Opinion
For Opinion on Hearing see, 177 Cal.Rptr. 672, 528 P.2d 760.
Opinion on pages 1010-1021 omitted.
HEARING GRANTED
[110 Cal.Rptr. 379]Appellate Defenders, Inc., by Harold F. Tyvoll and Martin F. Bloom, under appointment by the Court of Appeal, and J. Wesley Fry and Richard L. Tyree, San Diego, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
WHELAN, Associate Justice.
George Mitchell Hoover, defendant, has appealed from a judgment imposing sentences for violations of Penal Code sections 245(a) and 246 (assault with a deadly weapon; and shooting at an inhabited dwelling), after a jury had found him guilty of those offenses and of possession of a billy club, for which latter offense he was given a jail sentence, fully commuted, by reason of time already spent in jail.
The jury found also that, as alleged, defendant used a firearm as proscribed by Penal Code section 12022.5 in the perpetration of the assault with a deadly weapon.
The judgment recited, as the jury had further found, that in the perpetration of the other felony (Pen.Code § 246) defendant was armed with a deadly weapon within the meaning of Penal Code section 12022.
In imposing sentence the trial court ordered that execution of the sentence for the section 246 violation be stayed pending service of the sentence for the assault with a deadly weapon, and when that sentence should be served the stay was to become permanent.
The charges arose out of the following sequence of events.
On January 6, 1972, Barry Godfrey was serving as an undercover agent of the FBI in obtaining information on the activities of right-wing direct action organizations in San Diego County, and had been for about six years. To carry out that work he was currently a member of the Secret Army Organization, a para-military group of which defendant also was a member.
The Secret Army Organization (SAO) was founded in San Diego County about October 1971. Its professed goal was to prevent, by violent means if necessary, a Communist takeover of this county. Jerry Lynn Davis was one of the organizers, and [110 Cal.Rptr. 380] the overall coordinator or leader of the SAO in Southern California, while Godfrey was the assistant state commander, the San Diego County commander, and the state intelligence officer. That group was interested in keeping an eye on the activities of left-wing direct action organizations and their suspected members.
Godfrey was paid by the FBI and made periodic reports to one of its officers. In January 1972, he had been working under the direction of Agent Stephen Christensen.
On January 6, 1972, Godfrey asked defendant to go with him to conduct a surveillance of left-wing radical centers in the Ocean Beach area of San Diego, as the two had done previously. One of the places to be observed was the residence of Peter Bohmer, where license numbers would be taken of cars that could be identified as belonging to visitors at the Bohmer residence.
Godfrey picked up defendant shortly after 7:00 p. m. at defendant's residence in Santee, north of El Cajon. Before leaving home, defendant equipped himself with two pistols. Godfrey went next to Nazi headquarters in La Mesa, which he entered, leaving defendant in the car. After about 10 minutes there, Godfrey drove to Ocean Beach where they first looked over an enlisted men's coffee house on Voltaire Street as Godfrey drove by it. He next drove by Bohmer's home (the house) at 5155 Muir Street, about five or six blocks away, at about five miles per hour as he circled the block; parked a block away on Abbott Street, from which there was a view of the house; saw one person leave the house by the front door, enter a car on the far or northerly side of the street and drive away; got out of his car and, accompanied by defendant, walked around to the house, which was lighted within; placed a sticker on the front door; continued walking on so as to return to his car by encircling the block; reentered the car and drove to a new position on Muir Street where the car was parked for about two minutes while he and defendant watched the house; after leaving that second position Godfrey drove past the house and saw a light being turned on in a second room at the front of the house; Godfrey then parked his car in a third position, from which he and defendant saw someone come out the front door of the house and either see a second person off or greet a newcomer, then reenter the house; Godfrey then turned around onto Muir Street and again drove toward the house, intending to pass the house at about 10 miles per hour, going southeasterly, with the house on the southerly side and to Godfrey's right; as he came opposite the house, two shots rang out in quick succession, and Godfrey saw that defendant had extended a pistol through the open car window on the passenger's side, and that a third shot had been attempted but the pistol action had jammed; Godfrey told defendant to stop firing, and drove on.
Godfrey testified defendant did not say anything before Godfrey heard the shots; Godfrey did not see defendant extend his arm or pistol through the window opening, did not know defendant was going to fire the weapon, did not go to the area of the house with the intention the weapon should be fired, and was surprised at the firing of the weapon. Defendant removed the cartridge clip, wiped it and the pistol clean, and left the pistol on the seat when he got out at his home in Santee.
The pistol, a 9 millimeter Radium, belonged to Godfrey, who had kept it under the passenger's seat; before he heard the shots Godfrey had seen defendant handling the pistol for about 10 minutes.
On January 7, Godfrey told Christensen about the shooting. Godfrey next went to defendant's residence and discussed the shooting. Defendant gave Godfrey the jacket he had been wearing the previous night and said he was afraid if there had been any witnesses they might have spotted the jacket; he suggested Godfrey should [110 Cal.Rptr. 381] bury the gun and destroy the jacket. Later in the day Godfrey turned the gun and jacket over to Christensen, who kept the gun at his home underneath a sofa for approxmiately six months, until he turned it over to FBI Agent Earl N. Petersen.
When the shots were fired on January 6, 1972, Paula Tharp was at 5155 Muir Street, and had been since 7:15 p. m. She was in the living room of the house with four persons, one of whom, Tom Cairns, had arrived at the residence between 8:15 and 8:30. During the evening, and when the shots were fired, the lights in the living room were on but the drapes on the window were closed.
One of the bullets from the gun fired by defendant went into the frame of the living room window in the house; the other shattered the glass and struck Paula Tharp in the arm.
Immediately after the shooting, Cairns opened the front door and tried to see what had happened; he went outside and tried to follow the vehicle, but could not see anything. After reporting the incident to the police, Cairns discovered two shell casings lying in the street near the house. He placed them in an envelope and gave them to one of the police officers, after placing marks on the street where he had found the casings.
Paula Tharp was taken to a hospital in San Diego, where an expended projectile was extracted from the inside of her right arm.
The shell casings found near the house by Cairns had been ejected, and the expended projectile extracted from Paula Tharp's right arm had been fired, from the 9 millimeter pistol.
On October 14, 1972, while defendant was incarcerated in the San Diego County Jail, he was visited by Jerry Lynn Davis. The conversation was monitored by Officer Roger Jacobs of the San Diego County Sheriff's Office. When a lull occurred during their conversation, Officer Jacobs became suspicious, went to the visitors' area, and observed defendant holding a piece of paper up to the window between himself and Davis, which was a breach of county jail rules. It could be inferred from the note, which was read to the jury, that it contained suggestions for the preparation of an alibi.
As a witness on his own behalf, defendant denied he had been with Godfrey or in Ocean Beach on June 6, 1972.
Defendant states the following appellate contentions:
'1. The evidence was insufficient to sustain a conviction of assault with a deadly weapon in that evidence of the requisite intent to injure a human being was lacking.
'2. The refusal by the court below to give accomplice instructions was error. [110 Cal.Rptr. 382]
The instructions refused were these: CALJIC 3.10: 'An accomplice is one who is liable to be prosecuted for the identical offense charged against the defendant on trial.
'3. No additional penalty pursuant to section 3024 and 12022 of the Penal Code can be assessed.
'4. Multiple punishment was imposed in violation of Penal Code section 654.'
Since we hold it was error requiring reversal to refuse to give instructions that would permit the jury to pass upon the question whether Godfrey was an accomplice, we discuss that issue first; and discuss the other contentions only because of a possible retrial.
A refusal to give the requested instructions could be justified only in the event it could be said as a matter of law Godfrey was not an accomplice within the meaning of Penal Code section 1111, either because he was a feigned accomplice or for some other reason.
To facilitate an understanding of our reasons, we repeat circumstances which should be considered as having been perceived by a third person who thus learned all that Godfrey testified he did, saw and heard.
The objective facts viewed by an outsider would have been sufficient to support a joint conviction: the two men come to Ocean Beach in Godfrey's car driven by him; night has fallen; Godfrey has a pistol under the passenger's seat; the men pass by the house; they park the car, walk by the house and fix a poster on the door; they take up two additional observation posts, discover that although one or more persons have left, one or more persons remain in the house; they again drive toward the house, this time at a somewhat faster rate than the last time; the right front window of the car has been open for some time, the radio is playing; defendant has had Godfrey's pistol in his hand for 10 minutes; as they come opposite the house two shots ring out; Godfrey continues on his way.
In addition to the foregoing, we have necessarily considered that Godfrey, so far as the evidence shows, did not report the matter to the San Diego Police, who were investigating the crime, and turned the weapon over to Christensen, who concealed it for six months.
An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. (Pen. Code § 1111.)
Penal Code section 31 provides in part:
'All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed.'
If the fictitious third person, who saw the car and heard the shots, called the police in time to intercept and detain Godfrey and defendant, there could be no doubt Godfrey could have been prosecuted jointly with defendant.
From the circumstances to be perceived by the fictitious third person, as Godfrey himself testified to them, an inference could be drawn that Godfrey aided and abetted in the crimes with knowledge of defendant's purpose. Against that inference is opposed Godfrey's denial of knowledge of that purpose. That denial, however, created only a conflict in the evidence.
'A person cannot be characterized as a principal simply because he is present while a crime is perpetrated provided he takes no part in it. He must render aid to the actor and share the criminal intent of him or those who actually committed the offense to render him an abettor. And, though it be the theory of the prosecution that there was a common unlawful purpose between the actual offenders and the person abetting their actions, the latter is guilty only when his acts are done in pursuance of the unlawful scheme, and when, in addition to being present, he actually aided and encouraged the perpetrators with knowledge of the felonious intention [citations]. If, as contended by appellant he was so to speak, a mere bystander, whose only activity was an attempt to stop the fight then, of course, he was not an accessory to a principal in the felonious assault upon Phillips. However, primarily, and as a factual matter, whether appellant was a bystander and acted only to preserve the peace, or was a participant, was for the duly authorized arbiter of the facts to decide.' (People v. Wooten, 162 Cal.App.2d 804, 810-811, 328 P.2d 1040, 1043-1044.)
[110 Cal.Rptr. 383]Godfrey, on the evidence given, could have been found to be an accomplice in fact.
Since testimony regarding the circumstances preceding the firing of the bullets, and as to that occurrence, came only from Godfrey, we discuss later whether the jury's acceptance of his testimony as to the objective happenings implied ineluctably that the jury accepted also Godfrey's testimony that he knew nothing of defendant's purpose.
We now search for whatever else might exclude him from the role of possible accomplice.
That he was not prosecuted because the prosecution accepted his claim of non-complicity, backed up by his proved connection with the FBI, does not exclude him.
There was no statutory exemption from prosecution in his favor, as there is with regard to certain police agents. (See Health & Saf.Code § 11710.)
His testimony that he knew nothing of defendant's purpose did not establish his innocence as a matter of law, but served only to create a conflict with inferences reasonably to be drawn from the circumstances which point to his guilt. The fact the trial judge might have accepted or we might accept the truth of Godfrey's denial of complicity is beside the point. We are not the triers of fact.
It cannot be said that, as a matter of law, Godfrey was immune from prosecution as a feigned accomplice.
Whether Godfrey could be found to be a feigned accomplice as to the particular crimes committed is subject to doubt. If it were a crime to join with one or more others in forming or maintaining an organization such as SAO and defendant had been charged with a violation of that prohibitive statute, Godfrey would have been a feigned accomplice in that crime, since he feigned adherence to the principles and purposes of SAO.
Likewise, if there were activities incident to the achievement of the known purposes of the organization, such as the surveillance of Bohmer's house, Godfrey's seeming participation in such activities, if criminal, might be that of a feigned accomplice.
So far as the evidence shows, however, violence directed at random toward persons suspected of being communists and their residences was not among the purposes of the organization, nor was it an ordinary or to-be-expected incident to its activities.
It is at least arguable that for Godfrey to have been an accomplice, feigned or real, in the shooting, he must have known of defendant's intention to shoot or do violence before the shots were fired.
If that argument be sound, since the only evidence that links defendant with the crime was Godfrey's evidence, and since Godfrey denied any knowledge of defendant's intention, Godfrey could not have been a feigned accomplice in the specific crimes committed; i. e., if his denial were true, he was neither a feigned accomplice nor an accomplice in fact. If the denial were false, he was an accomplice in fact.
In disclaiming altogether the knowledge and purpose that would have made him an accomplice, Godfrey put aside the disguise of the feigned accomplice.
Because on a retrial there may be other evidence, we do not declare that as a matter of law Godfrey was not a feigned accomplice.
[110 Cal.Rptr. 384]In general, it is a question of fact whether a witness is a feigned accomplice. (People v. Jones, 228 Cal.App.2d 74, 39 Cal.Rptr. 302.)
In this case, the credibility of the witness was the matter to be determined. That was a jury question, unless it could be said that in accepting Godfrey's testimony that defendant had committed the crimes, the jury must have accepted necessarily his testimony that the shooting was something of which he had no prior knowledge or warning.
There are situations in which it is possible to say that should certain facts be assumed to be true, based on certain testimony, such testimony necessarily excludes other possibilities inconsistent with the assumed facts.
Thus we have suggested here that if Godfrey's testimony were true that he neither knew nor had any warning defendant was likely to fire the shots, such testimony necessarily excluded him from the status of one who feigns complicity for the purpose of catching a criminal in the act.
In the present case as the issues were presented to the jury under the instructions given, it was irrelevant whether Godfrey's testimony as to his lack of knowledge were true; he was not on trial as a codefendant and the issue as to his accomplice status was not presented. It is not unreasonable to believe the jury may have accepted as true that part of his testimony which identified defendant as the perpetrator of the crime, and rejected that part which would exculpate Godfrey. There is no was of knowing whether they did or not.
It cannot be said as a matter of law that because the jury found defendant guilty based upon the testimony of Godfrey, they impliedly found Godfrey not to be an accomplice.
The error was fatal to the conviction, since the other evidence is not of sufficient weight to render the error nonprejudicial.
Nor was there submitted to the jury the question whether there was independent evidence sufficient to corroborate the testimony of Godfrey as to defendant's complicity.
We next discuss defendant's other contentions:
The first-numbered contention has no validity, since to sustain a conviction of assault with a deadly weapon a specific intent to injure a human being is not required.
'[T]he criminal intent which is required for assault with a deadly weapon and set forth in the instructions in the case at bench, is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.' (People v. Rocha, 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 176, 479 P.2d 372, 376.)
In assault cases, intent need not be specific to cause any particular injury, and it may be implied from the act. (People v. Carmen, 36 Cal.2d 768, 776, 228 P.2d 281.)
'Existence of intent to injure is a jury question; the intent may be implied from the defendant's actions, that is, it may be proved circumstantially.' (People v. Marceaux, 3 Cal.App.3d 613, 618-619, 83 Cal.Rptr. 798, 802.)
That might be so even though the defendant should deny that he intended to do physical harm. In the instant case defendant denied that he had done the acts complained of.
His motive is immaterial. An attempt to commit a violent injury may be inferred from the doing of an unlawful act. (People v. McCoy, 25 Cal.2d 177, 194-195, 153 P.2d 315.)
[110 Cal.Rptr. 385]The intent necessary to support a conviction of assault with a deadly weapon may be found in proof a defendant fired a gun in the direction of another. (People v. Herrera, 6 Cal.App.3d 846, 851, 86 Cal.Rptr. 165.)
The direct, natural and probable consequence of firing two shots at the lighted window of a dwelling, which defendant reasonably knew or should have known was occupied, was the injury to any person who might have been behind the window.
Defendant might properly be found guilty of violations of both Penal Code sections 245(a) and 246, although the violation of section 245(a) may be said to have been the result of a violation of section 246. A violation of section 246 does not require that a person be in the inhabited dwelling. (People v. Chavira, 3 Cal.App.3d 988, 992, 83 Cal.Rptr. 851.) Defendant's conviction on the assault charge results from the fact he knew, or reasonably should have known, there was someone within. It is further true that defendant fired two shots, one of which struck Paula Tharp.
It is conceded by the Attorney General that the judgment erroneously finds that in the violation of Penal Code section 246 defendant was armed with a deadly weapon within the meaning of Penal Code sections 3024 and 12022.
Execution of the sentence for the violation of section 246 was stayed in the manner approved in People v. Beamon, 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, so that Penal Code section 654 was not violated.
The judgment imposing sentences for the violations of Penal Code sections 245(a) and 246 is reversed.
GERALD BROWN, P. J., and COLOGNE, J., concur.
'To be an accomplice, the person must have knowingly and with criminal intent aided, promoted, encouraged, or instigated by act or advice, or by act and advice, the commission of such offense.'
CALJIC 3.11: 'A conviction can not be had upon the testimony of an accomplice unless it is corroborated by such other evidence as shall tend to connect the dependent with the commission of the offense.'
CALJIC 3.12: 'Corroborative evidence is evidence of some act or fact related to the offense which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged.
'However, it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged, or that it corroborate every fact to which the accomplice testifies.
'In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the offense.
'If there is not such independent evidence which tends to connect defendant with the commission of the offense, the testimony of the accomplice is not corroborated.
'If there is such independent evidence which you believe, then the testimony of the accomplice is corroborated.'
CALJIC 3.18: 'It is the law that the testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in the light of all the evidence in the case.'