PEOPLE v. AVALOS (1982)

Defendant appeals from a judgment of conviction of murder with special circumstances and five other counts.   He was sentenced to state prison for life without possibility of parole.   We affirm the judgment on counts I, III, IV and V, but reverse the judgment on count II.

The offenses involved all arose out of an attempt by defendant to rob a food stand.   In the course of that occurrence, defendant attempted to rob Trevino (the victim named in count I), his mother and his sister.   During the attempt to rob the food stand, he compelled the victim and the mother, at gun point, to leave the mother's car and approach the stand.   The sister succeeded in going into a back room and alerting the sheriff's offices.   The deputies arrived before defendant had actually taken any money into his possession.   On the deputies' arrival, a confrontation began, during which defendant, using the victim as a shield, moved several feet.   An exchange of shots ensued, resulting in the death of Trevino from a bullet fired by one of the deputies.

Defendant was charged with:  (count I) murder of Trevino, in violation of section 187 of the Penal Code;  (count II) kidnapping Trevino for the purpose of robbery, in violation of section 209 of the Penal Code;  (count III) attempted robbery of the mother, in violation of sections 664 and 211 of the Penal Code;  (count IV) attempted robbery of the sister;  (count V) attempted robbery of Trevino;  (count VI) assault with a deadly weapon on deputy Finley;  (count VII) assault with a deadly weapon on deputy Flaget;  and (count VIII) unlawful possession of a firearm by an ex-felon.   Use of a firearm was alleged as to the first seven counts.   In connection with count I (murder) two special circumstances were alleged:  (1) that the murder was committed during or in flight after a robbery;  and (2) that the murder was committed in connection with a kidnapping.   After a trial by jury, defendant was found guilty on counts I, II, III, IV, V, and VIII;  he was found not guilty on count VII and the jury was deadlocked on count VI, which ultimately was dismissed.   On the murder count, the jury found true the two special circumstances alleged.   At the penalty phase, the jury fixed the penalty as life without possibility of parole.   Defendant was sentenced to state prison for life without possibility of parole;  sentences on the other counts were ordered to run concurrently with the sentence on count I.

On this appeal, defendant does not, except as to certain procedural issues hereinafter discussed, attack the judgment on any of the counts except counts I and II.

I

Defendant concedes that, under the most recent California cases, the death of Trevino was murder, chargeable to him.  (Pizano v. Superior Court [1978] 21 Cal.3d 128, 145 Cal.Rptr. 524, 577 P.2d 659.)   His contention chiefly is that, under the facts of the case at bench, the special circumstances relied on by the People were not proved.   The applicable statutory provisions are the following portions of section 190.2 of the Penal Code:

“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in the state prison․ in any case in which one or more of the following circumstances has been charged and specially found․ true․:  (17) the murder was committed while the defendant was engaged in ․ the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:  (i) Robbery in violation of section 211.  (ii) Kidnapping in violation of Section 207 and 209․  (b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without possibility of parole, in any case in which one or more of the special circumstances enumerated in paragraphs (17)․ of subdivision (a) of this section has been charged and specially found ․ to be true.”

 We agree with defendant that subdivision (b) of section 190.2 is not here applicable.   That provision, by its terms, applies only to cases in which an actor has committed a murder as to which a defendant was an accomplice.   Here, there is no suggestion that the deputy sheriff who fired the fatal shot was guilty of murder in any degree.

 However, we cannot read subdivision (a) of section 190.2 is being limited to cases in which the defendant was the immediate killer.   We need not here repeat the rationale under which vicarious liability is imposed on one when a hostage has been killed by a police officer.   It is clear from a reading of Pizano that liability is imposed because the defendant has had a causal relationship to the death—i.e., his conduct caused the death, and causation is not limited to pulling a trigger.   Here, the evidence shows that, in attempting to avoid apprehension by the deputy sheriffs, defendant had used Trevino as a hostage.   Trevino's death was a “murder” committed while defendant was engaged in at least one of the offenses listed in paragraph (17) of subdivision (a).

 The special circumstances charged and found true in this case were:

(a) the attempted robbery of Trevino, his mother and his sister.   The record shows, and defendant does not deny, that he had attempted those three robberies and that he was attempting to escape when the sheriffs arrived.

(b) the second special circumstance alleged was that the murder occurred during a kidnapping.   We agree that the record does not support a finding that the defendant was committing a kidnapping as prohibited by either section 207 or 209 of the Penal Code.

There were two asportations of Trevino:  one when he was marched from the mother's car to the food stand;  the second when defendant used Trevino as a shield while trying to escape from the deputies.   In neither case was the movement more than incidental to his robbery.   Clearly the first asportation did not increase the danger to Trevino.   In spite of the Attorney General's argument, neither did the second.   Trevino was in danger, at that time, not because he was moved, but because he was being used as a shield-hostage;  Trevino could as well have been shot and killed had he and defendant never moved.   Under People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, the movements herein involved did not amount to kidnapping.

It follows that the finding on the second special circumstance must be reversed and that the conviction and judgment on count II must also be reversed.

 However, the deletion of the finding on special circumstance number two does not require a reversal or modification of the judgment imposed on count I.   A single special circumstance, alleged and found true, is sufficient to support a judgment of imprisonment for life without possibility of parole.

II

Defendant here raises a series of other issues which we have considered and find to be without merit.

 (1) At trial, defendant attacked the pleading on the special circumstances.   He here contends that the overruling of that attack was error, since, on the pleadings, the jury was told all the facts about the special circumstances, knowing that they might be called on to impose a death penalty.   Clearly, the jury was not so influenced, since it rejected imposing the death penalty.

 (2) Defendant contends that section 190.2 of the Penal Code is unconstitutionally vague.   We can see in that statute no vagueness.   We read it as clear and as having the meaning above ascribed to it.

 (3) Defendant contends that the imposition of either death or imprisonment without parole is unconstitutionally excessive in a case where the defendant was not the immediate killer.   We can see no excess.   The rule herein involved is designed to restrain a violent criminal from doing acts which, in fact, cause a death.   As herein involved, the teaching is simple—do not use a shield-hostage in an escape.

 (4) At trial, defense counsel moved to exclude witnesses.   The motion was denied.   We see no error.   Whether to exclude witnesses is committed to the discretion of the trial judge.   Here nothing was suggested by the trial counsel other than the ever present possibility that a witness may be influenced as to detail by the testimony of others.   The rule here urged on us would require exclusion in every case in which more than one witness was to be called.   That is not the intent of the statute on exclusion.

 (5) During argument, the prosecutor read to the jury from the opinion of the Supreme Court in People v. Pizano.   Included in his reading was a restatement of the facts of that case.   On objection, the prosecutor was ordered not to compare the case on trial with the facts of Pizano but the jury was not admonished nor was a mistrial granted.   We see no error.   It is not contested that Pizano declared the applicable law.   It was within the province of the trial court to determine whether the minor violation of the rules on argument on law was serious enough to call for further sanction.

 (6) Defendant requested giving of CALJIC 9.60 (false imprisonment by violence or menace).   The request was denied.   We see no reversible error.   We need not here decide whether a false imprisonment is an “included” offense within kidnapping.  (See People v. Brown [1974] 11 Cal.3d 784, 789, fn. 7, 114 Cal.Rptr. 426, 523 P.2d 226.)   Had kidnapping been the only special circumstance found, that issue would have been significant.   But, as we have said above, the judgment on count I does not rest on that alleged special circumstance.   A conviction of false imprisonment, at best, would have imposed on defendant only a different concurrent term.

The judgment on count II is reversed;  the judgment on counts III, IV, V and VIII are affirmed.   The judgment on count I is modified by deleting all reference to kidnapping as a special circumstance;  as so modified it is affirmed.

KINGSLEY, Acting Presiding Justice.

McCLOSKY and AMERIAN, JJ., concur.