PEOPLE v. BRATTON III (1976)

Respondent Henry Robert Bratton, III, was charged with murder (Pen.Code, § 187), robbery (Pen.Code, § 211), rape (Pen.Code, § 261, subd. 3), and burglary (Pen.Code, § 459). Four allegations of ‘special circumstances' pursuant to Penal Code section 190.2, calling for imposition of the death penalty, were included in the information. The superior court granted in part a motion under Penal Code section 995 and set aside the allegation of special circumstances based on Penal Code section 190.2, subdivision (b)(2) [killing a witness to prevent testimony in a criminal proceeding].¹ Three other special circumstances remained in the information (those specified in Pen.Code, § 190.2, subd. (b)(3)(i), (iii), (v)).² The People appeal from the order setting aside the ‘witness killing’ special circumstance.

The superior court gave the following as the reasons for its rulings: ‘The Court is of the opinion that there is insufficient evidence to permit this allegation to remain in the Information. Further, the Court is of the opinion that this section of the special circumstances rule was not designed to be applied in a situation where the victim was not a witness to some other distinct and separate crime committed by the defendant and unconnected with the murder of the victim.’

The victim, Teresa Stout, died on September 11, 1974, as a result of multiple gunshot and stab wounds. There was some evidence that she had had sexual intercourse within 24 hours prior to her death. When the police came to the victim's house to investigate the crime, respondent, who lived next door, told them that he was a witness. After relating one version of events at the scene, respondent changed his story slightly while giving a statement at police headquarters. Thereafter, it was established that blood stains on respondent's trousers were of the same type as the victim's, a type different from his own.

A revolver was found hidden in respondent's apartment. Also found was a shopping bag containing five expended rounds of ammunition and three live rounds, a prophylactic, several pieces of broken ceramic material, and several notes. A paper bag containing a quantity of coins was found. The pieces of ceramic found in respondent's apartment matched others found in the victim's bedroom. A criminalist was able to reconstruct a piggy bank from the pieces.

Respondent first said he had entered the victim's apartment with another man, intending to commit robbery. He claimed that he had left the apartment while the victim was still alive. Some hours later respondent admitted that there had been no accomplice; he stated that he had attempted to have intercourse with the victim but failed, and that he fired into a room of the victim's apartment as he left but did not think he hit her.

The notes found in the shopping bag at respondent's apartment included such language as ‘money,’ ‘clothes,’ ‘bed,’ ‘you might tell,’ and ‘tell on me.’ The victim was a deaf mute. The notes inferably represent communications between respondent and the decedent shortly before her death.

Respondent argues (citing People v. Carrington (1974) 40 Cal.App.3d 647, 115 Cal.Rptr. 294) that this appeal is barred by the doctrine of res judicata because the People previously sought review by way of a writ. But Carrington dealt with review under subdivision (j) of section 1538.5 of the Penal Code, in regard to an order suppressing evidence. The present appeal is authorized by Penal Code section 1238. Subdivision (a)(1) of that enactment, providing that the People may appeal from ‘An order setting aside the indictment, information, or complaint,’ applies to an order dismissing only part of a criminal complaint even though another count remains for trial. (People v. Agnello (1968) 259 Cal.App.2d 785, 789, 66 Cal.Rptr. 571.) The People's petition for a writ to review the order was denied without opinion. It is impossible to ascertain whether the denial was discretionary or on the merits. Therefore the denial was not res judicata.

Respondent also argues that the superior court had inherent discretionary power to strike the allegation, in furtherance of justice, pursuant to Penal Code section 1385. But the judge did not strike the allegation in furtherance of justice; instead, he acted pursuant to respondent's 995 motion, ruling alternatively that ‘there is insufficient evidence to permit this allegation to remain in the Information’ and that ‘this section . . . [190.2(b)(2)] was not designed to be applied in a situation where the victim was not a witness to some other distinct and separate crime committed by the defendant and unconnected with the murder of the victim.’ (See People v. Shaffer (1960) 182 Cal.App.2d 39, 5 Cal.Rptr. 844.)

The principal issue is whether, in order to proceed to trial on an allegation of special circumstances to subject an accused to the death penalty, the prosecution must at a preliminary hearing or before a grand jury present evidence of the special circumstances sufficient to withstand a motion under Penal Code section 995. The People contend that the preliminary showing which must be made is only that an offense has been committed and that there is sufficient cause to believe that the defendant committed it. (Pen.Code, § 872.) The argument is that by analogy to other allegations which may augment penalty, the special circumstance allegation under consideration serves only to enhance the punishment for first degree murder from life imprisonment to death and therefore need not be supported by evidence at the preliminary hearing.

We have been referred to cases containing language, largely dicta, tending to support the People's position. (See, for example, People v. Spencer (1972) 22 Cal.App.3d 786, 799–800, 99 Cal.Rptr. 681; People v. Finnegan (1961) 192 Cal.App.2d 151, 155, 13 Cal.Rptr. 264; People v. Roberson (1959) 167 Cal.App.2d 429, 432, 334 P.2d 666; People v. Ashcraft (1956) 138 Cal.App.2d 820, 826, 292 P.2d 676.) But the general expression contained in these opinions do not govern what is essentially a new issue of statutory construction. The rule proposed by the Attorney General would allow a prosecutor to allege special circumstances in virtually any case of intentional homicide. We find no indication that the Legislature intended, or even contemplated, so drastic a rule.

Legislation has given to capital cases several characteristics different from other criminal cases, such as bifurcated trials, prohibition of a guilty plea unless the accused is represented by counsel, a limitation on the number of ‘hung’ juries, and automatic appeal to the Supreme Court. (Pen.Code, §§ 190.1, 1018, 1239, subd. (b).) The courts have also provided additional safeguards in capital cases. It is not uncommon for a court in a capital case to sequester the jury, provide for more experienced counsel, take steps to restrict publicity, and insist on a more rigorous application of rules of evidence. The obvious rationale for providing for greater procedural safeguards in capital cases is the severity and finality of punishment. The legal determination to extinguish a life must be procedurally and substantively as flawless as possible.

The Constitution of California provides that ‘Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. . . .’ (Cal.Const., art. I, § 8.) This constitutional mandate ‘protects a person from prosecution in the absence of a prior determination by either a magistrate or a grand jury that such action is justified.’ (Parks v. Superior Court (1952) 38 Cal.2d 609, 611, 241 P.2d 521, 523.)

‘The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial. Many an unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed.’ (Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335, 338; see also Jones v. Superior Court (1971) 4 Cal.3d 660, 667–668, 94 Cal.Rptr. 289, 483 P.2d 1241; People v. Elliot (1960) 54 Cal.2d 498, 504, 6 Cal.Rptr. 753, 354 P.2d 225.)

Proof of the existence of a special circumstance, such as is alleged in the information in the instant case, presents legal and factual issues of boundless importance. The policy of the law is to guarantee a defendant the opportunity to meet such issues at a preliminary hearing. (See Levy v. Superior Court (1973) 31 Cal.App.3d 427, 429–430, 107 Cal.Rptr. 384.) Moreover, to allow special circumstances to be alleged without the necessity of a prima facie showing at a preliminary hearing or before a grand jury is to arm the prosecutor with a powerful weapon of coercion in any plea bargaining situation.

We construe the legislation as requiring an appropriate showing before a magistrate or grand jury to support an allegation of special circumstances. The superior court did not err in determining that the allegations of special circumstances were subject to challenge under Penal Code section 995.

In striking the ‘witness-killing’ allegation on the ground that it was not supported by the evidence presented at the preliminary hearing, the judge stated: ‘there is insufficient evidence to permit this allegation to remain in the Information. . . . the Court is of the opinion that this section of the special circumstances rule was not designed to be applied in a situation where the victim was not a witness to some other distinct and separate crime committed by the defendant and unconnected with the murder of the victim.’ In support of the view taken by the judge, respondent points out that a murder is likely to be preceded by some other crime, if only an assault; in all such cases it could be speculated that the victim was killed to prevent his testimony as to the assault or other preceding crime. But such speculation would not furnish probable cause; an allegation of special circumstances supported only by such speculation would not withstand a motion to strike out the allegation under Penal Code section 995. But where the evidence goes beyond the more facts of a killing following another crime, and affords reasonable cause to believe that the killing was done specifically to prevent the victim from testifying, it is proper to submit to the trier of fact the question whether the special circumstance existed.

In the present case there was circumstantial evidence, over and above the fact that another offense preceded the killing, indicating that respondent killed Teresa Stout for the purpose of preventing her from testifying concerning his other crimes. Teresa was a deaf mute and some notes representing communications between respondent and Teresa were found. These notes included the passages, ‘You might tell’ and ‘tell on me.’ Therefore, the motion under Penal Code section 995 did not deal with a record in which the motive for the killing of a person who had already been made the victim of other crimes was only a matter of speculation. We conclude that there was probable cause supporting the allegation of the special circumstance defined in Penal Code section 190.2, subdivision (b)(2). (Cf. Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147, 80 Cal.Rptr. 747, 458 P.2d 987.)

The order is reversed.

I dissent.

While I agree with the holding of the majority which imposes upon the prosecution the requirement of making an appropriate showing before a magistrate or grand jury to support an allegation of special circumstances, I cannot agree with the conclusion.

The problem before us is whether Penal Code section 190.2, subdivision (b)(2) applies where, as here, the killing occurs in the course of commission of a robbery or burglary. Instead of addressing the problem, the majority has decided applicability of this section is a question of fact and that there is sufficient evidence to support the allegation. I concede the sufficiency of the evidence. What I do not concede is that Penal Code section 190.2, subdivision (b)(2), applies where the killing occurs during the commission of the burglary or robbery.

One of the vices in this point of view of the majority is that it opens the door to alleging the witness special circumstance in almost every case involving a killing in the course of commission of such crimes. When the victim of a robbery or burglary is killed, the circumstances alone furnish sufficient basis to support a reasonable inference that at least one of the purposes for the killing was to prevent the future testimony of the victim/witness. Indeed, the majority's approach can allow the prosecutor to transform almost any first degree murder into a capital offense since most murders are preceded by an assault, and it may then reasonably be inferred that the victim was killed to prevent his testimony as to the assault.

The majority seeks to limit the witness special circumstance provision and thus avoid the above result by an adroit use of the verb ‘to speculate.’ They state, ‘an allegation of special circumstances supported only by such speculation would not withstand a motion to strike out the allegation under Penal Code section 995.’ This assertion by the majority is not really directed to the special circumstance allegation at issue here. It is a truism applicable to all criminal charges. No criminal charge may be supported by mere speculation. the decision of the majority is based only upon a consideration of whether the evidence is sufficient to support the allegation. A decision based only upon this consideration leads to the result above outlined.

In enacting Penal Code section 190.2, the Legislature painstakingly set forth a number of special circumstances which, if found to be true, require imposition of the death penalty. Where a killing is committed in the course of a burglary or robbery, those capital punishment special circumstances allegations are available to the prosecutor. In such instances it cannot logically be maintained that the Legislature intended that Penal Code section 190.2, subdivision (b)(2), should also apply.

As pointed out above, where there is a killing in the course of the commission of such crimes as robbery or burglary, circumstances necessarily exist which allow a reasonable inference that one of the purposes in killing the victim is to prevent his future testimony. In the case at bench, even absent the notes relied upon by the majority, the circumstances provided the basis for such a reasonable inference without indulging in the speculation so frowned upon by the majority. To apply the witness special circumstance provision in such situations is to eliminate the adjective ‘special’ as a modifier of the noun ‘circumstances' and substitute therefor the adjective ‘general’ which is clearly contrary to the legislative intent.

It is apparent the Legislature intended the witness special circumstance provision to apply to occasions where one eliminates a witness to some crime unconnected with the murder. To construe the statute otherwise would increase the types of murders subject to capital punishment contrary to the intent of the Legislature which has attempted to narrowly circumscribe the sorts of murders calling for capital punishment.

One of the functions of this court is to set forth guidelines which may assist trial courts, prosecutors, and attorneys. Rather than offering assistance and providing guidelines, the majority, by basing its decision upon sufficiency of the evidence, blurs the distinctions carefully delineated by our Legislature. This decision will lead to more allegations of the witness special circumstance than legitimately called for by the statute, more motions under Penal Code section 995, more grappling by trial courts with the problem of deciding whether the circumstances shown support the allegation, and more confusion on the part of juries being faced with the trial of multiple and overlapping allegations. The Legislature could not have intended such untoward results.

The procedural history of the instant case illustrates some consequences of the failure of the majority to read and construe the statute and instead to go off on the spurious trail of sufficiency of the evidence. Respondent was charged with murder, robbery, rape, and burglary. Four allegations of ‘special circumstances' pursuant to Penal Code section 190.2 were alleged. Respondent was found guilty of first degree murder, robbery, and burglary. The jury found the charged special circumstances pertaining to murder in the course of robbery and burglary to be true, and respondent was sentenced to death. The majority now wishes to execute respondent again.

A statute should be construed according to the fair import of its terms and with a view to effect its object and to promote justice. (Pen.Code, § 4; People v. Carskaddon (1957) 49 Cal.2d 423, 318 P.2d 4.) Using this as a yardstick, I would hold that Penal Code section 190.2, subdivision (b)(2), is inapplicable where the killing is of the victim of the specific crimes set forth in Penal Code section 190.2 unless the killing occurs separately from and not in the course of commission of such underlying crimes.

I would affirm the order of the trial court.

FOOTNOTES

FOOTNOTE.  

1.  Section 190.2, subdivision (b)(2) states:‘The penalty for a person found guilty of first-degree murder shall be death in any case in which the trier of fact pursuant to the further proceedings provided for in Section 190.1 makes a special finding that:‘. . .‘(b) The defendant personally committed the act which caused the death of the victim and . . .‘(2) The murder was willful, deliberate and premeditated and the victim was a witness to a crime who was intentionally killed for the purpose of preventing his testimony in any criminal proceeding.’

2.  The court is informed that during the pendency of this appeal respondent was tried, found guilty of murder, and sentenced to death. His automatic appeal from the judgment for imposition of the penalty of death is pending before the Supreme Court of California (People v. Bratton, Crim. 18758).

CHRISTIAN,* Acting Presiding Justice. FN* Under appointment by the Chairman of the Judicial Council.

EMERSON,** J., concurs.