PEOPLE v. DEARMORE (1985)

STATEMENT OF THE CASE

After trial by jury, Thomas Vern Dearmore (appellant) was convicted of murder in the first degree in violation of Penal Code section 187 and possession of cocaine in a county jail in violation of Penal Code section 4573.6.   The jury found the allegation that appellant personally used a firearm to be true.   Appellant was sentenced consecutively to a total term of 30 years to life.   He appeals from the judgment.¹

On January 5, 1981, appellant decided to kill Alice Bennett.   He borrowed a 12-gauge shotgun.   That evening he went to Alice's house and waited with the shotgun in her front yard for her to walk past a window.   After approximately 20 minutes he decided to leave and return the next day.   At approximately 8 o'clock the next morning, January 6, he returned.   Alice was there with her daughter and her sister.   Appellant told Alice to forget the problems they had had in the past and said that they could still be friends.   He told her that he had a stolen credit card and that he had to buy a gift for his daughter.   He told her this because he hoped she would offer to help pick out the gift and he could take her somewhere to kill her.   Alice did offer to help him pick out the gift.²  Alice asked her sister Sue to take care of her daughter and left with appellant in his van.

Alice and appellant drove to Toys-R-Us on Azusa Avenue.   It was not open yet.   Appellant said he knew of a gift shop in Azusa Canyon which would take a credit card.   He drove into the mountains pretending to look for the gift shop.³  He finally pulled off into a dirt turnout.   Alice got out of the van and walked across the road, apparently suspecting nothing.⁴  The shotgun was wrapped in the sleeping bag in the back of the van.   Appellant waited a minute or so and then unwrapped the shotgun.   Alice came back to the van.   She saw the shotgun.   Appellant said to her, “You're dead.”   He told her he was going to kill her for getting his “old lady” going out on him and for stealing from him.   Alice told him not to point the shotgun at her.   She picked up her sandals and cigarettes and turned to walk away down the hill.   When she was about 10 feet away, appellant raised the gun to his hip and fired.   Alice fell face down in the dirt.   There was blood on the side of her neck.   Appellant went back to the van and took a shell from a brown paper bag in the van and reloaded the shotgun.   He walked to where Alice was lying face down in the dirt.   She said, “Crab, it hurts.” ⁵  Appellant told her that she had hurt him.   He placed the shotgun approximately six inches from her face and pulled the trigger again.⁶

Appellant believed Alice was dead.⁷  He got back into the van and drove away leaving Alice where she had fallen.   On the way back to his home he threw the shotgun in some bushes.   When appellant did not return with Alice, at approximately 1:30 p.m. her sister Sue went to appellant's house.   Appellant told her that he had had an argument with Alice and left her at Toys-R-Us.   Sue reported Alice missing later that afternoon.   Meanwhile, Alice's body had been found by a park ranger.

After he talked to Alice's sister, appellant called his parole agent, Charles Dube, and told him that he was afraid because he had been with Alice earlier in the day and she had not returned and her brother Paul Blundell thought appellant may have harmed her.   Appellant asked for money to move himself, his girl friend and her children.   Dube gave appellant a small amount of money from a fund for assisting parolees.

On or about January 28, 1981, at his request, appellant was given a polygraph at the Los Angeles Sheriff's office.⁸  The polygraph examiner concluded that appellant probably participated in the murder but did not necessarily pull the trigger.   Appellant's parole was violated because of his involvement in this killing and several other transgressions.   He served an additional six months in custody.

Approximately nine months later on or about September 7, 1981, appellant again called Agent Dube.⁹  He told Dube that he had been shot at earlier that day in Long Beach and had returned the fire and that he thought that he might have killed the other man.   He said he wanted to get off the streets and back into custody for his own protection.   Dube agreed to meet him at the West Covina Police Department.   When Dube arrived, appellant was sitting in the lobby.   He was not under arrest.   They went to an interview room to talk.

Appellant stated that he had been involved in drugs and had robbed a man of cocaine several days earlier at Seal Beach and that the shooting incident resulted from that robbery.   Dube left appellant to check on the story.   When he returned, appellant brought up the Alice Bennett killing and said that his prior stories were untrue and that he personally had killed her.   Dube asked appellant if he would make a statement to the police.   Appellant said that he would.   Dube did not tell the police anything about his conversation with appellant other than that appellant wanted to talk.

Officer Whitney gave appellant his Miranda warning and listened to his story in which appellant gave a detailed description of the robbery in Seal Beach.   As Officer Whitney started to leave, appellant said, “Wait a minute, don't you want to hear about Alice?”   Whitney replied, “Who's Alice?”   Appellant then confessed to the murder of Alice Bennett.

At approximately noon on September 8 appellant was interviewed by Seal Beach Police Officer Frisbie concerning the Seal Beach robbery.   Appellant did not mention the Alice Bennett matter.   Later that day, Los Angeles County Sheriff Detective Michael Lee and Sergeant Salerno interviewed appellant.   Appellant was Mirandized and his statement was recorded.   In this statement he went into detail about the killing of Alice Bennett.¹⁰

At the trial appellant testified that he knew nothing of Alice's murder.   He said that her brother Paul Blundell thought she was an informer and wanted to talk to her.   Appellant testified that Blundell wanted him to help by picking Alice up and taking her to Toys-R-Us where Blundell would be waiting.   Appellant said that he had picked her up and taken her to Toys-R-Us where he left her so that Blundell could ask her some questions.   Blundell was not there at that time.   Appellant said he was not worried about anything happening to her because Blundell was her brother.¹¹  Appellant said that the last time he saw Alice was when he left her at Toys-R-Us.

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.

ISSUES

1. Appellant contends that the polygraph tests given to him January 1981 were admissible under Proposition 8 under the truth and evidence provision.

2. Appellant contends that his confessions were involuntary and inadmissible in violation of his Miranda rights.

3. Appellant contends that the court erred in correcting appellant's sentence.

4. Appellant'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.

POLYGRAPH

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.) ¹²

 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 (1982) 133 Cal.App.3d 24, 183 Cal.Rptr. 615.)

APPELLANT'S CONFESSIONS

 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 appellant was not in custody at the time of the confession, 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, 713–714, 50 L.Ed.2d 714.)   Dube was only concerned with the parole violation at that time.

Appellant 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.)   Dube was not investigating a new crime.   He was not questioning appellant about parole violations or acting as an agent of the state in the normal course of a peace officer's duties.   (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 made to Officer Whitney.   He did not even indicate to the watch commander or to Officer Whitney the nature of the statement that appellant wished to make other than to say it was a statement about a shooting.   Officer Whitney advised appellant of his Miranda rights prior to appellant's statements to him.   The confession appellant made to Lee and Salerno was also properly admitted.   Appellant was again advised of his Miranda rights prior to this confession.

Appellant also contends in regard to his confessions that they were involuntary.   This contention has no merit.   Appellant sought Dube out.   Dube did not ask appellant about Alice's murder.   Appellant initiated the subject with all the officers he told about the murder.   The fact that the appellant may have been motivated by a desire to be placed in custody to avoid reprisals from other persons does 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.¹³

SENTENCE

Appellant argues that he must be returned to court for resentencing because on January 20, 1983, the court in an order nunc pro tunc changed his sentence on count II, possession of cocaine in jail, to the midterm of two years from two-thirds of a year.   Appellant was not present in court.   There is no error.

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, subd. (b).)  The determinate term imposed under section 1170 shall be computed without reference to the indeterminate sentence.¹⁴

 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 OF THE CRIME

Appellant'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.

 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, § 1157.)

The court in People v. McDonald, supra, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, stated:  “As we noted in Dixon,[¹⁵ ] throughout history the statute has been applied in cases in which the ‘failure’ of the jury to determine the degree of crime ‘consisted in an omission to perform that function because of mistake or inadvertence or in circumstances suggesting an intended act of leniency.’  (24 Cal.3d at pp. 51–51 [154 Cal.Rptr. 236, 592 P.2d 752].)  The rule is thus firmly established that the statute applies whenever the jury neglects to explicitly specify the degree of the crime.”  (37 Cal.3d at p. 381, 208 Cal.Rptr. 236, 690 P.2d 709; fn. omitted.)

The purpose of section 1157 is to resolve ambiguous verdicts.   Where the jury has a choice of degrees under the evidence and it does not expressly fix the degree its verdict is ambiguous.   The Legislature enacted Penal Code section 1157 to resolve that ambiguity.   Where there is no ambiguity to resolve, the reason for applying Penal Code section 1157 does not exist.

The jury's verdict found the appellant guilty of murder under the instructions given it.¹⁶  No degree, other than first degree, was presented as an alternative to acquittal.¹⁷

 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.)

At the insistence of the defense counsel, the court instructed only on first degree murder in count I.   The defense counsel said he did not see a basis for a second degree murder instruction on any remote aiding and abetting theory mentioned by the court.   Defense counsel said he objected to such an instruction as a tactical decision.  (See People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153;  People v. Wickersham (1982) 32 Cal.3d 307, 332, 185 Cal.Rptr. 436, 650 P.2d 311.)

Here the information charged murder which includes murder in the first degree.   The sole murder instruction was on murder in the first degree and all parties, prosecution, defense and the court, recognized, with the sole defense that of alibi, the jury verdict would be either murder in the first degree, 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 appellant's deliberately shooting her with a shotgun and while she was agonizing on the ground, 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.

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

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, supra, 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.¹⁸

Our Supreme Court in People v. Beamon (1973) 8 Cal.3d 625, 629, footnote 2, 105 Cal.Rptr. 681, 504 P.2d 905, properly declined to assume “contrary to the clear legislative direction, that because a factual finding was made which would have warranted a determination of first degree robbery, the jury unmistakably intended [citation] to make that determination when it refrained from expressly fixing the degree.”

Here the jury did not “refrain[ ] from expressly fixing the degree.”   There was no basis for a second degree murder conviction.   There was no choice for the jury to make as to degree.   Appellant was guilty of murder in the first degree or he was not guilty.

Appellant's reliance on People v. Johns (1983) 145 Cal.App.3d 281, 193 Cal.Rptr. 182, is misplaced.  Johns involved a killing during the course of a robbery.   Its factual circumstances are inapposite to the instant case, as are the factual circumstances in People v. Williams (1984) 157 Cal.App.3d 145, 203 Cal.Rptr. 562.  Williams involved a killing during the commission of a burglary.  Johns and Williams stand for the proposition that a finding of degree may not be implied from the court's or the jury's logically consistent finding on a different issue, such as guilt of the underlying felony in a felony murder case (Johns ) or of special circumstances (Williams ).

In conformance with the direction of the Supreme Court, we have reviewed this decision in light of People v. McDonald, supra, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.  People v. McDonald is very different from the instant case.   In McDonald the defendant was charged with murder and robbery.¹⁹  The underlying basis for the first degree murder conviction was the felony-murder rule.   Although the jury found the defendant guilty of murder, an ambiguity in the verdict developed when the jury also found the defendant not guilty of the charged robbery.   Furthermore, although the facts warranted an instruction for second degree murder it was not given by the court.   Even though the jury was not given that instruction McDonald was not a case where they had only one choice.   They should have had more than one choice under the facts.   Since McDonald was acquitted of robbery, on the retrial he could not be tried for robbery or under Penal Code section 1023, for attempted robbery, either.

The sole reason for the discussion of section 1157 was the potential issue whether double jeopardy would apply in the unlikely event that the prosecution attempted to retry McDonald for first degree murder, an issue which the Supreme Court ultimately declined to decide.²⁰

Appellant views McDonald as a holding that form shall prevail over substance.   One of the most hallowed maxims of the law is that form shall “not be exalted over substance.”   Nevertheless, this is what appellant urges us to do and cites dictum from McDonald as support for that argument.   The language cited by appellant arguably appears to lend support to his position.   Although the court in McDonald speaks in broad terms, the holding can go no further than the facts which evoke that holding.  (Hart v. Burnett (1860) 15 Cal. 530, 598–599;  Estate of O'Dea (1940) 15 Cal.2d 637, 639–640, 104 P.2d 368.)   The issue appellant seeks us to resolve in his favor was not squarely before the court in McDonald.   Both jury verdicts in McDonald and in People v. Campbell (1870) 40 Cal. 129, on which McDonald relies, were inherently ambiguous.²¹

 There are no ambiguities in the verdict of the jury in the instant case.   There was no omission to perform that function because of mistake or inadvertence or in circumstances suggesting an intended act of leniency.   There were no facts which would entitle appellant to instructions as to second degree.   Appellant's counsel did not request an instruction on second degree.   He, in fact, stated that there was no basis for a second degree instruction and that for tactical reasons he did not want such an instruction.   The jury had only one issue before them:  Was defendant guilty of first degree murder or was he not guilty of anything.

The instant case squarely presents the issue of whether form should prevail over substance where there is no mistake, inadvertence, or intended act of leniency by the jury.   Appellant can prevail in this appeal only if form does prevail over substance.   We are not prepared to say that it does.   We do not read McDonald as setting forth such a rule.   The law must be interpreted in a reasonable way.   The Legislature in enacting section 1157 intended to take the ambiguity out of verdicts, not to compel unjust and absurd results.²²

The judgment is affirmed.

FOOTNOTES

1.   The opinion in the instant case was filed previously.   Subsequently a hearing was granted by the Supreme Court, 211 Cal.Rptr. 690, 696 P.2d 82, which remanded the case for reconsideration in light of People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.

2.   “․ which I ․ you know, I didn't, and ․ and, uh, I told her, uh ․ I go, ‘Yeah, I gotta go and get my daughter a present, you know, for her birthday, I don't even have a daughter.’ ”

3.   “Q Did she say anything when you got to the bottom of the Canyon and kept on going up?  [¶] A  I told her, it was up in there.  [¶ Q  Oh, it's up in there?   Further up the Canyon?   Did she ever question you, once you started up the Canyon, how far it was?  [¶] A  No, 'cuz I kept goin', ‘Goddamn!   Fuck, it should be right around her somewhere.’ ”

4.   “Q So, she walked across the road, huh?  [¶] A  ․ yeah, she ran across the road.  [¶] Q.   Why is that?  [¶] A  You know how broads run?  [¶] Q  Oh, yeah.  [¶] A  There you go ․ went over there and was lookin' around, you know, ‘Oooo, this is ․,’ you know, ‘․ pretty ․,’ that type of shit.”

5.   Crab is appellant's nickname.

6.   “A ․ that's ․ yeah, but, I had turned away as I pulled the trigger, so ․ and you know, I might have moved it a little bit.  [¶] Q  Why did you turn away?  [¶] A  I didn't wanna get splashed in the face.”

7.   “Q Is it possible ․ that she was still alive when you left her?  [¶] A  It is possible, 'cuz I didn't like, feel for a pulse or no bullshit like that.   But, I ․ I assumed that holding the ․ the gun next to her head like that, would do the fuckin' job ․ you know.   Especially ․ you know, if, uh, after the first one ․ uhm ․ you know, I ․ I'd assumed that it was enough.   If I didn't think it was enough, I'd have shot her again.  [¶] Q  And you [are] fairly sure in your own mind, she was dead when ․ left?  [¶] A  Yeah ․ yeah.   You know, fuckin' all that shit about shootin' somebody, leavin' 'em for dead and they crawl through the desert to testify against you, you know?   I didn't want that to happen․”

8.   Appellant claimed that he took the test on the condition that it could be used in court.   Charles Dube was present at the sheriff's office and did not recall any promises to appellant.

9.   Dube was no longer his supervising parole agent.

10.   Footnotes 2 through 7, ante, are quotes of appellant's recorded confession.

11.   All of appellant's testimony about Blundell was untrue.

12.   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.”

13.   The trial judge held a hearing under sections 402 and 403 of the Evidence Code and Witherspoon v. Superior Court, supra, 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.

14.   California Rules of Court, rule 451(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 sequence in which the sentences are deemed served, will be determined by correctional authorities as provided by law.”

15.   People v. Dixon (1979) 24 Cal.3d 43, 154 Cal.Rptr. 236, 592 P.2d 752, classically illustrates the purpose of section 1157.   There the jury was deadlocked and asked the court if it was required to make a unanimous finding as to first degree.   The court answered in the affirmative.   The jury later asked if it needed to be unanimous if it found second degree.   The court again instructed that the degree must be unanimous.   After a long deadlock the jury returned the verdict without a finding as to degree.   Under section 1157 the degree then was deemed to be second.

16.   “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 1 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.”

17.   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 causal 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.”

18.   Such an instruction would have been justified here and was for all intents and purposes the result of the instruction given.

19.   In McDonald, the defendant was charged in count I with murder and with the special circumstance that the murder was committed during commission or attempted commission of robbery.   In count II he was charged with the same robbery as a substantive offense.   The jury convicted him of murder, without specifying the degree, and of the special circumstance allegation, but acquitted him of the substantive charge of robbery.  (37 Cal.3d at p. 355, 208 Cal.Rptr. 236, 690 P.2d 709.)The victim was shot and killed during a struggle with the assailant at the intersection of Pine and Seventh in downtown Long Beach.   The prosecution witnesses were passers-by who observed that the two men seemed to be fighting or struggling.   Some of them saw the assailant point the gun at the victim and shoot him.   Two witnesses observed the assailant appear to reach underneath the victim or in his pocket and take something.  (37 Cal.3d at pp. 355–359, 208 Cal.Rptr. 236, 690 P.2d 709.)   The principal issue was the identity of the perpetrator.   The prosecution's sole theory of first degree murder was felony murder.  (Id., at p. 383, fn. 32, 208 Cal.Rptr. 236, 690 P.2d 709.)The entire judgment was reversed on the ground the trial court erred in excluding expert testimony offered by the defense on the subject of eyewitness identification.  (Id., at pp. 361–377, 208 Cal.Rptr. 236, 690 P.2d 709.)

20.   The Supreme Court stated:  “We do not decide at this time the question whether double jeopardy principles will bar retrial of defendant on a charge greater than second degree murder.   First, the question has not been raised by the parties, and its answer is not immediately obvious․  [¶]  Second, the issue will not be presented on retrial unless the prosecution seeks a first degree murder conviction.   But the prosecution's sole theory of first degree murder at trial was felony murder;  given the jury's acquittal of defendant on the robbery charge and thus its implied acquittal on attempted robbery, the prosecution may be hard put to prove an underlying felony.”  (People v. McDonald, supra, 37 Cal.3d at p. 383, fn. 32, 208 Cal.Rptr. 236, 690 P.2d 709.)

21.   In Campbell, although the jury found the defendant guilty of murder, they also recommended leniency which was inconsistent with a finding of first degree murder.

22.   “ ‘It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.   [Citations.]’ ”  (People v. Barksdale (1972) 8 Cal.3d 320, 334, 105 Cal.Rptr. 1, 503 P.2d 257.)

ASHBY, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.