PEOPLE v. SAMUEL (1980)

OPINION

HOLDING

In this case we hold that the voluntary confession of a defendant taken in violation of Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974) or its progeny may be used in the impeachment of an expert during Penal Code s 1368 proceedings.

STATEMENT OF THE CASE

William Robinson, Jr., Arbyl Bryant and the defendant were charged with murder. The cases of Robinson and Bryant were severed and they are not parties to this appeal. After two jury trials under section 1368 in each of which the defendant was found competent to stand trial, he was found guilty by a jury of first degree murder. He was also found sane by a jury on his plea of not guilty by reason of insanity. The same jury found to be true allegations of special circumstances, together with use and armed allegations. The defendant was sentenced to life without the possibility of parole.

THE USE OF A CONFESSION OBTAINED IN VIOLATION OF MIRANDA AT A PENAL CODE s 1368 HEARING

After an initial 1368 hearing in which a jury found the defendant competent to stand trial, he was then granted permission to reinstitute a new 1368 proceeding. This, too, was held before a jury. He was again found competent to stand trial. At this hearing, a doctor was cross-examined by the use of defendant's confession.

The first objection was that there had not been an adequate Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 hearing under Evidence Code s 405. This objection was valid and, in overruling it, the court erred. However, during later proceedings, such a hearing was had and the court found beyond a reasonable doubt that the confession was voluntarily made but that it had been obtained in violation of the rules of Miranda as interpreted by People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108. Thus, we have no hesitation in holding that the error in not holding and Evidence Code s 405 hearing was harmless beyond a reasonable doubt. We then proceed to the real issue, the use of the confession.

After a short flirtation (People v. Nudd, 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844) with the holding of the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, that a statement obtained in violation of Miranda could be used for impeachment purposes, the California Supreme Court, as it frequently does, parted company with the United States Supreme Court in People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, and on state constitutional grounds, determined that such a statement could not be used for impeachment purposes during criminal proceedings. People v. Rucker, 26 Cal.3d 368, 162 Cal.Rptr. 13, 605 P.2d 843 came to the same conclusion.

To the defendant the answer to this problem is easy. He quotes the following language from Rucker : “. . . the exclusionary rules relating to Miranda and to the privilege apply regardless of the purpose for which the response is sought to be admitted or the timing of its admission.” (Rucker, supra, p. 391, 162 Cal.Rptr. p. 27, 605 P.2d p. 856.) From this the defendant makes the dogmatic assertion “The Supreme Court's language states an absolute rule which permits no distinction between criminal and non-criminal proceedings.” To us, this matter does not appear quite that black and white. Specifically, we do not feel that Miranda applies to 1368 proceedings.

Section 1368 proceedings are “special proceedings” not criminal in nature. “In a proceeding under section 1368 a defendant is not charged with a criminal act and is not subject to criminal proceedings or punishment if he is found insane. It is a special proceeding rather than a criminal action.” (People v. Fields, 62 Cal.2d 538, 540, 42 Cal.Rptr. 833, 834, 399 P.2d 369, 370.) “The proceeding under section 1368 is not a criminal action, for the defendant is charged with no criminal act, nor, would he be subject to any punishment if he is found to be insane.” (People v. Loomis, 27 Cal.App.2d 236, 239, 80 P.2d 1012, 1014.)

1368 proceedings are instituted for the purpose of determining a defendant's competency to stand trial. They have nothing to do with criminal liability or punishment. The sole issue is the defendant's present competency to stand trial. Win or lose, he is eventually going to stand trial. The only question is, when? The issue is of no interest to the cop on the beat but is of vital interest to the judge whose duty it is to insure a defendant a fair trial one in which he can intelligently take part. All relevant and material evidence on this issue should be admissable unless there exist strong public policy reasons for denying its admission.

Taken literally, the above quotation from Rucker would preclude a statement taken in violation of Miranda anywhere, anyplace, anytime in any proceeding. We do not conceive that the Supreme Court by that one sentence intended any such sweeping ukase.

An example will suffice. The police are called to the scene of a domestic dispute. Without benefit of Miranda, they secure a voluntary statement from the husband that he intends to kill his children. He is arrested for disturbing the peace. That statement cannot be used in his criminal prosecution because of the Miranda violation. However, in subsequent civil domestic relations litigation regarding the custody of the children, the statement would be clearly admissible.

In Cramer v. Tyars, 23 Cal.3d 131, 151 Cal.Rptr. 653, 588 P.2d 793, the Supreme Court held that, in proceedings for the commitment of a mentally retarded person, the person who was the subject of the proceedings could be called as a witness but that his privilege against self-incrimination must be respected as it must be respected in any proceeding, civil or criminal. Nevertheless, it distinguished these civil proceedings from criminal proceedings in allowing the person who was the subject of the proceeding, the “defendant” as it were, to be called as a witness.

In Cramer v. Shay, 94 Cal.App.3d 242, 156 Cal.Rptr. 303, this court held that Miranda principles are not applicable to proceedings dealing with the commitment of mentally retarded persons who are a danger to themselves or others. If the Supreme Court's statement in Rucker was intended to be as broad and sweeping as defendant contends, it should have disapproved Cramer v. Shay. We did hold that in such proceedings the court must, on appropriate motion, hold a Jackson v. Denno, supra, hearing regarding the voluntariness of the statement and that an involuntary statement would not be admissible. We observed that the basic purpose of Miranda was the need to deter improper law enforcement activity but we found no need for the deterrent force of the criminal law exclusionary rule promulgated in Miranda in mentally retarded commitment proceedings. Unlike criminal prosecutions or narcotic addiction or juvenile proceedings, these proceedings have no relationship to the aims and objectives of law enforcement.

The same is true of 1368 proceedings. The sole purpose is to determine when a defendant shall stand trial. The only purpose is the protection of the defendant's own interests in determining the issue of his ability to understand the charge against him and to assist counsel in his defense. Indeed, in many of these proceedings it is the defendant who is insisting that he is competent to stand trial even though a doubt has arisen in the court's mind on the subject. The use of his confession in the cross-examination of an expert has nothing to do with the purposes of law enforcement. It does not offend the principles of Disbrow or Rucker. We have already noted that an Evidence Code s 405 hearing is necessitated for the purpose of determining voluntariness but the error in this respect we have held to be harmless beyond a reasonable doubt.

Therefore, we hold that the use of this statement in no way violated any constitutional or statutory rights of this defendant.¹

At this point this case ceases to have precedential value. Were we afforded the luxury of partial publication, we would terminate this opinion and simply send the parties memoranda discussing the other issues. However, since we are denied such a luxury, we proceed with a hopefully brief discussion of the other issues raised. However, we warn the reader that it is singularly dull and unproductive reading and adds absolutely nothing to the lore of the law.

SUBSTANTIALITY OF THE EVIDENCE

(A) The 1368 proceedings.

In these proceedings the defendant has the burden of proving his incompetency by a preponderance of the evidence. For us to upset the jury's finding that he was competent, we would have to find as a matter of law that he had carried that burden of proof. This we cannot do.

All the psychiatrists testified that defendant was not competent to stand trial. The prosecution's response to this was basically five-fold: (1) the presumption of sanity (Penal Code s 1369, subd. (f); (2) cross-examination of the doctors which showed that while allegedly incompetent under 1368 proceedings arising out of other current robberies in Los Angeles, he was able to plan and perfect an escape from Patton State Hospital; (3) cross-examination of the doctors which developed the possibility that because of his past history of mental illness and treatment, he could malinger although, of course, all the psychiatrists said he was not malingering; (4) the testimony of a jailer who testified that between visits from psychiatrists his behavior was normal and he was able to comply with jail routine; and (5) impeachment of a doctor by showing that the defendant was able to give the officers a detailed description of the crime.

The fact that all the psychiatrists agreed that he was incompetent is not binding. The courts have not turned their responsibilities over to the behavioral scientists yet. Judges and juries still make the ultimate determination. The jury simply felt that the defendant had not carried his burden of proof in spite of the unanimity of opinion on the part of the doctors. We cannot say that the finding of the jury in this matter is lacking in factual support.

(B) The special circumstances.

Here, we turn to the facts of the case.

Seventy-two year old Alfred Liberator worked at an ARCO gas station which is located adjacent to a Del Taco restaurant at which Roy Richardson was a night janitor. Around 3 in the morning of October 15, 1977, Richardson heard two shots from the service station. The shots were two to four seconds apart. He looked toward the station and saw a man, later identified as the defendant, run from the station while putting something in his pocket. Richardson called the sheriff's department and climbed a ladder to the roof of the Del Taco to see what was going on. He saw the defendant and a man, later identified as Robinson, walking toward the entrance to the station. Robinson walked ahead of the defendant and entered the station first. They both went to the rear storage area. They then turned around and walked to the front office. The defendant began looking through the desk drawers and shelves while Robinson stepped outside and stood near a Coke machine.

Police officers began to arrive. Robinson saw them approach and ran to the rear of the station. Defendant ran from the front office and toward the Del Taco. Robinson and the defendant were captured. Bryant was found inside the defendant's vehicle which was parked near the station. Inside was a gun which had two expended cartridges. Because of a defect in the barrel, this gun could not be positively identified as the murder weapon.

When the officers entered the station, they found Mr. Liberator dead. He had been shot twice in the chest area, and one of his pockets had been partially pulled out. The top lid of a floor safe inside the oil room had been removed but the bottom cover remained locked.

We must review the record in the light most favorable to the judgment to determine whether it contains substantial evidence, i. e., evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Green, 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.) No contention is made that there is not substantial evidence that the defendant attempted to or committed the robbery or that he is not guilty of first degree murder in the perpetration of that robbery or attempted robbery. The only contention made is that the special circumstances allegation which, under the 1977 amendment to Penal Code s 190.2, alleged that the killing was deliberate, premeditated and committed in the perpetration of a robbery were not proved. We find substantial evidence to the effect.

As the defendant points out, all killings in perpetration of a robbery did not, under this section as it then read, constitute special circumstances. We test the finding of premeditation and deliberation against the standard established in People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942, which held that to support a finding of premeditation and deliberation there must be, in essence, evidence showing (1) planning, (2) motive, and (3) manner of killing consistent with planning and motive.

(1) Planning.

We agree with the defendant that the evidence of planning is that of a planned robbery. This, of course, cannot be equated with a planned murder. This was, however, a well planned, well designed, preconceived holdup. The defendant and his confederates had no money. They picked a service station in an area not surrounded by open business buildings at 3 o'clock in the morning for the purpose of their robbery. The defendant was the trigger man; Robinson who stood outside by the Coke machine was the lookout; Bryant the man in the car was the getaway man. The defendant was armed with a loaded gun, the purpose of which was to carry out this robbery. Thus, the planning is overwhelming of a first degree armed robbery. The setup lent itself to a murder. Carrying a loaded gun on a robbery is some indication that it was meant to be used for killing if the occasion arose.² However, we agree that there is nothing in that set of circumstances which would support a finding of planned murder under the rationale of Anderson.

(2) Manner of killing.

Here, the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take Mr. Liberator's life. He shot him not once but twice in the chest from a short distance away, with the shots two to four seconds apart. If he had shot him once, there might be an arguable issue of rash impulse versus cold killing or even of an accidental killing. It should be noted that there was no evidence of a struggle. But shooting him twice with the shots being two to four seconds apart puts the matter into the category of a deliberate judgment. As the courts have pointed out, the true test is not the duration of time and a cold, calculated judgment may be arrived at quickly. The courts are trying to avoid unconsidered or rash impulses hastily executed being elevated to the status of deliberation and premeditation. The two deliberate shots directly into the chest take this case out of the rash impulse category.

In People v. Velasquez, 26 Cal.3d 425, 162 Cal.Rptr. 306, 606 P.2d 341, there was a service station killing in the perpetration of a robbery and the Supreme Court pointed out that one of the defendant's companions held the victim for a brief period before the defendant shot him and observed that this presented a factual situation from which the jury could arguably infer deliberation and premeditation. It appears to us that shooting Mr. Liberator not once but twice affords that same inference of deliberation and premeditation. The case fits the description in People v. Green, supra, of a defendant “ . . . who killed in cold blood in order to advance an independent felonious purpose, e. g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnaping, or a rape.” (Green, supra, 27 Cal.3d p. 61, 164 Cal.Rptr. p. 38, 609 P.2d p. 505.)

(3) Motive.

Obviously, Mr. Liberator was killed during the perpetration of the robbery. We are not confronted with the situations discussed in People v. Green, supra, or People v. Thompson, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883, in which the Supreme Court held that the robberies were perpetrated in the commission of murders, not vice versa. Here, the basic motive clearly was theft. Mr. Liberator had $1.00 on his person when he went to work. When he was found dead, his pants pocket had been partially pulled out, he had no money, and the defendant had $1.46 in his possession. The defendant had been seen going through the desk area. The safe had been tampered with. Thus, while the initial motive was to rob through force and fear, one reasonable inference that can be drawn from the manner of killing is that the determination had been made to execute the only potential witness. Another reasonable inference which the jury could draw was that the defendant shot Mr. Liberator in a fit of pique when it turned out that the old man only had a dollar and no other money was available. Another reasonable inference is that he was shot to get the key to the safe. Defendant was seen rummaging through the desk drawers after the shooting. A reasonable inference can be drawn that he was looking for the key. These are reasonable inferences which the jury was entitled to draw and once drawn, evidence of motive and of deliberation and premeditation is substantial. The jury could reasonably infer that this was an execution or annoyance style slaying of a victim of a holdup.

(C) Sanity.

Again, the evidence was basically that presented at the 1368 proceeding in which the doctors all testified that the defendant was insane. However, cross-examination revealed all the matters pointed out previously and, in addition, showed that the defendant was intellectually capable of obtaining A's and B's in school, of graduating from high school, of taking college courses and of functioning in society by successfully maintaining a job and purchasing a car. It is reasonable to conclude that he was capable of understanding exactly what he was doing at the time of the robbery/murder. Again, the defendant had the burden of proof by a preponderance of the evidence. He cannot say that the jury's finding of sanity was wrong as a matter of law.

ALLEGED PROSECUTORIAL MISCONDUCT

In People v. Green, supra, the Supreme Court held that if a defendant does not object to alleged prosecutorial misconduct, he is deemed to have waived the objection and the point cannot be raised on appeal, the reason being, of course, that the trial court must be given an opportunity to correct the abuse and, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury. If the defendant complains of prosecutorial misconduct for the first time on appeal, the question is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected. If it would not, “ . . . the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.” (Green, supra, 27 Cal.3d p. 34, 164 Cal.Rptr. pp. 20-21, 609 P.2d pp. 487-488.)

(A) The guilt phase.

(1) The defendant first alleges that there was an improper communication between the judge and the district attorney. This contention is totally without foundation.

The deputy district attorney who was trying the case became disturbed because the public defender was not asking questions of the jury on voir dire. He told his superior who, in turn, called the judge, whom he had known for many years, and said he wanted to talk to her about it. When the judge realized the purpose of the call, she refused to discuss the matter and said it would have to be approached in open court. There is no possibility of prejudice from this well meaning effort on the part of the district attorney to see to it that the defendant received his full protection afforded him under the law.

(2) Defendant also contends that calling Mrs. Liberator to the stand was somehow improper. There was no impropriety. She was called to testify to the fact that Mr. Liberator had $1.00 in his possession when he went to work. If one cannot call a member of the family, then the only safe prosecutions will be of those in which the victims are unmarried, childless orphans.

(3) Cross-examination of defense witnesses and argument. Each of the five instances cited resulted in an objection and, when requested, an admonition. Actually, the alleged improper remarks were not improper and the quick action of the court in curbing any over-zealous efforts on the part of the prosecutor kept the situation well under control. There was no possibility of prejudice from any of the exchanges that took place. They were simply the normal exchanges which are to be expected in any hard fought case in which the parties have differences of opinion as to exactly what the state of the record is.

(B) The sanity phase.

Defendant complains of cross-examination by the district attorney of the various doctors, alleging that the questions carried the heavy inference that a finding of insanity would result in freeing him even though he was criminally insane and dangerous. That reads more into the questions than any reasonably alert juror would read into them. The district attorney did not imply in any manner that the defendant would be set loose on the streets by the action of the jury. On the contrary, the cross-examination was aimed at showing that the defendant had a motive to malinger and if found insane would probably do anything he could to prove that he had regained his sanity in order to be released and be “on the streets.”

Defendant's contention that the prosecutor committed misconduct in examining one of the doctors as to the security at Atascadero is without basis. The district attorney indeed sought to challenge the doctor's opinion that the defendant should be committed to a secure setting such as Atascadero but the defendant objected and the objection was sustained.

The district attorney's comments that if the jury believed that the defendant did not know his conduct was wrong “then he should be turned loose” was said in the context of the defendant being guilty or not guilty by reason of insanity and nothing else. This was the interpretation put on the comment by the trial court and we accept that interpretation. The court made clear to the jury that persons found legally insane may spend a lifetime in the hospital and are not readily released into society. We note that the trial court offered to admonish the jury relative to the “true effect” of a finding of insanity which would have cured any misapprehension. Defense counsel rejected this offer for tactical reasons. Defendant is hardly in a position to complain.

Next, the defendant complains because a doctor was cross-examined about the defendant's involvement in some previous robberies. These facts were relevant and material to the prosecution's theory that the defendant was malingering mental illness, i. e., that a year before he had been capable of carrying out a rather sophisticated life of crime and was attempting to show mental illness only after being caught.

So, too, with the cross-examination of a doctor in regard to the version of the crime given by Bryant and Robinson. This became material in examining the doctor as to the reasons for his opinion. Under any circumstances, it was hard to see just where the defendant would be harmed by this since his guilt had already been adjudicated.

As to any belated complaints concerning which no objections were made, timely objection and admonition would have cured the harm, if any. As to any valid objections which were made, the trial court responded promptly and properly. The defendant suffered no miscarriage of justice because of any alleged prosecutorial misconduct.

MISCELLANEOUS CONTENTIONS

(A) Rejection of a so-called Guzman instruction. (People v. Guzman, 47 Cal.App.3d 380, 121 Cal.Rptr. 69.)

The court gave CALJIC 2.20 and 2.91. The Guzman instruction became redundant.

(B) Alleged abuse of discretion in denying a motion for continuance.

There was no abuse of discretion. The defendant went on a last minute fishing expedition for witnesses in the trial of a case that had been pending for a year.

(C) Testimony of Judge Bernstein.

Judge Bernstein was called as a witness to testify that she observed nothing out of the ordinary about defendant's testimony during a trial in her court in which he testified. Defendant contends that her testimony should have been excluded because his attorney was not notified prior to his removal to testify in that case. Her testimony had nothing to do with any alleged violation of an attorney-client relationship.

(D) The special circumstances allegation.

Basically, the facts set forth above were presented to the grand jury. They suffice for the grand jury indictment alleging special circumstances.

(E) Exclusion of jurors.

The jurors excused unequivocally indicated that under no circumstances would they impose the death penalty. The defendant's further contention that the exclusion of jurors opposed to capital punishment results in a guilt-oriented jury has been rejected in People v. Thornton, 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267 (disapproved on another point in People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1).

(F) Failure to allege robbery as a separate crime.

This is technically true but not prejudicial since the indictment properly notified the defendant he had to defend himself against the special circumstances of a premeditated killing committed during the commission of a robbery. (People v. Velasquez, supra, 26 Cal.3d 425, 434, fn. 6, 162 Cal.Rptr. 306, 606 P.2d 341.)

(G) Lack of instruction on use of confession for impeachment.

If the defendant wanted such an instruction, he should have asked for it. (Evidence Code s 355; People v. Nudd, supra, 12 Cal.3d 204, 209, 115 Cal.Rptr. 372, 524 P.2d 844.)

CONCLUSION

The defendant received a fair trial. The evidence is overwhelming that he brutally murdered an old man who probably did not have too many years left, but was entitled to whatever reasonable life expectancy a person of his age might expect. The defendant was afforded every possible protection of his rights during the prolonged trial litigation which covered the better part of a year. His trial counsel afforded him outstanding representation. The trial judge meticulously protected each and every statutory and constitutional right of the defendant and zealously protected him every time the district attorney approached unacceptable limits of prosecutorial fervor. The State Public Defender has, in his usual efficient and thorough manner, gone through this record meticulously and has filed extensive briefs exploring and arguing every possible arguable issue which could be presented. The defendant finds himself where he is not by reason of any breakdown in the judicial system but because of his cold blooded murder of Mr. Liberator in the perpetration of that which could never have been more than a two-bit robbery.

Judgment affirmed.

FOOTNOTES

1.  The irony of this whole discussion is that it could only take place in California. The two cases which make this an issue are People v. Disbrow, supra, and People v. Pettingill, supra, which represent made-in-California refinements of Miranda not applicable elsewhere. (See Harris v. New York, supra, versus People v. Disbrow, supra ; and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, versus People v. Pettingill, supra.

2.  In an earlier era when a death sentence was more meaningful than it has been in recent years, it was not at all uncommon for professional robbers to use unloaded guns. As they were wont to explain, five to life for armed robbery was no fun but it was infinitely more desirable than a visit to the little green room should a loaded gun go off and kill someone in the perpetration of a robbery. Carrying a loaded gun in an armed robbery is obviously the first step toward a murder.

GARDNER, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.