PEOPLE v. JONES (1980)

Defendants and appellants Percy Jones, Clara Sue Gilbert and William Hill appeal from the judgments entered in Alameda County after a jury found them each guilty of murder (Pen.Code, § 187) and robbery (Pen.Code, § 211). Hereinafter we consider, discuss and determine that:

(1) Appellant Hill is the only appellant that contends there is not sufficient evidence to support the jury verdict against him. We find his contention is frivolous.

(2) Appellants were not only principals (aiders and abettors) but accomplices. Although jointly charged, the evidence is viewed separately as to each appellant in his or her trial. Witnesses Eric J. and Willie Joiner were likewise accomplices as a matter of law. Consequently, we find that the trial court erred in instructing that the testimony of appellant Gilbert was sufficient to corroborate that of Eric J. and Joiner in the prosecution of Jones and Hill. However, the court's instruction contravening the established rule that the testimony of accomplices cannot be used to corroborate that of another was harmless error.

(3) The trial court committed Aranda (People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265) error in failing to sever appellant Jones' trial from that of appellant Hill. However, because Jones and Hill were not thereby deprived of their rights to confrontation, the error was harmless. Further, we find that the trial court did not abuse its discretion in denying appellant Jones' motion to sever because his defense conflicted with that of appellant Gilbert.

(4) The trial court erred in allowing the prosecution to introduce evidence implicating appellant Jones in a 1967 robbery/murder. Again, however, our view is that the error was harmless.

(5) Appellant Jones' contention that the trial court committed Marsden error (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44) is not supported by the record.

(6) Appellant Hill's accusation of prosecutorial misconduct is patently without merit. Once the subject of Hill's incarceration in prison was elicited from him on direct examination, the prosecution could pursue the subject on cross-examination.

(7) Appellant Hill failed to meet either prong of his burden to prove his claimed inadequate assistance of trial counsel.

(8) Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, is dispositive of appellant Hill's erroneous contention that the trial court erroneously denied his challenge to the jury array.

(9) Finally, as to the contentions of appellant Gilbert we conclude that she did not receive a fair trial and reverse her judgment entered upon the jury's verdict of “guilty” of felony robbery/murder. While appellant Gilbert's contention that the trial court erred in refusing to instruct the jury that the defense of “duress” encompasses a reasonable belief that the life of her child was in immediate danger is untenable as contrary to California statutory law, substantial evidence of such a reasonably held belief was relevant to the issue of her capacity to form the requisite specific intent to commit the crime of robbery. Accordingly, the trial court erred in precluding relevant evidence on appellant's defense of duress because the evidence was prejudicial to appellants Hill and Jones; further, the court erred in refusing to instruct on diminished capacity. The compounded errors are prejudicial and compel reversal of the judgment against appellant Gilbert.

There is no rational argument but that the substantial evidence supports the following summary of the facts which the jury must have determined. Appellants planned and executed a robbery of money from one Al Bellard. The victim lived at his place of business (Al's Bar-B-Q). On June 6, 1977, Bellard withdrew $800 from the bank, a fact Jones knew because his girl friend Gilbert told him. Gilbert knew because she, as Bellard's bookkeeper and erstwhile sexual partner, accompanied him to the bank.

Appellant Jones outlined the plan to rob Al's Bar-B-Q. Appellant Gilbert, by virtue of her prior acquaintance with Al Bellard, would go in first and leave the door unlocked. Hill would knock, ask for a beer and enter. Eric J. and Willie Joiner would search for money. Appellant Gilbert would point out places where Al Bellard kept money. Appellant Jones would keep a lookout from his car parked across the street. After the others had left, appellant Gilbert would call the police and tell them some “whites or Mexicans” had done it.

Eric J. is Gilbert's 16-year-old second cousin who, together with his 14-year-old girl friend Lisa J., resided with Gilbert and her nine-year-old daughter Crystal. Willie Joiner is Eric J.'s friend.

Once appellant Gilbert was inside Al's Bar-B-Q, appellant Hill knocked on the door. Bellard opened the door and Hill forced his way in. He was followed by Joiner and Eric J. Appellant Hill and Joiner took Bellard upstairs. The search for money then began. Al Bellard was tied up with an electrical wire and some type of bed clothing. Bellard died. The cause of death was asphyxiation due to strangulation.

Lisa J. testified. She also accompanied Gilbert and Bellard to the bank, a fact she told Eric J. Once she learned from Eric J. of the robbery plan, she tried to dissuade him; failing in her efforts, she enlisted the aid of “mom” Gilbert. Gilbert testified that she told Eric J. not to participate, obviously to no avail. Eric J. not only participated, he recruited Joiner.

Appellants Hill and Jones contend on appeal that the trial court should have instructed the jury on the definition of the term “accomplice” and instructed the jury to determine whether Lisa J. was an accomplice.

The issue of whether Lisa J. was an accomplice was a question of law for the trial court. Penal Code section 1111 defines an accomplice “… as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

By definition an accomplice must voluntarily, with guilty knowledge and common intent with the principal offender, unite in the commission of the crime. (People v. Perez (1973) 9 Cal.3d 651, 658, 108 Cal.Rptr. 474, 510 P.2d 1026.) Whether a person is an accomplice is a question of law for the trial court unless there is a dispute as to either the facts or the inferences to be drawn therefrom. (People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335, cert. den. 429 U.S. 805, 97 S.Ct. 38, 50 L.Ed.2d 65.)

The uncontradicted evidence in the instant case shows that Lisa J. did not share the criminal intent of the charged principals. Lisa J. begged Eric J. not to commit the robbery he had in mind; Lisa J. also went to appellant Gilbert to enlist her aid in dissuading him. Lisa J. was aware that a robbery or other crime was planned, and may have been present during portions of its planning; she also supplied Eric J. and Joiner with stockings, which Eric J. attempted to use as a cap or mask but then abandoned. However, she testified without contradiction that Eric J. and Joiner did not tell her to what use they planned to put her stockings. Lisa J.'s testimony that she continuously opposed Eric J.'s participation was never questioned by any witness. Appellant Gilbert confirmed Lisa J.'s testimony; appellant Hill said he had never seen Lisa J. and knew of no reason why she should have a grudge against him; appellant Jones' testimony was stricken and in any event did not impeach Lisa J. In short, no evidence was presented that showed Lisa J. knowingly facilitated the commission of the planned offense. Accordingly, the trial court did not err in determining as a matter of law that Lisa J. was not an accomplice. (See People v. Cisneros (1973) 34 Cal.App.3d 399, 413, 110 Cal.Rptr. 269, where the principle we apply is well articulated.)

The trial court's instruction that the “testimony of Clara Sue Gilbert and the inferences to be drawn therefrom are sufficient to corroborate an accomplice,” presents a different problem.

As the People admit in their brief “[Eric J.], Willie Joiner and Clara Sue Gilbert were accomplices as a matter of law insofar as the prosecutions of Percy Jones and William Hill were concerned.”

The trial court ruled that appellant Gilbert's “testimony” was competent to corroborate that of Eric J. and Willie Joiner, if the jury found her credible and instructed the jury, “The testimony of Clara Sue Gilbert and the inferences to be drawn therefrom [are] sufficient to corroborate an accomplice.” The court erred. It is well settled that the testimony of one accomplice cannot be used to corroborate that of another. (People v. Clapp (1944) 24 Cal.2d 835, 151 P.2d 237; People v. Marshall (1969) 273 Cal.App.2d 423, 426, 78 Cal.Rptr. 16; People v. Dailey (1960) 179 Cal.App.2d 482, 486, 3 Cal.Rptr. 852.) Equally well settled is the rule that “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Pen.Code, § 1111.)

However, there is a rule that a defendant's own testimony or admission and the inferences therefrom may be sufficient corroborative evidence. (People v. Hill (1967) 66 Cal.2d 536, 556, 58 Cal.Rptr. 340, 426 P.2d 908, cert. den. 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487; People v. Wade (1959) 53 Cal.2d 322, 329, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Ruscoe (1976) 54 Cal.App.3d 1005, 1012, 127 Cal.Rptr. 6.) Under this rule the testimony of appellant Gilbert was sufficient corroboration of the testimony of Eric J. and Joiner to support a conviction against appellant Gilbert. The People argue that this rule should be extended to provide that a defendant's testimony is not only corroborative testimony in regard to himself but to any codefendant, although the People readily admit that they have found no case which has so extended the rule. The People reason that if appellant Gilbert's testimony connecting herself to the crime rendered Joiner's and Eric J.'s testimony sufficiently credible to support appellant Gilbert's conviction, the accomplice testimony would seem competent to convict appellants Jones and Hill.

The People's argument must fail. In People v. Hill, supra, 66 Cal.2d 536, 556, 58 Cal.Rptr. 340, 352, 426 P.2d 908, 920, the court stated, “there is substantial corroborating evidence, consisting of the defendants' extrajudicial statements applicable to them individually, …” (Emphasis added.) The reason for so limiting the rule can be understood by looking at the facts of this case. The rationale for requiring corroboration of an accomplice is that the accomplice may have many self-serving motives (i. e., immunity, clemency) for giving testimony which makes his testimony suspect. (People v. Belton (1979) 23 Cal.3d 516, 525, 153 Cal.Rptr. 195, 591 P.2d 485.) Appellant Gilbert had a self-serving motive in testifying in her own behalf—to convince the jury she was coerced into participating in the crimes through threats to her and her daughter's lives. Appellant Gilbert was not called as a witness for or against her codefendants—she testified solely on her own behalf. (See People v. Gurule (1965) 236 Cal.App.2d 847, 854-855, 46 Cal.Rptr. 459.) Under such circumstances her testimony could only be regarded as corroboration which would support her conviction.

Not unexpectedly, appellants Hill and Jones contend that since appellant Gilbert was an accomplice and her testimony was not competent to corroborate that of Eric J. and Willie Joiner insofar as corroboration was necessary to sustain their convictions, the court's error was prejudicial, compelling reversal of the judgments.

Appellant Jones argues that the jury may have been led by the court's instruction to believe that it need not consider the corroborative value of Lisa J.'s testimony since appellant Gilbert's testimony was sufficient. He argues the jury might have disbelieved Lisa J. yet convicted him by relying upon appellant Gilbert's testimony alone to corroborate Joiner's and Eric J.'s testimony. Appellant Hill also contends that the court's instruction regarding appellant Gilbert's testimony was error.

We disagree. The cases of appellants Jones and Hill are certainly not “close.” Therefore, the error was not prejudicial. Lisa J.'s testimony corroborated the accomplice testimony. The jury was not likely to have disregarded or disbelieved her testimony. Appellants Jones and Hill presented no real credible defenses. Had the jury been instructed properly with respect to appellant Gilbert's testimony, it is not reasonably probable that the jury would have returned verdicts more favorable to Jones and Hill. (People v. Watson (1956) 46 Cal.2d 818, 835-837, 299 P.2d 243, cert. den. 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55.)

Appellants Hill and Jones contend the trial court erred in denying their motions for separate trials. Appellant Jones contends that he should have been tried separately because his defense conflicted with that of appellant Gilbert. Appellants Jones and Hill contend that a joint trial with appellant Gilbert was Aranda error. (People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265.)

On August 4, 1977, appellant Gilbert made a statement to the police. In this statement appellant Gilbert identified Eric J., appellant Jones, a man she referred to as Herman, whom she later identified as Willie Joiner, and Williams, whom she later identified as appellant Hill, as the participants in the robbery. When the statement was read to the jury the name Jones was omitted and in its place was inserted “the other guy.” When appellant Gilbert took the stand she testified that in her statement to the police she used the name of appellant Jones in the portions of the statement where the phrase “the other guy” was read to the jury.

In People v. Aranda, supra, at pages 530-531, 47 Cal.Rptr. 353, 407 P.2d 265, the court stated if the prosecution is going to introduce an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) the trial court may delete the portions of that statement which implicate the codefendant if this may be done without prejudice to the declarant; (2) if effective deletions cannot be made, the trial court can grant a severance of the trials of the defendants; and (3) if there has not been a severance and effective deletions are not possible, the trial court must exclude an extrajudicial statement implicating a codefendant.

In People v. Massie (1967) 66 Cal.2d 899, 919, 59 Cal.Rptr. 733, 428 P.2d 869, the court found Aranda error in the admission at a joint trial of a statement of a defendant that “we” committed the crimes when the declarant and his codefendant previously had been linked together by other evidence admitted at trial. In People v. Terry (1970) 2 Cal.3d 362, 384-385, 85 Cal.Rptr. 409, 466 P.2d 961, cert. dismissed 406 U.S. 912, 92 S.Ct. 1619, 32 L.Ed.2d 112, the court held it was error to read to the jury the extrajudicial statements of one defendant and to use the word “deleted” each time the name of the codefendant appeared. (See also People v. Lara (1967) 67 Cal.2d 365, 392-393, fn. 24, 62 Cal.Rptr. 586, 432 P.2d 202; cert. den. 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407; People v. Barrett (1968) 267 Cal.App.2d 135, 143-145, 72 Cal.Rptr. 681, cert. den. 394 U.S. 963, 89 S.Ct. 1315, 22 L.Ed.2d 565.) Substituting the phrase “the other guy” instead of using Jones' name is Aranda error. However, the error does not require that we reverse the judgments.

Since appellant Gilbert took the stand, appellants Hill and Jones were not denied their right to confrontation. (People v. Brown (1978) 79 Cal.App.3d 649, 656-657, 145 Cal.Rptr. 130.) Accordingly, “the error must be gauged under the standard of whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (Id., at p. 657, 145 Cal.Rptr. at p. 134.) This is not a case where the only evidence linking appellants Jones and Hill to the offense is the statement of appellant Gilbert. (People v. Cornejo (1979) 92 Cal.App.3d 637, 653, 155 Cal.Rptr. 238.) Appellant Gilbert's testimony at trial was consistent with her statement. Appellant Gilbert could have given the same testimony if appellants Hill and Jones had been tried separately. (See People v. Terry, supra, 2 Cal.3d 362, 390, 85 Cal.Rptr. 409, 466 P.2d 961.) The testimony of Eric J. and Joiner which was corroborated by Lisa J. clearly established the participation of Jones and Hill in the offense. The error was harmless.

The trial court did not abuse its discretion in denying the motion for separate trials on the ground of conflicting defenses. Penal Code section 1098 provides in part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials.” “We also note that a person jointly accused with another does not have a right to a separate trial, but has merely the right to ask for it, and the court is vested with the discretion to grant or deny such request.” (People v. Simms (1970) 10 Cal.App.3d 299, 307, 89 Cal.Rptr. 1, 6.) “The mere fact that there is hostility between defendants or that one may try to save himself at the expense of another is in itself alone not sufficient grounds to require separate trials. It is only when the situation is such that the exercise of common sense and sound judicial judgment should lead one to conclude that one defendant cannot have a fair trial, as that term is understood in law, that a severance should be granted.” (Dauer v. United States (10th Cir. 1951) 189 F.2d 343, 344, cert. den. 342 U.S. 898, 72 S.Ct. 232, 96 L.Ed. 672.)¹

Evidence implicating appellant Jones in a 1967 robbery/murder was introduced at trial. The testimony of Leonard Heidel which was given in appellant Jones' 1967 trial was read to the jury. Heidel's testimony tended to show that appellant Jones introduced Heidel to two other men and that Jones drove these three men to a bar where he waited in the car while Heidel and the two other men went into the bar and committed a robbery during the course of which a patron was shot and killed.

Appellant Jones contends on appeal that the evidence of the prior offense (1) was not introduced to prove any disputed fact, but even if it were the evidence was merely cumulative on the issue of identity; and (2) the distinctive common marks of the prior offense and the present offense are not sufficient to logically establish that the same person committed both crimes.

The general rule is that evidence of other crimes is not admissible to prove the criminal disposition or propensity of the defendant to commit the crime charged. (People v. Schader (1969) 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Haston (1968) 69 Cal.2d 233, 244, 70 Cal.Rptr. 419, 444 P.2d 91.) There are certain exceptions to this rule. Evidence of other crimes may be introduced when it is offered as evidence of some other fact in issue, such as motive, common scheme or plan, preparation, intent knowledge, identity or absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) However, evidence of other crimes may be introduced to prove some fact relevant and material to the prosecution's case, only when the probative value of such evidence outweighs its prejudicial effect. (People v. Schader, supra, 71 Cal.2d at pp. 772-773, 80 Cal.Rptr. 1, 457 P.2d 841.) It is for the trial court to determine whether the probative value is out-weighed by the possible prejudicial effect and to admit or exclude it accordingly. (People v. Archerd (1970) 3 Cal.3d 615, 638, 91 Cal.Rptr. 397, 477 P.2d 421.)

In People v. Schader, supra, 71 Cal.2d 761, 774-775, 80 Cal.Rptr. 1, 9-10, 457 P.2d 841, 849-850, the Supreme Court identified some of the guidelines which the courts should follow in performing the balancing process between probative value and prejudicial effect. “The chief elements of probative value are relevance, materiality and necessity.

“Before permitting the jury to hear evidence of other offenses the court must ascertain that the evidence (a) ‘tends logically, naturally and by reasonable inference’ to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue. In determining relevance, the trial court must look behind the label describing the kind of similarity or relation between the other offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.”

The People assert that the evidence of the uncharged offense was admissible on the issues of intent, corroboration of other witnesses and identity. No one at trial contended that the purpose of the crime was other than to rob Al Bellard. It would therefore seem that the evidence of the uncharged offense was not admissible on the issue of intent as there was no dispute as to intent.

The People further contend that the prior crime was corroboration of the testimony of Joiner and Eric J. and appellant Gilbert to the effect that they were coerced into committing the crime by appellant Jones, who told them of his prior conviction to make them take his threats seriously. The People's argument seems to be that the jury would be more likely to believe the witnesses' testimony that appellant Jones told them he had committed a prior crime if the jury also knew that in fact Jones committed a prior crime. But the relevant question concerning coercion was whether in fact appellants Gilbert, Joiner and Eric J. believed appellant Jones when he told them of his prior conviction. Since appellant Gilbert, Joiner and Eric J. had no independent knowledge of the prior conviction, whether or not Jones committed a prior crime had no bearing on the reasonableness of their belief. It would therefore appear that evidence of the prior offense was not relevant and did not corroborate the testimony of Joiner, Eric J. and Gilbert.

Furthermore, the only cases the People have cited to support the theory that uncharged offenses are admissible to corroborate witnesses' testimony concern sex offense cases. (People v. Thomas (1978) 20 Cal.3d 457, 468-470, 143 Cal.Rptr. 215, 573 P.2d 433; People v. Goodson (1978) 80 Cal.App.3d 290, 294-295, 145 Cal.Rptr. 489.) Because of the unique circumstances of privacy and seclusion surrounding the commission of most sex offenses the credibility of the complaining witness plays a central role. Accordingly, if the prior sex offense is similar to the charged offense, not remote and involves a similar victim, evidence of the prior offense may be used to corroborate the prosecuting witness' version of events. (People v. Thomas, supra, 20 Cal.3d at pp. 468-470, 143 Cal.Rptr. 215, 573 P.2d 433.) The instant case does not involve such a situation.

As noted earlier, evidence of other crimes in inadmissible if it is merely cumulative of other evidence. The evidence of the prior offense was only relevant, if at all, on the issue of identity. Appellant Jones denied he participated in the offense. Jones' testimony was properly struck because he refused to submit to cross-examination. Appellant Jones' identity was established by Eric J., Joiner and Lisa J., who identified Jones as the person who planned the robbery. When a defendant's identity is established by other evidence, the evidence of the other crime is cumulative and inadmissible. (People v. Guerrero (1976) 16 Cal.3d 719, 724-725, 129 Cal.Rptr. 166, 548 P.2d 366.)

It should also be noted that other crimes evidence is admissible on the issue of identity only if the uncharged crime and the charged crime share distinctive common marks. (People v. Haston, supra, 69 Cal.2d 233, 246-247, 70 Cal.Rptr. 419, 444 P.2d 91.)

The most distinctive common elements between the charged and uncharged offenses under consideration here is that not all the participants in the robberies were acquainted with each other and appellant Jones was in a parked vehicle near the scene of the robberies. There are several uncommon elements. A firearm was used in the commission of the 1967 robbery; no firearm was used in the charged offense. The 1967 robbery occurred in the day when the bar was open for business; the robbery in the charged offense occurred late at night when the business was closed. An accomplice was used to gain entrance into the premises in the charged offense; no such strategy was used in 1967.

Although the uncharged offense was improperly received in evidence against appellant Jones, the error was harmless. Eric J., Joiner and appellant Gilbert testified that appellant Jones told them he had gone to prison for killing someone. Since this evidence was properly received, the fact that the jury was told that he had in fact participated in another offense could have little effect. But more importantly, the testimony of Eric J. and Joiner which was corroborated by Lisa J. clearly established the participation of appellant Jones in the charged offense.

Appellant Jones' last contention is that the trial court committed Marsden error when it failed to make a meaningful inquiry into the reasons for Jones' request for new counsel.

In People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, the California Supreme Court held that a defendant must be permitted to state the reasons why he believes a court-appointed attorney should be discharged. (People v. Hidalgo (1978) 22 Cal.3d 826, 150 Cal.Rptr. 788, 587 P.2d 230; People v. Lewis (1978) 20 Cal.3d 496, 143 Cal.Rptr. 138, 573 P.2d 40.) A motion for substitution of an appointed counsel is addressed to the sound discretion of the trial court. (People v. Cruz (1978) 83 Cal.App.3d 308, 315-316, 147 Cal.Rptr. 740.) A trial court must investigate the reason why a defendant is making such a motion to the extent necessary to allow a sound exercise of its discretion. (People v. Marsden, supra, 2 Cal.3d at pp. 123-125, 84 Cal.Rptr. 156, 465 P.2d 44; People v. Cruz, supra, 83 Cal.App.3d at pp. 315-316, 147 Cal.Rptr. 740; People v. Huffman (1977) 71 Cal.App.3d 63, 77, 139 Cal.Rptr. 264.)

In the instant case the trial court listened to each of appellant Jones' reasons for seeking substitution of counsel. Appellant Jones' attorney also addressed the court on the problem. Appellant Jones' contention is simply not supported by the record.

Appellant Hill contends the prosecutor committed prejudicial misconduct by asking a series of improper questions relating to Hill's imprisonment in San Quentin and Soledad prisons. The record does not support appellant Hill's contention. The fact that appellant Hill had suffered two prior felony convictions was brought out on direct examination by Hill's own counsel. It does not appear from the record before this court that the trial court had ruled that these convictions were admissible to impeach appellant Hill. It therefore seems that the decision to reveal Hill's prior convictions was exclusively that of Hill and his attorney. Since the subject of Hill's prior convictions was covered on direct examination, the prosecutor did not commit misconduct in covering the same subject on cross-examination. (Evid.Code, § 773, subd. (a).)

Appellant Hill in a supplemental brief contends that he did not receive effective assistance of counsel. In People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, the California Supreme Court discarded the Ibarra standard for ineffective assistance of counsel and declared “a conviction may not be upheld if the state has furnished an indigent with representation of lower quality than that of a reasonably competent attorney acting as a diligent conscientious advocate.” (Id., at p. 424, 152 Cal.Rptr. at p. 738, 590 P.2d at p. 865.)

In Pope, the court imposed on an appellant the burden of proving a claim of inadequate trial assistance by showing “that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 739, 590 P.2d 859, 866.)

Appellant Hill first contends he was denied effective assistance of counsel because his lawyer failed to argue various matters to the jury. Since he has not made his counsel's argument part of the appellate record, the court has no means of ascertaining the merit of this charge. Appellant next contends that he was denied effective assistance of counsel because his counsel failed to explore potential defenses by examination, cross-examination or motions. Appellant Hill does not suggest what potentially meritorious defense was thereby neglected or withdrawn. Next appellant Hill contends that he was denied effective assistance of counsel because his counsel failed to call a crucial defense witness. Appellant Hill does not state which witness counsel failed to call nor allege what testimony the witness might have given which would have been beneficial to him. Finally, appellant Hill contends his counsel was inadequate because he failed to make various pretrial motions that would allow him an opportunity to observe witnesses while testifying under oath. However, appellant Hill does not state which pretrial motions counsel failed to make. In short, appellant Hill has failed to meet his burden of proving a claim of inadequate trial assistance.

Appellant Hill in his supplemental brief contends the trial court erred in denying his challenge to the selection of the master jury panel. First, it should be noted that the challenge to the selection of the master jury panel was made by appellant Gilbert, not appellant Hill. Second, the motion was based on the ground that “all persons convicted of any felony or other high crime” had been excluded from the panel. This contention has been rejected by the California Supreme Court in Rubio v. Superior Court, supra, 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595.

Appellant Gilbert testified that appellant Jones told her that something would happen to her and her daughter Crystal if she did not cooperate. Appellant Gilbert testified that when she went to Al's and participated in the robbery, she believed the threats made by appellant Jones toward her and her daughter Crystal and she feared for her life and that of Crystal. Appellant Jones directed one of his associates, Alex Keys, to remain with Lisa J. and Crystal “to make sure everything went right.” Appellant Gilbert interpreted this as a threat.

Appellant Gilbert submitted a proposed jury instruction on the defense of duress. The proposed instruction modified CALJIC No. 4.40, the standard jury instruction on duress, in that the jury would be told that a defendant is not guilty of a crime if he engages in conduct otherwise criminal if he has been subject to threats which create a reasonable belief that his life or the life of his child is in immediate danger. CALJIC No. 4.40 limits the fear of death to the actor himself. The trial court refused the proposed instruction stating: “[T]here are no California cases which allow the jury to consider the issue of threats and menaces on the family rather than on the person participating in the criminal conduct… [T]he court feels that California law is to the contrary.” The trial court did give CALJIC No. 4.40. Appellant Gilbert contends that if a coercion defense based on threats against a family member exists under the law, she was entitled to the instruction.

Penal Code section 26 provides: “All persons are capable of committing crimes except those belonging to the following classes: … [¶] Seven—Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”²

No California court appears to have directly considered whether the law of California recognizes a defense of coercion based on threats of death directed against a family member of the defendant rather than the defendant himself. In People v. Graham (1976) 57 Cal.App.3d 238, 129 Cal.Rptr. 31, the court assumed that the defense of coercion applies when the threat is directed toward a third person. In Graham, the defendant introduced evidence at trial that he committed a robbery under duress, in that a heroin addict had pulled a gun on him and told him to rob the store or he, his girl friend and her child would be killed. The Court of Appeal reversed Graham's conviction on the ground that the jury had been erroneously informed that the defendant bore the burden of proving duress by a preponderance of the evidence, rather than merely of raising a reasonable doubt that he acted of his free will. (Id., at p. 240, 129 Cal.Rptr. 31.) The opinion contains no suggestion that the evidence of threats against the life of Graham's female companion was irrelevant to the question of duress or constituted an improper basis on which to give a duress instruction.

“The defense of duress, like that of necessity, is a common law defense, applicable in appropriate cases although no statute makes it so.” (LaFave and Scott, Handbook on Criminal Law (1972) p. 375.) Maine, Washington, Wisconsin, Arkansas, Colorado, Connecticut, Delaware, New York and Utah all have adopted statutes that provide that the defense of coercion is available if the threat of imminent death or serious bodily injury is to the defendant or another person. (Torcia, 1 Wharton's Criminal Law (14th ed. 1978) § 51, pp. 240-242, fns. 7 and 8; LaFave and Scott, Handbook on Criminal Law, supra, p. 376, fn. 14.) In New Jersey where there is no applicable statute defining the defense of duress, the Supreme Court of New Jersey held that the defense is applicable when the threats are to a third person stating, “Assuming a ‘present, imminent and impending’ danger, however, there is no requirement that the threatened person be the accused. Although not explicitly resolved by the early cases, recent decisions have assumed that concern for the well-being of another, particularly a near relative, can support a defense of duress if the other requirements are satisfied.” (State v. Toscano (1977) 74 N.J. 421, 435, 378 A.2d 755, 762.) Several federal courts that have considered the issue have stated that it is not necessary that the threatened person be the accused. (United States v. Bailey (D.C.Cir.1978) 585 F.2d 1087, 1096-1097, fn. 29, cert. den. 440 U.S. 963, 99 S.Ct. 1509, 59 L.Ed.2d 77; United States v. Garner (6th Cir. 1976) 529 F.2d 962, 969-970, cert. den. 426 U.S. 922, 96 S.Ct. 2630, 49 L.Ed.2d 376; United States v. Gordon (9th Cir. 1975) 526 F.2d 406, 408, fn. 1.)

Appellant Gilbert argues with considerable insight that the defense of duress in California should include threats to a third person. “First, section 26 … plainly decrees that, for example, a person confronted by a gun at his head lacks criminal intent when he commits otherwise criminal conduct. If a person is excused for acts necessary to save his own life, can the law possibly condemn the same act taken to save the life of his child? Is the person who acts at gunpoint less culpable than or morally superior to one who acts only to save his child from immediate death? Should a citizen be forced to take greater risks with the life of another, particularly a loved one or child, than the law forces him to take with his own?”

However, appellant Gilbert's argument is best addressed to our Legislature.³ The Legislature in adopting Penal Code section 26 has defined and limited the scope of the defense of duress and made the defense only applicable when the threatened person is the accused. “The power of the court to reshape judicial doctrine does not authorize us to overturn constitutionally valid statutes.” (People v. Drew (1978) 22 Cal.3d 333, 347, 149 Cal.Rptr. 275, 283, 583 P.2d 1318, 1326.)

The trial court refused appellant Gilbert's instruction on diminished capacity which would have prompted the jury to consider the impact of the threats appellant Gilbert confronted on her ability to form the specific intent to commit robbery. Appellant Gilbert contends that she was entitled to the instruction. The People “do not dispute that in a proper case an instruction to the effect she proposed might have been given.” The People state “we believe there is some authority for considering fear and terror relevant to the issue of whether an abnormal mental state existed which prevent a defendant from acting with a necessary intent. See, e. g., People v. Wells, 33 Cal.2d 330, 343-46, 202 P.2d 53 (1949).” However, the People assert for “the doctrine of diminished capacity to come into play, there must be evidence of an abnormal mental condition.” (Emphasis added.) The People state fear is “more often a normal condition, given a perceived threat to one's life or that of one's daughter.”

The People rely upon People v. Wells to support their argument. In Wells, the defendant was suffering from an “abnormal” mental condition which caused him to fear for his personal safety. In Wells, the court stated if defendant “acted only under the influence of fear of bodily harm, in the belief, honest though unreasonable, that he was defending himself from such harm by the use of a necessary amount of force, then defendant, although he would not be guiltless of crime, would not have committed that particular aggravated offense with which he is charged, for the essential element of ‘malice aforethought’ would be lacking.” (People v. Wells (1949) 33 Cal.2d 330, 345, 202 P.2d 53, 62-63.) However, the fact that Wells was suffering from an “abnormal” mental condition was not a requirement in order for him to assert that he did not have the necessary mental intent in order to sustain a conviction for murder. (People v. Flannel (1979) 25 Cal.3d 668, 678-679, 160 Cal.Rptr. 84, 603 P.2d 1.)

At trial evidence was presented that when appellant Gilbert committed the robbery, she was very much in fear for her own life and that of her daughter. For the purposes of instructing the jury, that testimony must be assumed to be entirely true. (People v. Stevenson (1978) 79 Cal.App.3d 976, 985, 145 Cal.Rptr. 301.) “As we recently observed in a case concerning a killing in the perpetration or attempt to perpetrate robbery: ‘In cases in which the prosecution advances a felony-murder theory, defendant is entitled, upon a sufficient factual showing, to instruction negating a conviction on a felony-murder theory if, at the time of the alleged offense, defendant could not form the specific intent—here, the intent “to permanently deprive the owner of his property”—that serves as a necessary element of the felony charged.”’ (People v. Mosher (1969) 1 Cal.3d 379, 392, 82 Cal.Rptr. 379, 387, 461 P.2d 659, 667.)

It cannot be concluded that the jury's consideration of the evidence of threats in the context of the coercion defense vitiated the need for parallel consideration of the same evidence in relation to a diminished capacity defense. First, while the threats to appellant Gilbert's child were not sufficient in California to support a complete defense under the defense of duress, they were pertinent to the issue of whether appellant Gilbert had the specific intent to permanently deprive the owner of his property or whether appellant Gilbert only acted out of fear and therefore did not have the requisite specific intent. Second, elements of the two defenses are different and evidence deemed insufficient to constitute one defense could well be found adequately supportive of another. For example, threats received by a party must be sufficient to cause fear of immediate death in a reasonable person in order to establish duress under Penal Code section 26. The jury might have believed that a reasonable person under the circumstances would not have been in fear but that appellant Gilbert was in fear. (People v. Flannel, supra, 25 Cal.3d 668, 674-680, 160 Cal.Rptr. 84, 603 P.2d 1.)

The trial court refused to admit certain evidence of threats made to appellant Gilbert by appellant Jones. When counsel sought to establish through Lisa J. that appellant Jones had bragged “that he had a gang of people that would beat individuals up,” the court sustained objections by Jones' counsel. The trial court stated that the evidence might be relevant but ruled “the prejudice outweighs any relevancy, …” At another point, counsel for appellant Gilbert attempted to introduce evidence of a telephone call in which Gilbert overheard appellant Jones say to someone “there's nothing to worry about” because he (Jones) was “still running his old lady back and forth” and was “with her at all times.” The court ruled the evidence “far too prejudicial to Mr. Jones.” The court also refused to admit a prior consistent statement of Gilbert on the ground that it would be detrimental to appellants Hill and Jones. The court sustained objections to some of the questions posed to appellant Gilbert concerning what appellant Jones had told her about his prior murder convictions and the number of people he had killed. Appellant Gilbert contends on appeal that the trial court erred in excluding the above evidence which was relevant to her defense of coercion and diminished capacity on the ground such evidence was prejudicial to appellant Jones.

The precise issue raised by appellant Gilbert—whether relevant evidence offered by one defendant in a joint trial can be excluded on the ground it would unduly prejudice a codefendant—was recently decided in People v. Reeder (1978) 82 Cal.App.3d 543, 147 Cal.Rptr. 275. In Reeder, defendant Reeder and codefendant Contreras were charged with sale of heroin. Contreras, testifying in his own behalf, corroborated much of the state's testimony against Reeder and also testified to additional drug dealings he had with Reeder. (Id., at p. 549, 147 Cal.Rptr. 275.) Reeder sought to introduce evidence of a series of wrongs done him by Contreras: Contreras had refused to repay Reeder money owed; Contreras had given Reeder's stepdaughter tuberculosis and attempted to introduce her to heroin; and Contreras had given Reeder's nephew an overdose of heroin which nearly killed him. (Id., at pp. 549-550, 147 Cal.Rptr. 275.) The evidence was offered to corroborate Reeder's defense that he disliked Contreras and thus would never engage in narcotic dealings with him. The trial court excluded the evidence on the ground that it was unduly prejudicial to Contreras.

The Court of Appeal ruled in Reeder that it was error for the trial court to exercise its discretion under Evidence Code section 352 to exclude evidence of significant value to a defendant because of the danger of substantial prejudice to a codefendant. “In view of the significant probative value of the proffered evidence on the issue of defendant's innocence, the trial court should have ruled the evidence admissible and, upon the request of counsel for codefendant Contreras, given a limiting instruction with respect to its use (Evid.Code, § 355) or offered defendant Contreras the right to move for a mistrial if the latter considered such evidence sufficiently prejudicial to him to contravene his right to a fair trial. The alternative which the trial court chose, however, of refusing admissibility to the proffered evidence—constituted prejudicial and reversible error to defendant.” (Id., at pp. 556-557, 147 Cal.Rptr. at p. 283.)

The People contend that the error was not reversible because the proffered evidence was cumulative of evidence actually introduced that went to the defense of duress. The People further contend that appellant Gilbert waived her right to claim reversible error by failing to move for a limiting instruction, mistrial or severance. In Reeder, counsel for Reeder took no action other than offering the evidence. The Court of Appeal stated that Reeder, who stood in the same posture as appellant Gilbert, did not have to move for a separate trial to preserve his claim or move for a limiting instruction. “It was the codefendant Contreras who was endangered by defendant's proffered evidence and who was entitled to the protection offered by Evidence Code section 355 of requesting an instruction limiting the use of defendant's evidence to its relevant admissible purpose. It was up to codefendant Contreras to move for a mistrial and a separate trial if he felt the danger of prejudice to him could not be alleviated or eliminated by a limiting instruction— …” (Id., at p. 555, 147 Cal.Rptr. at p. 282.) Accordingly, appellant Gilbert has not waived her right to raise this issue on appeal.

Nor was the evidence merely cumulative. It is true that appellant Gilbert was allowed to assert that she had been threatened by appellant Jones. But such a bald assertion by itself does not make a defense. It was critical to the defense to develop the circumstances surrounding the threats and the knowledge that Gilbert had of Jones' violent propensities and criminal record if diminished capacity was to be credible. Moreover, it was of great importance that Gilbert's testimony be corroborated by an independent witness, such as Lisa J., in order that a distraught state of mind might receive serious consideration from the jury as evincing a state of mind incapable of forming the requisite specific intent.

Given the fact that appellant Gilbert was precluded from introducing relevant evidence on her state of mind and was refused an instruction on diminished capacity, her conviction must be reversed.

When appellant Jones took the stand in his own behalf, he testified that he had never been appellant Gilbert's paramour, had never threatened to kill her and had not participated in a robbery at Al's. He further stated that appellant Gilbert had threatened him, telling him that if she could not have him, she would fix him so that his wife could not have him either. Appellant Jones was permitted to testify that appellant Gilbert had written to him and said she was coerced into taking the stand and testifying against him by her attorney and that he was being framed. Appellant Jones refused to submit to cross-examination and was held in contempt. Appellant Gilbert's counsel moved for a mistrial and the motion was denied. The trial court struck appellant Jones' testimony and admonished the jury to disregard it.

Appellant Gilbert contends on appeal that appellant Jones' testimony directly contradicted her testimony and affected her credibility. She contends that the limiting instruction to the jury to disregard Jones' testimony was totally insufficient to erase the prejudice. Appellant Gilbert claims that the trial court erred in denying her motion for a mistrial.

“The striking of testimony removes it from consideration; it is to be treated by the jury as never having been heard. They may not consider it, counsel may not refer to it in argument and, if its absence removes some key part of a case, other evidence must supplant it or a situation arises for the making of pertinent motions. [¶] A motion for a mistrial, on the other hand, serves a different purpose. Such motion, when made under the circumstances here present, presupposes the effect of the evidence is so prejudicial as to be incurable by striking it and admonishing the jury to disregard it. In other words, a motion to strike presupposes error of some sort, whereas the motion for mistrial presupposes error plus incurable prejudice.” (People v. Woodberry (1970)) 10 Cal.App.3d 695, 708, 89 Cal.Rptr. 330, 339.) The People assert that the effect of the evidence was not so prejudicial as not to have been cured by the striking of said testimony. The People claim “Jones' credibility, when all was said and done, was nil; Gilbert could not have improved upon her position had she conducted the widest ranging cross-examination.”

If the only error that was committed in regard to appellant Gilbert was the receipt of Jones' testimony, it would be unnecessary for this court to reverse her conviction. In light of the fact that evidence of diminished capacity was excluded, she was not allowed an instruction on diminished capacity and she was precluded from cross-examining Jones, her conviction must be reversed.

Appellant Gilbert contends she is entitled to work time/good time credit of 135 days for the 268 days she spent in presentence custody. Since appellant Gilbert's conviction must be reversed, the resolution of this issue is best left for a later time.

The judgments are affirmed as to appellants Jones and Hill.

The judgment is reversed as to appellant Gilbert.

FOOTNOTES

1.  As will be discussed later, the trial court excluded certain evidence relevant to appellant Gilbert's defense of duress on the ground the evidence was too prejudicial for appellant Jones. Although the trial court erred in excluding this evidence, the prejudice was to appellant Gilbert. Appellant Jones' rights were protected by the exclusion of the evidence.

2.  The robbery/murder in the instant case occurred on June 6, 1977. The present statutes which allow imposition of the death penalty (Pen.Code, §§ 190.1-190.5) were not effective on June 6, 1977. Accordingly, appellant Gilbert is not precluded from raising the defense of duress and coercion by the terms of Penal Code 26. (See People v. Moran (1974) 39 Cal.App.3d 398, 416-417, 114 Cal.Rptr. 413; People v. Petro (1936) 13 Cal.App.2d 245, 248, 56 P.2d 984.)

3.  It should be noted that Georgia, Idaho, Minnesota and Montana have statutes on the defense of duress which limit the defense to when the accused is the one threatened. (Torcia, 1 Wharton's Criminal Law, supra, § 51, p. 241, fn. 7.)

WHITE, Presiding Justice.

FEINBERG and RHODES,* JJ., concur.Hearing denied; MOSK and CLARK, JJ., dissenting.