PEOPLE v. STOTLAR (1989)

OPINION

A jury convicted Timothy Stotlar of first degree murder.   A special allegation for using a firearm in the commission of the offense was found true.   Stotlar contends (1) the court erroneously instructed the jury on the law of vicarious liability;  (2) there was insufficient evidence of premeditation and deliberation;  (3) the instructions defining manslaughter were confusing;  and (4) his sentence should be reduced under the “cruel or unusual punishment” provision of the California Constitution.   We affirm.

I

Attorney Jessie Grimes was found shot to death in his Santa Ana condominium on August 20, 1986.   Stotlar and two others, Valerie Kalman and George Peterson, were arrested and charged with the murder.¹  Stotlar successfully moved to sever his trial from that of his codefendants.

Kalman, described as a manipulative young woman, had lived with the much older Grimes as a housekeeper since mid–1985.   There were suggestions a romantic relationship had developed between them.   When Kalman disappeared in early July of 1986, Grimes found her about a week or ten days before his death and returned her to the condominium.   He quickly changed his mind, however, and forced Kalman to leave after she borrowed his car and failed to return with it.   Kalman was heard to complain that Grimes had sexually abused her.   Meanwhile, she had developed a relationship with Stotlar.

On the afternoon of August 20, Kalman, Stotlar and George Peterson visited Robyn Cuaresma's home in Anaheim.   Kalman had moved in with Cuaresma's family after her separation from Grimes.   The scope of Peterson's relationship with the others was unclear.   In the days before the murder, he had been staying in a guest house behind his brother Steven's home in Anaheim.   Stotlar visited him there several times.   Stotlar had once described Peterson as “this crazy guy with a gun” and referred to him as “Rob.”   Cuaresma had never seen Peterson before August 20.

On that afternoon, Peterson was acting “flighty” and “jumpy.”   He took some pills but remained coherent.   At one point he went outside Cuaresma's house and came back in carrying a modified semi-automatic AR–7 .22 caliber survival rifle.   It had an extremely effective silencer which Peterson demonstrated, firing several shots through a window screen.   Peterson also spoke of being a “hit man” who could kill everyone in the room without anyone hearing it.   The threesome left without telling Cuaresma where they were going.

The victim's son, Mike Grimes, was watching television that night at a neighbor's condominium.   He returned to his own unit around 10:00 p.m. to get cigarettes.   His father was home alone grading papers and watching television.   Mike then returned to his friend's home.   At about 10:15 or 10:30 p.m., Jennifer Gorman went to the Grimes' residence to see if Mike was there.   When she knocked on the door, Valerie Kalman answered.   Gorman could see several well-dressed males inside, possibly between three and six persons.   Although she could not later identify them, Peterson and Stotlar fit general height and build descriptions of the men she saw.   It was unusual for Stotlar to wear the business-type clothes that Gorman described.   Gorman saw Jessie Grimes sitting in a chair and asked him about Mike.   Grimes responded his son was at a neighbor's.   Gorman testified everything appeared peaceful in the residence at the time she left.

Mike Grimes returned home at about 11:00 p.m.   He found his father's fallen body upstairs wedged against the inside of the elder Grimes' partially-opened bedroom door.   A bullet had been fired through the door from the outside, and the doorjamb was splintered near the doorknob from the application of blunt force.   Three spent .32 caliber casings were found near the body as well as two such .22 casings.   Projectiles from the same caliber guns were also found upstairs in various locations near the body.   There were some signs of possible rummaging in the bedroom, but apparently nothing was missing, and the victim's wallet still contained a hefty sum of money.

Jessie Grimes died of massive bleeding in the chest.   He had suffered three major gunshot wounds, two in the chest and one in the right temple.   One of the chest wounds was fatal, striking the heart as it passed through the body, but the caliber of bullet was not determined.   The other was potentially fatal, perforating the right lung.   A .22 caliber bullet was recovered from this wound.   Grimes could have survived the chest wounds for a minute or two, even remaining ambulatory before bleeding to death.   The bullet striking the head was fired at very close range, and it passed through the facial bones and exited through the left jaw.   This wound could have been fatal under some circumstances, but a testifying pathologist could not form a definite conclusion.   Grimes was still alive when this bullet was fired.

Between 11:00 p.m. and 11:30 p.m. the night of the shooting, California Highway Patrol Officer Carl Twigg stopped Peterson's pickup truck on Interstate 5 in south Orange County.   Peterson was driving;  Stotlar and Kalman were passengers.   Peterson immediately exited the truck and raised his hands over his head.   Twigg, who was unaware of the Grimes murder, took Peterson over to his police unit and began writing a speeding ticket.   Peterson tried to talk his way out of the citation but to no avail.   He finally commented, without questioning, that he had guns in his truck.   Twigg immediately called for backup assistance.

Stotlar and Kalman were ordered out of the truck and told to sit on the curb.   Stotlar gave Twigg a false name.   Several guns were found in the truck, including a .22 caliber AR–7 rifle and a .32 caliber semi-automatic Beretta pistol.   The latter was found under the seat where Stotlar had been sitting.   Both of these guns were later tied to the ballistics evidence in the Grimes residence and determined to be the murder weapons.   The truck contained a bizarre array of other items, including gas masks, lock-picking equipment, and survivalist books.

Stotlar told Twigg he had known Peterson for five years, and they were friends.   He claimed Peterson had asked him earlier that evening to go sailing in the Pacific Ocean off San Diego and the coast of Mexico, something they had done before.   Stotlar had then invited his girlfriend Kalman to join them.   They all met at Peterson's house.   Stotlar conceded loading the guns into the truck with Peterson.   He did not give, or was unable to remember, other details about the proposed trip.   Twigg found Stotlar to be cooperative, however, and very calm.

Stotlar and Peterson were dressed nicely at the time of the stop.   They were not wearing jackets, but sport coats that matched the clothes they were wearing were found in the truck.   Peterson was arrested on weapons charges and for possibly driving under the influence.   Stotlar and Kalman were released at the scene.

In the days after the shooting, Stotlar stayed at least part of the time in the guest house formerly occupied by Peterson.   He called Sam Kalman, Valerie's brother, on August 21 or 22 and arranged a meeting at a post office in Anaheim.   Kalman met Stotlar later that day.   Stotlar then took him on a circuitous route to the Peterson guest house a short distance away.   Valerie Kalman was present inside.

Stotlar proceeded to give his version of the circumstances surrounding the shooting.   He, Peterson and Valerie had gone to Jessie Grimes' residence.   After they entered, Peterson ran upstairs.   Stotlar had also run upstairs and then heard loud noises as he was using the bathroom.   He came out and saw “Rob” shooting the AR–7 at Grimes.   Then, something went wrong;  Stotlar did not know whether the gun had jammed, but Peterson stopped shooting.   Grimes moved toward Peterson and “attacked” him, although Stotlar did not say whether Grimes was armed.   While they were engaged, Stotlar pulled a .32 caliber handgun from his waistband and fired three or four times at Grimes.   He did not know where some of the shots went;  however, he immediately moved toward Grimes, placed the gun against Grimes' temple and shot him in the head.

Sam Kalman could not believe what he was hearing, so Stotlar touched Kalman about an inch behind his right temple and said, “I shot him right there.”   Stotlar did not know if Peterson had hit Grimes with any of his own shots.   He never explained why the three of them had gone to Grimes' residence that night.   After the shooting, they drove away and onto the freeway.   Stotlar was arrested at Robyn Cuaresma's home on October 2.

II

 Because no one could prove whose bullet—Peterson's or Stotlar's—killed Jessie Grimes, Timothy Stotlar was tried for first degree murder on the theory he aided and abetted the commission of the crime.   Stotlar urges us to reverse his conviction, contending the jury's finding of premeditation and deliberation was based upon a misunderstanding of the principle of vicarious liability resulting from the trial court's failure to clarify the last bracketed paragraph of CALJIC No. 3.00 (4th ed. 1987 pocket pt.), which it read to the jury.²  While we agree the jury was not properly instructed with regard to the extent of Stotlar's vicarious liability as an aider and abettor, the record reveals the jury's verdict was not based on the theory of vicarious liability.   Rather, the jury determined that Stotlar had personally premeditated and deliberated the murder of Jessie Grimes under subdivision (2) of CALJIC No. 3.00.   Accordingly, we conclude the instructional error was harmless beyond a reasonable doubt.

As read to the jury, CALJIC No. 3.00 stated:  “The persons concerned in the [commission] of a crime who are regarded by law as principals in the crime thus [committed] and equally guilty thereof include:  (1) Those who directly and actively commit the act constituting the crime, or (2) Those who aid and abet the commission of the crime.  [¶ ] [One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and probable consequences of any act that he knowingly and intentionally aided or encouraged․]”

Stotlar suggests it was not error for the court to instruct the jury using the bracketed paragraph of CALJIC No. 3.00.   Instead, he insists the court committed error by failing to fashion a supplemental instruction requiring the jury to examine his own state of mind for an intent to kill, premeditation and deliberation, which he argues is requisite to a verdict of first degree murder, even under the bracketed portion of CALJIC No. 3.00.

We do not agree.   Essentially the same argument was rejected in People v. Garrison (1989) 47 Cal.3d 746, 254 Cal.Rptr. 257, 765 P.2d 419.   There, defendant attacked the same bracketed language of CALJIC No. 3.00 on the ground “the instruction requires a showing of criminal knowledge only as to the underlying threshold offense, and mandatorily ‘presumes' the mens rea necessary to establish guilt of the naturally or probably resulting offense.”  (People v. Garrison, supra, 47 Cal.3d at p. 777, 254 Cal.Rptr. 257, 765 P.2d 419.)   Garrison argued the instruction was deficient because it permitted a conviction of first degree murder without a finding he personally had intended to commit the resulting, ultimate offense.  (Id., at p. 778, 254 Cal.Rptr. 257, 765 P.2d 419.)

In response, our Supreme Court observed, “Defendant fails to recognize the nature of an accomplice's liability.   The mens rea [required] of an accomplice is ‘not designed to ensure that his conduct constitutes the offense with which he is charged.   His liability is vicarious.   Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense․  (People v. Beeman [ (1984) ] 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318].)'  (People v. Croy [ (1985) ] 41 Cal.3d [1], 12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392].)  ‘It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which must be found by the jury.’  (Ibid.)”  (People v. Garrison, supra, 47 Cal.3d at p. 778, 254 Cal.Rptr. 257, 765 P.2d 419.)

Thus, Stotlar is mistaken;  if the jury were to have found Stotlar intended to encourage “conduct that is criminal,” i.e., “the particular [underlying] crime that to his knowledge his confederates [were] contemplating” (CALJIC No. 3.00, bracketed paragraph), the jury could have convicted Stotlar of murder in the first degree without finding he personally premeditated and deliberated the murder of Jessie Grimes.   On the other hand, if there was no specific underlying offense intended by Stotlar, other than murder, the bracketed portion of CALJIC 3.00 was inapposite to the facts of this case and should not have been read to the jury.

Ordinarily, when the bracketed paragraph of CALJIC No. 3.00 is given, the defendant is charged with at least two distinct offenses, one being the underlying offense and the other, the resulting crime.  (See, e.g., People v. Maciel (1987) 199 Cal.App.3d 1042, 248 Cal.Rptr. 883;  People v. Luparello (1986) 187 Cal.App.3d 410, 231 Cal.Rptr. 832;  People v. Rogers (1985) 172 Cal.App.3d 502, 217 Cal.Rptr. 809.)   Where the underlying offense is charged and goes to the jury, the jury is specifically advised of its duty to determine whether the defendant entertained the state of mind requisite to that offense beyond a reasonable doubt.   However, where only the ultimate offense is charged, the standard instructions do not directly address and explain what the jury must find as a requisite to assigning vicarious liability.

 We do not mean to suggest that the underlying offense must always be charged before the last paragraph of CALJIC No. 3.00 may be used.   However, where that offense is not charged, the jury must be told of its duty to determine, beyond a reasonable doubt, that the defendant intended to commit the underlying offense, and, of course, as a requisite to that, the jury must unanimously agree as to what the underlying offense was.

In this case, only the ultimate offense—first degree murder—went to the jury.   Moreover, the evidence did not show exactly what crime, other than murder, was contemplated by Stotlar from which Jessie Grimes' murder was the natural and probable consequence.   Indeed, the jury was encouraged to decide for itself whether there even was another criminal purpose, and the prosecutor variously argued that it might have been robbery, burglary, or assault with a deadly weapon.

Under these circumstances, we hold it was error to instruct the jury under the final bracketed paragraph of CALJIC No. 3.00 without further instructing it of its obligation unanimously to find a specific underlying offense was contemplated beyond a reasonable doubt.   Assuming the jury believed some underlying criminal purpose did exist here, there is no way to ascertain from this record exactly what that purpose was, nor can we say it is clear the jurors knew they each had to find beyond a reasonable doubt Stotlar intended to commit that specific underlying act.

III

 Having decided that instructional error occurred, we are left to consider whether that error so infected Stotlar's trial as to require reversal of his conviction.

In argument, the prosecutor told the jury it could not convict Stotlar of first degree murder unless it found Stotlar personally premeditated and deliberated the Grimes murder.   He correctly apprised the jury it could convict Stotlar of “either a first or second degree murder,” depending on Stotlar's intent in going to the victim's residence on the night in question.   However, the prosecutor argued Stotlar would be guilty of first degree murder only if he went to the victim's condominium with the specific “intent to kill” Grimes;  Stotlar would be guilty of second degree murder if he had some lesser criminal purpose in mind:

“[W]hat it boils down to is this:  If this group of people went over there intending to kill Mr. Grimes, [and] you find that Mr. Stotlar's aided and abetted in that act, it's going to be a first degree murder based on the law and how it applies.

“If by chance you believe he went over there for some other criminal purpose from which you think the natural and probable consequences were death and that's how this thing happened, then it's second [degree murder].   We will address that, but keep that in mind.”

It was only in this context that the prosecutor argued the “natural and probable consequences” language of CALJIC No. 3.00.   Although the prosecutor's statement of the law was erroneous, it is abundantly clear the misstatement did not prejudice Stotlar but worked prejudice only to the People's case by foreclosing a first degree murder conviction absent a finding of Stotlar's own premeditation and deliberation.

Furthermore, the jury was specifically instructed that it had to find premeditation and deliberation “on the part of the defendant” as a requisite for first degree murder:  “If you find the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, ․ it is murder of the first degree.”  (CALJIC No. 8.20 (4th ed. 1979).)   The jury was informed of the difference between first and second degree murder (CALJIC No. 8.30 (4th ed. 1979)) and advised it was required to resolve any doubt as to the degree in Stotlar's favor.  (CALJIC No. 8.71 (4th ed. 1979).)

We conclude that, when analyzed in light of the other instructions read to the jury and the arguments of counsel, the bracketed portion of CALJIC No. 3.00 could not have provided a means by which the jury reached its verdict of murder in the first degree.   The jury did not base Stotlar's conviction on the theory of vicarious liability but, instead, determined Stotlar personally premeditated and deliberated the murder of Jessie Grimes.   The jury instructions, considered in connection with the prosecutor's argument, provided no other avenue for the verdict.  (See Arizona v. Youngblood (1988) 488 U.S. 51, ––––, 109 S.Ct. 333, 338, 102 L.Ed.2d 281, 290 (conc. opn. of Stevens, J.);   cf. People v. Leach (1985) 41 Cal.3d 92, 104–106, 221 Cal.Rptr. 826, 710 P.2d 893;  People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Gonzales (1986) 192 Cal.App.3d 799, 806, 238 Cal.Rptr. 554.)   It is apparent Stotlar was not prejudiced by the court's failure to clarify the bracketed paragraph of CALJIC No. 3.00.  (People v. Dyer (1988) 45 Cal.3d 26, 65, 246 Cal.Rptr. 209, 753 P.2d 1.)   We find on this basis that the effect of the instructional error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Consequently, no reversal is warranted.

IV–VI **

JUDGMENT AFFIRMED.

I agree with the majority opinion, but write separately to directly state what the majority implied:  The natural and probable consequences instruction regarding accomplice liability should not have been given because there was insufficient evidence of any underlying or contemplated crime other than the charged murder.  (Cf. People v. Dyer (1988) 45 Cal.3d 26, 65, 246 Cal.Rptr. 209, 753 P.2d 1.)¹

The Attorney General suggests the contested instruction was supported by evidence of an underlying assault with a deadly weapon.  (Pen.Code, § 245, subd. (a).)  But the natural and probable consequences theory has no application to lesser included offenses for the instruction becomes meaningless when the same act constitutes both the underlying and target offenses.   There simply is no natural and probable consequence beyond that act.  (Compare People v. Luparello (1986) 187 Cal.App.3d 410, 437–438, 231 Cal.Rptr. 832 [murder could be a natural and probable consequence of conspiracy to commit assault with a deadly weapon, which is not a lesser included offense of murder].) ²

Adopting the Attorney General's theory would also run afoul of the shared intent requirement of (People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal.Rptr. 60, 674 P.2d 1318.)   If Stotlar aided and abetted Peterson's assault of the victim with a deadly weapon, he could not be liable for Peterson's greater mens rea unless he knew “the full extent of [Peterson's] criminal purpose and [gave] aid or encouragement with the intent or purpose of facilitating [Peterson's] commission of the crime.”  (Ibid.) ³  The natural and probable consequence instruction, of course, could then be used to extend liability for separate crimes that naturally and probably flow from the underlying criminal act.  (See People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.)   But this instruction was inapplicable, for there was evidence of only a single criminal act.

Fortunately, the most recent CALJIC instruction on the natural and probable consequences theory of accomplice liability may avoid the problem that occurred here.   CALJIC No. 3.02 (5th ed. 1988) should aid the jurors in determining what underlying crime was committed and whether the prosecution has proved it beyond a reasonable doubt.⁴  It will also alert the trial court to omit the instruction unless “a jury composed of reasonable [people] could have concluded” an underlying or contemplated crime had been committed.  (See People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 502 P.2d 513, quoted with approval in People v. Barrick (1982) 33 Cal.3d 115, 132, 187 Cal.Rptr. 716, 654 P.2d 1243.) ⁵

FOOTNOTES

1.   Additional charges of conspiracy to commit burglary and robbery were dismissed as against Stotlar prior to trial pursuant to Penal Code section 995.   His jury considered only a murder count and special allegations for being armed with and using a firearm.

2.   Subsequent references to CALJIC No. 3.00 are to the Fourth edition, 1987 pocket part.

FOOTNOTE.   See footnote *, ante.

1.   The trial court had previously dismissed conspiracy charges based on burglary and robbery.   It seems certain the prosecutor would have proceeded on a felony-murder theory had he been able to prove the motive for the killing was the commission of a felony, such as robbery.

2.   Use of the natural and probable instruction under these circumstances may also be prohibited by People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580.   There our Supreme Court held that felony-murder instructions should not be given where the felony was an integral part of the homicide, thus precluding the jury from considering the issue of malice aforethought.  (Id., at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.)   It should be noted the Court of Appeal in People v. Luparello, supra, 187 Cal.App.3d at p. 438, 231 Cal.Rptr. 832, pointed out the use of conspiracy as an underlying crime did not violate the Ireland doctrine.

3.   Our Supreme Court's frequent recognition of Beeman demonstrates the continued vitality of this rule.  (See, e.g., People v. Bean (1988) 46 Cal.3d 919, 949–950, 251 Cal.Rptr. 467, 760 P.2d 996;  People v. Marks (1988) 45 Cal.3d 1335, 1345, 248 Cal.Rptr. 874, 756 P.2d 260;  People v. Dyer, supra, 45 Cal.3d at p. 60, 246 Cal.Rptr. 209, 753 P.2d 1.)

4.   CALJIC No. 3.02 (5th ed. 1988) provides:“One who aids and abets is not only guilty of the particular crime that to [his] [her] knowledge [his] [her] confederates are contemplating committing, but [he] [she] is also liable for the natural and probable consequences of any criminal act that [he] [she] knowingly and intentionally aided and abetted.   You must determine whether the defendant is guilty of the crime originally contemplated, and, if so, whether the crime charged [in Count[s] _] was a natural and probable consequence of such originally contemplated crime.”

5.   I do not mean to suggest CALJIC No. 3.02 is immune from future modifications.   I anticipate, however, that the new instruction will prevent repetition of the error that occurred here.

MOORE, Associate Justice.

SCOVILLE, P.J., concurs.