PEOPLE v. BRAZIL (1985)

STATEMENT OF THE CASE

In an information filed by the District Attorney of Los Angeles County, appellant Brazil was charged in Count I with murder, a violation of Penal Code section 187.   It was further alleged that in the commission and attempted commission of the offense, Brazil personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1).   In Count II, both appellants were charged with attempted murder, a violation of Penal Code sections 664 and 187.   It was further alleged that in the commission and attempted commission of Count II, Brazil personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1), that Staton personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022(b), and that a principal in the offense was armed with a firearm within the meaning of Penal Code section 12022(a).   As to both counts, it was alleged that Brazil suffered a prior felony conviction within the meaning of Penal Code section 667(a), and as to Count II it was alleged that Staton suffered a prior felony conviction within the meaning of Penal Code section 667(a).

Appellants pleaded not guilty and denied the special allegations.   Staton's motion for change of venue was denied.   Appellants' motions for severance of their trials were denied.   Both appellants admitted the allegations that they suffered prior felony convictions prior to trial.

Trial was by jury.   The jury found appellant Brazil guilty as charged of murder in the second degree, and further found that he personally used a firearm within the meaning of Penal Code section 12022.5 in committing the offense.   They further found Brazil to be guilty of attempted murder as charged in Count II, and found that he personally used a firearm within the meaning of Penal Code section 12022.5 in committing that offense.   As to Staton, the jury found him guilty of attempted voluntary manslaughter, a lesser but necessarily included offense than that charged in Count II.   They found that Staton personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022(b), and that a principal in the commission of the offense was armed with a firearm within the meaning of Penal Code section 12022(a).   Both appellants were sentenced to state prison.

STATEMENT OF FACTS

The victim in Count II, Tommie Lee Williams, testified that he owned a nightclub in Long Beach, the Royal Windjammer.   Brazil was the manager of the club.   Staton was Brazil's cousin and friend.   Brazil's wife, Valerie, worked at the club as a bartender.

On October 8, 1982, Brazil finished his shift at the Royal Windjammer and left at about 6:30 p.m.   He returned about 10:30 p.m.   He appeared to be acting normally at that time.   At some point, Charlotte Coan, the victim in Count I, who had been sitting with appellant Brazil, left the club with him.   Brazil came back into the club a short time later, and appeared to be angry.   He was cursing, which caused Mr. Williams to ask him to leave.

Upon being asked to leave Brazil turned to Mr. Williams and stated, “Well, I will try you too.”   Mr. Williams turned away and told Brazil he would talk to him the next day.

At that point Ms. Coan walked back in the club and was hit by Brazil, knocking her to the ground.   As Ms. Coan was getting up, Mr. Williams asked Brazil to leave.   After a verbal confrontation between Brazil and Mr. Williams, things seemed to cool down.   Brazil went to the bar and spoke to a friend.

In the meantime, Ms. Coan had entered the disc jockey's booth in the club, where a Mr. Bradley was working as the disc jockey.   Ms. Coan and Mr. Bradley were involved in a relationship which Mr. Bradley did not want Brazil to find out about, because of the fact Ms. Coan had also been involved with Brazil.

Valerie Brazil then entered the booth and began attacking Ms. Coan.   As Mr. Bradley began trying to pull Mrs. Brazil off of Ms. Coan, he heard appellant Brazil state, “If you touch her, you put your hands on my lady, I am going to kick your ass, too.”   Brazil then stated to his wife, “Kill that bitch, kill that white bitch.”

At this point in time, appellant Brazil approached Mr. Williams who was behind the bar and told him that he (Brazil) was going to get a gun that was kept behind the bar.   After Mr. Williams told him he was not going to get the gun, Brazil told Mr. Williams he had his own gun upstairs, and then turned and walked away.

When Brazil returned he and Mr. Williams exchanged words, and then Brazil threw a stool at Mr. Williams.   Mr. Williams then turned to Staton who was present, stating, “What is wrong with him?”   Staton replied, “What is wrong?   You done fucked up.”   After this exchange of words, Staton struck Mr. Williams in the jaw, knocking him down.   Mr. Williams and Staton then began fighting with each other.

While this fight was taking place, the fight between Ms. Coan and Mrs. Brazil had broken up.   As Mr. Bradley and Ms. Coan attempted to leave the club they ran into Brazil and his wife.   As Ms. Coan froze, Brazil produced a gun, and from a distance of one foot, shot Ms. Coan in the face, causing her death.   Brazil said nothing.

As Brazil walked back into the bar, Staton and Mr. Williams were still fighting.

At one point, while Staton held Mr. Williams around the neck, Brazil stabbed Mr. Williams in the back with a knife.   During the fight appellant Staton stabbed Mr. Williams over his left eye and on his forearm.   During the fight, Staton said to Mr. Williams, “We have been waiting on this and I have been waiting on this a long time.”

Eventually Brazil told Staton to step away from Mr. Williams.   After Staton pushed Mr. Williams away, Brazil shot Mr. Williams in the throat, stating, “You fucking over me and my mama, too.”

Long Beach Police Officers Lomeli and Itson arrived on the scene in response to a radio call.   Officer Lomeli first noticed Staton, who appeared to have a bloodstain on his upper chest area.   Brazil then exited the club carrying a small child.   When Brazil told Officer Lomeli to put away his gun or he would have to use it, Lomeli complied.   Brazil then stated, “I am not crazy.   I am not crazy.   I meant to do it.”   After the child was taken away from Brazil by a bystander, Officer Lomeli attempted to take Brazil into custody but Brazil resisted.   With the assistance of several police officers, appellant Brazil was eventually subdued.   According to Officer Lomeli, Brazil was alert at the time.

DEFENSE

It was stipulated that at approximately 11:30 p.m., on October 8, 1982, Brazil's blood contained phencyclidine (PCP) in an amount that measured less than 10 nanograms per milliliter.   According to Police Sergeant James Sutton, a narcotics expert called by the defense, who examined Brazil the night of the incident, Brazil was under the influence of PCP at 11:30 p.m., and was “out of touch with reality.”   However, on cross-examination, Sergeant Sutton testified that a person could be acting normally before the effects of PCP caught up with him and he displayed irrational symptoms.

Marissa Coates, who was Staton's girlfriend, testified that she grabbed Brazil's hand after he stabbed Mr. Williams, and Brazil appeared surprised to see the knife there.   Ms. Coates also testified that she believed Staton was very intoxicated that evening, although on cross-examination she testified he did not appear very intoxicated at approximately 10:30 p.m., when she and Staton arrived at the Royal Windjammer.

It was stipulated that Staton's blood alcohol level was .12 at 11:30 p.m., on October 8, 1982, and that the law presumes one to be under the influence at .10, and therefore the presumption arose that appellant Staton was under the influence of alcohol.¹

ISSUES 2

DISCUSSION

INO INSTRUCTIONS ON LESSER INCLUDED OR LESSER RELATED INSTRUCTIONS WERE NECESSARY 2IITHE OFFER OF PROOF AS TO AN EXPERT WITNESS FOR THE DEFENSE WAS INSUFFICIENT TO PRESERVE THE ISSUE ON APPEAL 2IIITHE TRIAL COURT'S FAILURE TO EXERCISE DISCRETION AS TO THE PRIOR CONVICTIONS REQUIRES THAT THE CASE BE REMANDED

 At the time of trial both appellants objected to their potential impeachment by use of their prior 1975 robbery convictions.³

Trial counsel for both appellants stated to the trial court that if the court allowed the appellants to be impeached with their prior convictions, neither would testify.⁴

The trial judge, understandably feeling constrained by what he believed to be the unambiguous restrictions of Proposition 8,⁵ ruled as follows:

“The Court:  This has come up almost every case since Proposition 8 was enacted and became the law, and I have carefully gone over this matter several times, and I am convinced that I do not have any discretion.   352 does not give me any discretion.   The new law does not give me any discretion.   It simply says that the fact of prior convictions shall be used if the People choose to do it.

“I've often said that their wisdom in doing so may or may not be remiss, but it's not my wisdom, it's theirs;  so I have no choice but to deny your motion to suppress any question about a prior conviction.”

However, in the case of People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, the California Supreme Court held that Article I, section 28, subdivision (b) of the California Constitution, as enacted by Proposition 8, did not abolish trial court discretion to exclude evidence of prior felony convictions pursuant to Evidence Code section 352.

The Castro court held that Article I, section 28, subdivision (f), only eliminated the strict requirements of its previous cases involving prior felony convictions.  (People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43;  People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771;  People v. Woodard (1979) 23 Cal.3d 329, 152 Cal.Rptr. 536, 590 P.2d 391;  People v. Fries (1979) 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19;  People v. Spearman (1979) 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74;  and People v. Barrick (1982) 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.)

Under the compulsion of Castro, we must find error in the trial judge's ruling that he had no discretion to exclude evidence of the prior convictions.   This leaves us with the question of what remedy is appropriate for the error.

In cases where the defendant has testified, the reviewing court normally reviews the record to see if a result more favorable to the defendant would have occurred in the absence of error.  (Cal.Const., art. VI, § 13;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.)

In cases where the defendant did not testify (such as in the case before us) that have been reviewed by the California Supreme Court, that court has chosen not to speculate as to what the defendant might have testified to, and has reversed those cases.  (See People v. Rist, supra, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833;  People v. Barrick, supra, 33 Cal.3d 115, 187 Cal.Rptr. 716, 654 P.2d 1243.)

However, this is not a per se rule.   Several appellate decisions have considered the evidence in cases where defendants have not testified and have concluded that in those particular cases, any possible testimony by the defendant could not have affected the outcome of the case, and therefore any error was harmless.  (See People v. Fisher (1984) 153 Cal.App.3d 826, 200 Cal.Rptr. 683;  People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669;  People v. Lassell (1980) 108 Cal.App.3d 720, 166 Cal.Rptr. 678.)

While we are convinced, based on the evidence in the matter before us, that the failure of the appellants to testify in this case had no bearing on the outcome of their individual cases, we believe a better solution exists for judging any error in this matter, especially in light of the number of cases that may be affected by the Castro decision.

 An appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from.   The court may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.  (Pen.Code, § 1260;  see People v. Minor (1980) 104 Cal.App.3d 194, 199, 163 Cal.Rptr. 501;  People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 132 Cal.Rptr. 30 (per Kaus, P.J.);  People v. MacDonald (1972) 27 Cal.App.3d 508, 103 Cal.Rptr. 726;  People v. Ingram (1978) 87 Cal.App.3d 832, 151 Cal.Rptr. 239.)

 We are satisfied, that in an appropriate case, such as the one now before us, especially where the priors in question seem to be otherwise admissible, a procedure remanding the matter to the trial court in order to allow the trial judge to exercise his discretion pursuant to Evidence Code section 352, as mandated by Castro, will best protect the interests of all parties.

Neither appellant should benefit, to the detriment of the People, if the original ruling would still be followed by the trial court.   It would be totally unjust to reverse a conviction for such a brutal crime, where the ruling on the disputed evidence would still be the same, and would not otherwise affect an error-free trial.

IV

DISPOSITION

This case is therefore remanded and the trial judge is directed to consider both prior convictions in light of People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.   If on remand the trial judge determines that, in the exercise of his discretion, the prior convictions of either or both of the appellants should still be admitted, the court shall rearraign either or both appellants for judgment and pronounce judgment on the verdict.

On the other hand, if the trial judge determines that in the exercise of his discretion he would have excluded evidence of either or both priors, he shall make an order granting that either or both appellants have a new trial.⁶

FOOTNOTES

FOOTNOTE.  

1.   We note with some concern that the stipulation entered into was legally incorrect.   A person is presumed to be under the influence with a blood alcohol level of .10 or more for the purpose of operating a motor vehicle safely.   In other circumstances the presumption does not apply.   (See Veh.Code, §§ 23152(b) and 23155.)

2.   See footnote *, ante.

3.   Only Brazil raised this issue on appeal.   However, we discuss this issue as to both appellants, because it was raised by both at trial.   We also note that appellant Staton's original counsel on appeal was replaced after the briefs in this matter were filed.  (See People v. Smith (1966) 63 Cal.2d 779, 796, fn. 8, 48 Cal.Rptr. 382, 409 P.2d 222.)

4.   Counsel for Brazil made the motion, Staton's counsel joined.

5.   Article I, section 28(f), of the State Constitution, passed by the voters on June 8, 1982, provides, “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

6.   We are aware of, and must respectfully disagree with the recent decision of Division Four of this district in the case of People v. Almarez (1985) 168 Cal.App.3d 262, 214 Cal.Rptr. 105, filed May 16, 1985.   In that case the Court of Appeal held that error under Castro in a case where a defendant did not testify requires reversal per se, and that a remand is not allowed.   Our reading of Castro, Rist and Barrick, supra, convinces us that reversal is not required, and a remand is the desirable and proper course of conduct.  (See also the concurring and dissenting opinion of Justice Grodin in People v. Memro, (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446.)

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

DANIELSON, Acting P.J., and ARABIAN, J., concur.