PEOPLE v. DEARMORE (1984)

Alice Bennett was killed on January 6, 1981.   Appellant was a suspect.   During the investigation of the shooting of Alice Bennett, appellant was given a polygraph test by a sheriff's polygrapher.   The polygrapher indicated that he thought appellant was present at the scene but probably was not the trigger man.   Appellant's parole was violated because of his involvement with this killing and other things.   He served an additional six months.

On September 7, 1981, appellant called his parole agent and wanted to be placed in custody because he feared he was going to be killed.   He met his former parole agent, Charles Dube, and Dube's supervisor, Mr. Griepentrog, at his request and by mutual arrangement at the West Covina police station.   There was no questioning by Dube other than “what's happening.”   At that point he was not in custody.   He told the story of a Seal Beach robbery and shooting which was never verified.   He also gave information that he had killed Alice Bennett and gave extensive details.   There had been no Miranda warning.

Dube contacted the watch commander at the West Covina police station and arranged to have a “statement about a shooting” taken.   There was no other briefing.   He placed a parole hold with the West Covina police station.   Appellant was placed in a lock up, booked and skin searched.   His anal area was visually checked but no probing was done.   No contraband was found.

Detective Whitney of the West Covina police station interviewed appellant at 12:45 a.m. on September 8, 1981, after informing him of his Miranda rights.   Whitney knew nothing about the Alice Bennett case up to that point.   After Whitney was told about the robbery and shooting in Seal Beach, he got up to leave.   Appellant asked him if he wanted to hear about Alice.   This was Detective Whitney's first knowledge of the Alice Bennett shooting.

Appellant then gave a detailed statement concerning the murder and how it occurred.   He drew diagrams.   The officer tried to trip him up on the facts and was corrected.   Appellant did not appear to be under the influence of any narcotics.   He appeared normal in every way.

Shortly before noon of the same day, appellant was interviewed by Officer Frisbie of the Seal Beach Police Department.   Frisbie also informed appellant of his Miranda rights.   There was no mention of the death of Alice Bennett.   Appellant appeared to Sergeant Frisbie to be tired and sniffling on occasion.   He sometimes appeared to stammer a little bit and stare blankly and yawn throughout the interview.   He did not appear to Sergeant Frisbie to be under the influence of any drugs.   Frisbie was not an expert in narcotics.   He did appear to Frisbie to have a short span of concentration.   He would stop in the middle of a sentence and forget what he was talking about.

Later in the afternoon on September 8, he was interviewed by Sheriff Detectives Lee and Salerno.   He was given the Miranda warning and his confession was recorded.   Appellant did not appear to be under the influence of drugs or to be someone recently coming off drugs to these detectives.   The confession to Lee and Salerno was in great detail including a trip to the scene of the shooting and the disposal of the gun.

On September 10, 1981 (two days later), appellant was discovered in county jail with a brown vial which he said he had brought in inserted in his anal cavity.   There were white flecks around his nose and he appeared excited or hyperactive.   It was stipulated that the vial contained one-tenth (1/10110th) gram of cocaine, basically residue.   At this time appellant denied the killing and recanted his confessions.

The trial judge held a hearing under sections 402 and 403 of the Evidence Code and Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, 183 Cal.Rptr. 615.

The court found that the confession given to Parole Agent Dube and his supervisor was admissible as well as the confessions to Whitney, Lee and Salerno.   The judge found there was inadequate foundation under Evidence Code sections 801–804 and 352 for the admissibility of the opinions from the polygraph examination.

CONFESSION TO DUBE

Appellant contends that his confessions were involuntary and inadmissible, and were in violation of his Miranda rights.   There is no merit to this contention.   Although Dube did not advise appellant of his Miranda rights, he did no questioning and the appellant was not in custody at the time of the confession.   He was only concerned with the parole violation at that time.

 Defendant was not in custody even though his statement was given at the West Covina police station where they met at appellant's request.  (Oregon v. Mathiason (1977) 429 U.S. 492, 494–495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714.)   He was not being interrogated by Dube.  (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   Appellant's statements were volunteered.  (People v. Salinas (1982) 131 Cal.App.3d 925, 935, 182 Cal.Rptr. 683.)   Volunteered statements are not barred by the Fifth Amendment.   There is no requirement that police stop a person who enters the police station and states that he wishes to confess to a crime.  (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   Dube was not investigating a new crime.   He was not questioning about parole violations or acting as an agent of the state in the normal course of a peace officer's duties but in the confines of the duties of a parole agent.  (In re Richard T. (1978) 79 Cal.App.3d 382, 144 Cal.Rptr. 856;  People v. Spencer (1967) 66 Cal.2d 158, 57 Cal.Rptr. 163, 424 P.2d 715;  People v. Braeseke (1979) 25 Cal.3d 691, 159 Cal.Rptr. 684, 602 P.2d 384.)

Dube's interview did not taint the confession given Officer Whitney.   He did not indicate to the watch commander or to Officer Whitney what the nature of the statement that he wish taken other than to say it was a statement of a shooting.   Both confessions were admissible.

 The confession to Lee and Salerno was also admissible.   The fact that the appellant was motivated by a desire to be placed in custody to avoid reprisals from other persons did not make any of the three confessions involuntary.  (People v. Conrad (1973) 31 Cal.App.3d 308, 107 Cal.Rptr. 421.)   The trial court's determination of admissibility of the confessions was not erroneous.

 A parolee is not entitled to Miranda warnings every time he is interviewed or questioned by his parole officer concerning his parole.  (In re Richard T., supra, 79 Cal.App.3d 382 at 391, 144 Cal.Rptr. 856.)   If upon every visit or contact with a parole agent the parolee was entitled to a Miranda warning, the relationship between the parole agent and the parolee would be a strained one indeed and the purpose of parole would be materially lessened.   If appellant had been in custody and had been questioned by the parole agent while investigating commission of a new offense, other states have held that the appellant would be entitled to a Miranda warning.  (In re Richard T., supra, 79 Cal.App.3d 382, 391, 144 Cal.Rptr. 856.)

 Appellant contends that the polygraph tests given in January of 1981 are admissible under Proposition 8, “Truth in Evidence” provision.  (A 1982 initiative by the People of the State of California.) ¹

Proposition 8 applies only to proceedings arising out of offenses committed on or after June 9, 1982, the effective date of the initiative.  (People v. Smith (1983) 34 Cal.3d 251, 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

The primary stated purpose of Proposition 8 was to deter the commission of crimes.   No reform can deter criminal behavior that has already taken place since a contrary construction might result in a violation of prohibition against ex post facto laws, and since retroactive application of its numerous practical consequences is adverse to the administration of justice and right of fair trial.  (People v. Smith, supra, 34 Cal.3d 251, 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

The court found appellant failed in the foundational standards required by the sections of Evidence Code 402, 801–804 and 352.   The polygraph test results and opinion of the polygrapher are inadmissible.  (Witherspoon v. Superior Court, supra, 133 Cal.App.3d 24, 183 Cal.Rptr. 615.)

SENTENCE

The appellant was found guilty of first degree murder of Alice Bennett while armed and having a prior conviction of a felony.   He was also found guilty of possession of cocaine in the county jail, a violation of Penal Code section 4573.6 in count II.

A letter was sent from the district attorney's office outlining an erroneous sentence.   All parties acted upon this misconception.   Appellant was sentenced to 25 years to life for first degree murder, use of a gun (2 yrs.), prior conviction of a felony (1 yr.) on count I (indeterminate sentence);  and on count II, possession of cocaine (2/323 yr.), for a total of 282/323 years, consecutive.

On or about January 20, 1983, the court made an order nunc pro tunc that changed the sentence on count II on the basis of clerical error to “count II—probation denied:  imprisonment in state prison for the period of two years to run consecutive to count I.”   The effect of this was to increase appellant's term from 282/323 years to 30 years.   Appellant was not present for the nunc pro tunc order which was made by the court.   The court's procedure was proper.

 Generally speaking, the defendant must be present for sentence to be pronounced orally on the record.  (Pen.Code, § 1193.)   Appellant concedes that the nunc pro tunc order correcting count II to two years was correct but contends the procedure was improper and a resentence should be pronounced in appellant's presence.

The action of the trial judge was only to correct a legal, ministerial, clerical mistake.   The presence of the appellant could add nothing to the proceedings.  (People v. Ysabel (1938) 28 Cal.App.2d 259, 82 P.2d 476.)

Whenever a consecutive term of imprisonment is imposed and the statutes specifies three possible terms, the court shall order imposition of the middle term unless there are circumstances in aggravation or mitigation of the crime.  (Pen.Code, § 1170, sub. (b).)  The determinate term imposed under section 1170 shall be computed without reference to the indeterminate sentence.²

 When a court pronounces a sentence which is unauthorized by the Penal Code, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court.   (People v. Massengale (1970) 10 Cal.App.3d 689, 89 Cal.Rptr. 237.)   When an illegal sentence is vacated the court may substitute a proper sentence even though it is more severe than the sentence imposed originally.  (People v. Grimble (1981) 116 Cal.App.3d 678, 685, 172 Cal.Rptr. 362.)   The trial judge did not attempt to change the sentence pursuant to the verdict, merely to correct an erroneous pronouncement.   There were no new findings of fact.   There was no finding of mitigating circumstances or aggravation that would call for something other than the middle term.  (People v. Serrato (1973) 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289.)   It was not necessary for the appellant to be present.

DEGREE

Plaintiff's last contention is that his conviction must be reduced to second degree murder on the ground that the jury did not determine the degree of the crime.   This contention is also without merit.   With the approval of the defense counsel, the court only instructed on first degree murder on count I.   The defense counsel said he did not see a basis for second degree murder on any remote aiding and abetting theory mentioned by the court.   Defense counsel said he objected to such an instruction as a tactical decision.

 The trial court must on its own motion, if necessary, instruct the jury on lesser included offenses when the evidence raises a question whether all the elements of the charged offense are present, but not when there is no evidence that the offense was less than that charged by the People.  (People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Cooks (1983) 141 Cal.App.3d 224, 190 Cal.Rptr. 211.)

 Whenever a defendant is convicted of a crime distinguishable into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.  (Pen.Code, §§ 1170, 1192.)

The jury's verdict found the appellant guilty of murder.³  The jury was not requested to make any other express finding of the degree of the homicide.⁴

 If counsel expresses a deliberate tactical purpose in suggesting, resisting or acceding to an instruction, it can nullify the trial court's obligation to instruct in the cause.  (People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153.)

 Under Penal Code section 1157,⁵ the determination of the degree of a degree-divided offense of which a defendant may be guilty is a jury matter, and in such a case proof of guilt of the higher degree must be beyond a reasonable doubt.  (People v. Shavers (1969) 269 Cal.App.2d 886, 75 Cal.Rptr. 334;  People v. Beamon (1973) 8 Cal.3d 625, 629, 105 Cal.Rptr. 681, 504 P.2d 905.)   An exception to this rule applies when there is no evidence that the offense charged was less than that charged by the People.  (People v. Sedeno, supra, 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913;  People v. Cooks (1983) 141 Cal.App.3d 224, 190 Cal.Rptr. 211.)   The determination of the degree of a crime is generally left to the discretion of the jury, as it should be, and a reviewing court is bound to view the evidence most favorably in support of the jury's verdict.   The jury's judgment should be upheld unless evidence of the elements required to constitute the degree fixed is found to be lacking.  (People v. McQuiston (1970) 12 Cal.App.3d 584, 90 Cal.Rptr. 687.)

Here the information charged murder, including murder I.   The sole murder instruction was on murder I and all parties, prosecution, defense and the court, recognized with the sole defense that of alibi, the jury verdict would be either murder I, or not guilty.   This had been thoroughly discussed and established prior to the giving of the instructions.

There was planning over a period of hours, if not days, driving 60 miles into the mountains, a discussion with the victim prior to his deliberately shooting her with a shotgun while she was agonizing on the ground, crying out, walking back to the van, reloading and then going back to where she was, a van length away, pointing the gun at her head at close range, turning his own head to avoid splatter and shooting her in the head.

He thereafter returned to the van, reloaded the gun, wiped the fingerprints off and drove part way down the mountain, threw the gun off the road and proceeded on his way.

At trial, appellant testified that he did not kill the victim.   He said he left her at the Toys-R-Us's parking lot with her brother Paul Blundell.

There was no evidence to point to second degree murder.   If the jury disbelieved appellant's denial of the killing, which it clearly did, the only evidence was that it was a planned, deliberate and premeditated murder.   Furthermore, there was no evidence of chemicals, alcohol, dope or mental psychosis.

 Where the evidence shows that the defendant is either guilty of first degree robbery or not guilty, it is proper to instruct the jury that if they find the defendant guilty of robbery it is first degree robbery as a matter of law.  (People v. Cooks (1983) 141 Cal.App.3d 224, 332, 190 Cal.Rptr. 211;  People v. Israel (1949) 91 Cal.App.2d 773, 783, 206 P.2d 62;  People v. Johnson (1973) 33 Cal.App.3d 9, 21, 108 Cal.Rptr. 671.)   The rule is equally applicable to murder.

 Where the information recites premeditated murder and the jury instruction requires the jury to find deliberate and premeditated murder or acquit, and all the evidence clearly points to planning, deliberation and deliberate acts to commit some deadly violence, there is no necessity of giving a second degree instruction.

 There is no ambiguity in the finding of the jury.   This constitutes a finding pursuant to the Penal Code sections 1157 and 1097.⁶  There is nothing ambiguous about the jury verdict.   The jury instructions were clear and unequivocal.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   California Constitution, article I, section 28, subdivision (d) reads as follows:“Except as provided by statute hereinafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceedings, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

2.   California Rules of Court, rule 451, subdivision (a) reads as follows:“When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed under section 1168 in the same or another proceeding, the judgment shall specify the determinate term imposed under section 1170 computed without reference to the indeterminate sentence, shall order that the determinate term shall be served consecutive to the sentence under section 1168, and shall identify the proceedings in which the indeterminate sentence was imposed.   The term under section 1168, and the date of its completion or parole date, and the sentence in which the sentences are deemed served, will be determined by correctional authorities as provided by law.”

3.   “We, the jury in the above entitled action, find the defendant Thomas Vern Dearmore guilty of murder, in violation of section 187 Penal Code, a felony as charged in Count I of the information.“We further find the allegation that in the commission of the offense the defendant, personally used a firearm, to wit a shotgun, within the meaning of sections 12022.5 and 1203.06(a)(1) Penal Code to be true.”

4.   The jury instructions were as follows:“[Defendant is charged in [Count I of] the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.]“The crime of murder is the unlawful killing of a human being with malice aforethought.“In order to prove the commission of the crime of murder each of the following elements must be proved:“1. That a human being was killed,“2. That the killing was unlawful, and“3. That the killing was done with malice aforethought.“ ‘Malice’ may be either express or implied.“[Malice is express when there is manifested an intent unlawfully to kill a human being.]“[Malice is implied [when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness] [or] [when the killing is a direct casual result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life].]“The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.“ ‘Aforethought’ does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.“All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.“The word ‘willful,’ as used in this instruction, means intentional.“The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.   The word ‘premediated’ means considered beforehand.“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.“The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.   The time will vary with different individuals and under varying circumstances.“The true test is not the duration of time, but rather the extent of the reflection.   A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree.“To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”

5.   Penal Code section 1157 reads as follows:“Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty.   Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”

6.   Penal Code section 1097 reads as follows:“When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.”

EMERSON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

STEPHENS, Acting P.J., and ASHBY, J., concur.