People v. Green (1980) · DecisionDepot

People v. Green

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Supreme Court Apr 24, 1980 No. Docket Nos. Crim. 20555, 21068Published

Before: Mosk

27 Cal.3d 1 (1980) 609 P.2d 468 164 Cal. Rptr. 1 THE PEOPLE, Plaintiff and Respondent,

CHARLES ALAN GREEN, Defendant and Appellant. In re CHARLES ALAN GREEN on Habeas Corpus.

Docket Nos. Crim. 20555, 21068. Supreme Court of California.

April 24, 1980. [11] COUNSEL

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Ezra Hendon, Chief Assistant State Public Defender, and Richard E. Shapiro, Deputy State Public Defender, for Defendant and Appellant and Petitioner.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones, Arthur G. Scotland, Roger E. Venturi and Edmund D. McMurray, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOSK, J.

Defendant appeals from a judgment sentencing him to death on his conviction of murder in the first degree, robbery, and kidnaping.[1] In a proceeding consolidated herewith he also petitions for a writ of habeas corpus, alleging principally that he was denied effective assistance of counsel. We have concluded that the judgment must be affirmed as to the convictions of first degree murder and robbery, but reversed as to kidnaping; that the findings of "special circumstances" elevating the murder to a capital offense must be set aside; and hence that the judgment must also be reversed insofar as it relates to penalty.

Defendant was charged by information with murder in violation of section 187 (count I), robbery in violation of section 211 (count II), and kidnaping for the purpose of robbery in violation of section 209 (count III), all committed against his wife Karen Green on October 11, 1977.[2] Count I also charged two "special circumstances," i.e., that the murder was willful, deliberate and premeditated and was personally committed by defendant (1) during the commission of a robbery in violation of section 211 (former § 190.2, subd. (c)(3)(i)) and (2) during the

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A review of the prosecutor's entire argument to the jury persuades us that defendant exaggerates the effect of this remark. In contrast to the cases relied on by defendant, the district attorney did not expressly tell the jury that he would not have prosecuted defendant unless he personally believed him guilty. (See, e.g., People v. Bain (1971) 5 Cal.3d 839, 848 [97 Cal. Rptr. 684, 489 P.2d 564]; People v. Kirkes (1952) supra, 39 Cal.2d 719, 723; People v. Edgar (1917) supra, 34 Cal. App. 459, 468.) It is true that the remark, when viewed in isolation, implied that the district attorney believed in defendant's guilt prior to trial, and the cases just cited disapprove such an argument. But they do so because of the risk that the jury will infer that the prosecutor's belief is based at least in part on proof of guilt that was not and perhaps could not have been introduced at the trial. The record shows no such risk here. Throughout his argument, the district attorney repeatedly emphasized to the jurors that any opinion he expressed to them concerning defendant's guilt was based on the evidence and legitimate inferences therefrom,[20] and he reminded them again and again that they were the sole judges of the facts and their verdict must be based on their own [36] conclusion as to the evidence. Thus just before making the statement now criticized, the district attorney told the jurors: "Ladies and gentlemen, I would submit to you that a review, conscientious one, which I know you would do [of] all the evidence will leave you of the opinion the defendant is guilty beyond a reasonable doubt, not only of the first degree murder, but of robbery and kidnap in the commission of the offenses he engaged in that day." Finally, immediately after the challenged reference to his own "conclusion," the district attorney added by way of explanation: "If indeed that's your conclusion as I stated, I ask you to return a guilty verdict against the defendant as charged...." In these circumstances the remark in question cannot have misled the jury into believing the prosecutor was asking for a verdict based on his opinion and on evidence not introduced at trial. While assertions of this nature are fraught with risks and should be avoided, in the case at bar we conclude from the whole record that the remark did not result in a miscarriage of justice.

In the alternative, defendant in effect disregards the affidavit and contends that a competent attorney acting as a diligent advocate would have filed presumably over defendant's objection a motion for change of venue in this case. The record does not support the claim. Such a motion will lie when "it appears there is a reasonable likelihood that a fair and impartial trial cannot be had" in the county in which the action is pending. (Pen. Code, § 1033, subd. (a); Maine v. Superior Court (1968) 68 Cal.2d 375, 383-384 [66 Cal. Rptr. 724, 438 P.2d 372].) Adverting to the factors identified in our decisions as bearing on this issue, we observe first that although the offense here in issue was doubtless very serious as indeed is every murder it did not have the sensational overtones of other killings that have been held to require a change of venue, such as an ongoing crime spree, multiple victims often related or acquainted, or sexual motivation. It is true the place of trial was not a large metropolitan center, but neither was it a rural outback.[30] Defendant was admittedly a stranger to the community; but so also was the victim, and her death did not trigger tangible manifestations of public sympathy and support. The local newspaper accounts of the crime were frequent during the few weeks following the event; yet the accounts were predominantly factual, and contained little potentially [47] inflammatory matter[31] and no revelations of incriminating evidence that was not properly admitted at the trial. Moreover, the newspaper accounts ceased after defendant was arrested and charged with the crime, and there was virtually no publicity about the case during the ensuing three months until trial. At that time the voir dire disclosed that few prospective jurors had any significant recollection of the media coverage, and each of the jurors selected was either unfamiliar with the case or had formed no opinion as to defendant's guilt or innocence. Finally, defendant used only half of his allotted number of peremptory challenges, and accepted the jury as thus constituted.

For much of the history of this state the penalty for murder in the first degree was in the alternative either death or life imprisonment, with the choice being made by the jury in its "absolute discretion." (See, e.g., People v. Green (1956) 47 Cal.2d 209, 218-232 [302 P.2d 307], and cases cited [disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 648-649 [36 Cal. Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]].) "Today, by contrast, first degree murder is punished by life imprisonment except for extraordinary cases in which special circumstances are present." (Owen v. Superior Court (1979) 88 Cal. App.3d 757, 760 [152 Cal. Rptr. 88].) This profound change in our law was brought about in response to the decisions of the United States Supreme Court in Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726], and Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909], and its companion cases.[32] We have previously analyzed in detail the contents of those opinions, and need not repeat the discussion here. (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 428-437 [134 Cal. Rptr. 650, 556 P.2d 1101]; People v. Frierson (1979) supra, 25 Cal.3d 142, 173-182 [opn. of Richardson, J., Clark, J., and Manuel, J.]; id. at pp. 190-195 [opn. of Mosk, J., and Newman, J.].) For present purposes it is enough to recall that the principal thrust of the plurality view of the high court is that a death sentence imposed in the jury's absolute discretion constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because of its arbitrariness: "there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." (Furman, 408 U.S. at p. 313 [33 L.Ed.2d at p. 392] [conc. opn. of White, J.].) The solution adopted by the plurality is to mandate that such discretion "be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action" (Gregg, 428 U.S. at p. 189 [49 L.Ed.2d at p. 883] [opn. of Stewart, J., Powell, J., and Stevens, J.]); and that guidance must be provided by objective sentencing standards designed to compel the jury to "focus on the particularized circumstances of the crime and the defendant" (fn. omitted; id. at p. 199 [49 L.Ed.2d at p. 889]).

(18) When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence i.e., evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal. Rptr. 431, 606 P.2d 738]; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781, 2789-2790]; In re Frederick G. (1979) 96 Cal. App.3d 353, 362-365 [157 Cal. Rptr. 769].) (16c) Here the record establishes that defendant committed the murder for a nonlarcenous purpose: the only evidence on the question, introduced by the prosecution's own witnesses, shows that defendant killed his wife for either or both of two reasons jealousy, because he believed she was "fooling around on him," and/or revenge or punishment, because he believed she was "snitching" on his friends. Neither of these reasons, of course, manifests in the slightest degree an intent to steal anything from the victim. It is equally beyond dispute, however, that defendant took his wife's clothes, rings, and purse as part of a deliberate effort to leave her unidentifiable so that he would not be connected with the murder if her body was found. The district attorney repeatedly argued the point to the jury, explaining that defendant took these items from his wife because he "wanted to obliterate any means of identification, [to remove] everything that would in any way tie her to the people that are involved with the Defendant." The district attorney gave the same reason for defendant's seizure at the scene of the matchbook bearing Larry Creech's initials and telephone number, and added that on his return to the Scott-Reeves house "Every single item when the Defendant went through the purse and clothing, papers were taken out, things with phone numbers on it, nothing was left in the Defendant's mind that could leave some kind of a trail as to identity." In their briefs on appeal both parties agree that was indeed defendant's purpose.

Moreover, the majority misreads the record in insisting that the reality of a continuing kidnap was "not the theory on which the case was tried." To the contrary, it was the central theme of the prosecution argument, and was urged repeatedly throughout its closing presentation. I cite a few examples. Early in his argument the prosecutor urged that defendant's conduct demonstrated "a continuing deliberate intent to accomplish specific acts." Further, he argued that "All the circumstances, the acquisition of that victim, the transportation of that victim, the events that occurred at the scene, the slap, the order to take off the clothes, the fire of shotgun all indicate a movement by force or fear in that she reasonably had apprehension that she would face harm." Again, the prosecutor contended: "All the factors which I have been discussing would indicate threats, duress, if you will, throughout the entire transportation of that victim up to the point she was killed." (Italics added.) Later, the prosecutor said "The movement to the location up in Nicholas was not merely incidental to the robbery in that the defendant wanted to move a victim where he could more easily rob her, [77] but he was moving a defendant or the victim to a spot he could actually accomplish not only the removal of identifying property, thereby robbery, he could murder her free of any detection or other witnesses and perhaps even murder of Daniel Khan if he deemed it necessary." (Italics added.) And again, "had the Defendant been stopped short of his final destination, then the killing hopefully would not have occurred. But the further they got away from where they were at, the Reeves residence, the greater likelihood was that the victim was going to meet the fate she did in fact meet. When they got to a safe location, safe in the mind of the Defendant where no one was really around except David Khan, then the full force of the harm was then put onto the victim." (Italics added.) Again, the district attorney urged, "After the defendant acquired the shotgun, the shells, and possession of the victim, he then had her driven to a secluded spot, none of this indicates just a rash impulse or reaction to a situation, but a planned, deliberate sequence of events to get the victim in a location where he could accomplish the acts he had in mind." (Italics added.)

People v. Green

OPINION

MOSK, J.

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NOTES