PEOPLE v. PAYNE

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

The PEOPLE of The State of California, Plaintiff and Respondent, v. Orrin William PAYNE, Defendant and Appellant.

AO24288.

Decided: February 27, 1986

Patricia A. Grossman, Santa Clara, Eagle & Courtney, San Jose, for defendant and appellant (under appointment by the Court of Appeal). John K. Van de Kamp, Atty. Gen., Ann K. Jensen and Thomas A. Brady, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

The trial court, sitting without a jury, found appellant Orrin William Payne guilty of several offenses, including first degree murder with special circumstances and robbery.   The court sentenced appellant to prison for life without possibility of parole on the murder conviction and to several concurrent terms for other offenses.   Appellant contends that (1) the special circumstance finding was not supported by the evidence and was erroneous as a matter of law;  (2) the finding that appellant was an aider and abettor in the crime of murder was contrary to law;  and (3) the evidence was insufficient to support the finding that appellant was guilty of robbery.   We affirm.

The Facts

The case was submitted to the trial judge on certain portions of the preliminary hearing transcript.  (See Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086.)   The pertinent facts are as follows.

On December 7, 1982, Michael Hynan shared a home in San Jose with his pregnant wife (the murder victim) and their two daughters, aged three and one-half years and sixteen months.   He returned home from work that evening at about 7:45 p.m., having stopped for groceries.   He parked his car in the driveway and went around to the passenger side to retrieve the bag of groceries, when he noticed two almost identical bicycles parked behind some bushes on his property, in a position where they could not be seen from the sidewalk.   He had never seen them before.

Mr. Hynan then noticed that the gate which led to the screened patio on the side of the house was unlatched and partially open.   There were no locks on the two doors leading into the screened patio.   He approached a sliding glass door which led into the family room from this screened patio and found that it was locked.   He noticed his older daughter in the family room watching television and that his wife was on the telephone in the kitchen, which was separated from the family room by a divider about four and one-half to five feet high.

Mr. Hynan beckoned to his daughter, but she was unable to unlock the door for him, so he pounded very loudly on the glass door nine or ten times to get his wife's attention.   When he entered the house, he told her, “Get off the phone and call the police.   Somebody's in the backyard.”   She returned to the phone, concluded her conversation, and hung up.   She then began reading the phone number of the police department from an emergency sticker on the phone.

Mr. Hynan went to the main bedroom to get his .22 pellet pistol from the closet.   As he turned around with the pistol in his hand, appellant came out of the darkness and with his left hand grabbed Mr. Hynan's right hand (in which he held the gun).   Mr. Hynan called for “help” in a loud voice, and then appellant placed his right forearm against Hynan's throat.   Appellant had nothing in his hands.   In a very low tone of voice appellant told Hynan, “Shut up or I'll blow your fucking head off.”   Hynan let his pistol drop to the floor, and appellant spun him around and pushed him into the living room.

Appellant then said, “On the floor facedown” and pushed Mr. Hynan down hard to the floor, where he assumed a spread eagle position.   He “sensed” that appellant remained behind him, out of his view.   He heard no sounds indicating that appellant left the immediate area.

As he was going to the floor Mr. Hynan saw a second man (codefendant Williams) enter the living room through the sliding glass door from the screened patio.   Both appellant and Williams were wearing hooded sweatshirts with the hood tied securely around the head.   Upon entering the house Williams turned and stepped from the living room into the family room.   Mr. Hynan heard him yell, “Put the fucking phone down.”   Mrs. Hynan said, “Please don't shoot me.”   Mr. Hynan then heard two shots, each followed by a “yelp” from his wife.

Almost immediately after the shooting Williams came around the corner from the family room and into the living room;  Mr. Hynan could see that he was holding a revolver.   Williams put his foot on Hynan's head and said, “Where is the money, all of it?”   Hynan could not see appellant at this point, but he was still nearby.   Mr. Hynan reached into his pocket, pulled out $17, and threw it on the floor.   He saw a hand pick up the money;  someone—he was not sure which of the men—then removed his checkbook and wallet from his rear pants pocket.

After Williams took his foot off Hynan's head, the latter saw one of the men heading toward the sliding glass door in the back of the house.   The other reached down, took off Hynan's glasses, and threw them against the wall.   Appellant and Williams then ran side by side out the sliding glass door onto the screened patio.   Mr. Hynan went to his wife and found that she was dead.

Mr. Hynan testified that he felt there was “no reason to doubt” appellant's statement which indicated that he was armed, even though he did not see a gun in his possession and did not see or feel anything metallic or any bulges like weapons.

Hynan estimated that about three to four minutes passed from the time his wife let him in the house to the time the assailants fled.   He further estimated that Williams was out of his sight for about five to seven seconds from the time Williams entered the family room until he returned to the living room.   The first shot was fired less than a second after Mrs. Hynan spoke.   The second shot came about a second later.   Mr. Hynan did not believe that appellant could have been the person who shot his wife.

Later that evening Mr. Hynan noticed that the bicycles were gone and that his pellet gun, which he had dropped in the main bedroom, was missing.

The Special Circumstance Finding

At the conclusion of trial the court made findings beyond a reasonable doubt which included that (1) appellant was guilty of first degree felony-murder;  (2) the first and second alleged special circumstances (murder during robbery and to effect escape) were not true;  (3) the third special circumstance (murder in the commission of a burglary) was true;  and (4) appellant intentionally aided and abetted in the commission of the murder.

Appellant contends that reversible error occurred in that the court failed to find that he harbored the intent to kill or to aid in the killing of the victim.   We hold that the court made the requisite finding and that it was supported by the evidence.

Penal Code section 190.2, subdivision (a), provides that where any of the enumerated special circumstances are found to be true, a defendant convicted of first degree murder shall be punished by death or confinement in prison for life without possibility of parole.   Paragraph (17) provides, in relevant part, for the following special circumstance (the “felony murder special circumstance”):  “The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit ․ [¶ ] (vii) Burglary․”  Subdivision (b) provides:  “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs ․ (17), ․ of subdivision (a) of this section has been charged and ․ found ․ to be true․”

In Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, the Supreme Court held that the word “intentionally” in Penal Code section 190.2, subdivision (b), refers to all defendants—both actual killers and accomplices—requiring “an intent to kill or to aid in a killing as an element of the felony murder special circumstance.”  (Carlos v. Superior Court, supra, at p. 135, 197 Cal.Rptr. 79, 672 P.2d 862.)   In People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, the court held this rule retroactive and applicable to all cases not yet final.  (Id., at p. 549, 205 Cal.Rptr. 265, 684 P.2d 826.)   The Garcia court also established that Carlos error is reversible per se, but with four limited exceptions.

Our review of the record convinces us that the trial court made the requisite finding of intent to kill or to aid in killing.   Anticipating the Carlos holding, defense counsel argued vehemently that although appellant may have “aided and abetted,” in the traditional sense, in the killing, he did not intend to aid in the killing.

 Having considered extensive argument on this issue, the court made its finding in these words:  “․ [T]he defendant intentionally aided and abetted in the commission of murder in the first degree in that he intentionally and illegally restrained Michael Hynan by force and fear as Henry Lee Williams accomplished the first degree murder.”   We hold that this statement was the unambiguous equivalent of a finding that appellant intended to aid in the killing, as required by Carlos.   In other words, the court found not only that appellant intentionally aided in the burglary, but also that when he restrained Mr. Hynan, he did so with the intent of aiding Williams in the killing of the victim.

Our conclusion about the court's meaning is supported by the following colloquy, which occurred at the time of sentence.   Defense counsel argued that the evidence was insufficient to show that appellant restrained Mr. Hynan by force and fear and that “․ the evidence is insufficient to show that he intentionally aided and abetted Mr. Williams, sharing the purpose that Mr. Williams had, which was to kill Mrs. Hynan.”  (Emphasis added.)   The court then ruled:  “To be quite frank with you, the issue is a complex one in my mind.   I am sure the issue will be one which will have a long legal history and in my view, the issue as to what is required for the special circumstance finding perhaps will be resolved by courts of much higher posture than this one.   For whatever it's worth, in my view, I have reviewed the evidence in my own mind again and I believe the evidence is sufficient for the finding.”   (Emphasis added.)

It bears emphasis that this was a court trial and that therefore we are not confronted with an instruction to a jury which was “erroneous” in that it was not in the words of the Carlos holding (“intent to kill or to aid in a killing” [Carlos v. Superior Court, supra, 35 Cal.3d at p. 135, 197 Cal.Rptr. 79, 672 P.2d 862] ).  Nothing we say in this opinion should be construed as holding that an instruction in the words of this trial court's finding would be sufficient to apprise a jury of the law under the Carlos holding.

 The trial court's finding was supported by ample evidence in the form of appellant's statements, actions, and the reasonable inferences to be drawn therefrom.   Appellant's first statement to Mr. Hynan in the bedroom was, “Shut up or I'll blow your fucking head off.”   Appellant then disarmed Hynan, apparently took his gun, forced him into the living room, and then pushed him face down on the floor, standing guard over him.   It is clearly inferable that appellant intended to remain in the home to complete the purposes of the burglary and to kill if necessary to that end.   The layout of the house was such that while guarding Mr. Hynan appellant was in a position to observe Williams murdering Mrs. Hynan.   It follows that the trial court properly found that appellant not only intentionally aided and abetted in the burglary and in the murder, but also that he did so with the intent to kill or to aid in the killing.

 Furthermore, the same evidence which we have cited as supporting the trial court's finding leads us to our own independent finding that appellant intended to kill or to aid in the killing.   Because the question of the truth of a special circumstance allegation is one affecting the determination not of guilt or innocence, but of the appropriate penalty, this court is a proper tribunal to resolve it.  (Cabana v. Bullock (1986) –––U.S. ––––, –––– – ––––, 106 S.Ct. 689, 697–699, 88 L.Ed.2d 704)

Felony Murder

 Appellant mounts various attacks on the trial court's finding that he committed felony murder (as distinguished from the felony-murder special circumstance discussed above).   In essence, he asks that we reevaluate the felony-murder rule and its application to the facts in this case.   The Supreme Court recently reevaluated and upheld the rule.  (People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697;  accord People v. Turner (1984) 37 Cal.3d 302, 327, 208 Cal.Rptr. 196, 690 P.2d 669.)   We, of course, are bound to follow its holdings.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Ample evidence supported the trial court's finding that appellant committed burglary with Williams.   The killing of Mrs. Hynan during the course of that crime was first degree felony murder by all principles, regardless of appellant's or Williams' mental state.  (People v. Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Terry (1970) 2 Cal.3d 362, 401, 85 Cal.Rptr. 409, 466 P.2d 961;  see People v. Burton (1971) 6 Cal.3d 375, 387–388, 99 Cal.Rptr. 1, 491 P.2d 793.

Robbery

Appellant's claim that his robbery conviction is not supported by the evidence borders on the frivolous and in effect asks us to reweigh the evidence.   That is not our function.   The standard of review has been summarized by the Supreme Court as follows (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738):  “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”   The evidence which we set forth above clearly supports the trial court's finding that appellant robbed Michael Hynan.

Disposition

The judgment is affirmed.

I respectfully dissent from the portion of the majority decision which holds that the trial court's finding with regard to the felony murder special circumstance is adequate.   I feel that this finding does not comport with the Eighth Amendment to the United States Constitution nor the decisions of the California Supreme Court.   I also dissent from the portion of the decision that holds that the special circumstance is supported by substantial evidence.

In Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, while Enmund waited in a car, his two codefendants approached the residence of Thomas and Eunice Kersey.   When they demanded money from Thomas, Eunice shot and wounded one of the codefendants.   The codefendants then killed the Kerseys, took some money, and fled with Enmund in the car.   Enmund was convicted of first degree murder with aggravating circumstances that the felony was committed while Enmund was engaged in or an accomplice to robbery.   He was then sentenced to death.   The United States Supreme Court held that the death sentence violated the cruel and unusual punishment clause of the Eighth Amendment.   The United States Supreme Court held that the Eighth Amendment forbids the imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by another but who does not himself kill, attempt to kill or intend that a killing take place or that lethal force will be employed.  (Id., at p. 798, 102 S.Ct. at p. 3377.)

In Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, the California Supreme Court interpreted the 1978 death penalty initiative in light of its wording, the history of the initiative as well as the constitutional requirements under the Eighth Amendment as set out in Enmund.   The court in Carlos stated “[w]e conclude ․ the initiative ․ supports a construction limiting the felony murder special circumstances to persons who intend to kill or aid in a killing.”  (Id., at p. 145, 197 Cal.Rptr. 79, 672 P.2d 862.)   The holding in Carlos applies retroactively to all cases not final.  (People v. Garcia (1984) 36 Cal.3d 539, 549, 205 Cal.Rptr. 265, 684 P.2d 826.)   The Garcia court also established that Carlos error is reversible per se, but with four limited exceptions.  (People v. Boyd (1985) 38 Cal.3d 762, 770, 215 Cal.Rptr. 1, 700 P.2d 782.)

Penal Code section 190.2, subdivision (a), provides that where any of the enumerated special circumstances are found to be true, a defendant convicted of first degree murder shall be punished by death or confinement in prison for life without possibility of parole.   Paragraph (17) provides, in relevant part, for the following special circumstance (the “felony murder special circumstance”):  “The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit ․ [¶ ] (vii) Burglary․”  Subdivision (b) provides:  “Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs ․ (17), ․ of subdivision (a) of this section has been charged and ․ found ․ to be true․”

The court in Carlos found the following problems with the above quoted portions of Penal Code section 190.2:  “With regard to most of the listed special circumstances, the function of subdivision (b) is clear:  it renders the accomplice equally liable as the principal if the accomplice ‘intentionally’ aided in the murder.   With respect to paragraph 17, however, its function is more obscure.   In the first place, paragraph 17, alone of the listed paragraphs, already contains language equating the liability of principal and accomplice.   In addition, the requirement that the accomplice ‘intentionally’ aid in the commission of a murder is inherently ambiguous when applied to a felony murder, for it could mean either that the accomplice must intentionally aid in a killing, or that he need only intentionally aid the commission of the underlying felony.   And because paragraph 17 includes felonies not listed in section 189, the ambiguities mount.   Must the accomplice to a nonsection 189 felony share the principal's intent to kill, or need he only intend to aid the underlying felony?”  (Id., at p. 145, 197 Cal.Rptr. 79, 672 P.2d 862.)

As noted by the majority, the trial court found in the instant case that “the defendant intentionally aided and abetted in the commission of murder in the first degree in that he intentionally and illegally restrained Michael Hynan by force and fear as Henry Lee Williams accomplished the first degree murder.”   This is the type of finding that the Carlos court warned against because of its ambiguity.   The first degree murder of which the trial court was speaking was felony murder and appellant could have intentionally aided in the underlying felony by his restraining of Michael Hynan even if this restraint could also possibly be said to have aided Henry Williams in his killing of Mrs. Hynan, but this does not mean that appellant intended that his restraint of Mr. Hynan aid in the killing of Mrs. Hynan.   I am therefore of the opinion that the trial court's finding did not amount to the necessary finding required by Carlos that appellant intended to kill or aid in a killing.   Therefore, Carlos error occurred, and the error is reversible per se unless one of the four exceptions applies.   The exceptions allow affirmance where (1) Carlos error occurred in connection with an offense for which defendant was acquitted, and it had no bearing on the offense for which he was convicted;  (2) defendant conceded intent;  (3) the question of intent was necessarily resolved adversely to defendant under other properly given instructions;  or (4) the parties recognized that intent was in issue, presented all the evidence at their command on that issue, and the record not only establishes the intent as a matter of law, but also shows the contrary evidence is not worthy of consideration.  (People v. Garcia, supra, 36 Cal.3d at pp. 554–556, 205 Cal.Rptr. 265, 684 P.2d 826;  People v. Whitt (1984) 36 Cal.3d 724, 734–735, 205 Cal.Rptr. 810, 685 P.2d 1161.)

None of these exceptions apply here.   The offense of which appellant was convicted was the one in which Carlos error occurred;  appellant did not concede intent, nor was the question necessarily resolved against him (the trial court having rejected his theory that intent was relevant).   Although defense counsel “recognized” that intent was in issue, the other parties did not, and I cannot say that the evidence shows intent to kill or aid in killing as a matter of law.1  The appropriate remedy is to set aside the special circumstance finding.  (People v. Whitt, supra, 36 Cal.3d at p. 736, 205 Cal.Rptr. 265, 685 P.2d 1161;  People v. Turner (1984) 37 Cal.3d 302, 328, 208 Cal.Rptr. 196, 690 P.2d 669;  People v. Cantu (1984) 161 Cal.App.3d 259, 273, 207 Cal.Rptr. 460.)

I am aware of the recent United States Supreme Court decision which holds that an appellate court may make the necessary finding that an appellant had the requisite intent to kill or to aid in the killing.  (Cabana v. Bullock (1986) 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704.)   I would decline to make such a finding in the instant case, because I am of the opinion that the record does not as a matter of law support such a finding.   Although appellant threatened to kill Mr. Hynan, he never made any such statements to Mrs. Hynan.   While it is clear that appellant intended to complete the purposes of the burglary, it is not as clear that he intended to kill to complete the burglary.   The threat he made to Mr. Hynan is one that is often made to victims in order to obtain their property.   If the victims did not regard themselves as being in danger they would not comply with the demands of their assailants.   It is not clear from the record that appellant was in a position to see what Williams was doing to Mrs. Hynan.   Accordingly, I do not think the record contains substantial evidence which supports a finding that appellant intended to kill or aided in the killing.

I would strike the special circumstance finding.  (People v. Whitt, supra, 36 Cal.3d at p. 736, 205 Cal.Rptr. 265, 685 P.2d 1161;  People v. Turner, supra, 37 Cal.3d 302, 328, 208 Cal.Rptr. 196, 690 P.2d 669;  People v. Cantu, supra, 161 Cal.App.3d 259, 273, 207 Cal.Rptr. 460.)

FOOTNOTES

1.   I note Mr. Hynan's statement at the time of sentence that there was a “potential that [appellant] could see what was going on and was aware of what was going on.”  (Emphasis added.)   A “potential” obviously is not equivalent to an actuality.

BARRY–DEAL, Associate Justice.

SCOTT, J., concurs.