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

IN RE: Jamie S. LAUER, on Habeas Corpus. In re John T. BUTTERFIELD, Jr., on Habeas Corpus. In re Timothy James WALDER, on Habeas Corpus.

B011500, B014634 and B018379.

Decided: July 31, 1986

Glen H. Schwartz, Encino, under appointment by the Court of Appeal, for petitioner Jamie S. Lauer. Jerome L. Bleiweis, Torrance, for petitioner John T. Butterfield, Jr. Frank P. Rosen, Woodland Hills, for petitioner Timothy James Walder. John K. Van de Kamp, Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., and Robert D. Breton, Deputy Atty. Gen., for respondent.

Petitioners and Larry Dean Boone were codefendants in the same criminal proceeding arising out of the robbery and murder of Ray Martin and the kidnapping, robbery and attempted murder of Robert Kimberly.   This court affirmed their convictions in People v. Boone, et al., 2 Crim. No. 42811.   In separate petitions for writs of habeas corpus, petitioners Lauer, Butterfield and Walder contend that the special circumstances finding with respect to the murder of Martin must be set aside under Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862,1 because the jury was not instructed that proof of intent to kill or aid in a killing is essential to a finding of murder with special circumstances.   We agree.


The crimes for which petitioners were convicted arose out of an evening-long crime spree which occurred on the night of May 22–23, 1981.   Petitioners and Boone were guests at the apartment of Kathleen Williamson and Cassandra Craft.   About 10 p.m., Boone announced that he knew how to make some money and would show everyone how.   Boone and petitioners left the apartment and proceeded to the hotel room of Robert Kimberly, an acquaintance of Butterfield.   Kimberly invited everyone in for a beer.   When the beer ran out, the group proceeded to a liquor store to buy more.   After Kimberly purchased the beer, Boone drove to an unlighted area and announced to Kimberly that he was being robbed.

After knocking out one of Kimberly's teeth, Boone instructed Butterfield to “drive to the cemetery.”   Kimberly pleaded with all four to let him go, promising to get them more money and not to tell anyone what had happened.   Walder was heard to say, “He knows us.   We're going to have to kill him.”

Near the cemetery, everyone got out of the car and Kimberly was relieved of his wallet.   He attempted to escape by running down the road but the four managed to overtake him, beat him, and stab him.  (Altogether, Kimberly received about eight blows to the head and eighteen stab wounds in his back.)   He feigned unconsciousness and heard Walder say, “That's it, he's had it.   He's dead.   Let's go.”

After the four departed, Kimberly managed to walk for about two hours until he was found by a passing motorist and taken to the hospital.   He recovered from his wounds and testified against petitioners at trial.

After leaving Kimberly for dead, petitioners and Boone returned to Williamson's apartment with the beer and a wad of bills.   They remained only a short time before leaving again.

They eventually went to the home of Ray Martin, another acquaintance of Butterfield (who had previously traded his motorcycle to Martin's roommate in exchange for a car).   Martin's roommate, Paul Fuller, returned home at about 2:30 a.m. to find the motorcycle lying on its side with the headlight still on, but dimming.   Inside his apartment, he found the battered body of Martin, with blood and matted hair splattered on the wall.   The coroner's investigator testified at petitioners' trial that Martin had one stab wound in the chest, seven stab wounds in the upper right quadrant of the back, a deep laceration above and “into the right eye,” and another deep laceration on the back of the skull, with a skull fracture.   This was apparently caused by a hammer, which investigators later found in a vacant lot, covered with blood.

After leaving Martin's apartment, petitioners and Boone returned to Williamson's apartment, where Williamson noticed that Boone had blood on his pants and Walder had blood on his knife and hands.   Later, when Williamson and Butterfield were in bed together, Butterfield made two references to having been at the scene of the crime:  “I saw my Sporty there [the motorcycle] and I wanted to burn it to the ground,” and “I think that guy is dead.”

The evidence at trial established that petitioners had sold tools and guns owned by Martin to a “fence” for $100.   Although Martin had been paid in cash on the day of his murder, his pockets had been turned inside out and all of the cash was missing.

For the crimes against Kimberly, petitioners and Boone were convicted of kidnapping for robbery, robbery and attempted murder.   For the murder of Martin, all defendants were convicted of burglary, robbery, and murder with special circumstances, those being that the murder was committed during the course of a burglary and robbery.   All four defendants were sentenced to life in prison without the possibility of parole.


 The threshold issue here is whether Carlos applies retroactively to this case.

In People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, the Supreme Court held that Carlos applied retroactively to cases “not yet final.”  (36 Cal.3d at p. 549, 205 Cal.Rptr. 265, 684 P.2d 826.)   The court has subsequently interpreted Garcia to mean that Carlos is to be applied to all cases which were pending at the time Carlos was decided.   (People v. Anderson (1985) 38 Cal.3d 58, 61, 210 Cal.Rptr. 777, 694 P.2d 1149.)   Because petitioners' appeals were pending when the Carlos decision was rendered, Carlos applies retroactively to them.

We now turn to the merits of the petitions.   The court in Garcia, no doubt anticipating the number of instructional errors which would be found in “non-final” pre-Carlos cases, issued guidelines as to when such instructional error would require reversal.   The court held that the failure to instruct the jury on the necessary element of intent to kill is reversible error per se, with four exceptions:  (1) the defendant was acquitted and the instruction had no bearing on the offense for which he was convicted;  (2) the defendant conceded the issue of intent;  (3) the factual question posed by the omitted instruction on intent was necessarily resolved adversely to the defendant under other properly given instructions;  and (4) the parties recognized that intent to kill was an issue and the record not only establishes the necessary intent as a matter of law, but shows the contrary evidence not worthy of consideration.

 Petitioners and Boone were tried together.   The jury was instructed on “willful, deliberate and premeditated” first degree murder and felony murder.   As to the special circumstances, the jury was instructed that in order to find the special circumstances allegations to be true, it had to find that the murder was committed during the course of the denominated felonies (here, burglary and robbery).   The omission of any reference to intent to kill was understandable given the fact that petitioners' trial predated Carlos by nearly two years.   Nonetheless, under Garcia, the failure to instruct on intent to kill compels reversal of the special circumstances findings unless the case comes under one of the Garcia exceptions.   We hold that none of the Garcia exceptions are applicable here.

Petitioners were not acquitted and did not concede the issue of intent.   Nor was the issue of intent resolved adversely to petitioners under other properly given instructions.   Although the jury was instructed on both felony murder and “willful, deliberate and premeditated murder,” the jury did not indicate on which theory it established petitioners' guilt.  (The court refused a special instruction requested by Boone which would have directed the jury to specify whether its guilty verdict was based upon felony murder or first degree murder.)

Petitioners' unsuccessful attempt to present a diminished capacity defense indicates their recognition that the issue of specific intent was of some importance,2 although it is unclear whether petitioners were attempting, by way of such a defense, to persuade the jury that they lacked the intent to kill or merely to show that they could not form the specific intent required for burglary and robbery, the felonies charged in the special circumstances allegations and relied upon by the People to convict petitioners of first degree felony murder.

A logical conclusion to be drawn from the facts here is that “the record not only establishes the necessary intent as a matter of law, but shows the contrary evidence not worthy of consideration.”   Petitioners embarked on an evening-long crime spree in which the intent to kill was clearly expressed with respect to victim Kimberly.   Kimberly's testimony left no doubt that petitioners were determined to kill him to prevent Kimberly from identifying them.   One could reasonably assume, given the brutal and vicious manner in which Martin was killed, that petitioners' attitude toward killing witnesses had not changed as the evening wore on.   We are nonetheless bound by the series of decisions by our Supreme Court which has found reversible Carlos error in cases such as this one where the defendant did not present a defense involving lack of intent to kill, or in the context of the evidence presented and the instructions given, it could not be inferred that the jury had necessarily resolved that issue against him.   This is true even in cases where, unlike the present case, the actual perpetrator was known.  (See People v. Brown (1985) 169 Cal.App.3d 728, 739, 215 Cal.Rptr. 465, and cases cited therein.)   Indeed, the Supreme Court has declined to infer the intent to kill from conduct more egregious than that presented in this case.  (See, e.g., People v. Ratliff (1986) 41 Cal.3d 675, 224 Cal.Rptr. 705, 715 P.2d 665 [defendant shot the victim at close range immediately after demanding money from a second victim and shooting him;  held, evidence inconclusive on the intent to kill because evidence manifested only an intent to shoot];  People v. Phillips (1985) 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423 [death penalty reversed due to erroneous admission of evidence of “other criminal conduct,” namely defendant's jailhouse letters planning the murder of four witnesses, including his mother and girlfriend.   Held, a letter containing directions to “knock out,” “nail,” and “blast” the witnesses was “somewhat ambiguous as to the conduct it solicits”];  People v. Leach (1985) 41 Cal.3d 92, 221 Cal.Rptr. 826, 710 P.2d 893 [defendant, after telling a group of friends he was going to take the victim out to the country, rob him and kill him, made good on his promise, stabbing the victim 50 times and slitting his throat;  held, torture murder special circumstances reversed because the jury was not instructed as to whether defendant “intended to inflict pain”];  People v. Balderas (1985) 41 Cal.3d 144, (mod. 41 Cal.3d 650a) 222 Cal.Rptr. 184, 711 P.2d 480 [as modified] [defendant took the victim to a remote place, shot him in the pelvis with a shotgun, and left him to bleed to death];  People v. Silbertson (1985) 41 Cal.3d 296, 221 Cal.Rptr. 152 P.2d 1321 [defendant told several people he was going to rob and kill the victim, but later claimed the gun “just went off” before he intended].)

In petitioners' case, the retroactive applicability of Carlos makes the court's failure to instruct on intent to kill reversible error per se, unless one of the four exceptions set forth in Garcia applies.   As we have stated above, the case does not fit into any of the four exceptions.

The special circumstances findings and the penalty judgment of life without possibility of parole are set aside as to each petitioner.   Each case is remanded to the trial court for either retrial or resentencing in accordance with the views expressed in this opinion.


1.   In Carlos, the Supreme Court interpreted Penal Code section 190.2 to require that before a defendant can be subjected to a sentence of death or life in prison without the possibility of parole for a murder committed during the course of certain designated felonies, the prosecution must prove that the defendant intended to kill the victim.

2.   The court refused to instruct on diminished capacity because there was insufficient evidence to warrant such an instruction.   On appeal, we rejected petitioners' contentions that the court's refusal to instruct on diminished capacity was reversible error.

ASHBY, Acting Presiding Justice.