PEOPLE v. BROWNING

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

The PEOPLE, Plaintiff and Respondent, v. Clinton Arthur BROWNING, Defendant and Appellant.

No. G005451.

Decided: September 29, 1989

Stephen S. Buckley, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr., and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Clinton Arthur Browning appeals from his conviction of first degree murder with the special circumstance of torture, attempted murder, false imprisonment and forcible oral copulation.   In the published portion of the opinion, we deal with his contentions that the instruction defining torture murder erroneously omitted a requirement of premeditation and deliberation and that the instruction on the torture murder special circumstance improperly failed to advise the jury of the necessary finding of an intent to inflict extreme pain.   We find no reversible error in these or his other contentions and affirm.

I

Browning was charged with two separate sexual attacks on different women, in January and in February of 1985.   The cases were tried together.

The Elana Incident

Elana was an underaged dancer and waitress at the Humdinger–A–Go–Go bar in Anaheim.   Dennis Legind was her boyfriend.   Legind met Browning at the bar in December 1984, and soon they were drinking and using cocaine together.

On January 13, 1985, Legind and Browning were at the Humdinger while Elana worked.   Legind had lost interest in her but she still liked him.   Legind mentioned his waning ardor to Browning, who in turn said he was sexually attracted to Elana.

Before midnight, Browning approached Elana and asked her to join him, Legind, and one “Robert” at Browning's room at the Fire Station Motel.   Wishing to talk to Legind, with whom she had not spoken in at least three days, Elana agreed.   Around midnight or 1 a.m.   Browning and Legind went outside to Browning's car, to “snort” cocaine.   Soon after police, looking for Browning, entered the bar.   Employees told them he was not there.

After the Humdinger closed, Elana joined Browning, Legind and Robert in Browning's car.   Elana told Browning police had been in the bar looking for him.   Ostensibly hoping to avoid the authorities, Browning asked Elana to drive his car to the Fire Station while he concealed himself.   Legind and Robert were to follow in Legind's car.

This was not Browning's actual plan, however.   Just before leaving the parking lot, Browning quietly told Legind not to come to the motel.   Legind, believing Browning and Elana were going to have consensual sex, agreed and went home, arriving between 2:30 and 2:45 a.m.

Elana, still thinking Legind and Robert would join them, drove with Browning to his motel room for the anticipated party.   She had done this several times before, including the previous night.   Browning had never made sexual advances and had always been polite.

Once at the motel, Elana and Browning shared beer and cocaine, and Elana looked at music tapes.   She remained clothed and showed no sexual interest in Browning.   At some point when Browning stated he liked oral sex with women, Elana replied he was rude and out of line.   Since 45 minutes had gone by with no sign of Legind, Elana concluded he was not going to show up.   She told Browning it was getting late and she wanted to go home.

Suddenly, Browning grabbed Elana from behind, threw her on her back on a bed and began choking her.   She felt dizziness and blackening of vision, and knew she was about to pass out.   Fearing for her life, she struggled with Browning, wrestling him to the floor and overturning a refrigerator.   During the fight she cried and begged Browning to quit choking her;  when she promised to do whatever he wanted, he loosened the stranglehold.2

At Browning's command Elana undressed and orally copulated him.   He also took her over his knee and spanked her hard enough to leave raised welts on her buttocks.   There was some talk of putting Vaseline on Browning's penis, but he never achieved an erection.

Shortly thereafter, a second choking incident took place when Elana failed to comply with one of Browning's requests.   He grasped her neck from behind with his arm and asked, “Are we going to go through this again?”   When Elana said, “No,” Browning released her and she tried to run, but he recaptured her.   He looked her directly in the eye and said, “You know I can't let you live.”   A third choking incident began and, thinking he was going to kill her, she kneed him in the groin.   As his hands loosened on her throat, she broke free, screaming as loudly as she could.   Browning, unable to silence her, said, “I was only trying to make it easy on you.”  (Elana was bewildered by the enigmatic comment.)   He told her to don her clothes and leave.

Elana sought refuge at Legind's home.   The next day she went to Dr. Mark Thompson, an internist.   Dr. Thompson testified Elana had sustained burst blood vessels in the whites of both eyes, bruises and redness around the eyes and cheeks, fresh raised welts on her buttocks, and soreness to the front of the neck in the tracheal area.

Elana failed to contact police at the time because she was working at the Humdinger illegally and feared jeopardizing her own or her employer's position.   She came forward later after Browning was charged with the murder of another young woman.

Browning checked into the Fire Station Motel December 8, 1984, and paid on a weekly basis thereafter, with the last payment made on January 8 for an occupancy ending January 18, 1985.   Although his rent was paid for several more days, Browning moved to the Robinhood Motel the morning after the attack on Elana.

The Defense

Browning testified he had spoken with Elana only three times.   Once she obtained cocaine for him and argued about the amount she should receive in return.   The second time she bought cocaine for Browning, Legind and two other men, and again disputed the amount of her “cut.”   The third conversation involved a trip Legind and Browning were planning.   Elana asked to come along, and Browning responded, “If we go in my car, you can't go.”

Aside from that, Browning had seen Elana outside the bar only once, in late November or early December, when she came to a party at his motel room along with Legind and several others.   He had never been alone in the room with her.

Browning denied the sexual assaults Elana attributed to him.   He also stated he never had problems with erections or ejaculation during sex.

He said he moved to the Robinhood Motel to be with a girlfriend who also moved there;  she was a good friend and a reliable cocaine connection.   He contended Elana concocted her tale as a defense to the real story, which involved a large drug deal she and Legind had carried out after stealing his car.

The Christine Homicide

Christine was a small-time prostitute.   Julian M., age 58, met her through Kenneth G. in 1984.   For the next six months Julian regularly had sexual intercourse and fellatio with Christine in his trailer camper, in return for money.   They engaged in no spanking, biting, sodomy, slapping or other sadomasochistic conduct.

On Sunday, February 10, 1985, Christine asked Julian to rent a room at the Ranch Motel for two nights, although previously they had had sex only in Julian's camper.   On the way there Julian gave Christine $5 to buy a nightie.   For the rest of the day, they watched television, drank beer, and had sexual intercourse.   Julian went home at about 9:15 p.m.

On Monday, February 11, Julian returned to the Ranch Motel at 7:30 a.m. to find Christine still in bed.   She slept until 10 a.m. while he watched television and drank beer.   Additional beer bottles were in the room, suggesting she entertained other men while he was absent.

Julian and Christine went to the store, exchanged the nightie, and bought beer and quesadillas.   In the afternoon they again drank beer and had sexual intercourse.   Late that night they drove to a nearby trailer park where Christine said she had to meet someone to get pills.   She entered one of the units and failed to return for 45 minutes.   Julian left for his house, thinking Christine could walk back to the motel.

The next morning, Tuesday, February 12, 1985, Julian again returned to the Ranch Motel.   Christine took a long time to answer the door, and said she was angry with him for making her walk back to the room the night before.   She slept for the next hour and a half.   In the basin were 16 ounce cans of beer, larger than the ones Julian had bought, and a half full pint of tequila.   Neither Julian nor Christine drank tequila.   There were also cigarette butts under the television drawer as well as drug paraphernalia, dirty socks, and lubricant jars labelled “Head” and “Back Door Sex.”

Julian and Christine engaged in sexual intercourse.   There were no bruises on Christine's vaginal or inner thigh area and no marks on her buttocks or trauma to the breasts.   She did not complain of pain in the neck or mouth.

They left the motel for breakfast,3 returned briefly and then went to Kenneth's house.   Christine called the motel to say she would drop off the key and pick up a pocket radio she had left behind.   On the way she talked Julian into renting the same room for one more night.   He and Christine engaged in sexual activity throughout the afternoon.   At approximately 7 p.m. Julian went home.   He declined to give Christine a ride to her evening class but gave her $24.   She said she was getting a ride from someone across the street who would pick her up again at 9 p.m.   The last time Julian saw Christine she was crossing the street en route to a bar.

Julian testified he had difficulty ejaculating and probably had not done so.   When they parted company Christine had none of the extensive bruises and injuries to her eyes depicted in crime scene and autopsy photographs.   Julian said he and Christine had never even exchanged harsh words.

Glenn Gray owned Casanova's, the Casbah, and the Lamplighter, all bars featuring pool tables and scantily clad waitresses and dancers.   He knew Browning as a customer of Casanova's and the Lamplighter, and was familiar with Christine as a Lamplighter regular and “party girl.”   On February 12 at around 8 p.m., Christine dropped by Gray's office at the Lamplighter and chatted for about half an hour.   Browning came by to talk about 9 p.m.   Other customers were present.   Browning mentioned he was going to another bar to pick up cocaine.   While Browning was still there Christine returned.   Browning bought everybody in the office a drink and offered them cocaine.   He was obviously interested in Christine, asking Gray who she was and whether she liked to “party.”   Christine began flirting and teasing the men about sex, saying she wanted to have sex with Browning and two other men.  (The evidence conflicted as to whether Browning was present at this juncture.)   Browning and Christine were together about 25 minutes before she left the office.   Browning soon followed, saying he was going to play pool.

At 9:45 Gray again saw Christine who now had a pool cue in her hand.   Browning was not “under the influence” (one witness described him as drunk, but others disagreed);  Christine obviously was.   According to one witness, Christine was talking with, kissing and otherwise flirting with Browning.   Christine left the bar with Browning and two other men and drove in Browning's Cadillac to another bar, hoping to buy cocaine.   The foray was unsuccessful.   At around 12:15 a.m., February 13, Browning dropped off the other men and went with Christine to Santa Ana where she said she had a cocaine source.

On Wednesday, February 13, 1985, at around 11:10 a.m., the Ranch Motel owner knocked on the door of Christine's room and received no answer.   Noticing the door slightly ajar, he pushed it open and saw Christine's body lying on the floor.   He immediately called paramedics.

The owner of the Robinhood Motel testified he had rented a room to Browning for several weeks prior to February 13, 1985.   Although Browning had paid for a fourth week in advance, on February 13 he checked out in a hurry, saying his mother had suffered a heart attack and he had to go to Arizona.   That same day he quit his job as a plumbing business dispatcher, saying he “may be in a little bit of trouble.”   When his friend the business owner inquired further, Browning replied, “You don't want to know.”   Browning left town, leaving most of his belongings, including his Cadillac, with the friend.

Forensic pathologist Dr. Richard Fukomoto performed an autopsy on Christine.   Both lips were extensively contused with blood vessels broken below the surface, probably caused by blunt-force trauma two to four hours before death.   The tongue was torn and lacerated.   The right inner thigh just below the crotch was bruised, abraded and scraped in a manner consistent with blunt-force trauma inflicted by fingers and mouth.   Five sets of marks on the back of the thighs and buttocks were consistent with pre-mortem belt or strap infliction, but there was little indication of body movement, as if the victim had been restrained.   Trauma to the left breast included red marks consistent with severe squeezing by fingers;  the left nipple was gouged out or bitten off, any time from immediately before death to two hours beforehand.   Two distinct traumas to the neck had occurred two to four hours apart:  One, just before death;  the other, much earlier.   The vagina had sustained a severe, hemorrhagic tear while the victim was alive;  it was probably inflicted with considerable force by a rough object lacking a cutting edge, and larger than the vaginal opening.   Petechial hemorrhages in the eyes and eyelids were consistent with strangulation and occurred just before or close to death, and indicated the victim was conscious enough to struggle.

Fukomoto concluded the death had probably occurred between midnight and 3 a.m. on February 13, 1985.   Christine's death was consistent with sadism.

Blood spots taken from a bed in Christine's room were compared with samples from Julian, Christine and Browning.   Christine and Julian were excluded as donors, but Browning matched.   Persons with that blood type constitute 1/212 to 1/313 of one percent of the world's population.   Semen samples from the sheets were consistent with Julian and not Browning.   No semen was found on the deceased.

The Defense

Browning testified he met Christine at the Lamplighter that night and drove her to her drug source's house in Santa Ana.   She emerged with a package of cocaine and they proceeded to the Ranch Motel, where Browning snorted his share and Christine injected hers.

They undressed and Christine took a shower.   Around midnight they engaged in sexual caressing and Christine began to orally copulate him.   She sat up abruptly when they heard an engine and saw a flash of lights across the wall of the room.   Christine jumped up and approached the door, opening it when someone knocked.   Two hostile, angry male Mexicans entered and began speaking in Spanish while pointing at Christine and backing her around the room.   Browning was frightened.   A third Mexican came in, turned to Browning and asked what Christine had given him.   Browning answered, “[A] gram of cocaine,” and said it was in his jacket pocket.   The man searched the jacket and found the cocaine and a hundred dollars cash, which he replaced.   It appeared to Browning he was looking for something else.   When he finished the search, he ordered Browning to leave and stay out.   Browning hurriedly left, noticing the men were hitting Christine against the wall.   He could hear her sobbing.

It was now around 2 a.m.   Browning went to work between 7 and 8 a.m.   Around noon, while running errands, he drove past the Ranch Motel to talk to Christine and apologize for not helping her.   When he saw police cars with their lights on he kept going and returned to work.

Feeling that the same Mexican drug dealers who had attacked Christine would now look for him (as he was a witness), and concerned about his own criminal liability for cocaine trafficking, Browning fled to Lake Tahoe.   While there, he learned Christine was dead.   He sent a seven page letter to the Garden Grove Police Department outlining all he knew.

Browning then moved to Las Vegas and contacted an attorney who arranged a conference call with the police and the district attorney.   Browning talked to them for three and one-half hours.   Eight months later, he turned himself in.   He refused to identify the Mexicans because he was afraid.   He also denied ever hitting or spanking women, or being angry with bar girls in the past.

The prosecutor thoroughly impeached Browning with newspaper articles allegedly read to him at various times prior to his interviews with police.   Much of the information he claimed to have acquired that way had not yet been printed as of the dates he knew it.

Rebuttal

The prosecution, over objection, called Rose, Browning's former girlfriend, as a rebuttal witness.   Although married at the time, she had weekly sexual intercourse with Browning from 1978 to 1982.   He had always been able to obtain an erection and ejaculate.   At his request she had let him spank her twice during sex, to the point of tears.   Once she permitted him to hit her on the buttocks with a leather belt two or three times in rapid succession;  the blows were harder than promised, and left red marks that lasted for a couple of weeks.   Browning had also asked Rose to lubricate his penis with Vaseline.

II

Browning contends the jury was incorrectly instructed on the law of first degree murder by torture as contained in the 1985 revision of CALJIC No. 8.24,4 and should have been given the 1987 revision instead.5

 Browning acknowledges the intent component of former CALJIC No. 8.24 has already withstood challenges in Division One of this court.  (People v. James (1987) 196 Cal.App.3d 272, 241 Cal.Rptr. 691;  People v. Talamantez (1985) 169 Cal.App.3d 443, 454–455, 215 Cal.Rptr. 542.)   But he raises an argument not made in those cases:  that the instruction was fatally defective because it did not advise the jury premeditation and deliberation are necessary for torture murder.  (The 1987 revision includes the correct definition.)   He urges that since first degree murder by torture requires a willful, deliberate, and premeditated intent to inflict extreme pain (People v. Wiley (1976) 18 Cal.3d 162, 173, fn. 4, 133 Cal.Rptr. 135, 554 P.2d 881;  People v. Steger (1976) 16 Cal.3d 539, 546, 128 Cal.Rptr. 161, 546 P.2d 665), the jury in his case was not informed of one of the elements of the crime.

Browning is correct.   In People v. Steger, supra, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665, Justice Mosk elaborated on the importance in our law of homicide of limiting first degree murder (at least, of the non-felony murder variety) to killings that are premeditated and deliberate.  “In interpreting the statutory standard of wilful, deliberate, and premeditated murder, this court, perhaps with greater consistency than courts in many states, ‘affords more than lip service to the strict definitions.’  [Citation.]   Thus, the prosecution is required to prove not only the elements of murder, but also the aggravating elements of first degree murder.  [Citation.]   We have held, ‘By conjoining the words “willful, deliberate, and premeditated” in its definition and limitation of the character of killings falling within murder of the first degree, the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill.’  [Citation.]”  (Id., at p. 545, 128 Cal.Rptr. 161, 546 P.2d 665, emphasis added.)

Justice Mosk noted the first degree murder statute itself (Pen.Code, § 189) makes premeditation and deliberation an element of the crime of torture murder.  “ ‘All murder which is perpetrated by means of ․ torture, or by any other kind of willful, deliberate, and premeditated killing ․ is murder of the first degree․’   In labeling torture as a ‘kind’ of premeditated killing, the Legislature requires the same proof of deliberation and premeditation for first degree torture murder that it does for other types of first degree murder.”  (Id., at pp. 545–546, 128 Cal.Rptr. 161, 546 P.2d 665, emphasis in original, fn. omitted.)   In a footnote, he wrote, “It is possible to inflict severe and prolonged pain on another without deliberation or premeditation, but it may not be torture under section 189.”  (Id., at p. 546, fn. 2, 128 Cal.Rptr. 161, 546 P.2d 665.)

Recent cases have reinforced this conclusion.   In People v. Morales (1989) 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244 the Supreme Court noted, “[W]e have held that murder by torture requires a premeditated intent to inflict extreme and prolonged pain.  [Citation.]”  (Id., at p. 559, 257 Cal.Rptr. 64, 770 P.2d 244.)   In People v. Bittaker (1989) 48 Cal.3d 1046, 259 Cal.Rptr. 630, 774 P.2d 659, the court, in considering language in People v. Wiley, supra, 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881, observed, “We explained ․ that Steger did not define all the elements of murder by torture, but was concerned only with establishing that the act of torture must be premeditated.”  (People v. Bittaker, supra, 48 Cal.3d at p. 1101, 259 Cal.Rptr. 630, 774 P.2d 659, emphasis added;  see also People v. Davenport (1985) 41 Cal.3d 247, 269, 221 Cal.Rptr. 794, 710 P.2d 861.) 6

 The Attorney General suggests the jury was adequately instructed on premeditation in the standard first degree murder instruction.  (CALJIC No. 8.20.)   But that is a completely separate theory of first degree murder—and its premeditation portion cannot be transferred to the torture murder instruction sub silentio.   The two are independent, alternative theories;  they do not bear upon each other at all.   The jury was not given a clue that premeditation and deliberation had anything to do with torture murder.

 The Attorney General also notes the jury was instructed on the torture murder special circumstance, and suggests that instruction cured the error.   But that instruction, too, omitted any mention of premeditation and deliberation, which is not required for the special circumstance.7  (Pen.Code, § 190.2, subd. (a)(18);  see People v. Davenport, supra, 41 Cal.3d 247, 269, 221 Cal.Rptr. 794, 710 P.2d 861.)

 Since the instruction given in this case did not specify that the acts constituting torture must be premeditated and deliberate, we must assess the effect of the error.  People v. Leach (1985) 41 Cal.3d 92, 110, 221 Cal.Rptr. 826, 710 P.2d 893, involving instructional error in a torture-murder case, applied the per se reversal analysis of People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.   However, we believe Garcia is no longer the mandated test.

 In People v. Odle (1988) 45 Cal.3d 386, 412, 247 Cal.Rptr. 137, 754 P.2d 184, the Supreme Court, relying primarily on Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460, held that the appropriate standard for reviewing instructional errors going to an element of the crime is the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.  (Accord People v. Morales, supra, 48 Cal.3d 527, 561, 257 Cal.Rptr. 64, 770 P.2d 244;  People v. James, supra, 196 Cal.App.3d 272, 291, 241 Cal.Rptr. 691.)   In this case that high standard is satisfied.

The facts are a veritable law school hypothetical of torture-murder.   They are a blueprint of sadistic sexual abuse culminating in the brutal death of the victim.   Consider the unrebutted scenario:  Christine's lips were extensively bruised from trauma occurring at least two hours before her death.   Her tongue was torn and lacerated.   Her thighs were bruised and scraped.   While restrained, she had been beaten to the point of bruising on her thighs and buttocks with a belt or strap.   While she was alive her left breast was severely pinched and the nipple was bitten off.   An object larger than her vagina had been forced into it.   She was conscious enough to struggle against strangulation during the last moments of her life.

This is not a heat-of-passion multi-trauma killing which our courts decline to view as torture.   In those cases the evidence shows a flurry of wounds or some difficulty killing the victim by the chosen means.  (See, e.g., People v. Leach, supra, 41 Cal.3d 92, 110, 221 Cal.Rptr. 826, 710 P.2d 893;  People v. Steger, supra, 16 Cal.3d 539, 548, 128 Cal.Rptr. 161, 546 P.2d 665;  People v. Tubby (1949) 34 Cal.2d 72, 78, 207 P.2d 51.)   This case contains a plethora of factors showing premeditated intentional torture.   A number of diverse wounds were inflicted over a lengthy period before Christine's death.8  (People v. Soltero (1978) 81 Cal.App.3d 423, 430, 146 Cal.Rptr. 457.)   The wounds were not fatal, nor were they likely to cause death so much as intense pain and degradation.  (Engert v. Superior Court (1980) 103 Cal.App.3d 688, 691–692, 163 Cal.Rptr. 267;  People v. Demond (1976) 59 Cal.App.3d 574, 584–585, 130 Cal.Rptr. 590.)   The testimony of Elana and Rose provided independent evidence that Browning enjoyed inflicting pain upon women in an attempt at sexual gratification.  (People v. Robertson (1982) 33 Cal.3d 21, 51, 188 Cal.Rptr. 77, 655 P.2d 279.)   No explanation of the facts was provided other than torture.  (See People v. Demond, supra, 59 Cal.App.3d 574, 585, 130 Cal.Rptr. 590.)   Indeed, Browning's modus operandi in the Elana incident was so similar to the Christine encounter that it provides telling insight into Browning's mental state while torturing Christine.

We have no reasonable doubt that Browning embarked upon a premeditated and deliberate course of conduct specifically designed to cause Christine untold suffering in the last precious hours of her life.   The instructional error was harmless.

III

 As noted (ante, at p. 833, fn. 7), the jury was instructed on the special circumstance pursuant to CALJIC No. 8.81.18.  Browning correctly points out the instruction suffers from the very omission found prejudicially defective in People v. Leach, supra, 41 Cal.3d 92, 221 Cal.Rptr. 826, 710 P.2d 893:  It fails to inform the jury that the special circumstance of torture-murder requires that the defendant must intend to inflict extreme pain.  (Id., at p. 110, 221 Cal.Rptr. 826, 710 P.2d 893.) 9  A defendant is entitled to have a jury determine every material issue essential to guilt.  (People v. Talamantez, supra, 169 Cal.App.3d at p. 453, 215 Cal.Rptr. 542.)

 However, “[i]n determining whether the jury was correctly instructed, all instructions given must be considered together.  [Citations.]”  (People v. Minichilli (1984) 161 Cal.App.3d 660, 672, 207 Cal.Rptr. 766.) 10  People v. Wade, supra, 44 Cal.3d 975, 994, 244 Cal.Rptr. 905, 750 P.2d 794 held that error in failing to state the requisite intent for torture in the special circumstance instruction was cured by the inclusion of that information in the torture murder instructions given, where the prosecutor informed the jury that the intent requirement applied to the special circumstance.  (Cf. People v. Morales, supra, 48 Cal.3d 527, 562, 257 Cal.Rptr. 64, 770 P.2d 244.) 11

While there is no indication the prosecutor here gave a correct explanation to the jury, we reach the same result.   The only definition of torture and its requisite intent came via CALJIC No. 8.24.   Nothing in CALJIC No. 8.81.18 or any other instruction suggested that the intent requirement was any different for the special circumstance.   The law does not mandate that legal definitions be built into every instruction to which they apply.   We decline to require that torture be twice defined.

Even if the error were not cured, we would not reverse the special circumstance finding.   For all of the reasons previously stated, we find any error to be harmless beyond a reasonable doubt.  (People v. Odle, supra, 45 Cal.3d 386, 414–415, 247 Cal.Rptr. 137, 754 P.2d 184.)

IV–X *

The judgment is affirmed.

I concur in the judgment and in Parts III, IV, V, VI, VII, VIII, IX and X of the majority opinion.   However, I cannot join in the reasoning of Part II.   I believe the lower court did not err by using the 1985 revision of CALJIC 8.24 when instructing the jury on first degree murder by torture.

In his opening brief, appellant argues CALJIC 8.24's 1985 revision is defective, in part, because it did not advise the jury a “willfull, deliberate, and premeditated” intent to inflict extreme pain for one of the specified purposes was necessary.   He notes that in 1987 CALJIC 8.24 was revised to incorporate the above-quoted language.

I believe a review of the case law supports a conclusion use of the former version of CALJIC 8.24 was not error.   Several cases have considered the validity of CALJIC 8.24 as it read before 1987.   No decision has disapproved the former instruction because the phrase “willfull, deliberate, and premeditated” did not appear in it.   Therefore, the mere fact the lower court used the earlier version does not support a conclusion the jury was erroneously instructed on the prosecution's murder by torture theory.

Murder by torture is classified as a form of first degree murder in California “because of the calculated nature of the acts causing death, not simply because greater culpability could be attached to murder in which great pain and suffering are caused to the victim.”  (People v. Wiley (1976) 18 Cal.3d 162, 168–169, 133 Cal.Rptr. 135, 554 P.2d 881).   In People v. Turville (1959) 51 Cal.2d 620, 335 P.2d 678 (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33), the Supreme Court stated:  “When a killing is perpetrated by means of torture, the means used is conclusive evidence of malice and premeditation.”  (Id., at p. 632, 36 Cal.Rptr. 201, 388 P.2d 33.)

The majority rely on People v. Steger (1976) 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665, in concluding the lower court erroneously instructed the jury on torture murder.  Steger involved the killing of a three-year old child by her stepmother.   The defendant was convicted of first degree murder by torture.   On appeal, the Supreme Court concluded the evidence failed to support the judgment and modified it by reducing the conviction to second degree murder.   In so ruling the Court stated:  “Accordingly, we hold that murder by means of torture under section 189 is murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.”  (Id., at p. 546, 128 Cal.Rptr. 161, 546 P.2d 665.)

However, only seven months later the Supreme Court considered the validity of a jury instruction on torture murder very similar to the one at issue in this case.   In People v. Wiley, supra, 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881 the defendant was convicted of murdering her husband.   The evidence showed defendant's brother beat the victim to death with a hammer and baseball bat provided by her.   The prosecution argued defendant could be convicted as an aider and abettor on either a theory the killing was wilful, deliberate, and premeditated or that it was perpetrated by torture.   In part, the instruction on torture murder stated:  “the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose” (Id., 18 Cal.3d at p. 168, 133 Cal.Rptr. 135, 554 P.2d 881.)

On appeal, defendant challenged that part of the torture murder instruction stating that no proof the victim suffered pain was required to convict her.   The Supreme Court rejected this contention and affirmed setting forth a detailed history of the judicial interpretation of first degree murder in California.  (Id., 18 Cal.3d at pp. 168–173, 133 Cal.Rptr. 135, 554 P.2d 881.)

Although the Court approved of its holding in Steger, in a footnote the Court stated:  “Our use, in Steger, of the words ‘wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain,’ refers only to the requirement that before the trier of fact may convict a defendant of first degree murder by torture there must be found a cold-blooded, calculated intent to inflict such pain for one of the specified purposes.   Inasmuch as the Legislature has equated this state of mind with the wilful, deliberate, premeditated intent to kill that renders other murders sufficiently culpable to be classified as first degree murder, it is unnecessary in torture-murder to also find that the killing itself was ‘wilful, deliberate, and premeditated.’ ”  (Id. 18 Cal.3d at p. 173, fn. 4, 133 Cal.Rptr. 135, 554 P.2d 881.)

Several more recent cases have also approved CALJIC 8.24 as it appeared prior to the 1987 revision.   In People v. Lynn (1984) 159 Cal.App.3d 715, 730, 206 Cal.Rptr. 181 the court noted, “Wiley ․ made it clear deliberation and premeditation were not elements of torture murder.”  People v. Talamantez (1985) 169 Cal.App.3d 443, 215 Cal.Rptr. 542, rejected an attack on former CALJIC 8.24 stating:  “The instruction given in this case was identical to that given in Wiley.   It was a correct statement of the law.”  (Id., at p. 455, 215 Cal.Rptr. 542.)   In People v. Wade (1988) 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794, the Supreme Court noted the distinction between premeditated murder and torture murder:  “Each theory required a different type of intent.   The first—that the murder was premeditated—required proof of a specific intent to kill as well as premeditation and deliberation.  (See CALJIC No. 8.20 (4th ed. 1979).)   The second—murder by torture—required no proof of premeditation or specific intent to kill but proof of a specific intent ‘to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose.’  (See CALJIC No. 8.24 (4th ed. 1979);  ․”  (Id., at p. 990, 244 Cal.Rptr. 905, 750 P.2d 794;  see also People v. James (1987) 196 Cal.App.3d 272, 297–298, 241 Cal.Rptr. 691.)

Accordingly, I conclude the instruction given in this case was an accurate statement of the law.

FOOTNOTES

2.   Elana claimed her memory was vague from this point on, especially as to the sex acts, as she had focused on staying alive rather than on the particulars of the assault.   Furthermore, she did not want to remember what happened as it was too traumatic.   A year or so earlier, however, at the preliminary hearing, she had testified about the sex acts in detail.   At trial she stated that the earlier testimony was truthful.

3.   Although Julian said they did not check out at that time, the motel owner said they did.   He also testified his custom when guests check out is to change the sheets and pillowcases, empty the ashtrays, supply new towels, replace the soap unless it is still wrapped, and vacuum the entire room.

4.   The jury was instructed as follows:  “Murder which is perpetrated by torture is murder of the first degree.  [¶] The essential elements of such a murder are that the defendant must commit such acts or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose.  [¶] The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased, nor does it necessarily require any proof that the deceased suffered pain.”

5.   “The essential elements of murder by torture are:  [¶] 1.   One person murdered another person;  and [¶] 2.   The perpetrator committed the murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose.  [¶] The crime of murder by torture does not require any proof that the perpetrator intended to kill his victim, or any proof that the victim was aware of pain or suffering.  [¶] The word ‘willful’ as used in this instruction means intentional.  [¶] The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.  [¶] The word ‘premeditated’ means considered beforehand.”  (CALJIC No. 8.24 (5th ed. 1988), p. 318.)

6.   Our concurring colleague suggests People v. Wiley, supra, 18 Cal.3d 162, 173, fn. 4, 133 Cal.Rptr. 135, 554 P.2d 881 somehow limited or overruled the requirement in People v. Steger, supra, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665 that premeditation and deliberation of the torture must be shown.   At first glance, certain later cases might seem to stand for that proposition.  (People v. Wade (1988) 44 Cal.3d 975, 990, 244 Cal.Rptr. 905, 750 P.2d 794;  People v. James, supra, 196 Cal.App.3d at pp. 297–298, 241 Cal.Rptr. 691;  People v. Talamantez, supra, 169 Cal.App.3d at p. 455, 215 Cal.Rptr. 542;  People v. Lynn (1984) 159 Cal.App.3d 715, 730, 206 Cal.Rptr. 181.)   A close reading of those cases reveals that they were not dealing with the premeditation-and-deliberation issue and did not purport to construe People v. Wiley, supra, 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881 in the manner suggested.  People v. Wade, supra, 44 Cal.3d 975, 244 Cal.Rptr. 905, 750 P.2d 794, People v. Talamantez, supra, 169 Cal.App.3d 443, 215 Cal.Rptr. 542 and People v. Lynn, supra, 159 Cal.App.3d 715, 206 Cal.Rptr. 181—as did Wiley—both dealt with the concept in torture murder that the killing need not be premeditated and deliberate.  People v. James, supra, 196 Cal.App.3d 272, 241 Cal.Rptr. 691 only considered the type of pain involved.   Indeed, the court specifically acknowledged that a “deliberate and premeditated intent to inflict extreme and prolonged pain ․ is a correct statement of the law.”  (Id., at p. 297, 241 Cal.Rptr. 691, italics omitted.)

7.   CALJIC No. 8.81.18, as modified, was read to the jury as follows:  “[¶] To find that the special circumstance, referred to in these instructions as murder involving infliction of torture, is true, each of the following facts must be proved:  [¶] 1.   That the murder was committed with the specific intent to kill.  [¶] 2.   That the murder involved the infliction of torture.  [¶] To prove the infliction of torture, the infliction of extreme physical pain must be proved no matter how long its duration.  [¶] Awareness of pain by the deceased is not a necessary element of torture.”

8.   Although not determinative, the condition of the body is a factor for consideration.  (People v. Campbell (1987) 193 Cal.App.3d 1653, 1669, 239 Cal.Rptr. 214.)

9.   The court had a sua sponte duty to instruct correctly on the elements of the special circumstance and Browning proffered an instruction containing a correct exposition of the rule as stated in People v. Leach, supra, 41 Cal.3d 92, 221 Cal.Rptr. 826, 710 P.2d 893 which was decided more than a year before the trial.   The court refused to give the instruction, however, offering the almost standard reply that CALJIC covered the area.   It did not.The defense is entitled to “pinpoint” instructions directing the jury's attention to the evidence and amplifying the legal principles that are to guide their deliberations.  (See People v. Hall (1980) 28 Cal.3d 143, 159, 167 Cal.Rptr. 844, 616 P.2d 826;  People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847.)   CALJIC is not holy writ.

10.   The fact that the jury was instructed on both premeditated murder and torture murder does not affect this analysis.   The question is whether the jury received an adequate and proper definition of torture, not whether it convicted Browning on that theory of murder.

11.   In Morales, the jury was expressly instructed that the definition of torture in CALJIC No. 8.24 did not apply to the special circumstance.   Oddly, People v. Leach, supra, 41 Cal.3d 92, 221 Cal.Rptr. 826, 710 P.2d 893 did not discuss whether other instructions cured the error.

FOOTNOTE.   See footnote 1, ante.

WALLIN, Associate Justice.

CROSBY, Acting P.J., concurs.