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People v. Hein

Court of Appeals of California
Jan 29, 2001
104 Cal. Rptr. 2d 85 (Cal. Ct. App. 2001)

Opinion

1-29-2001

(Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. BRANDON HEIN, et al., Defendants and Appellants. B106689 Filed


THE PEOPLE, Plaintiff and Respondent,
v.
BRANDON HEIN, et al., Defendants and Appellants.

APPEAL from the judgment of the Superior Court of Los Angeles County.

(Los Angeles County Super. Ct. No. SA022108)

Lawrence J. Mira, Judge. Affirmed in part; modified in part; and remanded with directions.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant Micah Holland.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Miliotti.

Aron Laub for Defendant and Appellant Jason Skip Holland.

Marilee Marshall & Associates and Marille Marshall for Defendant and Appellant Brandon Wade Hein.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, March Sanchez,

Supervising Deputy Attorney General, and Victoria Bedrossian, Deputy Attorney General for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION

STOEVER, J.**

This is an appeal from convictions (by jury) of various offenses, as follows:

1. Appellants Brandon Wade Hein, Micah Holland, Jason Holland and Anthony Miliotti: Count I , burglary (Pen. Code, 459). Count II, attempted robbery (Pen. Code, 664/211, 1192.7, subd. (c)(19)). Count IV, murder committed during the course of a burglary and an attempted robbery (Pen. Code, 187, subd. (a), 190.2, subd. (a)(17), 1192.7, subd. (c)(1)). The jury found to be true allegations of special circumstances and found the murder, burglary and attempted robbery to be of the first degree.

2. Appellant Jason Holland (only): In addition, the jury found this appellant, guilty of the lesser crime of assault with a deadly weapon as to count V, attempted willful, deliberate, premeditated murder. (Pen. Code, 664/187, subd. (a), 1192.7 subd. (c).) The jury also found to be true the personal use allegations as to counts I, II and IV (Pen. Code, 12022, subd. (b)) and the great bodily injury allegations as to counts I, II and V (Pen. Code, 12022.7, subd. (a), 1192.7 subd. (c)(8)). (The jury found the allegations of personal use and great bodily injury to be not true as to the remaining appellants.)

Appellants were sentenced to state prison, as follows:

1. Jason Holland -- Life without possibility of parole plus eight years.

2. Brandon Hein -- Life without possibility of parole plus four years.

3. Anthony Miliotti -- Life without possibility of parole plus four years.

4. Micah Holland -- 29 years to life.

SUMMARY OF FACTS AND PROCEEDINGS

Michael McLoren (McLoren) maintained a structure referred to as "the fort" in the backyard of his residence. The fort was a 13' x 14' enclosed structure furnished with, among other accoutrements, a bed and desk. The desk had two drawers containing marijuana and money. The top drawer contained marijuana for personal use. The second drawer, which was customarily locked, contained money and marijuana for sale. McLoren kept the key to the lock. The fort was generally known as a place where young persons could obtain and smoke marijuana. The existence of the marijuana and cash and their location were not secrets.

All facts relevant to the charged offenses occurred on May 22, 1995.

Jimmy Farris (Farris) and McLoren were friends. Although acquainted with appellants, Farris and McLoren were not friends with appellants. During the afternoon and evening, appellants were constantly in the company of each other, visiting friends, "cruising" the neighborhood and engaging in the conduct more specifically discussed below. Appellants were traveling about in a red pickup truck owned and driven by Christopher Velardo (Velardo).

In less than an hour before the charged offenses, at a location close to McLoren's residence, appellant Jason Holland (Jason) stole the wallet of Alyce Moulder (Moulder) from the Moulder vehicle. All of the other appellants were present in the pickup truck driven by Velardo. A short time later, Moulder spotted the Velardo truck and confronted Velardo and appellants. Velardo, the Holland brothers, and Brandon Hein (Hein) verbally accosted and threatened Moulder, struck the Moulder vehicle with objects and spat on the Moulder vehicle. (Hereinafter referred to as the "Moulder incident".) Although present throughout the Moulder incident, there is no evidence that appellant Anthony Miliotti (Miliotti) participated in it.

At approximately 7:00 p.m. McLoren and Farris were in the McLoren backyard in the immediate vicinity of the fort. Without permission or invitation, all appellants as a group entered the McLoren backyard by hopping over a fence. Micah Holland (Micah) and Miliotti entered first. Jason and Hein followed approximately ten to fifteen feet behind Micah and Miliotti. Micah immediately entered the fort and Miliotti stood in the doorway. Appellants did not have permission or invitation to enter the fort. There had not been prior arrangement for the sale of marijuana between McLoren and appellants.

Appellant Jason was carrying a folding pocketknife. There is no evidence that appellants Micah, Hein, or Miliotti carried weapons or that any of them knew Jason carried a pocketknife.

Appellant Micah unsuccessfully attempted to pull open the locked desk drawer. Next, appellants Micah and Hein, in a threatening manner, shouted words demanding that McLoren turn over the key to the locked desk drawer. Appellant Micah, when threatening McLoren and demanding the key, shouted, "Give me the key fool" and "Give me the key, ese. You want shit with Gumbys, ese?" McLoren refused to relinquish the key.

Appellants Micah, Jason and Hein then verbally and physically assaulted McLoren. The intensity and violence of the battle escalated. McLoren held Micah face down on a bed and elbowed him about the back and neck. Jason attempted to pull McLoren off of Micah. McLoren kicked Jason in the face. McLoren then heard appellant Jason say, "Let's get this fucker." While being held in a headlock, McLoren twice felt sharp, debilitating, pulsating sensations, which later proved to be multiple stab wounds. Jason admitted stabbing McLoren.

After McLoren was stabbed, Farris entered the fort and became involved in the melee. Farris confronted Jason, who turned and, without hesitation, stabbed Farris twice in the torso. Immediately thereafter, McLoren observed Hein beating Farris in the head and face with his fists. Farris did not resist or otherwise defend himself from the blows administered by Hein.

Both McLoren and Farris broke away from the fight and ran to McLoren's house. They each reported to McLoren's mother that ". . . they (appellants) came to get our stuff . . ." and had stabbed them. Mrs. McLoren saw a stab wound in the center of Farris' chest.

Witnesses observed appellants together leaving the McLoren yard, being met by the Velardo pickup truck and driving away in Velardo's pickup truck. A witness testified that he observed the four appellants on the street as they left the McLoren backyard apparently talking among themselves and smiling.

The evidence of Miliotti's involvement at or inside the fort consists of the testimony of McLoren, Jason and exhibits entered in connection therewith.

Jason testified that from the outset of the confrontation and fight Miliotti, who was physically the largest of the three appellants, stood in the doorway of the fort and that he (Jason) did not see Miliotti inside the fort. Jason testified that the only three people involved in the fight were McLoren, Micah and himself. Jason also testified that he was the one who pulled McLoren from Micah and that he (Jason) was the one who held McLoren during the stabbing. In depth cross-examination by the district attorney did not place Miliotti inside the fort.

McLoren's testimony regarding Miliotti's involvement is equivocal and contradictory. McLoren testified that all four appellants entered his backyard and positioned themselves around him in a manner making him feel surrounded. McLoren testified that Miliotti only stood in the doorway of the fort during the fight (a few feet away) and that he (McLoren) did not know if Miliotti ever entered the fort; that Miliotti did enter the fort and participated in the fight; that he (McLoren) thought Miliotti held him in a headlock when Jason stabbed him, but did not actually see Miliotti; that he (McLoren) did not know who imposed the headlock.

During initial police interviews, McLoren stated that Velardo was one of the four persons involved. Miliotti was not mentioned. Several days later, McLoren changed his statement and identified Miliotti as a participant, excluding Velardo.

The testimony of appellant Jason contradicted many of the details of the Moulder incident, as recited above. Jason testified that he, while travelling to McLoren's house and upon entering the McLoren property, at all times "believed" appellants went to the McLoren fort for the purpose of purchasing marijuana. Jason testified that, although he knew McLoren sold marijuana from the fort, he (Jason) had never himself purchased marijuana from McLoren. Jason testified that a fight quickly ensued between Micah and the much larger McLoren.

Jason testified that he feared for his brother's (Micah) safety and that in coming to the aid of Micah, he (Jason) was kicked in the face. Jason admitted in open court that in the course of the fight he did in fact stab both McLoren and Farris. Jason told the other appellants and Velardo that he (Jason) had stabbed both McLoren and Farris and showed them his knife with blood on it. Up to this point, the evidence is that only appellant Jason knew that McLoren and Farris had been stabbed.

Jason testified that he was under the influence of alcohol during both the Moulder incident and the events at the fort.

McLoren was hospitalized for stab wounds, which were constantly and intensely painful. Jimmy Farris died. The cause of Farris' death was the stab wound(s) inflicted during the fight with appellants.

In a telephone conversation, Jason's mother told him that he was wanted for murder. Jason fled and went into hiding for several weeks. Subsequently, he voluntarily surrendered to law enforcement authorities.

Following extensive in limine proceedings, the trial court found that there was insufficient evidence to implicate appellants as gang members and ruled as a matter of law that any evidence of gang membership would be excluded. Notwithstanding this ruling, during cross-examination, Deputy District Attorney Semow inquired of appellant Jason:

"Q: Do you know what Gumbys is?

"Mr. Leftwich: Your Honor, objection.

"Mr. Salzman: Objection. Would you kindly admonish the District Attorney

to listen to the Court's ruling.

"The Court: Sustained.

"By Mr. Semow: Q: Are you a member Of Gumby's?

"Mr. Salzman: Objection.

"Mr. Leftwich: Oh, my God.

"Ms. Lansing: Objection.

". . .

"The Court: Sustained, Mr. Semow."

(The court had allowed expert law enforcement testimony which identified "Gumbys" as a local street gang.)

The trial court received in limine argument regarding the admissibility of evidence relating to uncharged criminal offenses. Ultimately, the trial court admitted evidence of the Moulder incident for the limited purpose of proving identity and intent. The trial court further found that the probative value of such evidence outweighed any prejudicial effect.

At the time such evidence was admitted and again at the conclusion of trial, the court instructed the jury that evidence of uncharged offenses (Moulder incident) could be considered only for the limited purpose of determining if it tended to show the existence of the intent required for the charged offense(s) and the identity of the person(s) who committed the charged offense(s).

In the opening phase of final argument, Deputy District Attorney Semow properly addressed the evidence received and limited his comments regarding the Moulder incident to the issues of identity and intent.

Not so, however, did Deputy District Attorney Michael Latin (Latin) in the rebuttal phase of final argument:

"What was Jason's explanation for why they took the Wallet? . . . It wasn't just stupid, it was evil. It was mean-spirited, it was dishonest, and it was rotten, and he didn't feel any remorse for doing that. If he did, there were a number of things he could have done. And neither did Brandon Hein and neither did Micah Holland, and neither did Tony Miliotti. . . . What does that tell you about these five individuals? They're not very nice, are they?

"Mr. Salzman: Objection.

"Mr. Sussman: Objection

"The Court: Sustained.

"Mr. Salzman: Ask the jury be admonished to disregard that.

"The Court: I think the jury is well aware this isn't evidence."

During final argument, Latin also impugned the honesty and integrity of defense counsel; expressed his opinion as to the "purity" of the prosecution case compared to the contaminated defense; compared appellants to a pack of wolves attacking a bunny rabbit; and, strongly suggested that this case involved gang activity.

LAW AND DISCUSSION

Appellants Jason, Hein and Miliotti have each, pursuant to California Rules of Court, rule 13, joined in all beneficial arguments of their co-appellants. Although the opening brief of appellant Micah does not join, since most issues are common to all appellants, it shall be assumed that Micah intended to exercise his rule 13 joinder. Except as otherwise specifically indicated references to "appellants" herein shall refer to all appellants.

Throughout the following discussion, references are made to the court's admonitions and instructions to the jury. Unless otherwise indicated, "It is, of course, axiomatic that the jury is presumed to have followed the instructions and obeyed the law. (Citation.)" (People v. Ryan (1981) 116 Cal.App.3d 168, 179.) Furthermore, "It is well settled that in determining the sufficiency of jury instructions, we must consider the entire charge of the court. Additionally, we must assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. (Citations.)" (People v. Mills (1991) 1 Cal.App.4th 898, 918)

Appellants were convicted, inter alia, either as perpetrators or aiders and abettors of murder committed during a burglary or attempted robbery, i.e., felony murder.

The pivotal issues for determination by the trier of fact (the jury) were: 1) Did appellants, as they entered the McLoren property and engage in the activities discussed herein, have the requisite specific intent to permanently deprive the victim of his property? 2) Were appellants aiders and abettors in the commission of the underlying crimes, i.e., burglary and attempted robbery? 3) Was the stabbing of Farris part of one continuous course of criminal conduct; or, was it separate and distinct from the underlying crimes of burglary and attempted robbery?

I. Inconsistent Verdicts

Appellants have frequently interpreted apparent inconsistencies in the various verdicts in support of their contentions. In analyzing this case, we do not consider the inconsistent verdict arguments. (People v. Santamaria (1994) 8 Cal.4th 903, 911; People v. York (1992) 11 Cal.App.4th 1506, 1510; Pen. Code, 954.)

II. Evidence of Uncharged Offense(s) (Moulder Incident)

At the outset of trial, both identity and intent were open issues. As the trial proceeded, the identity issue became moot. Appellant Jason admitted stabbing both McLoren and Farris. The uncontradicted evidence was that all appellants were present throughout the Moulder incident and the events at the fort.

The issue of appellants' intent in entering the McLoren property and during the events at the fort was hotly contested and critical throughout the trial.

The Moulder incident and the underlying charged crimes are theft-type offenses involving group action and intimidating conduct by members of the group. In both the Moulder incident and the underlying charged offenses, the acting group consisted of all appellants. Finally, it occurred at a time and location relevant to the underlying charged offenses.

The trial court admitted evidence of the Moulder incident as proof of intent and identity, but not for common design or plan.

Evidence relating to appellants' intent is clearly material. The nature of the misconduct in the Moulder incident is similar to that of the charged crimes. "'[I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance' (citations) and . . . such prior conduct may be relevant circumstantial evidence of the actor's most recent intent." (People v. Robbins (1988) 45 Cal.3d 867, 879.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. (Citation.)" (People v. Ewoldt (1994) 7 Cal.4th 380, 402; People v. Hawkins (1995) 10 Cal.4th 920, 950-952; People v. Robbins, supra, 45 Cal.3d at p. 880.)

The trial court properly weighed the probative value of such evidence against its prejudicial effect. (Evid. Code, 352.) The court thoroughly stated on the record its reasoning in concluding that evidence of the Moulder incident would be admissible for the stated purposes. (People v. Ewoldt, supra, 7 Cal.4th at p. 406.) There is no error in the trial court's reasoning or decision on this issue.

During trial, when the evidence was received and on other occasions the jury was instructed that evidence of the Moulder incident could be considered only in determining the issues of intent and identity and not for any other purpose. (Evid. Code, 1101(b).) At the conclusion of trial, the trial court formally instructed the jury generally regarding evidence received for a limited purpose (CALJIC No. 2.09); and, specifically, regarding the limited use for which evidence of uncharged crimes was received, to wit: intent and identity. The jury was specifically instructed that such evidence could not be considered to show bad character or a disposition to commit crimes or for any purpose other than that allowed by the court. (CALJIC No. 2.50)

The trial court did not abuse its discretion in admitting evidence of the Moulder incident. (People v. Memro (1995) 11 Cal.4th 786, 864.)

III. Prosecutorial Misconduct

Appellants contend that the Gumbys membership question asked of Jason by Deputy District Attorney Semow (Semow) and the closing argument by Deputy District Attorney Latin (Latin) are each in themselves prejudicial misconduct and constitute cumulative misconduct which deprived appellants of their rights to a fair trial.

We agree with appellants that the Gumbys membership question asked by Semow directly contravened the trial court order excluding gang evidence. It was wrong of Semow to ask this question. At the very least, Semow should have raised the issue at side bar outside the presence of the jury. However, the trial court sustained timely objections by defense counsel. The court instructed the jury: "I want to give you an instruction that makes reference to a single question that was asked here with reference to membership in Gumbys. Semow asked the question. I believe the question was an improper question to ask.

"I want you to understand here that there is nothing in the evidence that has been presented in the trial which would establish that any of these defendants are members of this gang called Gumbys. The question that was asked, as you will be instructed, is not evidence, so the question doesn't give you that information.

"And if you thought you heard a response . . . disregard it.

"It is critically important that you decide this case on the facts and the reasonable inferences from it and not from anything else. All right?"

At the conclusion of the case, the jury was instructed not to assume to be true any insinuation suggested by a question; and, that a question is not evidence and may be considered only as it enables the jury to understand the answer. (CALJIC No. 1.02)

In his rebuttal argument, Latin engaged in personal attacks on opposing counsel, argued his personal opinions as to the "purity" of the prosecution case versus the dishonesty of the defense case, suggested the existence of gang activity and stated his opinions regarding the bad character of appellants. Such conduct was unnecessary, professionally questionable and highly risky. It was misconduct.

"A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820.)

While it is reasonable to argue that many comments in the rebuttal by Latin fall below the standard of professional responsibility expected of prosecutors, they also fall far short of the constant and egregious misconduct present in People v. Hill, supra, 17 Cal.4th 800.

"'"'[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' [citation], and he may 'use appropriate epithets. . . .'"' (People v. Wharton [(1991)] 53 Cal.3d [522,] 567-568 [280 Cal. Rptr. 631, 809 P.2d 1279].)" (People v. Hill, supra, 17 Cal.4th at p. 819.)

This was a long, intense, hard fought trial. There were weeks of pretrial proceedings. Opening statements to the jury began on March 26, 1996. Verdicts were returned on May 28, 1996. The wrongful Gumbys membership question by Semow and the wrongful rebuttal argument by Latin could not, in themselves, have consumed more than a few minutes. The ensuing argument and admonition/instruction by the court undoubtedly took more time than the combined question and rebuttal. The prosecutorial conduct in question here pales when compared to the daily, constant, unrelenting misconduct of the prosecutor in Hill. We do not mean to imply that a simple time comparison is the test. However, reason and perspective are important.

The trial court carefully performed the task of balancing the wide latitude afforded the prosecutor in vigorously arguing his case while holding in check any over zealousness which might otherwise have jeopardized appellants' right to a fair trial. When defense counsel objected to the prosecutor's argument, the court promptly ruled thereon. When objections were sustained, the court advised the jury that the comments of counsel were not evidence. Finally, the court formally instructed the jury that "Statements made by the attorneys during the trial are not evidence. . . ." (CALJIC No. 1.02.)

In order to warrant reversal, it must be determined that the alleged misconduct has prejudiced appellants' right to a fair trial. In this case, the evidence against appellants was overwhelming. Defense evidence was unpersuasive. If the prosecutors' comments had not been made, it is not reasonably probable that a result more favorable to appellants would have occurred. (People v. Milner (1988) 45 Cal.3d 227, 245.) Reversal is required only where egregious misconduct infects the trial with such unfairness as to make a conviction a denial of due process; or, it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Hill, supra, 17 Cal.4th at p. 819; People v. Warren (1988) 45 Cal.3d 471, 480; People v. Kelley, supra, 75 Cal.App.3d at p. 690.)

We conclude that the conduct of the prosecutors, individually or cumulatively, does not require reversal of the judgments of conviction.

IV. Jury Instructions

Appellants challenge various instructions given by the trial court, as follows:

CALJIC No. 3.01

Appellants contend that CALJIC No. 3.01 does not accurately reflect the Penal Code section 31 definition of aiding and abetting in that the use of the disjunctive "or" in CALJIC No. 3.01 would allow the jury to convict on the basis of a finding of aiding or abetting as distinguished from the statutory conjunctive aiding and abetting. This argument was specifically rejected in People v. Campbell (1994) 25 Cal.App4th 492, pages 410-414. We agree.

CALJIC No. 8.27

Appellants contend the trial court erred in using CALJIC No. 8.27. Appellants' reliance upon People v. Pulido (1997) 15 Cal.4th 713 is misplaced. The facts in Pulido are distinguishable from the facts before this court, to wit: the appellant in Pulido joined in the robbery enterprise after the homicide. In this case, the homicide occurred while the attempted robbery and burglary were in progress. Respondent correctly argues that People v. Escobar (1996) 48 Cal.App.4th 999 does survive Pulido; and, that CALJIC No. 8.27 is actually approved in People v. Pulido, supra, 15 Cal.4th at pages 728-729, for appropriate fact situations--such as this case. Appellants' challenge to CALJIC No. 8.27 is without merit.

CALJIC No. 8.80.1

Appellants argue that the statutory phrase "reckless indifference to human life," as incorporated into CALJIC No. 8.80.1, is unconstitutionally vague and overbroad; and, that CALJIC No. 8.80.1 is unconstitutionally vague as it fails to incorporate the element of implied malice. The California Supreme Court has specifically rejected these arguments in People v. Estrada (1995) 11 Cal.4th 568. We, of course, concur.

CALJIC No. 8.81.17

Appellants contend that the trial court gave CALJIC No. 8.81.17 in an erroneous form.

The court instructed:

"To find the special circumstance, referred to in these instructions as murder in the commission of attempted robbery and/or burglary, is true, it must be proved:

1. The murder was committed while a defendant was engaged in the commission or attempted commission of a robbery and/or burglary"

The claimed error is that the court omitted paragraph No. 2 from CALJIC No. 8.81.17, which reads: "2. The murder was committed in order to carry out or advance the commission of the crime of (attempted robbery and/or burglary) or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the (attempted robbery and/or burglary) was (were) merely incidental to the commission of the murder." (Parenthesis by this court.)

Relying on People v. Green (1980) 27 Cal.3d 1 and People v. Thompson (1980) 27 Cal.3d 303, appellants argue that, in finding the special circumstance to be true, the jury was required to make two findings: 1) That the murder was committed during the commission or attempted commission of a robbery or burglary; and 2) that the murder was committed to advance the commission of the attempted robbery/burglary or to facilitate the escape.

Under the facts of this case, neither Green nor Thompson support appellants' contention that it was reversible error for the trial court to omit paragraph No. 2 from CALJIC No. 8.81.17.

There is no evidence in the record to support so much as an inference that any of the appellants entered the McLoren property or confronted McLoren with the intent to kill anyone. The prosecution conceded this point at the outset of trial. The evidence is overwhelming that appellants intended to take McLoren's marijuana and/or money; that the fight involving McLoren, Hein and the Holland brothers arose as the result of appellants' larcenous actions; that Farris came to the aid of his friend, McLoren; and, that Jason stabbed both McLoren and Farris during the fight.

If there was evidence supporting an inference that the burglary and attempted robbery were incidental to the killing, then it would be reversible error to omit paragraph No. 2 of CALJIC No. 8.81.17. However, when the evidence is overwhelming that the killing was incidental to the underlying crimes of burglary and attempted robbery, it is entirely appropriate to omit paragraph No. 2 of CALJIC No. 8.81.17. (People v. Kimble (1988) 44 Cal.3d 480, 499-504.)

In this case, there is no evidence that reasonably or rationally suggests that appellants attempted to take McLoren's property as a mere incident to murdering him or Farris. Instead the evidence points convincingly to a primary intent to take property which degenerated into a killing. Appellants remained in the presence of their victims and exited the premises only after their victims ran from the fort and escaped from appellants' assault. Appellants were engaged in the commission of the attempted robbery and burglary until they exited the McLoren property and drove away in Velardo's truck. (People v. Williams (1994) 30 Cal.App.4th 1758, 1763.)

This issue was directly answered contrary to appellants' contentions in People v. Kimble, supra, 44 Cal.3d at pages 499-504. In clarifying Green the Supreme Court held that, in a case where there is substantial evidence to show that the underlying crimes were not incidental to the murder, there is no sua sponte duty for the trial court to give paragraph No. 2 from CALJIC No. 8.81.17. (The Supreme Court specifically declined to discourage trial courts from giving paragraph No. 2 as a matter of course in all cases.) (Id. at p. 501, fn. 16.)

Appellants' reliance upon Apprendi v. New Jersey (2000) 530 U.S. 466 is not persuasive. The Apprendi decision does not change our conclusions regarding the use of CALJIC No. 8.81.17 in light of the facts herein.

The instruction as given correctly and adequately explained the general principle of law requiring a determination as to whether or not the murder was committed during the commission or attempted commission of a robbery and/or burglary. There was no error.

V. Waiver(s) of Issues on Appeal

Respondent urges this court to rule on its contention that appellants waived issues of instructional errors on appeal by failing to object, in fact acquiescing, to the manner in which the instructions were given by the trial court. Since determinations on the merits are possible, it is unnecessary for us to address this intriguing question. We, therefore, respectfully decline doing so.

VI. Wheeler-Batson Motions

Appellants contend that the trial court erred in denying motions pursuant to People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79. Appellants argue that the prosecution exercised its peremptory challenges in a pattern designed to exclude female prospective jurors thereby depriving them of their constitutional rights to an impartial jury and equal protection of the law.

"[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations] . . . [W]e examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with 'considerable deference' on appeal. [Citations.] If the record 'suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm. [Citation.]" (People v. Howard (1992) 1 Cal.4th 1132, 1155.)

The record of voir dire has been reviewed de novo. First, we agree with the trial court finding that the defense did not present a prima facie case that the prosecutor exercised peremptory challenges based upon a group bias. Second, the record of voir dire does support legitimate reasons for peremptory challenges. (People v. Box (2000) 23 Cal.4th 1153, 1185-1190.)

Appellants' Wheeler-Batson contentions are without merit.

VII. Judicial Bias

Appellants contend that the trial court's rulings and admonitions to the jury reflect a pro-prosecution and/or anti-defense bias. Appellants merely cite rulings and admonitions with which they disagree. It is possible that the admonitions about which appellants complain could actually have worked in their favor.

There is nothing in the record to support appellants' claim of judicial bias. It is wholly without merit.

VIII. Juror Misconduct

Appellants contend the trial court erred in denying their motions for mistrial and for a new trial on the ground of alleged juror misconduct. Appellants requested an evidentiary hearing in connection with their claims of jury misconduct. The motions for a new trial were denied without holding the requested evidentiary hearing.

The daughter of original Juror No. 3 attended a few days of trial as an observer, went to lunch with her mother (No. 3) and five other jurors and sat in open court with the family of victim Farris. Upon inquiry by the court, the daughter of Juror No. 3 identified her relationship to Juror No. 3, stated she was acquainted with Farris' brother, Travis, and specifically stated that she had not discussed the case with anyone, including her mother (No. 3), the five jurors at lunch or the Farris family. Juror No. 3 confirmed to the court that there had been no discussion of the case. The court denied appellants' request to excuse Juror No. 3 and denied appellants' motion for a mistrial.

At a later time, Juror No. 3 stated to the court that she feared for the safety of her daughter and herself in the event of a conviction, but that she could and would remain fair and impartial; and, assured the court that she could and would deliberate without reference to her fears. The court again denied appellants' request to excuse Juror No. 3 and denied appellants' motion for a mistrial.

At an even later time, Juror No. 3 told the court that for a variety of reasons relating to her daughters' being identified in court and the questioning thereon, she could not concentrate and could not be fair and impartial. The court excused Juror No. 3, seated one of the alternate jurors and denied appellants' motion for a mistrial.

All of the forgoing events relating to original Juror No. 3 occurred before the prosecution rested its case. There is nothing in the record to suggest that the remainder of the jury was tainted in any manner by any of the events involving Juror No. 3 or her daughter. Any suggestion to the contrary is sheer speculation.

On the morning of the day when verdicts were returned, the jury inquired of the court as to contact with the media, contact with the attorneys, contact with the families and the security of their personal information. The court responded to each of their questions. Verdicts were returned later that day. This does not indicate juror misconduct. On the contrary, it is an expression of understandable, legitimate concern by a group of citizens serving as jurors in a lengthy, high profile criminal case.

The court gave CALJIC No. 17.40, which reads, in part: "Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision."

Approximately two months after verdicts were returned and the jury was excused, Juror No. 10 sent a letter to the court, in which the juror stated, inter alia, "Admittedly, I was a cause of 2 days deliberation because I wasn't sure we had enough to go with 'intent to-steal' which was the key to this case. Reasons given by eleven were very reasonable and good as mine but your instruction says that if both were reasonable, numbers win. Am very comfortable with my decision. We became very understand (sic), thoughtful, diligent as days went by. We gave our best. This was a very good group." (Emphasis and italics added.) The court sent copies to all counsel.

The letter from Juror No. 10 does not show misconduct per se. There is an ambiguity in that the underlined portion of the letter, supra, seems to be contrary to the court's instruction. (CALJIC No. 17.40.) On the other hand, the italicized portion of the letter, supra, suggests that Juror No. 10 changed her/his position as "my decision" and was comfortable with it. If the latter is correct, there is no misconduct.

The trial court found that the letter reflected the juror's ". . . mental processing, which is not attackable to set aside a verdict or a new trial issue."

In connection with appellants' motion for a new trial, the trial court denied appellants' request to disclose juror identity information pursuant to Code of Civil Procedure sections 206 and 237. Appellants relied solely on the quoted portion of the letter from Juror No. 10, supra, as good cause for the requested section 206/237 disclosure.

The trial court stated on the record its belief that there was a clear legislative intent to protect juror privacy and that disclosure was required only after a showing of good cause. The court found that the quoted portion of the letter, supra, did not constitute good cause.

While reasonable minds may differ with the trial court's conclusions regarding good cause and its ruling on the request to disclose juror identity information, the record clearly reflects that the court exercised its discretion reasonably and thoughtfully. The court did not abuse its discretion.

It was not error for the trial court to deny appellants' request for juror identity disclosure. It was not error to deny appellants' motion for a new trial on the grounds of alleged juror misconduct without an evidentiary hearing.

IX. Cross-examination Regarding McLoren's Civil Liability

Appellants contend the trial court abused its discretion in sustaining objections to cross-examination propounded to McLoren regarding his possible civil liability for the death of Farris. Further, appellants contend the trial court abused its discretion in denying a motion to continue the People v. Dillon (1983) 34 Cal.3d 441 hearing pending investigation of the civil case. These contentions are without merit.

Appellants' suggest that potential civil liability, i.e., financial interests, might have cast doubt on McLoren's testimony. This is, at best, speculation and conjecture. There is nothing in the record giving rise to even a suspicion that the McLoren family would have civil liability exposure for a death resulting from the intentional misconduct of third parties.

Furthermore, the testimony of Jason (a witness called on behalf of all appellants) to a large extent corroborated the testimony of McLoren with respect to the events which occurred in the fort. Their testimony differs materially only as to the issue of intent. The "intent testimony" of Jason that, while in an intoxicated condition, he "believed" appellants were going to purchase marijuana from McLoren is of no greater persuasive force than was McLoren's "intent testimony," assuming arguendo, that McLoren would have acknowledged possible civil liability.

Overwhelming evidence supports the convictions for the underlying offenses without McLoren's "intent testimony." Any error was harmless.

There is nothing in the record to support appellants' contention that the trial court erred in denying appellants' motion to continue the Dillon hearing. The trial court exercised its discretion appropriately.

X. Speedy Trial Rights

Appellant Hein contends he was denied his constitutionally guaranteed right to a speedy trial. There is no merit to appellant's contention.

Hein was arraigned on June 21, 1995. As of that date, none of the other appellants had been joined with Hein as co-defendants. Hein's first trial date was set for August 14, 1995. The prosecution and defense agreed that August 21, 1995, would be the sixtieth day for trial.

Appellant Jason was arraigned on July 27, 1995. The court joined Hein and Jason for trial and set August 21, 1995, as the trial date. The court acknowledged that the remaining appellants were yet to have preliminary hearings etc. and that further continuances were likely in the event of consolidation.

Ultimately, the court consolidated all appellants for trial over Hein's objection. The court consolidated the cases because the theory of the prosecution was that appellants had committed a felony murder while acting in concert.

The court granted several trial continuances over Hein's objections. The court found good cause existed for each continuance such as pending juvenile court issues, co-defense counsel needing additional preparation time, co-defense counsel being engaged in other trials, unresolved discovery issues and similar grounds espoused by co-defense counsel. Some co-defendants waived time and objections to the requested continuances.

The prosecution advised the court that, if so required, it was at all times prepared to try only the Hein case notwithstanding the substantial duplication of efforts, witness hardship and consumption of court resources.

The continuances delayed Hein's trial for six months. Hein objected to each requested continuance. His motion to dismiss was denied. This court denied his petition for writ claiming violation of speedy trial rights.

The trial court did not abuse its discretion in finding good cause for the continuances requested by co-defendants. The trial court correctly balanced the Penal Code section 1098 mandate for joint trials with appellants' section 1382 speedy trial rights. The trial court did not abuse its discretion in finding good cause for the continuances. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487.)

XI. Evidence Regarding "Gumbys" and Failure to Hold a Hearing Regarding

Security Measures

After extensive pretrial hearings, the trial court ruled that evidence of appellants' gang membership, if any, was insufficient and therefore inadmissible; that the fact of gang membership, if any, was irrelevant; and, that evidence of gang membership, if any, was inadmissible under Evidence Code section 352 (b). However, the court also allowed expert testimony regarding street gangs with an explanation of what "Gumbys" was, i.e., a street gang known in the local community.

One of the charges against appellants was robbery or attempted robbery, to wit the taking of property by force or fear. The trial court properly allowed evidence of Micah's shouted statement to McLoren, "You want shit with Gumbys, ese?" as part of the operative facts in the alleged robbery. Absent the expert testimony regarding the local meaning of the word "Gumbys," the prosecution would have been left arguing force and fear through the threat of a cartoon character or flexible rubber doll. The trial court correctly avoided such an absurdity.

Appellants contend the prosecution misrepresented its intended use of the gang expert testimony, referring to the Semow cross-examination of Jason and the prosecutors' closing argument. These issues are treated above under the "Prosecutorial Misconduct" heading.

The trial was held in the Malibu courthouse, which did not at that time have weapons screening devices at the entrance. The case had a very high public profile. Print and electronic media covered it daily. Due to the lengthy estimate of trial time, several panels of prospective jurors were required. At first, prospective jurors were not wearing identification badges and counsel were unknown to court security personnel.

The sheriff department's court security personnel recommended that all persons entering the courtroom, including prospective jurors, but excluding counsel and law enforcement, be required to pass through weapons screening. The trial court accepted this recommendation. For a short time at first, hand held magnetometers were used. Thereafter, stationary, upright magnetometers were used.

The trial court explained to the panels of prospective jurors that the screening procedures were a standard requirement and that they were not to draw any inferences from them. The court invited counsel to either make further inquiry on the subject or to submit questions for inquiry by the court. Defense counsel did not make such inquiry, did not submit questions to the court, did not object to the security procedures and did not request a hearing.

The issue is raised for the first time on appeal. The issue is waived.

Appellants' analogy to the use of shackles or other security devices on a defendant does not apply. Here, the appellants were not singled out and made to appear as security risks. All persons entering the courtroom, except counsel and law enforcement, passed through the magnetometers. Security screening is now a fact of life experienced by the public in airports, public buildings, sporting events, some schools and most courthouses.

The trial court has broad discretion over the control and security of its facilities. That discretion was not abused in this case.

XII. Constitutional Challenge to Penal Code Section 190.2, Subdivision (d)

Appellants contend Penal Code section 190.2, subd. (d) is unconstitutionally vague, over broad, arbitrary, over inclusive and fails to properly narrow the class of offenders falling within its ambit, both facially and as applied. This issue is discussed above with respect to CALJIC No. 8.80.1.

The California Supreme Court has specifically rejected these contentions. (People v. Estrada, supra, 11 Cal.4th 568 citing and discussing Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida (1982) 458 U.S. 782.)

Appellant Hein cites nothing in the record to support his ipse dixit assertion that the Los Angeles Police Department influenced the district attorney's filing decisions in this case. These gratuitous remarks are ignored by this court.

XIII. Penal Code Section 654

Appellant Micah contends the trial court erred in imposing consecutive terms for the burglary (4 years) and murder (25 years to life) convictions. He argues that the burglary/attempted robbery/murder were all parts of an indivisible course of conduct. Thus, Penal Code section 654 compels imposition of sentence for only one of the convictions, but not more than one.

We do not agree. The trial court correctly applied section 654 by imposing and staying a two-year term for the attempted robbery conviction, which was an offense arising from the same conduct directed at the same victim as the burglary conviction. The killing of Farris, however, was an act directed at a person not the victim of the underlying burglary/attempted robbery offenses. Thus, section 654 does not apply to the punishment imposed for the murder conviction. (People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312.)

XIV. Sufficiency Of The Evidence To Sustain Felony Murder Convictions

Appellants contend that the evidence is insufficient as a matter of law to sustain felony murder convictions. We do not agree.

"'To determine whether there is substantial evidence to support a conviction . . . [the reviewing court] . . . must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. [The reviewing court] . . . may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.]" (People v. Campbell, supra, 25 Cal.App.4th at p. 408.)

Substantial evidence supports the felony murder convictions of all appellants. As a group, appellants were present during and/or involved in the Moulder incident. As a group, appellants rode in Velardo's truck to the McLoren property. As a group, appellants entered the McLoren property by hopping the fence and proceeding directly to the fort. As a group, appellants stood in close proximity to Micah as he attempted to pull open the desk drawer. As a group, appellants stood in close proximity to the initial Micah-McLoren verbal confrontation. Within seconds thereafter, Hein entered into the verbal confrontation with McLoren and the physical altercation began. Appellants Micah, Jason and Hein were active participants in the fight. Jason admitted stabbing both McLoren and Farris during the fight. As a group, all appellants left the McLoren property, talking with each other and smiling. As a group, appellants boarded Velardo's truck and left the scene.

Miliotti did not withdraw from the action, leave the premises before commission of the crime(s) or do anything to prevent the commission of those crimes.

Clearly, the jury found the fight and stabbings to be parts of one continuous course of criminal conduct. Such a finding is the only reasonable conclusion under the facts before this court.

The felony murder conviction of appellant Miliotti could only have been based upon the finding that he was an aider and abettor to the underlying felonies of burglary and attempted robbery. The issues are whether or not he shared the intent requisite to the underlying felonies, whether or not he had the requisite knowledge of the perpetrators' unlawful purpose and whether or not he intended to aid and abet in the commission of that unlawful purpose. These issues are fundamentally questions of fact for jury determination, i.e., was Miliotti merely a casual observer or an aider and abettor?

Counsel for Miliotti argued at length that Miliotti was simply in the wrong place at the wrong time. In other words, that, although he was present, there was no evidence involving Miliotti in the Moulder incident; that, although present at the fort, Miliotti merely stood at the doorway; and, that there was no evidence that Miliotti participated in the attempt to take marijuana or was physically involved in the fight. Defense counsel argued the exclusionary language of CALJIC No. 3.01, infra.

The trial court instructed the jury as to the equal guilt of principals in a crime, including those who directly or actively commit the crime and those who aid and abet therein. (CALJIC No. 3.0) The trial court also instructed the jury as to the definition of aiding and abetting, including that which aiding and abetting is not (CALJIC No. 3.01):

"Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting;" and, "[m]ere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."

The court also instructed the jury, "[i]f a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery and/or burglary, all persons who either directly or actively commit the act constituting the crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental." (CALJIC No. 8.27; approved in People v. Pulido, supra, 15 Cal.4th at p. 728.)

The evidence regarding Miliotti's role in the events at the fort was conflicting. The jury resolved this conflict, applied the law as instructed by the court and convicted Miliotti. It would be reasonable to infer from the evidence of Miliotti's conduct that he assumed his position in the doorway, in close proximity to McLoren, to intimidate McLoren, to block McLoren's exit and/or to act as a lookout.

While it is generally correct that neither mere presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission, "(a)mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense." (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; People v. Campbell, supra, 25 Cal.App.4th at p. 409.)

There is substantial direct and circumstantial evidence to support the convictions of all appellants.

XV. Sufficiency Of The Evidence For Special Circumstance Finding

Appellants contend that the evidence is insufficient to support the special circumstance finding. (Pen. Code, 190.2, subd. (d).)

The stringent standard of review for an insufficiency of the evidence contention is found in People v. Campbell, supra, 25 Cal.App.4th at page 408.

The jury was instructed that it could only find the special circumstance to be true if they found beyond a reasonable doubt (1) that the defendant with the intent to kill aided and abetted any actor in the commission of the first degree murder; or, (2) that the defendant with reckless indifference to human life and as a major participant aided "or" abetted in the commission of the attempted robbery and burglary which resulted in the death of Farris. (Emphasis added.) (CALJIC No. 8.80.1; Pen. Code, 190.2, subd. (d); Tison v. Arizona, supra, 481 U.S. 137.)

Although a death penalty case, the opinion in Tison is helpful in weighing the sufficiency of the evidence for application of the special circumstance provisions of Penal Code section 190.2 (d). In Tison the majority opinion discusses the significant overlapping of the "major participant" and mental state requirements. In other words, the greater the defendant's participation, the more likely he acted with reckless indifference to human life.

Appellant Jason entered the McLoren property in possession of a pocketknife. He admits intentionally stabbing both McLoren and Farris with that knife. Jason killed Farris while engaged in the commission of an attempted robbery and burglary. There is abundant evidence supporting the special circumstance finding as to Jason.

Both appellants Hein and Micah were active participants in the attempted robbery and burglary that culminated in the death of Farris. Both Hein and Micah continued their violent, assaultive behavior before, during and after Jason shouted "Let's get this fucker," referring to McLoren. The stabbing of Farris occurred immediately, without hesitation, following the stabbing of McLoren. There is ample evidence to support the jury findings that Hein and Micah were "major participants" and that they acted "with reckless indifference to human life."

The evidence as to appellant Miliotti presents a more difficult inquiry. Respondent argues that it may be inferred that Miliotti entered the fort and actively participated in the fight. However, the evidence is persuasive that Miliotti did not enter the fort, but merely stood in the doorway during the activities inside the fort. The only evidence placing Miliotti inside the fort is the equivocal testimony of McLoren, who stated he thought Miliotti was in the fort, but didn't actually see him there. (On one occasion, the court struck such testimony as speculative. On another, no objection was raised or motion to strike made.) McLoren did testify that he actually saw Miliotti standing in the doorway. Jason, who was intoxicated throughout, testified that Miliotti only stood in the doorway and never entered the fort.

We find, as a matter of law, that the evidence is insufficient to support a finding that Miliotti was a major participant in the attempted robbery or burglary and that he acted with a reckless indifference to human life

As to appellant Miliotti, the evidence is insufficient to support the finding of a Penal Code section 190.2 (d) special circumstance.

XVI. Cruel or Unusual Punishment

Each appellant contends that the sentence imposed constitutes cruel or unusual punishment contrary to the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Appellants argue that the punishment imposed is disproportionate to the nature of the crime involved.

The United States Supreme Court has held that in non-capital cases the disproportionality test has exceedingly rare application under the federal constitution. (Harmelin v. Michigan (1991) 501 U.S. 957.) It is undoubtedly with this in mind that the parties have directed their arguments to the California Constitution and the California Supreme Court opinion in People v. Dillon, supra, 34 Cal.3d 441.

The power to define crimes and prescribe punishments is a legislative function. The court may not subvert the legislative process unless the statute prescribes a penalty which is so severe in relation to the crime as to violate the constitutional prohibition against cruel or unusual punishment. The basic test "is whether the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Dillon, supra, 34 Cal.3d at p. 478.)

"The main technique of analysis under Dillon is to examine the nature of the offense and the nature of the offender. (34 Cal.3d at p. 479.) With respect to the nature of the offense, the court considers the offense not only in the abstract but also the facts of the crime in the particular case, 'including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' (Ibid.) With respect to the nature of the particular person before the court, the question is whether the punishment is 'grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.' (Ibid.)" (People v. Young, supra, 11 Cal.App.4th at p. 1308; In re Lynch (1972) 8 Cal.3d 410, 425-428; People v. Weddle (1991) 1 Cal.App.4th 1190, 1195-1200.)

The majority opinion in Dillon remains the law of this state and is controlling in this case. Generally, there are factual similarities between this case and Dillon. The majority of the California Supreme Court in Dillon appears to have been particularly concerned with the personal characteristics of defendant Dillon, to wit: age, maturity, absence of a criminal history and his individual culpability in the crime. Accordingly, each appellant will be considered individually.

Jason at the time of the crimes was legally an adult. He was four months over the age of eighteen years. His criminal record involved a non-detained juvenile petition for vandalism/graffiti (1993) and a pending misdemeanor for receiving stolen property (Dismissed by the trial court after sentencing, herein). Jason frequently used alcohol and marijuana. He experimented with other drugs. Jason was the victim of physical and emotional abuse by a stepfather.

Jason was the perpetrator of the Moulder incident, which occurred within an hour before the crimes under consideration. He was an active participant in the burglary and attempted robbery. Jason is the person who carried and drew the knife, inflicted multiple, serious wounds upon McLoren and struck the fatal blows to Farris. The punishment imposed upon Jason, life without possibility of parole, is neither cruel or unusual.

Hein was at the time of the crimes legally an adult. His age was eighteen years, four months. His criminal record involved one juvenile diversion for shoplifting. Hein was a habitual user of drugs and alcohol. He was an active participant in the later intimidation phase of the Moulder incident. He was an active participant in the burglary and attempted robbery. He was physically involved in the fight with McLoren and beat Farris in the head and face after Farris had been stabbed. The punishment imposed upon Hein, life without possibility of parole as an aider and abettor in a felony murder, does not rise to the level of cruel or unusual punishment under the Dillon test.

Appellant Micah was fifteen years old at the time of the crimes. His juvenile record was for burglary and malicious mischief/vandalism in 1990 (diverted); battery in 1992 (diverted); runaway in 1993 (counseled and released); entry on school grounds without registering and battery in 1994 (nondetained petition). Micah was a frequent user of alcohol and drugs. He was a disciplinary problem and truant in his schools. He was diagnosed with attention deficit disorder (A.D.D.) and had suffered physical abuse by his stepfather. Micah actively participated in the later intimidation phase of the Moulder incident.

Micah led the group foray into the McLoren property and into the fort. He attempted to open the locked desk drawer containing marijuana and money. He shouted the intimidating words demanding the keys from McLoren and was the first of the appellants involved in the physical fight, which culminated in the stabbing of McLoren and death of Farris.

Micah, although two years younger than defendant Norman Dillon (fifteen years vs. seventeen years), was not the immature, criminal record free youth who was the subject of Dillon. Although not a hardcore criminal, Micah's record consists of four law enforcement contacts, including informal probation, beginning when he was ten years old. Arguably, Micah was headed in the direction of serious criminality. On May 22, 1995, he arrived there when Farris died.

The facts in Dillon involve a sudden, frightened, panicky, quick turn and firing of fatal shots at a distant victim who was armed with a shotgun. The facts involving Micah are distinguishable. Micah knowingly became involved in an up-close and personal (to McLoren) burglary and attempted robbery, which quickly evolved into hand-to-hand, nose-to-nose, person-to-person physical fighting with unarmed persons, which in turn quickly escalated into a stabbing and killing by Micah's brother, Jason. Such facts do not give rise to the "exquisite rarity" of a finding that the sentence imposed on appellant Micah was grossly disproportionate to the crime committed and his culpability therein. (People v. Weddle, supra, 1 Cal.App.4th at pp. 1195-1200.) Imposition of a sentence of 29 years to life does not constitute cruel or unusual punishment (Cal. Const., art. I, 17.)

Miliotti was seventeen years old at the time of the crimes. He was eleven days away from his eighteenth birthday. His only previous law enforcement contact was a juvenile curfew violation. Miliotti frequently used alcohol and marijuana. Although the jury found him to be more than merely present as a passive observer, the evidence of the extent of Miliotti's involvement in the events at the fort is equivocal and contradictory.

Both Dillon and Miliotti were seventeen-year-old high school students at the time of their respective crimes. Both Dillon and Miliotti had no criminal record. Miliotti's involvement in the crimes herein was substantially less than that of defendant Norman Dillon, who planned, organized the crime, and was the actual killer in People v. Dillon, supra, 34 Cal.3d at pp. 451-452, 500-501.

Defendant Norman Dillon was convicted of first degree felony murder and attempted robbery and was sentenced to life in prison (a parole eligible sentence). The majority of the California Supreme Court held, ". . . in the circumstances of this case the punishment of this defendant by a sentence of life imprisonment as a first degree murder violates article I, section 17, of the Constitution. . . ." (Id. at p. 489.)

Appellant Miliotti was convicted of burglary, attempted robbery and first degree felony murder plus special circumstance. He was sentenced to prison for life without possibility of parole plus four years. (An even more severe punishment than the parole eligible sentence imposed on Dillon.) The doctrine of stare decisis requires that we adhere to the decision in Dillon and find that the Miliotti sentence ". . . in the circumstances of this case . . . violates article I, section 17, of the (State) Constitution . . ." and is contrary to the prohibition against cruel or unusual punishment. (Id. at

p. 489.)

As discussed above, the evidence is sufficient to support Miliotti's conviction of first degree murder committed in the course of a burglary and attempted robbery, but insufficient to support the Penal Code section 190.2(e) special circumstance. However, in accordance with Dillon (id. at p. 489), the degree of Miliotti's murder conviction must be reduced to murder in the second degree. (Miliotti's claim that the trial court abused its discretion in a so-called Dillon hearing is moot.)

The doctrine of stare decisis has been clearly stated by the California Supreme Court: "Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. . . . The decisions of this court [California Supreme Court] . . . must be followed by all the state courts of California. . . . Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. . . . [Citations.]" (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 454, 456.) As to each appellant individually, we have adhered to the decision in People v. Dillon, supra, 34 Cal.3d 441. We respectfully urge that the California Supreme Court review the Dillon decision in the context of this case.

DISPOSITION

As to appellants Jason Holland, Brandon Hein and Micah Holland, the judgments are affirmed.

As to appellant Anthony Miliotti, the judgment is affirmed on the convictions of burglary and attempted robbery. The special circumstance finding (Pen. Code, 190.2, subd. (d)) is stricken. As to the conviction of murder, the judgment is modified by reducing the degree of the crime to murder in the second degree and, as so modified, is affirmed. The cause as to appellant Anthony Miliotti is remanded to the trial court with directions to arraign and pronounce judgment accordingly.

CERTIFIED FOR PARTIAL PUBLICATION

We concur: LILLIE, P.J. WOODS, J. --------------- Notes: . Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication beginning with the first page of the opinion and up to and including the sentence reading "Subsequently, he voluntarily surrendered to law enforcement authorities" and parts XIV, XV and XVI. . Assigned by the Acting Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Hein

Court of Appeals of California
Jan 29, 2001
104 Cal. Rptr. 2d 85 (Cal. Ct. App. 2001)
Case details for

People v. Hein

Case Details

Full title:(Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. BRANDON…

Court:Court of Appeals of California

Date published: Jan 29, 2001

Citations

104 Cal. Rptr. 2d 85 (Cal. Ct. App. 2001)