case appellant callously put a gun to his victim's back and shot her through the heart.   He did so even though it appears that he could easily have overpowered her using force far short of shooting her to accomplish his goal of stealing her purse.   Nor, in the instant case, did the appellant offer a defense of insanity or evidence of any other mitigating factor.   His only defense was that he was not there.   It is not reasonably probable that a jury would have reached a different verdict based on a proper intent instruction pursuant to Carlos where there is no evidence of an accident or unintended shooting.

In People v. Collie (1981) 30 Cal.3d 43, 61–62, 177 Cal.Rptr. 458, 634 P.2d 534, the court held that the failure to specifically instruct the jury that the specific intent to kill was a necessary element of attempted second degree murder was harmful error.   The reason it so held is because “[a]lthough the jury was properly instructed that a specific intent to kill would satisfy the intent requirement of an attempted second degree murder charge, it is impossible to determine whether the verdict rested on that ground, for which there was little evidence, or on the impermissible basis of defendant's wanton conduct, which was more clearly supported by the record.   Because we cannot know on which instruction the jury relied, the conviction for attempted second degree murder of defendant's daughter must be reversed.  [Citations.]”   (Ibid;  emphasis added.)

In the instant case, the jury was instructed on specific intent (CALJIC 3.31), on the sufficiency of circumstantial evidence to prove specific intent (CALJIC 2.21), the manner in which intent is manifested (CALJIC 3.34), the definition of murder (CALJIC 8.10) and the definition of malice aforethought (CALJIC 8.11).   The jury was also instructed on felony murder (CALJIC 8.21).  (See fn. 2, ante.)

Although in the instant case conflicting instructions were given, in the light of Carlos, abundant evidence is present, unlike Collie, from which only the intent to kill can be inferred;  and it is inconceivable that the jury would find that defendant had no intent to kill.  (People v. Murtishaw, supra, 29 Cal.3d 733, 765, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Ramos, supra, 30 Cal.3d 553, 583, 180 Cal.Rptr. 266, 639 P.2d 908;  see also People v. Bottger (1983) 142 Cal.App.3d 974, 982, 191 Cal.Rptr. 408;  People v. Kozel (1982) 133 Cal.App.3d 507, 525, 184 Cal.Rptr. 208.)

(5) There is no merit to appellant's contention that the waiver and agreement entered into by appellant requires reversal.   As stated above, the failure to instruct on intent to kill in the context of felony murder constituted harmless error.   On the facts of this case there is nothing to be served by remanding the case for a penalty phase hearing.   Indeed, the district attorney afforded this defendant perhaps more mercy than he deserved by limiting the punishment to life without possibility of parole.

 (6) Sufficient evidence existed to convict appellant of the crimes charged in that on appeal we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find appellant guilty beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 562–578, 162 Cal.Rptr. 431, 606 P.2d 738.)  “Uncertainties or discrepancies in witnesses' testimony raise only evidentiary issues which are for the jury to resolve.”  (People v. Glaude (1983) 141 Cal.App.3d 633, 641, 190 Cal.Rptr. 479.)

 (7) The two-year enhancement for personal use of a firearm under section 12022.5 was entirely proper.   However, pursuant to section 669 which states in relevant part that “life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction.   Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to ․ 12022.5 ․, the determinate term of imprisonment shall be served first ․”, the sentence should be modified.

We have examined appellant's remaining contentions and find them to be devoid of any merit.  (Cal. Const., art. VI, § 13.)

The judgment of the trial court is modified in that the two-year enhancement shall be served first with the life without possibility of parole sentence to run consecutively.

The judgment as modified is affirmed.


1.   All statutory references hereinafter will be to the Penal Code unless designated otherwise.

2.   CALJIC 8.81.17 as given:  “To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved:  [1a. That the murder was committed while the defendant was engaged in the commission of a robbery.”

BEACH, Associate Justice.

ROTH, P.J., and COMPTON, J., concur.

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