Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF113353. Christian F. Thierbach, Judge. Reversed with directions.
Mark A. Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of first degree murder. (Pen. Code, § 187, subd. (a).) The jury found true the special circumstances that the victim had been killed (1) to prevent her from testifying in a criminal proceeding (§ 190.2, subd. (a)(10)), and (2) during a burglary (§ 190.2, subd. (a)(17)(G)). Defendant was sentenced to prison for life without the possibility of parole. He appeals, claiming the jury was misinstructed as to one of the theories of first degree murder and the during-a-burglary special circumstance. The People agree. However, the parties part company on the consequences of these errors. Defendant contends that his conviction for first degree murder must be reversed, which necessarily vacates the special circumstance findings, and because substantial evidence supporting a proper during-a-burglary special circumstance was lacking at trial, he may not be retried for that circumstance. The People assert that we may affirm his conviction for first degree murder, despite the instructional error, and uphold the special circumstance that the victim was killed to prevent her from testifying in a criminal proceeding. We reverse the first degree murder verdict and conclude that defendant may be retried for the during-a-burglary special circumstance.
All further statutory references are to the Penal Code unless otherwise indicated.
In their petition for rehearing, the People, for the first time, requested that we affirm what they consider to be defendant’s implied conviction of the lesser included offense of second degree murder and give them the option of accepting this reduction, rather than retrying defendant for first degree murder and the during-a-burglary special circumstance. We will do so under the authority of section 1260.
That section provides: “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
Facts
During the late night hours of March 2, 2001, or the early morning hours of March 3, 2001, the victim was killed in her home by suffocation and having her neck compressed. The victim’s daughter, with whom the victim had a very stormy relationship, stated that she spent the night of March 2 with the defendant at a motel not too far from the victim’s home, where the daughter also lived. Around 10:00 p.m., defendant left the hotel in the daughter’s car, returning at 12:30 or 1:00 a.m. on March 3. Defendant had wanted the daughter to discontinue her relationship with the man she had dated before defendant. When he returned to their motel room, he said he had been to the victim’s home and he angrily threw a letter at the daughter that she had received from her former boyfriend. He variously told her that he had found it on her nightstand while rummaging through her room looking for correspondence between the two and that the victim had given it to him while discussing the former boyfriend with him. As part of the first version, defendant said that while he was rummaging through the daughter’s room, the victim had awoken and had come out of her room. Defendant had grabbed the victim from behind, put his hands over her mouth and returned her to her room. There, they had struggled and she had died from defendant suffocating her with a pillow and with his hands. Defendant had then left the victim’s house, but returned and, to ensure that she was dead, had stabbed her in the chest with a knife he had taken from the kitchen sink. Whatever version defendant recounted, he said that he had killed the victim. The daughter told defendant that she did not believe him, so he went outside the motel room and returned with the victim’s purse and cell phone. Then, the daughter believed him. At 2:30 a.m., defendant drove the daughter to the victim’s home in the daughter’s car. The daughter saw the deceased victim lying on her bed. The victim’s underpants had been pulled down around her knees and her shirt had been pulled up, exposing her breasts. The daughter put the victim’s underpants and shirt back in place, then went into the bathroom at defendant’s command. At one point, she ran from the bathroom and tried to leave through the front door, but was stopped and returned to the bathroom by defendant. While inside the closed bathroom, she heard the sound of dragging and when defendant brought her out of the bathroom, she saw the victim lying near the front door. Defendant told the daughter he wanted to make it look like a home invasion robbery had occurred in the victim’s house, because the front door was still open. Defendant removed jewelry from the victim’s bedroom chest and flung it across her bed. He took from the house costume jewelry belonging to the victim and the daughter and the two returned to their motel room. A few hours later, the daughter disposed of the costume jewelry and the shoes defendant had worn at the victim’s house near where defendant had directed her to leave the items. Defendant had her drive the two of them to Moreno Valley and had her throw the victim’s purse in a grocery store dumpster. At defendant’s command, the daughter eventually returned to the victim’s house alone and contacted a neighbor, saying something was amiss with the victim. The neighbor entered the victim’s house and discovered her body.
The daughter admitted that she had driven the getaway car when, in the month before the murder, defendant and his cousin had committed an armed robbery at a resort where the daughter and defendant had once worked.
The daughter admitted that she had lied repeatedly about the crimes before trial, although she asserted that her trial testimony was true. She had pled guilty to being an accessory after the fact to the victim’s murder due to the lies. In his argument, defense counsel asserted that it was the daughter, and not defendant, who had killed the victim, and defendant was not involved in it at all. With regard to the murder and the special circumstances, the jury was instructed to view the daughter as an accomplice to the murder, if it concluded that the victim had been murdered. The jury also had the option of convicting defendant as an aider and abettor, meaning that the daughter had actually killed the victim.
Defendant’s cellmate at county jail, who had a lengthy criminal history and had made a deal in exchange for his testimony, testified that defendant told him the murder occurred to silence the victim about his involvement in the resort robbery with his cousin and to make sure the other person involved in the crime, who was related to the victim, did not talk. Defendant said that after the murder, he ransacked the place and took things, which were later dumped in the street, to make it look like a house burglary or robbery “gone bad.” The person who disposed of the items was the same person who drove the getaway car during the resort robbery. Defendant said he had discussed the case with a fellow inmate at prison, but this person would not make a good witness against him because of the person’s criminal record.
One of defendant’s fellow inmates at prison, who also had a lengthy criminal history and had made a deal in exchange for his testimony, testified that defendant told him he had killed his girlfriend’s mother. Defendant said the victim knew that he and the daughter had committed a robbery and they had gone to the victim’s home to confront her about it. He knew the victim was going to turn him over to the police, as the daughter had told him so. He also said the victim’s murder was planned to get her income tax money and he had waited until she received it to kill her. He said he went through the house and took everything of value and money, including the victim’s tax refund. Defendant said he and the daughter went together to the victim’s house and confronted her. He choked her, stabbed her with a knife and used a rope to strangle or hang her. He and the daughter carried the victim to the living room and put her body near the front door, so it would look like a home invasion robbery. The next day, he directed the daughter to return to the house, make it look more ransacked, and take jewelry and leave the latter in the park and the shoes he had worn in a dumpster. He was upset when she failed to follow his directions by disposing of the jewelry and shoes together and in the street. He directed the daughter to make sure the front door was open and to go to the neighbor’s house and tell her that she had found the victim dead at the latter’s front door. Defendant said he and the daughter went on a shopping spree (he bought glasses and clothes) and they ate out at restaurants. He then directed her to leave town and planned to do the same himself. He said he killed the victim for her money and because she knew about the robbery.
The daughter had told police that the victim hid money in different places in the house. Indeed, the police found $300 in the house after the crimes.
Issues and Discussion
1. Instructional Error
The jury was instructed that it could convict defendant of first degree murder either on the theory that he premeditatedly and deliberately killed the victim with malice aforethought or that he committed felony murder, the felony being burglary. The jury was instructed that it could make a true finding that defendant killed the victim during a burglary if he committed or aided and abetted a burglary, did an act that caused the death of the victim, and that act and the burglary were part of one continuous transaction. The jury was told as to both first degree felony murder and the special circumstance finding that defendant committed a burglary when he entered a building with the intent to either commit theft or murder the victim.
As stated before, both parties agree that neither a first degree felony murder conviction nor a during-a-burglary special circumstance finding may be based on the theory that the defendant entered a building with the intent to commit murder, as this violates the merger doctrine. (People v. Seaton (2001) 26 Cal.4th 598, 646; People v. Sanders (1990) 51 Cal.3d 471, 517; People v. Garrison (1989) 47 Cal.3d 746, 778.) Therefore, they agree that at least the during-a-burglary special circumstance finding must be reversed.
Defendant presents an additional instructional error in regard to this finding which, because we reverse the finding, we need not address here. However, should the prosecution choose to retry defendant on this theory of the special circumstance allegation, it should be mindful of defendant’s contention.
Both in their brief and in a letter brief submitted at the request of this court after oral argument, the People concede that reversal of the first degree murder conviction is also required unless we “can conclude that the jury necessarily considered the defendant guilty on a proper theory[,]” i.e., “‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’ [Citation.].” (People v. Perez (2005) 35 Cal.4th 1219, 1233.) The People contend that the jury necessarily concluded, as part of the requirements for a finding that defendant killed the victim to prevent her from testifying in a criminal proceeding, that he intended to kill the victim. We agree with them that this finding is sufficient to meet the requirement of premeditated and deliberate first degree express malice murder that defendant had the intent to kill. However, contrary to their assertion, it is not sufficient to meet the requirement that the killing be premeditated and deliberate.
The jury was instructed that the defendant deliberated “if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. [¶] A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. . . . The test is the extent of the reflection . . . .” We do not agree with the People that the defendant’s killing of the victim for the purpose of preventing her from testifying necessarily encompassed the careful weighing and reflection required for deliberation. Rather, we agree with defendant that, in making their determination that defendant killed the victim to prevent her from testifying, the jurors were not called upon, and therefore did not necessarily determine, that his decision to kill her was not rash, impulsive and without careful consideration.
We also disagree with the People that the coroner’s uncontested testimony bridged the gap between this special circumstance finding and the requirement that the jury unanimously concluded that the killing was done with premeditation and deliberation. The coroner testified that the victim died from a lack of oxygen caused by compression to her neck or chest and suffocation. She sustained a nonfatal knife wound to her chest shortly before her heart stopped beating. The People’s interpretation of this testimony, as stated during oral argument, is that defendant stabbed the victim just after asphyxiating her, thus committing an act aimed at causing death (the stabbing) after “taking a break” from the asphyxiation. This, they argued, showed premeditation and deliberation.
In their letter brief, they change this argument at bit, asserting that defendant employed a second method of causing death, i.e., the stabbing, “when [the asphyxiation] apparently failed.” Our reaction to this contention is the same as to that which the People advanced at oral argument—what mattered was defendant’s state of mind before he asphyxiated the victim, not after, when he was stabbing her.
First, just because the coroner’s testimony was uncontested does not mean the jurors necessarily believed it. Rather, they remained free to reject it under the instructions they were given. Even if they believed it, it does not establish that they necessarily found premeditation and deliberation. First, as defendant correctly points out, jurors who convicted defendant on the felony murder theory may have relied on it only as establishing that the victim died at the hands of another. Even if some jurors used it for more than this, the fatal acts committed by defendant comprised those resulting in asphyxiation, not the stabbing. According to the instructions the jury was given, defendant’s premeditation had to precede the fatal acts, therefore, what defendant’s state of mind was afterward, when he stabbed the victim, is irrelevant to this. Indeed, as defendant correctly points out, the prosecutor specifically told the jurors during argument that they did not need “to worry about premeditation and deliberation” in convicting defendant of first degree murder.
On the record before us, we cannot say that each of the 12 jurors necessarily concluded that defendant premeditated and deliberated the victim’s killing. Therefore, we must reverse the first degree murder conviction, as well as the during-a-burglary special circumstance finding. (See People v. Green (1980) 27 Cal.3d 1, 69.)
With the reversal of the first degree murder conviction, so, too, the remaining special circumstance finding, i.e., that defendant murdered the victim to prevent her from testifying in a criminal proceeding, which cannot exist without a first degree murder conviction, must be reversed.
2. Retrial of the Burglary Felony Murder Theory of First Degree Murder and the During-A-Burglary Special Circumstance Allegation
Defendant contends that there was insufficient evidence presented at trial that defendant entered the victim’s home in order to commit theft. Therefore, he asserts, he may not be retried for either the burglary felony murder theory of first degree murder or the during-a-burglary special circumstance allegation. (Burks v. United States (1978) 437 U.S. 1, 11 [98 S.Ct. 2141, 2147; 57 L.Ed.2d. 1].) We disagree with his premise.
As stated before, the daughter testified that defendant had taken the victim’s purse and cell phone while in the victim’s house at the time she was killed. At defendant’s direction, she later dumped the purse in a grocery store dumpster in Moreno Valley. Defendant’s fellow prison inmate testified that defendant said he planned to kill the victim in part because of her income tax refund and he waited until she received it before killing her and that he went through the house and took everything of value and money, including the victim’s tax return, and used it on glasses, clothes and restaurant food. While we recognize the credibility limitations as to both of these witnesses, their statements were not so inherently unreliable as to be unworthy of belief, and they could serve as a basis for a jury’s conclusion that defendant entered the victim’s house, at least in part, to steal her property.
3. Reduction of Defendant’s Conviction to Second Degree Murder
As already stated, in making a true finding that defendant killed the victim to prevent her from testifying in a criminal proceeding, the jury necessarily found, beyond a reasonable doubt, that defendant intended to kill the victim. This is sufficient to meet the requirement of express malice for second degree murder, a necessarily included offense to the first degree murder for which the jury convicted defendant. Moreover, there is more than sufficient evidence to support defendant’s conviction for second degree murder. (See People v. Woods (1992) 8 Cal.App.4th 1596.) “Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.” (People v. Edwards (1985) 39 Cal.3d 107, 118.) Defendant’s contention that the jury’s finding of express malice in connection with the special circumstance cannot be used to support an implied conviction of second degree murder because at the time it was made, some or all jurors had already concluded that defendant had committed first degree murder without determining whether defendant intended to kill the victim, is not logically persuasive. Moreover, it ignores the existence of sufficient evidence supporting the finding, a matter defendant does not contest.
Disposition
The judgment is reversed. Defendant may be retried for first degree murder and for the “during-a-burglary” special circumstance. However, if the People fail to bring defendant to a new trial in a timely manner (see section 1382, subd. (a)(2)), our remitter shall be deemed to modify the verdict by reducing the conviction on count 1 from first degree murder, with special circumstances that the victim had been killed to prevent her from testifying in a criminal proceeding and during a burglary, to second degree murder, and the trial court shall promptly resentence defendant. (See People v. Springfield (1993) 13 Cal.App.4th 1674, 1682.)
We concur: HOLLENHORST, J., GAUT, J.