PEOPLE v. BEASLEY (1987)

OPINION

THE CASE

Appellant was charged by information with the murder of Loyal Scott (Pen.Code, § 187) and the use of a firearm in the commission of the murder (Pen.Code, § 12022.5).   Appellant pleaded not guilty and denied the firearm use allegation.

Appellant's pretrial suppression motion, arguing that he had been arrested without probable cause and that any evidence produced as a result thereof was inadmissible, was denied.

At appellant's first trial, he was acquitted of first degree murder, and the jury deadlocked on the question of second degree murder.   A mistrial was declared.

At appellant's second trial, he was found guilty of second degree murder, and the jury again found the Penal Code section 12022.5 allegation to be true.   Appellant was sentenced to 15 years to life with a consecutive 2–year enhancement.

We reverse the judgment because of instructional error.

THE EVIDENCE

On July 22, 1984, at about 5:30 p.m., Loyal Scott was shot and killed.   His body was discovered minutes later by the side of Road 360 in Tulare County.

The bulk of the prosecution's case against appellant was the testimony of Allen Dowling.   Dowling had bargained for a plea of accessory after the fact and was awaiting sentence at the time of appellant's trial.

Dowling, who lived with his wife in Kingsburg at the time of the killing, testified that on July 22 his wife had driven him to New London and dropped him off at the home of one George Thomas.   From there, Dowling went to appellant's house, apparently on foot.   Appellant, Dowling and several other men were there drinking beer and working on appellant's truck.   Appellant and Dowling made two beer runs to Roy Keltner's market in New London in appellant's Monte Carlo.   After the second trip to Keltner's, the two men made one more stop, then drove to Jadoon's Bar in Reedley.   There they drank more beer.

Driving back into New London, appellant and Dowling observed Loyal Scott out in front of his house talking to Jerry Arthurs.   They stopped, and Scott asked them if they had any marijuana.   Dowling gave him a beer instead.   Scott asked appellant if appellant would give him and a young boy a ride home.   Scott and the boy got into the Monte Carlo.   They dropped the boy off at his destination, then drove into Traver for a six-pack.   The three then drove to a trailer that appellant was renting.   Appellant went in, and Dowling followed, leaving Scott in the car.   Dowling observed appellant loading a pistol.   The two went back out to the car.   Appellant was driving, Dowling was in the front passenger seat, and Scott was in the back.

The three drove away, riding around and drinking beer.   At one point, appellant saw a bird on a post and stopped to shoot at it.   Then Scott said that he had to urinate.   Appellant stopped the car, and Dowling opened the passenger door and pulled the seat forward to let Scott out.   Scott went toward the back of the car, and Dowling noticed that appellant had left the car as well.   Dowling had just opened another beer and taken a drink when he heard a “big old bang.”   Appellant jumped back into the car and drove away quickly.   Dowling asked him, “What the hell was that?”   Appellant responded, “Well, I'm tired of that ripoff mother fucker.”   Appellant threatened to kill Dowling if he said anything.   Dowling asked appellant if Scott was dead, and appellant replied, “Don't worry about him, he's gone.”

According to Dowling, the two men then returned to Keltner's store where appellant told Keltner that he had shot Scott.   Appellant and Dowling then drove to Les & Lu's, a bar in Dinuba.   Dowling left appellant there, and borrowing the Monte Carlo, drove to Rick Jimenez's house.   Dowling asked Jimenez to hold onto the pistol;  Jimenez refused.   Dowling next drove to his Kingsburg apartment complex.   Noticing that some belongings he had left outside were missing, he arranged with the manager to store some things in a vacant unit.   He obtained a neighbor's help in moving his things, then used the neighbor's phone to call appellant at Les & Lu's.   Dowling then drove to Tim Weemes's house.   Dowling offered Weemes the gun for $20;  Weemes apparently accepted.   Dowling then asked Weemes, a truck driver, if Dowling could go with him on an out-of-town trip that night.   Weemes agreed and told Dowling to meet him later at a Kingsburg truck stop.

Dowling returned to Les & Lu's and picked up appellant, who was intoxicated.   Dowling then drove to the truck stop and met Weemes, who told them to wait there until 2 a.m.   Dowling waited;  appellant remained in the Monte Carlo, passed out.

Weemes returned at 2 o'clock, and Dowling left with him.   Appellant was apparently still asleep in the Monte Carlo.   Dowling and Weemes drove to Santa Cruz, then Modesto.   Weemes called home from Modesto;  the police were at his home and wanted to speak to him.   Weemes told the police he would be home in one hour or one and a half hours.   On the way, Weemes and Dowling stopped in Fresno, where Weemes got rid of the gun.   They then proceeded to Weemes's home in Traver.   There, Dowling lied to the police;  at trial he said he did not recall exactly what he told them.   He lied because he was afraid of being blamed for the killing.   Appellant had told him what to tell the police.

Other witnesses tended to corroborate elements of Dowling's testimony, although the only witness to the actual shooting was Dowling himself.

Jerry Arthurs had spent the afternoon of July 22 with Scott.   He testified that at about 5 p.m. he dropped Scott off in front of his house.   Before Scott got out of Arthur's car, appellant and Dowling pulled up in the Monte Carlo.   Arthurs drove off before Scott got into the Monte Carlo.

At about 4:45 or 5 o'clock, Nancy De La Cruz saw the Monte Carlo out on the road.   There were three occupants:  appellant, Dowling and a third man she could not positively identify.

Oscar Lopez, Jr., 10 years old, was the boy who got into the Monte Carlo with Scott.   He testified that Scott, Dowling and Keith Smith were also in the car and that appellant was driving.   Jeannie Smith saw Oscar get out of the Monte Carlo, sometime around 4 or 5 o'clock.   Appellant and Scott were in the Monte Carlo.

Joe Flores saw Scott in the backseat of the Monte Carlo riding through New London between 4 and 5 o'clock.   Two others were in the car.

Vera Caldwell, who with her husband discovered the body, saw a dark green or blue automobile with two men in the front seat driving away from the scene.

Kimmy Fujisawa, the bartender at Jadoon's in Reedley, said that appellant and Dowling came in at about 1 or 1:30 and stayed until 4:40 or 5 o'clock.   Don Taylor arrived at Jadoon's at about 2 o'clock;  appellant and Dowling were already there.   Taylor said they left at about 4:30.

Ruben and Shirley Nielsen, the neighbors whose phone Dowling borrowed, and Helen Barnes, manager of the apartment complex, set the time of Dowling's visit at about 8:30 or 9 o'clock.   Shirley had to dial the telephone for Dowling and confirmed that the call was to Les & Lu's.   William Betters, a patron at Les & Lu's, confirmed that appellant was paged that evening, although he placed the time at about 10 o'clock.   Ruben Nielsen and Helen Barnes both testified that Dowling was driving the Monte Carlo.

Rick Jimenez confirmed that Dowling came to his house after supper time in the Monte Carlo and tried to persuade him to take the gun.

Rosemary Weemes said that Dowling arrived at the Weemes's house at about 9:30 or 10 o'clock, apparently in the Monte Carlo.   Tim Weemes more or less confirmed Dowling's story about the gun and the truck trip.

Roy Keltner ¹ told police that appellant and Dowling had entered his store just before 8 o'clock.   Appellant told Keltner that Scott was dead.

Fran Williams ² lived very close to the murder scene.   She told the police that she had heard a single shot at about 5:35.   She looked and saw a dark green or black mid–1970's Impala or Monte Carlo stopped on the pavement near where the body was later found.   The car started up quickly and drove past her home.

Sergeant Gary Harris, commander of the Violent Crime Unit of the Tulare County Sheriff's Office, supervised the crime scene.   He testified that Scott was found with his trousers unzipped and penis exposed, supporting Dowling's assertion that Scott was urinating when he was shot.   The bullet was not recovered.

DISCUSSION

I. The reading of CALJIC No. 2.11.5 by the trial court was prejudicial error.

Defense counsel's most important task was the impeachment of Allen Dowling, whose testimony formed the core of the prosecution case.   Defense counsel took two approaches to this problem.   First, he challenged Dowling's testimony with references to prior sworn statements.   Second, he asked about a plea bargain Dowling had made regarding his participation in the killing of Loyal Scott.

“Q. Okay.   Were you given some sort of special arrangements to testify regarding Mr. Beasley?

“A. No, sir.

“Q. Have you been offered a plea to something other than murder?

“A. Yes, sir.

“Q. You were initially charged with murder?

“A. From what I understand.

“Q. And you did go into a courtroom, and was something special worked out for you?

“A. The way I understand, yes.

“Q. What was that?

“A. I'm not sure what it was, what it is called.

“Q. Did you plead guilty to say, an accessory after the fact, or anything like that?

“A. Yes, sir.

“Q. And what else?   What other promises were made to you?

“A. That's it.

“Q. How about regarding time in jail?

“A. No time.   None of that was, you know, it's up to the judge they said.

“Q. Is the agreement that the District Attorney's Office will not argue for you to receive a local commitment in the county jail rather than state prison?

“A. They said that if the judge did not want to give me jail, that they wouldn't argue about it.   Something to that effect.”

The theory expressed by defense counsel at argument was that Dowling had lied throughout his testimony.

“․ When I made my opening statement, I mentioned that the evidence would show that Mr. Dowling would come in here and lie to you.   And that is precisely what he has done.   I told you—he told many stories in the past.

“I told you that he would show that he lied under oath, and that he would lie again and change his story right here in this courtroom and he still did.

“․

“․ Think about all the lies.   Think about how easy it was for Allen Dowling to do the shooting and just turn around and say, ‘Hey, they got the car, they got him.’ ”

Defense counsel made only fleeting references to the plea bargain in his argument.   This may have been because he knew the jury would not be permitted to consider the plea bargain in evaluating Dowling's credibility.   The jury instructions had been ruled on, and CALJIC No. 2.11.5 (4th ed. 1979),³ proposed by the prosecution, had been approved by the trial court.

CALJIC No. 2.11.5 provides:

“There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial.

“You must not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted.”

 Once read to the jurors, this instruction in essence forbade them from considering Dowling's plea bargain and his sentencing agreement with the district attorney in evaluating Dowling's testimony, i.e., whether he might have had a bias or motive for testifying as he did.   In addition, the written instruction was sent into the jury room during deliberations.

Evidence Code section 780 permits the jury to consider, in evaluating the truthfulness of a witness's testimony, “[t]he existence or nonexistence of a bias, interest, or other motive.”   The jurors were so instructed.  (CALJIC No. 2.20.)   However, CALJIC No. 2.11.5, by barring the jurors from considering why Dowling was not being prosecuted for the murder, prevented the jurors from examining Dowling's motive to testify as he did.⁴  Dowling himself admitted that he did not know if he would go to prison or not.   Implicit in the bargain is a promise by the district attorney that if Dowling testified against appellant, the district attorney's office would not seek Dowling's imprisonment.   CALJIC No. 2.11.5 thus removed from the jury's consideration testimony that might have undermined whatever confidence the jury had in Dowling's veracity.⁵

Appellant has framed his argument on appeal in terms of the confrontation rights guaranteed by the Sixth Amendment of the United States Constitution.  (Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347.)   In Davis, the defendant was convicted of grand larceny and burglary, based largely on the testimony of one witness.   Defense counsel was barred from examining that witness regarding his probationary status following a juvenile adjudication finding that he had committed two burglaries.   The Supreme Court reversed, finding that the defendant's Sixth Amendment confrontation rights outweighed any state interest in preserving the anonymity of a juvenile offender.  “[D]efense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.   Petitioner was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.”  [Citation.]’ ”  (Davis v. Alaska, supra, 415 U.S. at p. 318, 94 S.Ct. at p. 1111.)

The instant case does not rise to the level of Davis.   The automatic reversal rule does not apply where there is no “direct restriction on the scope of cross-examination.”  (United States v. Bagley (1985) 473 U.S. 667, ––––, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481.)   Here appellant was permitted to examine Dowling regarding his plea bargain;  there was no direct restriction.   What restriction there was came later, in the judge's charge to the jury.

It can be argued that even if the Davis automatic reversal rule does not apply, there was still an encroachment on appellant's constitutional rights to confront witnesses and present a defense, requiring analysis under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.   Chapman is the standard of review urged by appellant.   Respondent suggests instead that People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, represents the appropriate standard.⁶  Even under the Watson standard, however, we must reverse.

The prosecution's case for a murder conviction rested on Dowling's testimony.   Dowling is the only witness to describe who brought the gun from appellant's trailer and who shot Loyal Scott.   The corroborated portions of his testimony tend to implicate Dowling more than appellant.   Without faith in Dowling's credibility as to who pulled the trigger, the jury could have concluded that appellant was not a principal in the killing.

Respondent argues that “the case against appellant was not a close one.”   Appellant responds, however, by pointing out that the earlier jury had been deadlocked on second degree murder when given essentially the same evidence and instructions.   Moreover, it was not merely one stubborn individual who hung the first jury;  the split was seven to five.   The case was thus apparently much closer in the jury room than respondent contends.

 In conclusion, the reading of CALJIC No. 2.11.5 approached constitutional error.   Instructing the jurors in essence to ignore motive evidence in evaluating Dowling's testimony was similar in effect to not permitting cross-examination on the issue in the first place.   Even under Watson, however, it is reasonably probable that a result more favorable to appellant would have occurred absent the error.

II. Other instructional error.

Appellant asserts further instructional error.   The trial court failed to read CALJIC No. 2.71 to the jury.   CALJIC No. 2.71 provides:

“A statement made by a defendant other than at his trial may be an admission.

“An admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence.

“You are the exclusive judges as to whether an admission was made by the defendant and if the statement is true in whole or in part.   If you should find that such statement is entirely untrue, you must reject it.   If you find it is true in part, you may consider that part which you find to be true.

“Evidence of an oral admission of the defendant ought to be viewed with caution.”  (Emphasis added.)

Dowling testified that appellant admitted to having killed Loyal Scott.   At the time of the shooting, appellant allegedly said to Dowling, “Well, I'm tired of that ripoff mother fucker.”   He then said, “Don't worry about him, he's gone.”   Dowling also stated that appellant told Roy Keltner that he had shot Scott.

“As a general rule the trial court has the duty to give, sua sponte, the cautionary instruction regarding oral admissions.  (People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal.Rptr. 313, 492 P.2d 1] ․;  People v. Ramirez (1974) 40 Cal.App.3d 347, 352 [114 Cal.Rptr. 916]․)”  (People v. Matta (1976) 57 Cal.App.3d 472, 485, 129 Cal.Rptr. 205.)   The Watson standard applies.  (Ibid.)

 Since the only source of appellant's admissions was Dowling's testimony, the question of prejudice is closely linked to the previous issue.   If the jury had been properly instructed regarding Dowling's credibility, this error would have been harmless.   However, because the jurors were barred from considering Dowling's motive to testify, the failure to tell the jury to view Dowling's testimony about appellant's admissions with caution seems more significant.   Thus, we cannot conclude this was harmless error.

III. Issues for retrial.***

The judgment is reversed.

FOOTNOTES

1.   Keltner seemed to develop amnesia between his statement to the police and his testimony at the preliminary hearing.   The cited testimony is by the officer who interviewed him, Jay Salazar.

2.   Fran Williams's memory faded remarkably before the preliminary hearing and continued to deteriorate between the two trials.   Her tape-recorded statement was played at trial;  the citation refers to that statement.

3.   All CALJIC jury instructions referred to are from the fourth edition (1979) unless otherwise noted.

4.   The use note for CALJIC No. 2.11.5 provides that “This instruction is not to be used if the other person is a witness for either the prosecution or the defense.”   While this use note without case authority is hardly binding, it shows that the drafters considered the possibility of prejudice arising from the reading of this instruction.

5.   Respondent suggests that several instructions on corroboration of accomplice testimony rendered any error harmless.   The jurors were instructed, however, that they were to determine whether or not Dowling was an accomplice.  (CALJIC No. 3.19.)   They were likewise told that some instructions might not be applicable.  (CALJIC No. 17.31.)   Since the record does not show whether the jury found Dowling to be an accomplice, there is no way to determine whether the accomplice instruction suggesting that testimony be viewed with distrust (CALJIC No. 3.18) was applied.Respondent also suggests that “it was conceded by the prosecution that Dowling was an accomplice․”   Not so.   The prosecutor did concede Dowling's involvement;  in view of his admission that he had pleaded guilty to accessory status, such a concession is hardly a surprise.   Involvement or participation, however, is not enough to show accomplice status.   Rather, as the jury was instructed, “[t]o be an accomplice, the person must have aided, promoted, encouraged, or instigated by act or advice the commission of such offense with knowledge of the unlawful purpose of the person who committed the offense.”  (CALJIC No. 3.10.)   Accessory status does not, by itself, constitute accomplice status for purposes of instructing the jury regarding accomplice testimony.  (People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1072–1073, 126 Cal.Rptr. 104.)

6.   Watson is the appropriate standard for evaluation of instructional errors affecting the jury's evaluation of a witness's credibility.  (See, e.g., People v. Martinez (1978) 82 Cal.App.3d 1, 19–20, 147 Cal.Rptr. 208;  People v. Graham (1978) 83 Cal.App.3d 736, 744–745, 149 Cal.Rptr. 6.)

FOOTNOTE.   See footnote *, ante.

FRANSON, Acting P.J.

BEST and VARTABEDIAN ***, JJ., concur.