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Court of Appeal, First District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Tracy Lee REYNOLDS, Defendant and Appellant.


Decided: May 23, 1985

Alys Briggs, Oakland, for defendant and appellant. John K. Van de Kamp, State Atty. Gen., Derald E. Granberg, Clifford K. Thompson, Jr., Deputy State Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Tracy Lee Reynolds appeals a conviction by jury verdict of first degree murder (Pen.Code, § 187) with the special circumstance that it was committed during the course of a robbery.  (Pen.Code, § 190.2, subd. (a)(17)(i).)   He was also convicted of robbery (Pen.Code, § 211), burglary (Pen.Code, § 459) and found to have been armed (Pen.Code, §§ 12022 subd. (a)), to have personally used a firearm (Pen.Code, § 12022.5) and to have inflicted great bodily injury (Pen.Code, § 1203.075.)   He appeals primarily on the ground the trial court failed to instruct the jury as to the intent to kill required to support a finding of felony murder special circumstances under Penal Code section 190.2.   We conclude that defendant's concession of his intent to kill the victim overcomes the erroneous instruction and affirm the conviction of first degree murder and the special circumstance finding.

Fred and Elaine Ellis owned Fredel's Fashions, a lady's ready-to-wear store in Santa Rosa.   When Mr. Ellis arrived at the store at approximately 5:00 p.m. on August 26, 1981, to pick up his wife, he found her lying face down in a closet, her head covered with clothes.   He immediately called an ambulance.   At 7:00 p.m., Mrs. Ellis was pronounced dead from a brain hemorrhage caused by a bullet entering the rear of her head.   All the store's money, later determined to be about $130, was missing from the cash drawer.

Defendant lived in Sebastopol with his twin sister and her two children.   When the four of them returned home on the evening of the murder, defendant was anxious to watch the news on television.   The news ended without mentioning the item in which he was interested.   He then told his sister there had been a shooting “downtown” and he had seen a woman taken away in an ambulance.   He twice telephoned the hospital to ask the victim's condition, once saying he was her grandson and once that he was a concerned citizen.

The following day, when his sister returned from work, defendant had a newspaper clipping about the murder on the table.   He told her he had killed Mrs. Ellis during the course of the robbery.   Initially, defendant's sister did not believe him, but several days later she concluded he had committed the murder and contacted a police acquaintance, Sebastopol Police Officer Dennis Colthurst.   Colthurst asked the Santa Rosa police to send officers to the Sebastopol station to interview the sister in Colthurst's presence.   After detectives interviewed her, she agreed to their concealing a tape recorder in her car when she went to pick up her brother.   She returned to the station about 45 minutes later with his admission of the killing on the tape.   Defendant was arrested shortly thereafter.   Blood and urine samples taken from him were negative for drugs and alcohol.   He was alert, rational, and cooperative during the booking procedure.   After waiving his rights defendant made the following recorded statement to police in which he admitted robbing and killing Elaine Ellis:  He had been in Fredel's Fashions on the day before the killing to look at clothes for his sister.   A saleswoman, later identified as Lois Weber, waited on him.   He did not buy anything, but told the saleswoman he would come back later to make some purchases.   He stated that when he walked into Fredel's the next day, his purpose was to rob the store and kill the lady because he did not have a mask and he knew she would identify him.   He said he needed money to pay his share of the rent.   Weber was not in the shop on the day of the offense.   After Mrs. Ellis, who was there alone, showed him some clothes, he asked to look at wigs.   When Mrs. Ellis turned to select some, he pulled out a concealed gun and cocked it while her back was to him.   She turned around at the sound and defendant told her to be quiet and he would not hurt her;  all he wanted was the money.   He told her to lie down in a rear storage closet, but she told him he would not be able to open the cash drawer by himself.   He allowed her to open the drawer, telling her not to sound any alarm or he would kill her.   Defendant pushed the drawer partially shut so no passersby would see it wide open.   He then told Mrs. Ellis to return to the closet and lie down.   He put some clothes over her head, pulled back the hammer of the gun,1 and shot her in the back of the head.  “I made up my mind to kill her so that she wouldn't be able to identify me.”  (Emphasis ours.)   He ran out of the closet, took the money from the cash drawer, then returned to the closet to make certain the victim was dead—to be sure “she wouldn't move, or she wouldn't say nothing,” closed the closet door and walked out of the store.   He also took the victim's wallet.   He stated he had stolen the gun from a neighbor's house for the purpose of committing a robbery.

At trial, Weber corroborated defendant's visit to the store on the day preceding the murder, testifying no one else was in the store at the time.   She said defendant appeared rational and cooperative during the 10-minute period he was in the store, but he appeared more interested in looking around the store than looking at the merchandise.   Weber saw defendant at the front door after she had closed the shop for the day, but she believed he did not see her.

The district attorney sought a first degree murder conviction on the dual basis the murder was willful, deliberate and premeditated, and also that it was a felony murder occurring during the course of a burglary or robbery.   (Pen.Code, § 189.) 2  The special circumstance was obtained on the similar grounds that the murder occurred during the course of a robbery.3  (Pen.Code, § 190.2, subd. (a)(17)(i).) 4  The trial court instructed properly on both theories of murder, but did not advise the jury that an intent to kill was required in order to find the felony murder special circumstance to be true.


 The felony murder concept affects both the degree of murder and the existence of the special circumstances based thereon, but the intent requirements differ depending on the situation in which it is applied.   The felony murder rule of Penal Code section 189 affects the degree of murder by eliminating the need to prove premeditation, deliberation or malice.   It provides generally that murder occurring during the course of any of the felonies specified therein shall be of the first degree.5  The only intent required for the killer to be convicted of first degree felony murder is the specific intent to commit the underlying felony.  (People v. Dillon, supra, 34 Cal.3d at p. 475, 194 Cal.Rptr. 390, 668 P.2d 697.)   The felony murder special circumstance of Penal Code section 190.2, subdivision (a)(17) operates to trigger punishment of either death or life imprisonment without possibility of parole.   To impose either form of punishment requires that the accused possess the intent to kill.  (Enmund v. Florida (1982) 458 U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140]  Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.)

 Carlos, decided after the trial in the instant case, held that the felony murder special circumstance (Pen.Code, § 190.2, subd. (a)(17)) requires proof that the defendant intended to kill.  (Carlos v. Superior Court, supra, 35 Cal.3d at p. 154, 197 Cal.Rptr. 79, 672 P.2d 862.)   People v. Garcia (1984) 36 Cal.3d 539, 544, 205 Cal.Rptr. 265, 684 P.2d 826, held the Carlos decision applicable to all cases not yet final.  Garcia also held that, with certain exceptions, failure to properly instruct the jury concerning intent renders a special circumstance finding reversible per se.   (People v. Garcia, supra, at pp. 554–557, 205 Cal.Rptr. 265, 684 P.2d 826.)   Since the trial of the instant case preceded the Carlos decision, the trial court here did not instruct as to the intent to kill required for a special circumstance finding.   Reversal is therefore required unless the case falls within one of the recognized exceptions to the Carlos rule.

 One of the exceptions, which we conclude is applicable here, occurs when the defendant concedes the issue of intent.  (People v. Ramos (1984) 37 Cal.3d 136, 146–147, 207 Cal.Rptr. 800, 689 P.2d 430;  People v. Whitt (1984) 36 Cal.3d 724, 734–735, 205 Cal.Rptr. 810, 685 P.2d 1161;  People v. Garcia, supra, 36 Cal.3d 539, 554, 205 Cal.Rptr. 265, 684 P.2d 826.)   The analysis supporting the exception is detailed in Garcia, Whitt and Ramos and requires no repetition by us.

The defense below was twofold.   First, defendant acknowledged killing Mrs. Ellis, but claimed that due to his diminished capacity, the result of a mental disorder and alleged drug use, he was unable to form the mental state necessary for first degree murder.   Alternatively, he argued that his purpose in entering the store was to kill a woman, and that the robbery which occurred was incidental to that killing.   Therefore, he contended, the special circumstance allegation could not be true because the killing did not occur during the commission of a felony, in this case, a robbery.   In his opening statement defense counsel stated:  “[T]here is little if any conflict in our position as opposed to the position of [the prosecutor], save and except the real reason why he went in.   We have no quarrel with the fact that [defendant] in fact killed Mrs. Ellis.   We have no quarrel with the fact that he took money from Mrs. Ellis.   We have no quarrel with the fact that he made statements admitting that he was there and did what he did.   We have no quarrel with the obliterated unintelligible and sometimes intelligible tape where he had related the matter to his sister, his twin sister․  I would like to for the moment give you some background leading up to the killing which will have relevance on his intent, his ability to be willful, deliberate, premeditated, to harbor malice aforethought.”   Defense counsel then described defendant's background, setting the stage for a diminished capacity defense.   He then stated his principal position:  “We will show [defendant] entered that store at that time and place to kill, to kill, to take the life of Mrs. Ellis.   That was the primary reason.   That's why he went in.”  (Emphasis ours.)

Francis Crinella, a psychologist and witness for defendant, was of the opinion defendant “had gone into the store in my mind to kill an adult woman, and that was his main idea, his ruminative thought, his preoccupation․”  In Crinella's talks with defendant “it became apparent that seeking money was not a major or even significant consideration in this act.   It was nice to have the money, but it was incidental to what he was about.”   The day before the killing he went into four shops “with the purported conscious intent of looking for a place to rob.   But ․ looking for a place where there would be a woman that he could kill.”   In Crinella's opinion, defendant “may well have killed” Lois Weber the previous day had Fredel's Fashions still been open when he returned at 5:00 p.m.   He testified that defendant “thought quite a good deal about what he was going to do [i.e., kill a woman].”

A defense psychiatrist, Robert Aaron, testified that in his opinion “this was a willful killing and that he intended to do the killing, that within the framework of the law, ․ deliberation, premeditation and malice aforethought were not present.”   Aaron believed defendant was “looking to kill a woman,” and had “cased” four women's shops the day before he killed Mrs. Ellis.  “I believe very strongly based on this long history [of feeling powerless with women and fantasizing having intercourse with a dead woman] that his intention was to kill ․ the money was secondary.”

Martin Blinder, a psychiatrist, testified for the People.   In his opinion defendant had a mental disorder, but not to such an extent that he would not be able to predict the results which would flow from his actions.   Blinder testified that defendant did not have a mental disorder that prevented him from deciding upon and executing a purposeful act.   Blinder believed defendant was able to premeditate and deliberate, and that he could also form the intent to steal.   No defense witness contradicted Dr. Blinder's opinion concerning defendant's ability to form the intent to steal.

Approximately one month prior to the murder defendant advised his sister that he had been observing a woman depositing funds in a bank night depository.   He told her that if he robbed anyone he would kill the victim “because that way there wouldn't be a witness left to identify him.”  (Emphasis ours.)   Shortly before the murder he also told another person, who testified at the trial, that he had verified a number of places in Santa Rosa that were run by elderly people who would be easy to rob, and that he would kill them to prevent his identification.   The victim was 58 years old.   None of this evidence is contradicted.

In summary, all the evidence points to a planned, deliberate execution, in which the victim's life was taken solely to prevent her from identifying defendant as the person who robbed her.

In his closing argument, defense counsel again emphasized that “[o]ur position is and has been he went in that store to kill, to take her life․  I assume you have to find that's what he did.   You are probably thinking, I don't know—this is the screwiest case.   It seems to me if he went in to rob somebody and then for some reason killed somebody, that is not as bad as deliberately walking in with the thought preceding it and taking this poor woman's life.   Whether it's crazy or not, that's what the law is․  I wish you would just at least discuss the law about diminished responsibility or capacity․  we've got history from birth which would support that.   But I'm begging you, begging you at least to find that he killed her and that was the reason he went in the store.   He may have gone in to rob too but he went in to kill her.”  (Emphasis ours.)

Thus, although defendant alternatively advanced a diminished capacity defense, he specifically conceded his intent to kill.   This could not credibly be avoided in light of the testimony of his own medical experts, each of whom testified that he intended to kill, his own confession that he killed in order to prevent his identification, and his prior statements that he intended to commit a robbery and kill the victim to conceal his identity.

 Defendant's tactic was to attempt to persuade the jury that the murder was his primary motive in entering the store, and that the taking of the cash was merely a coincidental afterthought.   Were this found to be true he would have avoided the operation of the felony murder rule, since a murder which precedes the formation of the intent to rob or steal is not within the perpetration of robbery or burglary.  (People v. Gonzales (1967) 66 Cal.2d 482, 486, 58 Cal.Rptr. 361, 426 P.2d 929;  People v. Jeter (1964) 60 Cal.2d 671, 676–677, 36 Cal.Rptr. 323, 388 P.2d 355;  People v. Carnine (1953) 41 Cal.2d 384, 388, 260 P.2d 16.)   Avoiding the felony murder rule or convincing the jury he lacked the capacity to deliberate or premeditate might at least have reduced the murder to second degree.   This in turn would have prevented a finding of special circumstances, which attach only to first degree murder convictions.  (Pen.Code, § 190, et seq.)   Even if convicted of “traditional” first degree murder, if he was able to prove that his principal intention was to take a life and that any thought of robbery or theft occurred after the killing, he would still avoid the special circumstance of murder committed during the course of a robbery.  (See People v. Gonzales, supra, 66 Cal.2d 482, 58 Cal.Rptr. 361, 426 P.2d 929;  People v. Jeter, supra, 60 Cal.2d 671, 36 Cal.Rptr. 323, 388 P.2d 355;  People v. Carnine, supra, 41 Cal.2d 384, 260 P.2d 16.)

It is obvious from the presentation of the evidence and the arguments to the jury that the principal defense was not a reliance on diminished capacity, but the attempt to convince the jury that defendant's primary motive in entering the store was to kill, rather than commit robbery.   Thus, his appeal to the jury was more than a concession of intent;  it was an insistence—a demand that they find his primary intent was to kill his victim.

Defendant now argues that his concession of intent was insufficient to come within Garcia's exception to Carlos, since he did not specifically concede his intent to kill was for the purpose of furthering the robbery.   He claims that his intent to kill and the killing preceded the formation of his intent to steal.   Thus, he argues, since he did not admit forming the intent to rob or steal first, but rather admitted only that his intent to kill and the killing occurred first, he is not within Garcia's exception.6

 We do not interpret the exception to be quite so narrowly defined.   The cases discussing it speak only in terms of an intent to kill (People v. Ramos, supra, 37 Cal.3d at pp. 146–148, 207 Cal.Rptr. 800, 689 P.2d 430;  People v. Whitt, supra, 36 Cal.3d at pp. 734–735, 205 Cal.Rptr. 810, 685 P.2d 1161;  People v. Garcia, supra, 36 Cal.3d at pp. 545, 547, 552, 554–556, 205 Cal.Rptr. 265, 684 P.2d 826;  Carlos v. Superior Court, supra, 35 Cal.3d 131, passim, and esp. pp. 153–154, 197 Cal.Rptr. 79, 672 P.2d 862), which is logical.   Defendant confuses the felony murder rule of Penal Code section 189 with the felony murder special circumstance of Penal Code section 190.2, subdivision (a)(17).   Whether the theft was truly an afterthought to the killing was a question for the jury to resolve.   In order to invoke the felony murder special circumstance for robbery as contained in Penal Code section 190.2, subdivision (a)(17)(i), the intent which must be established is the intent to kill.  (Enmund v. Florida, supra, 458 U.S. 782 [102 S.Ct. 3368, 73 L.Ed.2d 1140];  Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.)   The intent to commit the underlying felony of robbery in order to fix the degree of murder is a preliminary finding which must be made before the murder can be classified as first degree under the felony murder rule of Penal Code section 189.   In any event, the jury was given an instruction prepared by defendant which covers his theory.

The jury was instructed, at defendant's specific request:  “To find that the special circumstance, referred to in these instructions as murder in the commission of robbery is true, it must be proven that the murder was committed while the defendant was engaged in the commission or attempted commission of a robbery, that the murder was committed in order to carry out or advance the commission of the crime of robbery or attempted robbery or to facilitate the escape therefrom or to avoid detection.   If you have a reasonable doubt whether the murder was committed in order to carry out these purposes, you must find that the special circumstance is not true.   In other words, the special circumstances referred to in these instructions is not established if you find that the defendant's objective was to kill and the robbery was merely incidental to the commission of the murder.”   The jury was also properly instructed that it could consider the special circumstance allegation only if it found defendant guilty of first degree murder.

 The jury found defendant had the specific intent to commit the robbery of which he was convicted.   It also found that the murder was committed during the course of the robbery.   The defendant conceded his intent to kill.   This is sufficient to come within Garcia's exception to Carlos and overcome the erroneous instruction on intent to kill.


The judgment of conviction of first degree murder with special circumstances is affirmed.


1.   Defendant did not testify at trial, and never explained his story about cocking the gun twice.

2.   Penal Code section 189, states, in relevant part:  “All murder which is ․ committed in the perpetration of ․ robbery ․ [or] burglary ․ is murder of the first degree․”

3.   The People actually sought special circumstances based on burglary as well as robbery, but the finding by the jury was based on the robbery.

4.   Penal Code section 190.2, subdivision (a), states, in relevant part:  “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found ․ to be 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.”

5.   Justice Mosk provides a comprehensive review of California's felony murder rule in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.

6.   Since the People introduced evidence to prove the elements of traditional first degree murder, i.e., deliberation, premeditation and malice, specific intent was in issue not only as to the murder count, but also as to the burglary and robbery counts, of which defendant was also found guilty.   Although the specific intent for burglary and robbery is not the same as that for murder, it emphasizes the fact that defendant's mental state was in issue, since all the counts involved specific intent crimes.   The jury also returned a finding that defendant inflicted great bodily injury on the victim.   The only act committed by defendant which could possibly have led to great bodily injury was the single act of shooting the victim in the back of the head.   The jury was appropriately instructed that a finding of great bodily injury requires specific intent.

FOOTNOTE.   Not Certified for publication.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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