PEOPLE v. NELSON (1984)

The main issue on this appeal is whether the trial court erred in refusing to strike the direct testimony of an accomplice where the accomplice invoked the Fifth Amendment during his direct testimony and refused to testify thereafter.   We hold that the trial court did err but that in this instance the error was harmless beyond a reasonable doubt.

Facts and Proceedings Below

Defendant Spencer Nelson appeals from the judgment of the trial court whereby he was convicted of first degree murder (Pen.Code, § 187;  count I) with special circumstances (Pen.Code, § 190.2, subd. (a)(17)), robbery (Pen.Code, § 211;  count II), rape (Pen.Code, §§ 261.2, 261.3;  count III) and kidnaping for robbery (Pen.Code, § 209, subd. (b);  count IV) and was sentenced to life imprisonment without possibility of parole under count I.   The terms of imprisonment under counts II and III were stayed and the prison term under count IV was ordered to run consecutively to the sentence in count I.

On December 17, 1980, the nude body of Melanie U. was found face down on the ground in Lopez Canyon.   The evidence, viewed in a light favoring the judgment (People v. Teale (1969) 70 Cal.2d 497, 502, 75 Cal.Rptr. 172, 450 P.2d 564), showed that Melanie's skull had been crushed and was broken into multiple fragments by a blunt force applied to the head.   The coroner testified that at least five blows had been administered to the back of Miss U's head and at least an additional five blows to the side of her head, with her right ear being totally destroyed.   The victim had been raped before her murder and there was evidence of saliva being found in the victim's vagina.   Additionally, there were abrasions on her arms, thighs and lower legs.

Shortly after the murder, three men were arrested:  the defendant, Louis Morgan, and Norman Willis.   At the preliminary hearing, both Morgan and Willis testified.   Their testimony implicated the defendant as the leader in the violent episode and defendant was bound over for trial.

At trial, the People's first witness was Morgan.   Morgan had previously signed an agreement with the District Attorney's office to testify against the defendant in return for a plea to first degree murder and rape.   In particular, this agreement, which was entered in evidence as People's Exhibit 1, stated that if the Morgan was able to perform as represented he would be allowed to plead guilty to count I, first degree murder, punishable by imprisonment in state prison for life with the possibility of parole, and count III, rape, punishable by a concurrent sentence of one-third of the mid-term of six years in state prison.   The agreement further stated that if Morgan was unable to perform the terms of the agreement, which required him to tell the truth, the agreement would be terminated and he would be required to stand trial on the charges then pending.

On direct examination, Morgan testified that between 8 p.m. and 10 p.m. on the evening of December 15, 1980, he and Willis were sitting together in Morgan's front yard on Paxton Street in Pacoima and that during that time a guy walked up and asked for Morgan's sister.   Morgan said he told the guy that his sister was not home and that the guy then sat down and started talking with Willis and him about the various crimes they had all been in jail for.   He further stated that he had seen the defendant around his neighborhood about twice.   When asked whether “this guy” was the defendant, Morgan stated that it was someone who looked like the defendant but that he was not sure if it was the defendant.

At this point, the prosecutor read back to Morgan portions of Morgan's testimony from the preliminary hearing transcript in order to impeach him as, in that testimony, Morgan had positively identified defendant as the third person with him and Willis on the night of the murder.   In response to each portion of testimony read, Morgan conceded that he had given the testimony but continued to respond that he was not sure if defendant was with him on the night of the murder.¹

The prosecutor then asked Morgan whether he had signed an agreement to turn state's evidence and testify against defendant in return for a plea to first degree murder and rape.   Morgan replied that he had signed such an agreement, that he knew what he was signing and that he knew what case he would be testifying in.   The prosecutor read additional portions of Morgan's preliminary testimony to him as prior consistent statements offered for the truth of the matter asserted therein.   Morgan stated that he had given this testimony.

Shortly thereafter, the prosecutor stated to the court that it would be his recommendation to his superiors that the plea bargain arrangement with Morgan be declared null and void because Morgan had failed to tell the truth and had not, therefore, lived up to the terms of the plea bargain arrangement.   The prosecutor indicated that Morgan would most likely be prosecuted for all charges in force prior to the agreement.   On the advice of counsel, Morgan then invoked the Fifth Amendment.

At this point, the defendant moved for a mistrial or in the alternative that the court strike Morgan's testimony on direct.   The court stated that defendant could question Morgan all he wanted.   Defense counsel replied, “How can I question him.   He's going to take the Fifth Amendment.”   Both motions were denied and Morgan was declared unavailable by the court.   Before Morgan was excused as a witness, defense counsel asked Morgan if he would testify if called as a witness for the defense.   Morgan replied that he would invoke the Fifth Amendment.

The prosecutor then completed his direct examination by reading to the jury additional portions of Morgan's preliminary hearing testimony on direct.   Thereafter, defense counsel read to the jury Morgan's preliminary hearing testimony on cross-examination.   The reading of this cross-examination consumed 98 pages in the reporter's transcript.

The sequence of events on the night in question, as related by Morgan in those portions of his preliminary hearing testimony that were read to the jury after he was declared legally unavailable, is as follows:

On the evening of December 15, 1980, Morgan and Willis were together at Morgan's house.   The pair were good friends and had known each other for about five years.   During that time Spencer Nelson, the defendant, showed up.   Morgan had known defendant for about two weeks prior to that evening.   One of the three suggested doing a robbery and Morgan got a gun from under his house.   The three then walked to the intersection of Foothill and Arroyo where Morgan and Willis hid behind a brick wall while defendant pressed the button at the intersection to make the light turn red.   The light did turn red and Melanie U. stopped her Chevy Luv truck at the intersection.²  Defendant walked out to the truck, broke the window and got in.

The truck had a hard camper shell with a door in the back that swung open.   Willis got in the front on the passenger side with Melanie between him and defendant, and Morgan jumped into the back after defendant had pulled the truck down the block.   Melanie was crying during this.   Defendant drove the truck to Eustes Street where he got out and took Melanie, who was still dressed in her nurse's uniform, to the back of the truck.   Defendant talked with Morgan and Willis for a moment and got into the back of the truck with Melanie.   Morgan stated that he did not see what was going on inside the truck but that he heard a lot of bumping.   A short time later, defendant got out of the truck and Morgan saw Melanie was nude and was crying.   Willis then got into the back with Melanie.   Morgan stated that after that he had sex with the victim.

After defendant got out of the back of the truck, someone came by in a car and called out his name.   Defendant became concerned that someone had recognized him and drove off from Eustes Street with Melanie still in the back.   Defendant did all the driving from the time they first took Melanie until they finally disposed of the truck.   Melanie's purse was in the front of the truck and at some point defendant took $20 from her purse.

Defendant stopped the truck near a trail in Lopez Canyon and had a conversation with Morgan and Willis about tying Melanie up.   Defendant, Morgan and Melanie then walked up the pathway.   Willis came up the pathway later but not all the way.   Melanie was still nude and she may or may not have been wearing shoes, according to Morgan.   At some point in walking up the path, defendant told Morgan that they would have to kill her because defendant's name had been called earlier in the evening.   Morgan said that he told defendant to just tie her up and leave her by the bush and defendant agreed to this.   When Morgan turned around to go back down the pathway and get her clothes to tie her up with, he heard a thump.   He turned around and saw Melanie lying face down on the ground.   Morgan then saw defendant hit Melanie again with a rock at least five or six times.   Defendant turned Melanie over and started hitting her again with the rock.   After defendant stopped, he wiped his hands and said it was a messy job.

Defendant carried the rock back to the truck and it was placed in the rear.   He drove out of the canyon, stopping to buy some sodas and cigarettes at a 7–11 with Melanie's money.   After that, Melanie's purse and blanket were thrown out in a drain and in a trash bin.

Defendant drove to Sproul Street where he placed the rock on the street across from Velma Ford's house.   He then drove the three to downtown Los Angeles where they planned to pull a robbery.   Not finding anyone to rob, the three drove back to the Valley where defendant stopped for gas and drove the truck behind the Fillmore Street School.   Defendant placed paper under the seats and in the gas tank and set the paper on fire.   He and Morgan then walked home, Willis having been dropped off before the truck was burned.

The next day Morgan went over to Velma Ford's house and told her he had a secret to share with her.   He told her what happened to Melanie and mentioned the name Spencer Nelson to her.   He took her out to the street and showed her the rock which had been used to kill Melanie, covering it with leaves afterwards.

The next witness at trial was Norman Willis.   After being asked his name and address on direct examination, Willis also took the Fifth Amendment and was declared legally unavailable.   His testimony on direct, cross-examination, redirect and re-cross at the preliminary hearing were then read to the jury, the cross-examination alone consuming 137 pages.

Willis' testimony at the preliminary hearing was substantially the same as Morgan's except for a few variations as to who did what between the two of them.   For example, Willis claims that it was Morgan who smashed Melanie's car window while the defendant pointed a gun at Melanie.   Willis also claims not to have had sex with Melanie or to have been with defendant and Morgan when Melanie was taken up the pathway and hit with the rock.

Willis did, however, corroborate the important points testified to by Morgan, i.e., that defendant did the driving of the truck;  that defendant raped Melanie;  that someone called out defendant's name;  that defendant drove up into the canyon;  that defendant walked back to the truck carrying a rock;  that defendant placed the rock across the street from Velma Ford's house;  that Melanie's belongings were thrown in a sewer;  that defendant spent money taken from Melanie's purse;  and that defendant drove to downtown Los Angeles to look for someone else to rob.

The remaining witnesses called by the People reinforced the testimony given by Morgan and Willis.   For example, Dr. Bucklin, the coroner who performed the autopsy on Melanie, testified that the weight and size of the rock reputed to be the murder weapon were consistent with the type of injuries observed on the victim.   Velma Ford testified that Morgan had told her that he was involved in the murder/robbery with Spencer Nelson, and had taken her out to the street outside her house and had shown her the rock used to kill Melanie U.   Ricky Miller testified that about 2 a.m. in the middle of December 1980, he saw Spencer Nelson pull up in a Chevy Luv truck and drop Willis off at his house.   Francis Christensen testified that he found an address book and crescent wrench, identified as belonging to Melanie U., in a sewer on the side of Lopez Canyon Road.

The preliminary hearing testimony of Paul Wood, who had died prior to trial, was read to the jury.   His testimony was that at 11 p.m., December 15, 1980, he was outside his apartment located at the corner of Foothill and Arroyo and saw two men on the opposite corner.   He saw one of the persons operating the pedestrian signal light and the other leaning against the side of a wall.   He saw a small pick-up type truck stop for the red light and saw the two figures converge on the truck and force themselves in.   He heard noises and a woman's screams coming from the truck.   Other pertinent testimony will be mentioned, where applicable, in the discussion to follow.

This appeal raises the following issues:

1. Did the trial court's failure to strike Morgan's testimony on direct, after he had invoked the Fifth Amendment and refused to testify further, violate defendant's right to confrontation under both the United States and California Constitutions and mandate a reversal of the judgment?

a. Did Morgan have a Fifth Amendment right to refuse to testify at defendant's trial?

b. Was Morgan improperly coerced into exercising his privilege against self-incrimination?

2. Is defendant's sentence consistent with the holding in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862?

I

The Trial Court Erred in Failing to Strike Morgan's Direct Testimony But, Under the Circumstances of This Case, the Error Was Harmless Beyond a Reasonable Doubt

Defendant initially contends that Morgan did not have a Fifth Amendment privilege to refuse to testify at defendant's trial.   We disagree.

Morgan, an accomplice in the crimes involving Melanie U., had been charged with first degree murder (Pen.Code, § 187;  count I), robbery (Pen.Code, § 211;  count II), rape (Pen.Code, §§ 261.2, 261.3;  count III) and kidnaping for robbery (Pen.Code, § 209, subd. (b);  count IV) and had pled not guilty to all four counts.   On July 1, 1981, approximately one year before defendant's trial, Morgan entered into an agreement with the District Attorney's office whereby he would be allowed to plead guilty to first degree murder and rape if he testified against the defendant.   The charges under the remaining counts were to be dismissed upon Morgan's compliance with the terms of the plea bargain agreement.   This agreement, set forth in a two-page document, clearly stated:

“This agreement extracts from the defendant an obligation to do nothing other than to reveal the truth.   At all times he shall tell the truth, both during the investigation and on the stand, should he be called as a witness.   He shall tell the truth, no matter who asks the questions—the prosecutor, the judge, or the defense attorney.”

Subsequently, on September 14, 1981, Morgan entered a plea of guilty to counts I and III.   The disposition of counts II and IV and the use allegations under counts I and III were to remain until after defendant's trial.   Morgan waived time for sentencing under counts I and III and, ultimately, was not sentenced under these counts until June 30, 1983, well after the date of defendant's trial.

 Morgan testified on direct for a limited period of time at defendant's trial.   He invoked the Fifth Amendment after the prosecutor informed the court that Morgan had violated the plea bargain agreement by his failure to tell the truth and would most likely be prosecuted for all charges in force prior to the agreement.   Morgan's refusal to testify thereafter was a proper exercise of his Fifth Amendment privilege for the reasons which follow.

First, Morgan had not yet been tried or convicted under counts II and IV and since the prosecutor believed the agreement to be violated, there was a possibility that further responses might incriminate him under these counts.   As stated in People v. Maxwell (1979) 94 Cal.App.3d 562, 156 Cal.Rptr. 630, where the court ruled on a claim of privilege:

“ ‘A witness need not actually prove the existence of an incriminatory hazard as that would surrender the very protection which the privilege against self-incrimination was designed to guarantee.   Instead, the privilege forbids compelled disclosures which could serve as a “link in a chain” of evidence tending to establish guilt of a criminal offense;  in ruling upon a claim of privilege, the trial court must find that it clearly appears from a consideration of all the circumstances in the case that an answer to the challenged question cannot possibly have a tendency to incriminate the witness.’ ”  (Italics added.)  (Id., at p. 570, 156 Cal.Rptr. 630.)

Here, the “incriminatory hazard” is clear.   Since Morgan was an accomplice, his responses to any questions asked by the prosecutor might have implicated him because all relevant questions would concern the activities of him, defendant and Willis on the night of the murder.

 It is the very possibility of an incriminating response which is a court's main focus in ruling on a claim of privilege.  (People v. Maxwell, supra, 94 Cal.App.3d at p. 570, 156 Cal.Rptr. 630.)   For instance, in People v. Lopez (1980) 110 Cal.App.3d 1010, 1021, 168 Cal.Rptr. 378 (disapproved on other grounds in People v. Gibbs (1983) 145 Cal.App.3d 794, 798, 193 Cal.Rptr. 681), the court was called upon to determine if an accomplice, who had already been convicted, was properly ruled unavailable.   On this issue, the court noted that the accomplice had appealed his conviction and stated that since that appeal might lead to a reversal and retrial, the accomplice was entitled to assert his Fifth Amendment privilege because any incriminating responses might be later used against him as an admission.

In view of the prosecutor's statement that the agreement was violated and that he would recommend prosecuting Morgan, we cannot say that Morgan's responses could not possibly have a tendency to incriminate him.³  Morgan was properly allowed to invoke the Fifth Amendment since his answers to the prosecutor's questions might possibly have furnished “ ‘a link in the chain by which a conviction might hang.’ ”  (People v. Lawrence (1959) 168 Cal.App.2d 510, 516, 336 P.2d 189.)

Secondly, pursuant to People v. Kizzee (1979) 94 Cal.App.3d 927, 156 Cal.Rptr. 784, Morgan had a valid claim of privilege, even as to the counts to which he had already pled guilty because sentencing on these counts had not yet occurred.

 In Kizzee, an accomplice to robbery wrote a note to the trial judge stating that she would like to testify for defendant but could not because doing so would be contrary to the plea bargain she had accepted.   Later, when sworn at trial, outside the presence of the jury, she stated that if called as a witness she would invoke the Fifth Amendment.   Addressing this claim of privilege where the accomplice to robbery had pled guilty but had not been sentenced, the court noted that the federal rules in this area were unclear ⁴ and the California state authorities were not dispositive.   Finding a New Jersey case to be persuasive (State v. Tyson (1964) 43 N.J. 411, 204 A.2d 864, 866–867, cert. den. Tyson v. New Jersey (1965) 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279), the Kizzee court stated:

“[A]n accused does not lose his privilege against self-incrimination until he has been sentenced chiefly, in the court's view, because until sentence has been pronounced a defendant has a right to move to withdraw the plea ․  The wisdom of such a rule is particularly evident in a case such as the present one where the plea was pursuant to a bargain which, apparently, left several matters to the trial court's discretion․  [Fn. omitted.]”  (94 Cal.App.3d at pp. 938–939, 156 Cal.Rptr. 784.)

Although the court reversed due to the coercive nature of the plea bargain agreement, we find the holding in Kizzee, that an accused who pleads guilty does not lose his Fifth Amendment privilege until he has been sentenced, to be applicable here.

 Defendant also claims that the trial court erred in allowing Morgan to assert his Fifth Amendment privilege as to the entire proceedings, instead of on a question-by-question basis.   This issue was addressed in People v. Cornejo (1979) 92 Cal.App.3d 637, 657–659, 155 Cal.Rptr. 238, where an informant was excused from testifying after taking the Fifth Amendment.   The Cornejo court noted that the trial court inquired of the informant and determined that he would assert the privilege as to each question asked.   Here, Morgan's attorney stated that he would advise his client to assert his Fifth Amendment privilege and refuse to answer any further questions asked during the trial.   And, when asked by defense counsel if he would testify for the defendant, Morgan replied that he would invoke his Fifth Amendment privilege.   Although the trial court could have made a more thorough inquiry, it is clear that Morgan would have invoked his Fifth Amendment privilege as to each question asked and that requiring him to “invoke the privilege as to each would create a meaningless ritual.”  (Id., at p. 659, 155 Cal.Rptr. 238.)

Defendant further contends that Morgan was improperly coerced into exercising his privilege against self-incrimination, thus preventing him from testifying for defendant.   Although it is not clear, we gather that it is defendant's contention that this coercion occurred through the admonition of the judge, the conduct of the prosecutor and the terms of the plea bargain agreement.   This argument lacks merit as there is no evidence in the record showing any such coercion.

With regard to the judge's admonition, to be discussed below, the instant case is factually different from Webb v. Texas (1972) 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330, cited by defendant.   In Webb, the Supreme Court was called upon to determine whether the lower court's admonition of a defense witness prior to testifying, where the witness then chose not to testify, deprived the defendant of due process of law under the Fourteenth Amendment.   The court found that the trial judge had implied that he expected the witness to lie and had threatened the witness with the consequences of committing perjury.   The court concluded that “the judge's threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.”  (Id., at p. 98, 93 S.Ct. at p. 353.)

 Here, the witness did take the stand and proceeded to testify for a limited period of time on direct.   No mention was made of the plea bargain agreement by either the prosecutor or the judge until after the prosecutor had impeached Morgan with his preliminary hearing testimony.   Then the prosecutor asked Morgan several questions to determine whether he had fully understood the agreement when he signed it.   Morgan replied that he had and the prosecutor subsequently read from the preliminary hearing transcript several portions of that testimony as prior consistent statements.   After the prosecutor had proceeded in this manner for some time, the judge asked Morgan if he understood that he was required to tell the truth under the plea bargain agreement and if he did not, he could be subjected to prosecution for perjury.   By this admonition, the judge did not threaten Morgan or imply that his testimony was untrue.   Instructive are the judge's own words:  “I just wanted to know if he understood what the terms of the agreement were.”

Likewise, the conduct of the prosecutor in warning Morgan that the agreement had been violated did not constitute coercion.   This action was proper to safeguard Morgan's right against self-incrimination.

 Defendant claims that the plea bargain agreement required Morgan's testimony to be satisfactory to the court in order for Morgan to gain his part of the bargain and that this situation is intolerable.   As quoted above, the terms of the plea bargain agreement required Morgan only to tell the truth.   He was not required to testify in any certain manner.   In sum, we find no coercion on the part of the judge or the prosecutor or in the terms of the agreement.   We note, also, that Morgan made his decision to invoke the Fifth Amendment pursuant to the advice of his separate counsel.

 However, the trial court did err in not striking Morgan's direct testimony because defendant was not given the opportunity to cross-examine Morgan, in violation of his constitutional right of confrontation, where Morgan invoked his Fifth Amendment privilege during the direct examination and refused to testify further.

In California v. Green (1970) 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489, the United States Supreme Court stated:  “[I]t is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.”   The court then discussed the historical origins of the Confrontation Clause, noting that:

“ ‘The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits ․ being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ ”  (Id., at pp. 157–158, 90 S.Ct. at pp. 1934–1935.)

Here, Morgan invoked the Fifth Amendment during his direct examination, after he had recanted his former identification of the defendant.   It was important for the defendant at this point to be able to cross-examine Morgan so that the jury might have an opportunity to observe Morgan and determine whether or not he was telling the truth.

“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.”  (Italics in original.)  (5 Wigmore on Evidence (Chadbourn rev. 1974) § 1395, p. 150.)   California has long recognized the significance of this important right and the California Constitution was amended in 1974 to provide that the “defendant in a criminal cause has the right ․ to be confronted with the witnesses against the defendant.”  (Cal. Const., art. 1, § 15, cl. 2;  see also People v. Contreras (1976) 57 Cal.App.3d 816, 818, 129 Cal.Rptr. 397 [court concluded that the 1974 Amend. to Cal. Const. was declaratory of a prior Cal. constitutional right previously incorporated in the due process guarantee of former § 13 of art. 1, and a statutory right stated in Pen.Code, § 686].)

The right to confrontation has been held to have been violated in a variety of circumstances.   See, for example, Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 670–671, 172 Cal.Rptr. 850, where the defendant who was able to cross-examine the prosecuting child witness was denied his right to confrontation because he was seated, at the court's direction, so that he could hear but not see the witness;  and People v. Archerd (1970) 3 Cal.3d 615, 638, 91 Cal.Rptr. 397, 477 P.2d 421, where the trial judge's action in consulting experts outside the court gave no opportunity to counsel to examine or cross-examine these experts although the error was found not to be prejudicial.   Here, defendant was not able to cross-examine an accomplice after that accomplice testified on direct for approximately one-half hour, and we find that defendant's rights to confrontation under the United States and California Constitutions were violated.

Witkin, in California Evidence (2d ed. 1984 Supp.), section 1199, page 749, states that “[t]he appropriate remedy for a defendant when a prosecution witness refuses to respond to further cross-examination is a motion to strike the entire testimony.”

Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 162 Cal.Rptr. 389, is illustrative.   There, a witness, who was arguably an accessory, testified on direct at the preliminary hearing only as to facts leading up to the shooting.   When the defense attorney attempted to cross-examine the witness beyond this point, the witness took the Fifth Amendment.   Upon his arraignment, the defendant sought relief by a writ of prohibition to set aside the information on the grounds that he had been denied the right to cross-examine his principal accuser.   The court held that the defendant had been denied his right to cross-examine witnesses and that the magistrate erred in denying Gallaher's motion to strike the direct examination.   In discussing Gallaher's motion to strike, the court stated:  “We observe further that when, due to any reason for which he is not accountable, one criminally accused is denied his right of cross-examination, ‘ “he is entitled to have the direct testimony stricken from the record.” ’ ”  (Id., at p. 673, 162 Cal.Rptr. 389, quoting from People v. Manchetti (1946) 29 Cal.2d 452, 461, 175 P.2d 533.)  “If a witness refuses to be cross-examined or to answer proper questions on cross-examination the witness' direct testimony may be stricken.”  (People v. Cornejo, supra, 92 Cal.App.3d at p. 655, 155 Cal.Rptr. 238;  People v. Barthel (1965) 231 Cal.App.2d 827, 834, 42 Cal.Rptr. 290;  People v. McGowan (1926) 80 Cal.App. 293, 297–298, 251 P. 643.)   However, depending on the circumstances of the case, the refusal or evasion of answers to one or more questions need not lead to this result.  (People v. Robinson (1961) 196 Cal.App.2d 384, 390, 16 Cal.Rptr. 484.)

Here, Morgan refused to answer any questions on cross-examination, not just one or two, and defendant did make a motion to strike.   Under the facts of this case, the trial court erred in denying defendant's motion to strike Morgan's testimony on direct examination.   We, therefore, must decide whether this error requires reversal of the judgment.

In Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the United States Supreme Court stated that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”  (Id., at p. 24, 87 S.Ct. at p. 828.)   There, the prosecutor's comments on the failure of defendants to take the stand permeated throughout the entire trial and were continuously impressed upon the jury, leading the court to conclude that the error was not harmless.

 Here, Morgan's testimony on direct constituted only a small portion of the testimony at trial.   After the trial court declared Morgan unavailable, his preliminary hearing testimony, both on direct and on cross-examination, was read to the jury.   As the previously recited facts show, this testimony implicated defendant directly as the motivating force in the kidnaping, rape, robbery and murder of Melanie U.   This use of former testimony satisfied the constitutional right of confrontation since the defendant had an opportunity to examine Morgan at the preliminary hearing with the same interest and motive as he had at trial.  (People v. Maxwell, supra, 94 Cal.App.3d at p. 571, 156 Cal.Rptr. 630.)   Not only did defendant have the opportunity to cross-examine Morgan but he also made full use of it.   The cross-examination was extensive, consuming 98 pages in the trial transcript.   Additionally, defendant had the same attorney both at the preliminary hearing and at trial.   Morgan was not the sole witness to testify against defendant.   After Willis was declared unavailable, his preliminary hearing testimony, both on direct and on cross-examination, was read to the jury and this testimony was substantially the same as Morgan's.   Additionally, the People called 13 other witnesses whose testimony as a whole substantiated the chain of events testified to by Morgan.

 Although it was error not to strike Morgan's direct testimony, “such testimony was, at best, cumulative.”  (People v. Woodberry (1970) 10 Cal.App.3d 695, 710, 89 Cal.Rptr. 330.)   The testimony was not prejudicial since, if believed, it would tend to exonerate the defendant.⁵  For these reasons, this court concludes that the error of the trial court in failing to strike Morgan's limited testimony on direct was harmless beyond a reasonable doubt.   As in People v. Fortman (1970) 4 Cal.App.3d 495, 84 Cal.Rptr. 458, cert. den. Fortman v. California (1970) 400 U.S. 880, 91 S.Ct. 124, 27 L.Ed.2d 118, if the witness' testimony on direct had been stricken from the record, there would not be, in our minds, a possibility beyond a reasonable doubt that the verdict would be otherwise.

II

The Court's Failure to Instruct as Mandated by Carlos v. Superior CourtWas Harmless Beyond a Reasonable Doubt

Defendant stands convicted of murder in the first degree with special circumstances under Penal Code section 190.2, subdivision (a)(17).   Following the jury verdict, defendant was sentenced to life in prison without the possibility of parole and asks us to consider the application of Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, to this case.

Recently, the California Supreme Court in Carlos held that there must be a specific finding of intent to kill to support a conviction of felony murder with special circumstances under Penal Code section 190.2, subdivision (a)(17).   In construing the 1978 death penalty initiative, the Carlos court stated:

“The wording of the initiative, its purpose as explained to the voters, the principle that penal statutes should be construed to give the defendant the benefit of reasonable doubt, and the companion principle that statutes should be construed to avoid substantial questions of their constitutional validity—all unite to support the conclusion that the felony murder special circumstance of the 1978 initiative requires proof that the defendant intended to kill.   Specifically, we construe the word ‘intentionally’ in subdivision (b) of section 190.2 to apply to all defendants—actual killers and accomplices alike—and to require an intent to kill before a defendant is subject to a special circumstance finding under paragraph 17 of that section.”  (35 Cal.3d at p. 153, 197 Cal.Rptr. 79, 672 P.2d 862.)

The court, however, stated that it did not decide whether the decision would apply retroactively to cases already tried.   Neither did the court determine what test of prejudice should apply.

Several subsequent cases have shed light on these unanswered questions.   The first such case was People v. Denney (1984) 152 Cal.App.3d 530, 199 Cal.Rptr. 623.   In determining whether the rule in Carlos should be applied retroactively, the court stated, quoting from Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36, 196 Cal.Rptr. 704, 672 P.2d 110:

“In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law.   If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises.”  (152 Cal.App.3d at p. 537, 199 Cal.Rptr. 623.)

Ultimately, the court in Denney determined that no new rule of law was created by the Carlos decision, nor did the case represent a “clear break with the past” as set forth in Desist v. United States (1969) 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248.   We agree with this determination.

In Carlos, the court examined the language of the initiative and the manner in which it was presented to the voters and made findings in support of an intent to kill requirement based on an application of the principles of statutory construction.   The Carlos decision was the first case to address the question of an intent to kill requirement in the death penalty initiative.   Thus, the absence of an intent to kill requirement had not been previously sanctioned and no prior precedent was overruled by the decision.

Following shortly after Denney, supra, this same issue of retroactivity was addressed by the appellate court in People v. Darwiche (1984) 152 Cal.App.3d 630, 638, 199 Cal.Rptr. 806, and People v. Beheler (1984) 153 Cal.App.3d 242, 252, 200 Cal.Rptr. 195.   Both cases held that Carlos should be applied retroactively.   We concur with the previously stated authorities that the decision of Carlos applies retroactively and proceed now to discuss the effects of that case on our own.

In the case at bench, the jury was not instructed on the intent requirement mandated by Carlos.   For the reasons which follow, we hold that this omission constituted harmless error under either the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705) or the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243).⁶

 In order to have found the defendant guilty of first degree murder, the jury must have either found defendant to be the principal or an aider and abettor.   Since this determination is not set forth in the verdict, we must address each alternative.

If the jury determined that defendant was the actual killer, then any error due to the failure to instruct the jury is harmless beyond a reasonable doubt under the higher Chapman standard.

The only evidence presented at trial concerning the nature of the killing was that the killing was intentional.   Contrast this with People v. Denney, supra, 152 Cal.App.3d at page 536, 199 Cal.Rptr. 623, where the court stated that “[b]y all accounts, the shooting was accidental.”

Here, the coroner testified that Melanie had at least five distinct injuries on the left side of her head and at least another five on the right side.   The coroner further testified that the wound on the back of her head was definitely caused by a blunt force applied to the head and could not have been caused by a fall.   Based on the evidence in this case that Melanie was taken up a secluded canyon trail at night after she had been sexually assaulted and robbed, and based further on the medical evidence that Melanie's injuries were not caused by a fall, the jury could have determined that defendant intended to kill the victim.

Similarly, in People v. Darwiche, supra, 152 Cal.App.3d at page 638, 199 Cal.Rptr. 806, the court examined the evidence to determine that the jury could have concluded that the defendant intended to kill Lawson.   The evidence material to this issue was that the defendant had met the victim on three earlier occasions, noticed he wore a lot of jewelry and then changed his plans in order to be with the victim on the night of the murder.   A criminalist corroborated an eyewitness' testimony that the victim was hit over the head with a pistol.   After the murder, the defendant moved the victim from the bloodied driver's seat and drove the car away.   Although the court applied the easier Watson standard, the court viewed the facts, including the fact that defendant arranged for a week's absence from work the day following the killing, to determine that it was not reasonably probable the jury would have reached a different verdict if it had been instructed pursuant to Carlos.

 On the other hand, if the jury in this case found that defendant was an aider and abettor rather than the actual killer, then the jury was instructed, with respect to proving a special circumstance, that it must prove beyond a reasonable doubt that defendant intentionally aided, abetted or assisted in the commission of the murder.⁷

Since the jury was instructed that an aider and abettor must intentionally aid in the killing, we hold that the court's error in failing to instruct on the intent to kill mandated by Carlos was harmless beyond a reasonable doubt.

The judgment is affirmed.

FOOTNOTES

1.   The following colloquy from the limited direct examination of Morgan typifies his responses:“Q. [By Plaintiff's Counsel]:  And when you were at the preliminary hearing, was asked all those questions, many more than the ones I have related, you always knew who the questioner was referring to when he said Spencer Nelson;  right?A. Yes.Q. He was referring to the man seated at the counsel table as the defendant in that case;  right?A. Yes.Q. And that was the person that you knew for a couple of weeks prior to December 15th, 1980;  right?A. Yes.Q. And, that was the person that you knew that lived on Adelphia Street;  right?A. Yes.Q. Are you telling us now that that person who went along with you and Norman Willis to Foothill and Arroyo and fooled with the traffic light, you don't know if it was Spencer Nelson, this defendant?A. No, I never knew, period, really.  [¶] I knew that Spencer Nelson stayed on the street he stayed on before I even knew him.Q. But you just told us that you didn't know him when you walked up here;  right?A. Right.Q. Before December 15th;  is that correct?A. I had seen him before.   I had never knew him, to know him, talk to him.Q. Did you say you knew him for two weeks prior to December 15th, 1980?A. I had been seeing him.Q. Did the man mention his name when he came in and you started talking and went somewhere?A. I can't remember.Q. How many hours did you spend with this man that night?A. We was sitting in my front yard about an hour.   I don't know.Q. You did something with him, some dirty work;  right?A. Yes.Q. In fact, the next day you went and told a friend, did you not, what you did?A. Yes.Q. And that was Velma Ford;  right?A. Yes.Q. And you even told Velma Ford that you participated—A.  Yes, I did that—Q. —in a robbery and murder;  right?A. Right.Q. And you also told her that Spencer Nelson was there;  is that correct?A. I don't know if I told her the name.”

2.   Melanie, a nurse, was on her way to Pacoima Memorial Hospital to work the 11 p.m. shift.

3.   Indeed, the prosecutor clearly stated that any prosecution of Morgan would be for murder, not perjury.

4.   In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, which held that a defendant must be fully advised of his constitutional rights before a plea of guilty can be entered, the court stated that “[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.”  (Id., at p. 243, 89 S.Ct. at p. 1712.)   The Kizzee court stated that it is impossible to interpret Boykin as holding that a mere plea, not followed by pronouncement of judgment, constitutes such a waiver.  (94 Cal.App.3d at page 938, fn. 4, 156 Cal.Rptr. 784.)

5.   Defendant also made a motion for a mistrial at the time of making the motion to strike.   The difference between these two motions is, “a motion to strike presupposes error of some sort, whereas the motion for mistrial presupposes error plus incurable prejudice.”  (People v. Woodberry, supra, 10 Cal.App.3d at p. 708, 89 Cal.Rptr. 330.)  “Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.”  (People v. Haskett (1982) 30 Cal.3d 841, 854, 180 Cal.Rptr. 640, 640 P.2d 776.)   The proper motion here was a motion to strike since, as stated above, this testimony itself tended to be favorable, rather than prejudicial, to the defendant.

6.   The only case to specifically determine which standard of prejudice should apply when the jury is not instructed as to the necessary intent to kill is People v. Darwiche, supra, 152 Cal.App.3d 630, 199 Cal.Rptr. 806.   There the court stated that “[b]ecause Carlos did not reach any constitutional issues, the proper test of prejudice to apply is the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243] ․”  (152 Cal.App.3d at p. 638, 199 Cal.Rptr. 806.)   Although we do not determine which standard of prejudice should apply, we question the reasoning of Darwiche, supra, in choosing the Watson standard.The court in Carlos was faced with several problems of constitutional dimension in construing the 1978 initiative.   Specifically, the court stated that “application of the statute as so construed to accomplices who did not intend to kill would in many cases violate the federal cruel and unusual punishment clause.  [Fn. omitted.]”  (35 Cal.3d at p. 148, 197 Cal.Rptr. 79, 672 P.2d 862.)   Further, the court indicated that such a construction might raise problems under the equal protection clause.   It is clear that the court's decision was based in part on a resolution of these constitutional issues.

7.   CALJIC No. 8.80 (modified) provided:“If you find the defendant in this case guilty of murder of the first degree, you must then determine if murder was committed under [one or more of] the special circumstance[s] as defined and set forth in the forms of verdict which you will receive:“A special circumstance must be proved beyond a reasonable doubt.“If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true.“[If the defendant was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to the defendant.]”

THOMPSON, Acting Presiding Justice.

JOHNSON and PICKARD *, JJ., concur.