PIZANO v. PEOPLE (1977)

OPINION

On the evening of August 8, 1976, at about 9:22 P.M., there was a knock on the door of the one-room home of Linda Coverdell and the victim, Jose Vaca. Vaca went to the window, exchanged a few words with the people outside, then opened the door a little ways. The door was then pushed open and two men, apparently petitioner and codefendant Esquivel, entered. Esquivel, who was carrying a gun, grabbed Vaca and demanded money. Vaca replied that he had none. Petitioner remained in the main room guarding the door while Esquivel vainly searched the bathroom. Esquivel then reentered the main room. He said that he knew Vaca and Coverdell had money, and that he wanted it. Vaca reiterated that he had none, and picked up his pants and showed them to Esquivel. Aside from Vaca's wallet and other miscellaneous items, the pants contained only thirteen cents in cash. Coverdell, who remained in bed throughout the time that petitioner and Esquivel were in the house, testified that they took the money, since it was not there when she later checked the pants pockets.

Meanwhile, Mary Fernandez, who lived next door, was in her bathroom when her daughter Roselle came in and informed her that two men with masks had entered Vaca's house. She ran next door, peered through a window, and observed a masked man. She returned home and called the police.

Adrian Cuna was an illegal alien who was living with Mary Fernandez. He testified through an interpreter that he was asleep in bed when one of Mary's children came in and told him what was happening. He testified that he went to Vaca's house and pushed on the door. Someone pushed back. He then kicked open the door a little way and saw two men, one of whom was carrying a pistol. He did not see Vaca. One of the men told Cuna to get out and he did so. This testimony was contradicted by Linda Coverdell, who testified that petitioner opened the door, and that Cuna then turned and ran back toward his house. At any rate, Cuna returned to his own home. He told Mary's children to get back in the house, and he himself waited outside on his porch, which was about fifteen feet from the Vaca's front door.

Meanwhile, inside the Vaca house, petitioner closed the door as Cuna left. Coverdell testified that petitioner said it was the police who were outside. Esquivel grabbed Vaca, held one of his arms behind his back and pointed the gun at him, stating that he would shoot Vaca if they tried to get him. Petitioner then opened the door and left, followed by Vaca and Esquivel in that order. Coverdell estimated that it was a minute or a minute and a half between the time petitioner left and the time Esquivel and Vaca left.

Cuna was still standing on his front porch. His testimony is somewhat confused, perhaps because of difficulties in translation. He testified that Esquivel came out of the house first, carrying a gun, and that he (Cuna) raised his gun and fired because they were robbers and the police hadn't arrived. The robber was not pointing a gun at him when he fired. He testified that by the time he fired he saw another man come out of the house, but that he fired at the first one. He testified repeatedly that he did not realize that Vaca was there, and fired no shots after he recognized him.

The number of shots fired is uncertain. Cuna testified that he thought that he had only fired once, but appeared to be influenced by the fact that the police had told him that he had fired twice, and was unable to testify for sure that this was not the case. He was also not sure whether Esquivel returned the fire. Linda Coverdell testified that she heard only one shot. Mary Fernandez testified that she thought she heard two shots. Alice Cain, who was sitting on a bench down the street testified that she heard three shots, the first one muffled and the latter two loud.

After the gunfire, the robber who had been holding Vaca pushed him away towards Cuna and he fell, mortally wounded by a shot from Cuna's gun. Both robbers then ran away.

Cuna and Mary Fernandez at first told the police that Mary had done the shooting, because Cuna was an illegal alien and they were afraid of his being deported. They subsequently changed their stories.

Agent John Sanders, an investigator for the Visalia Police Department testified that petitioner was asked if he would give the names of the persons involved in the above incident in exchange for his release on another armed robbery charge for which he was under arrest. Petitioner then stated that he, Esquivel, and a third person decided on the night of the incident to rob some wetbacks. He stated that he acted as lookout while the other two went in the house, that while waiting outside he saw people with a gun come out of Mary Fernandez's house, and that he then ran to the victim's house, told the other two that some people were coming, and then ran away. He stated that Exquivel later told him that he had used Vaca as a shield, and that Vaca was shot twice by the person next door, and that Esquivel had not fired any shots. Petitioner subsequently made another statement, in which he stated that he had gone inside the house, and at one point had held the gun. He described the inside of the victim's house. He stated that he and Esquivel had taken the victim out of the house together. He said Esquivel's gun was loaded.

The magistrate at the preliminary hearing held petitioner for two counts of robbery, one count of conspiracy to commit robbery and one count of burglary, but refused to hold petitioner or Esquivel to answer on the charge of murder on the ground that the People had not demonstrated implied malice. In the information, the People elected to charge the petitioner with murder as well as the other counts. Petitioner's motion to dismiss the charge of murder pursuant to Penal Code section 995 was denied and he seeks a writ of prohibition and/or mandamus.

‘An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]

‘A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. . . .’ (Rideout v. Superior Court (1971) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 583, 432 P.2d 197, 199.)

The district attorney may in appropriate circumstances add an offense to the information which was unnamed in the commitment order even though the magistrate has concluded the evidence failed to show probable cause that the offense had been committed. (Jones v. Superior Court (1971) 4 Cal.3d 660, 665, 94 Cal.Rptr. 289, 483 P.2d 1241; Dudley v. Superior Court (1974) 36 Cal.App.3d 977, 111 Cal.Rptr. 797.)

The petitioner argues that the prosecution has not demonstrated probable cause to believe that he (or Esquivel) committed murder.

Both petitioner and real party in interest agree that the felony murder doctrine is inapplicable in this case because the fatal shot was fired by Cuna rather than the robbers. (People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130.)

The People contend that sufficient probable cause to charge murder exists.

Our analysis begins with a review of the cases of People v. Washington, supra, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Gilbert (1965), 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365; and Taylor v. Superior Court (1970), 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131.

In Washington, the Supreme Court reversed a murder conviction where the victim killed the defendant's co-conspirator during the perpetration of a robbery. The court stated the felony murder doctrine was inapplicable where the killing was committed by other than the felons involved. However, the court noted at page 782 of 62 Cal.2d, at pages 445–446 of 44 Cal.Rptr., at pages 133–134 of 402 P.2d:

‘. . . when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L.R.A.,N.S. 897; see also Wilson v. State, 188 Ark. 846, 68 also Wilson v. State, 188 Ark. 846, 68 564, 55 S.W. 961.)

‘Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death’ (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 [concurring opinion]), and it is unnecessary to imply malice by invoking the felony-murder doctrine.'

In Gilbert, the defendant and a man named Weaver robbed a savings and loan. Gilbert shot and killed a policeman. Another policeman then shot and killed Weaver. Defendant King drove a car which helped Gilbert to escape. The court held that the trial court erred in giving a felony murder instruction. ‘This instruction’, the court stated ‘withdrew from the jury the crucial issue of whether the shooting of Weaver was in response to the shooting of Davis or solely to prevent the robbery.’ (People v. Gilbert, supra, 63 Cal.2d at p. 704, 47 Cal.Rptr. at p. 909, 408 P.2d at p. 373.) For the guidance of the trial court on the retrial of King, the court then set forth certain principles which could be invoked to convict a defendant of first degree murder for a killing committed by another. The court said:

‘The following principles may be invoked to convict a defendant of first degree murder for a killing committed by another:

‘(1) Proof of malice aforethought. ‘Murder is the unlawful killing of a human being, with malice aforethought.’ (Pen.Code, § 187.) Such malice is implied under Penal Code section 188 when the defendant or his accomplice “for a base, antisocial motive and with wanton disregard for human life, does an act that involves a highdegree of probability that it will result in death.” (Citations.) Initiating a gun battle is such an act.

‘(2) The killing must be attributable to the act of the defendant or his accomplice. When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, the victim's self-defensive killing or the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice. (Citations.)

‘(3) Vicarious criminal liability. Under the rules defining principals and criminal conspiracies, the defendant may be guilty of murder for a killing attributable to the act of his accomplice. To be so guilty, however, the accomplice must cause the death of another human being by an act committed in furtherance of the common design. (Citations.)

‘(4) The application of Penal Code section 189. When murder is established under Penal Code sections 187 and 188 pursuant to the principles defined above, section 189 may properly be invoked to determine the degree of that murder. Thus, even though malice aforethought may not be implied under section 189 to make a killing murder unless the defendant or his accomplice commits the killing in the perpetration of an inherently dangerous felony (Citations), when a murder is otherwise established, section 189 may be invoked to determine its degree.’ (Id., at pp. 704–705, 47 Cal.Rptr. at pp. 917–918, 408 P.2d at pp. 373–374.)

In Taylor, the court held that a jury could conclude that a robber who ‘chattered insanely’ during the course of an armed robbery, warning of an ‘execution’ if the victims moved, committed a malicious act which subjected him and his accomplice to liability for murder when one of the victims of the robbery shot and killed another accomplice.

The Supreme Court has reaffirmed the above stated principles in People v. Antick (1975), 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 (with the exception of an overruling of Taylor as being overbroad in assessing the defendant's liability for the death of a co-felon). (See also In re Tyrone B. (1976) 58 Cal.App.3d 884, 889, 130 Cal.Rptr. 245; People v. Conely (1975) 48 Cal.App.3d 805, 123 Cal.Rptr. 252; People v. Earnest (1975) 46 Cal.App.3d 792, 120 Cal.Rptr. 485; People v. Reed (1969) 270 Cal.App.2d 37, 75 Cal.Rptr. 430.)

Petitioner argues that he may not be convicted of murder because Mr. Cuna was neither a victim of the robbery nor a police officer and that Gilbert and its progeny only apply when the person doing the killing was either a victim or a police officer. We disagree. Although Gilbert and subsequent cases refer only to victims and police officers, none of them state the vicarious liability/implied malice doctrine is limited to such persons. There is no logical basis for such a limitation.

The refusal of the magistrate to hold the petitioner for murder was based on an alleged lack of showing of implied malice. The magistrate was incorrect. Initiating a gun battle is not the only means of satisfying the malicious act requirement. Nor need the first shot be fired by a defendant. Other acts of provocation may be sufficient. (Taylor v. Superior Court, supra, 3 Cal.3d 578, 584, 91 Cal.Rptr. 275, 477 P.2d 131; People v. Reed, supra, 270 Cal.App.2d 37, 75 Cal.Rptr. 430; People v. Velasquez (1975) 53 Cal.App.3d 547, 126 Cal.Rptr. 11.)

There was no failure to show malice in this case. The malicious acts of Esquivel in addition to the robbery are abundantly evidenced. The People have not failed to show malice. Esquivel's taking of Vaca as a hostage, pointing a gun at him and using him as a shield showed sufficient disregard for life for a trier of fact to infer malice.¹ However, the People failed to meet the second principle of Gilbert, i. e., ‘the killing must be attributable to the act of the defendant or his accomplice.’ Cuna did not shoot in reasonable response to the additional malicious acts of Esquivel. Cuna was not even aware that any malicious acts were taking place at the time that he fired. Cuna was shooting because the police had not come and the robbers were about to escape. In short, he was shooting to ‘prevent the robbery’ which Gilbert states to be insufficient to create criminal liability for murder on the part of the petitioner. Cuna testified that he shot almost instantaneously; that he did not recognize Vaca until after the firing; that he had to do something because they were robbers and were escaping and the police had not arrived. If the testimony had been that Cuna saw that Vaca was being held as a hostage or a shield and had fired in reasonable response thereto, the petitioner could be held to answer for murder.

Real party in interest presents a strong argument that the determination as to whether murder was committed should not rest on the state of mind of the person firing the fatal shot, but rather should turn on whether the alleged murderer's malicious conduct was the cause in fact of the death. He points to the court's statement in Washington that:

‘In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce. . . .’ (People v. Washington, supra, 62 Cal.2d at 781, 44 Cal.Rptr. at 445, 402 P.2d at 133.)

He argues that adapting petitioner's argument would impose an additional penalty for the killing solely on the basis of the state of mind in others that the robber's conduct happened to induce. He hypothesizes a situation in which a robber in an attempt to escape forces his victim to exchange clothes with him and forces the victim outside, where he is shot by a policeman believing him to be the escaping robber, and points out that under petitioner's analysis such robber would not be guilty of murder.

Real party's argument really becomes a contention that Gilbert was wrongly decided on this issue. He argues that if a deadly response is reasonable and foreseeable, that the causation requirement is satisfied. However, Gilbert states that murder exists ‘When the defendant . . . commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act. . . .’ (Emphasis added.) (People v. Gilbert, supra, 63 Cal.2d at 704, 47 Cal.Rptr. at 917–918, 408 P.2d at 373–374.) The question is not whether a deadly response would be foreseeable, but whether the killing was actually done as a reasonable response to the malicious act.

Reliance on People v. Fowler (1918), 178 Cal. 657, 174 P. 892, People v. Conely, supra, 48 Cal.App.3d 805, 123 Cal.Rptr. 252, and People v. Velasquez (1975), 53 Cal.App.3d 547, 126 Cal.Rptr.11 is misplaced. Fowler preceded Gilbert and is distinguishable. In Fowler, the defendant hit the victim with a blunt instrument, and then left him lying partially in a roadway, where he was run over by a car. The court concluded that even if the actual cause of death was the car running over the victim rather than the blows to the head, that defendant had still committed murder, since it was the natural and probable result of the defendant's conduct. (Id., at 669, 174 P. 892.) The firing of the gun at the robber both in Gilbert and the present case was an intentional, independent intervening act. Fowler recognized this by pointing out that it would be a different situation if the car had deliberately run over the victim. Conely was concerned with the malice requirement, not the causation requirement. In Velasquez, the reaction of the police officer was to the fighting whereas in the present case the reaction of Cuna was to the robbery and escape.

There is simply no testimony in this case from which a reasonable inference could be drawn that the shot was fired by Cuna as a reasonable response to a malicious act within the meaning of Gilbert.

As an intermediate appellate court, we are bound by Gilbert and subsequent declarations of our Supreme Court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

If we were not so bound or were writing on a clean slate, we would find the probable cause to hold for murder here.

A few so-called ‘shield’ cases have been cited in the legal literature. These include Johnson v. State (1972), 252 Ark. 1113, 482 S.W.2d 600 (not solely a ‘shield’ case); Wilson v. state (1934) 188 Ark. 846, 68 S.W.2d 100; Taylor v. State (1900) 41 Tex.Cr. 564, 55 S.W. 961; Keaton v. State (1900) 41 Tex.Cr.R. 621, 57 S.W. 1125 and State v. Kress (1969), 105 N.J.Super 514, 253 A.2d 481. In both Texas and Arkansas cases, the persons firing at the felons were apparently aware of the innocent shield. In Kress, the one firing the fatal shot was wnaware of the shield as was Cuna in the instant case. However, Kress was decided by an interpretation of the New Jersey felony-murder statute and did not discuss the subject of causation.

We believe that persons engaged in the commission of a felony who compel a victim to occupy a position of danger in order to aid the felons in making their escape should reasonably foresee that the victim used as a shield may be killed and should be held for murder of the victim should death ensue. (See Perkins, Criminal Law (2d ed.) pp. 720, 737.) Requiring as does Gilbert the response to be made to the malicious act necessitates a certain knowledge on the part of the shooter. This can lead to the ironic situation that if the shooter, Cuna, were also dead in the present case, that there would have been little difficulty in finding probable cause to hold the defendant for murder of Vaca. Instead, the remarks of Cuna demonstrating his lack of knowledge of the malicious act described hereinabove apparently exculpate petitioner from a murder charge—a fortuitous circumstance which offends our sense of justice.

Subject to the limitation of not being applicable to those cases in which the proof shows an intent on the part of the shooter to kill the victim for reasons divorced from the immediate circumstances, we believe that the rule at least in ‘shield’ cases should still require causation and thus a response, but that the response should be a reaction to conditions created by the defendant such as the shield or hostage situation (in addition to the underlying crime) regardless of knowledge on the part of the shooter. Such, however, is apparently not the rule in California under the present cases. Under the compulsion of Gibert and its progeny, we must hold that there was insufficient probable cause to hold the petitioner for murder.

Let a writ of prohibition issue restraining the Superior Court of Tulare County from further proceedings against petitioner upon Count I of the information other than to dismiss the same. The stay order heretofore issued by this court is dissolved.

FOOTNOTES

1.  In the ‘shield’ cases, such as the present one, it has been argued that the malice is express because the act of the accused is a ‘direct and deliberate creation of immediate lethal danger to the deceased and to him alone’. (Morris, The Felon's Responsibility For The Lethal Acts of Others (1956) 105 University of Pennsylvania Law Review 50, 63. See also 56 A.L.R.3d 239, 261, § 6.)

HOPPER, Associate Justice.

GEO. A. BROWN, P. J., and FRANSON, J., concur.