People v. Day

California Court of Appeal Mar 24, 1981 No. Crim. 11627Published

Before: Staniforth

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Holding. The court held that a trial court is not required to instruct on lesser-included offenses when the evidence supports only a felony-murder theory, and that determinate sentences consecutive to indeterminate life sentences are not subject to the one-third middle term limitation.

Issues

Whether the trial court erred in refusing to instruct the jury on second degree murder and other lesser offenses.
Whether a determinate sentence consecutive to an indeterminate life sentence must be calculated as one-third of the middle term.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Any unlawful killing, intentional or otherwise, committed in the perpetration of robbery or burglary for the intended purpose of theft, constitutes the crime of first degree murder.”

“Although the trial court must instruct the jury on general principles of law relevant to the issues raised by the evidence, instructions based solely on conjecture and speculation are not to be given.”

“The legislative intent to treat the term as independent is clear.”

Opinion

STANIFORTH, J.

Defendant Day pleaded guilty to charges of robbery (Pen. Code, § 211) while armed with a. firearm (Pen. Code, § 12022, subd. (a), count three of the indictment) and admitted suffering a prior felony conviction for forgery. The jury then found him guilty of first degree murder (Pen. Code, § 187, count one) and of robbery (Pen. Code, § 211, count two). Day was sentenced to twenty-five years to life on the murder charge and to a consecutive upper term of five years plus one-year enhancement on the robbery (count three) charges. The court imposed the middle term of three years on the count two robbery but stayed execution pursuant to Penal Code section 654.

Facts

At about 1 a.m. of September 10, 1979, Day and a companion entered the 7-Eleven store, San Diego, and robbed the clerk, Gagne. One robber had a gun and kicked Gagne when he was down. Gagne had triggered the alarm when he opened the cash register. Day was captured as he ran from the store. He was identified by Gagne as the robber who did not have a gun. Day waived his

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rights and told Officer Navarro the other robber was Gregg Thomas.

About 8 a.m. of that same day, the body of Donald Stepatt was found in a car in the 2900 block of Juniper Street, San Diego, two blocks from the robbed 7-Eleven store. The deceased had no wallet or money on his person and blood was on his face and arms. The police saw droplets of blood and a large pool of blood across the street from the car and shoeprints with a herringbone pattern outlined in the blood leading away from the killing scene. The victim was found to have

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head, chest and abdomen injuries. The cause of death was a massive hemorrhage resulting from these injuries. An injury to the forehead was thought to be caused by a heavy object, possibly metalic.

About 9:20 a.m. that day, Detective Collins interviewed Day—now in the jail—Day again admitted he and Gregg had robbed the 7-Eleven. At this time Collins noted blood on Day’s tennis shoes. Officer Collins returned about 1 p.m. of that day to ask further questions; Day then agreed to allow Collins to take his shoes to compare with the blood of that of the victim of the 7-Eleven robbery.

People v. Day

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STANIFORTH, J.

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