Opinion
WIENER, J. The ringing of three shots shattered the calm of Océano on a Sunday night, May 11, 1980. John Klima had been murdered. The shots had come from the interior of a 1955 blue Victoria Ford driven by 18-year-old Eduardo Ramirez. A jury determined defendant Edward Munoz was a passenger in the rear of that vehicle and was the person responsible for Klima’s tragic and senseless killing. Munoz was convicted of first degree murder (Pen. Code, §§ 187/189)1 while personally using a firearm (§ 12022.5) and sentenced to prison for 27 years to life.
Munoz attacks the judgment entered on the jury verdict with a barrage of arguments. When those arguments were first made some of the issues raised were awaiting resolution in cases pending before the California Supreme Court. Those issues have since been resolved and this case has now been retransferred to us with directions to file a modified opinion with appropriate reference to People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] and Donaldson v. Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110]. Pursuant to those directions, and without further discussion, we reject Munoz’ argument the felony-murder rule should be abolished (People v. Dillon, supra, 34 Cal.3d at pp. 462-476) [1004]and the court erred in failing to suppress two surreptitious tape recordings of his conversations while he was a pretrial detainee. (Donaldson v. Superior Court, supra, 35 Cal.3d at pp. 34-39.) Although Munoz’ claim of insufficiency of the evidence to support a verdict of premeditated first degree murder has merit, we decide the instructional error is harmless in light of our conclusion the jury resolved his guilt on the basis of the felony-murder rule. We also reject his claims of other trial (People v. Cardenas (1982) 31 Cal.3d 897, 903-910 [184 Cal.Rptr. 165, 647 P.2d 569]) and instructional errors and therefore affirm the judgment. We decline to modify that judgment by reducing Munoz’ felony-murder conviction from first to second degree. (People v. Dillon, supra, 34 Cal.3d at pp. 476-489.) Finally, we deny Munoz’ consolidated writ of habeas corpus.
Facts
In reviewing a claim of insufficiency of the evidence to support a first degree murder conviction, we must examine the entire record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In making this determination, we must presume in support of the judgment the existence of every fact which the trier of fact could reasonably deduce from the evidence. We may not, however, limit this review to the evidence favorable to the People, for the insufficiency issue must be resolved on the whole record in order to evaluate properly whether the evidence of each of the essential elements is substantial. This evidence must be reasonable, credible and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 575-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Because of this mandate, and Munoz’ alibi theory of defense, the facts are stated in a detailed fashion to assure a careful analysis of his insufficiency argument.
Ramirez was a key witness for the prosecution; he alone fingered Munoz as the killer. Although Ramirez was biased because of his bargain with the district attorney,2 the jury accepted his version of the following events.
Between 6 and 6:30 p.m. on May 11, 1980, Ramirez, Munoz and Raul Galvan started to go “cruising.” Ramirez was driving; Munoz was alone [1005]in the back seat. Between 7 and 7:30 p.m., Munoz and Galvan went into Ophelia Yracheta’s house for about five minutes. When they returned Peter Salinas was with them. Salinas and Munoz had a short, whispered conversation in the back seat. Salinas left and Munoz, Galvan and Ramirez drove off.
About 10 p.m., Ramirez saw a man crossing the street. Munoz told Ramirez to drive up to the man and to stop the car. Munoz asked for directions to Los Angeles and the man, Klima, responded. Ramirez drove off but at Munoz’ request backed the car to question the man again. Klima said to keep going the same way. Ramirez began to drive away when Munoz told Ramirez to stop. Munoz again asked Klima for directions. When Klima bent down to answer, Munoz demanded his wallet. Klima took a step backwards; Munoz shot him from a distance of four to five feet. Ramirez heard three shots from the back of the car, saw Klima grab his chest and heard him yell for help. Munoz told Ramirez to drive away, hitting him on the back of the head when he did not immediately do so. Ramirez asked why Munoz shot the man. Munoz said “For the hell of it.” Ramirez testified there had been no discussion of a robbery and he did not know there was a gun in the car.
Several neighbors saw Ramirez’ car drive past Klima and observed the conversation and gestures between Klima and the car’s occupants. The neighbors heard shots, Klima’s shout for help and saw the car speed away. Joseph Gaittan, a neighbor, rushed to help Klima and asked who had shot him. Klima answered “Young kids.” Klima died from a .22 caliber gunshot wound to the chest. The 35 degree downward angle of the wound indicated that if Klima were four to five feet away from the weapon then he had been bending over or the assailant had fired from several feet above him.
After Munoz and Galvan jumped out of the car, Ramirez went home. He looked for but was unable to find a gun in the car. The next morning he found a .22 caliber pistol under a rug in the back seat and put it in the glove compartment. That same morning Salinas telephoned and asked Ramirez to meet Munoz and Galvan at Jerry Rodriguez’ house. There Ramirez talked with Munoz but did not give him the gun. Ramirez left with Larry Croy. Croy saw the gun in Ramirez’ glove compartment. About 7:30 p.m., Ramirez returned to Rodriguez’ house. As he was giving the gun to Rodriguez, Salinas grabbed it and threw it under a bed. Ramirez told Salinas to give the gun back to Munoz.
Ramirez was arrested for murder between 1:30 and 2 a.m. on May 13. He first lied, telling the investigating officers he had been at his girlfriend’s house on the night of the killing but later told them essentially the same facts to which he testified at trial. He blamed the murder on Munoz. He [1006]failed to mention Munoz’ demand for Klima’s wallet or his own possession of the gun the day after the shooting. Only after the preliminary examination—two weeks before trial—did Ramirez add these elements to his story. He explained he was afraid he could still be charged with murder and that this information might further implicate him.
Salinas relied on his privilege against self-incrimination when asked if he were with Munoz the day of the shooting, whether he possessed a .22 caliber weapon, or whether Ramirez had ever admitted shooting Klima. District attorney investigator Ray Jauregue testified that in an interview on May 15, Salinas admitted he had put a .22 caliber revolver under the back seat of Ramirez’ vehicle on May 11 before 8:30 p.m. when he was in the car with Munoz, Ramirez and Galvan. Salinas said he had forgotten to take the gun when he left the vehicle.
On May 16, San Luis Obispo sheriff’s detective Larry Hobson secretly recorded a conversation between Munoz, Ramirez and Galvan while the three were in custody in a sheriff’s department transportation van outside the municipal court. A portion of this tape was played to the jury and a partial transcript received in evidence.3
[1007]On May 31, personnel at the San Luis Obispo County Jail monitored and secretly recorded a conversation over the telephone in the county jail visting center among Munoz, his mother and Aurora Galvan. A portion of this tape was also played to the jury and a transcript of the portion played was entered into evidence.4 Of significance is Munoz’ statement to Aurora that she should remember to say they had been together at Ophelia’s house at the time of the crime.
Munoz was arrested two days after the killing. He testified he was at Ophelia’s house on the day of the killing from between 8 and 8:30 p.m. until the next morning. He denied ever being in Ramirez’ vehicle on May 11, 1980. He also denied handling Salinas’ .22 caliber pistol, he did see Ramirez hand Salinas a gun on May 12, 1980, at Rodriguez’ house. With respect to the recorded jailhouse conversation with Aurora Galvan, Munoz claimed he was just trying to get her to tell the truth. He also denied he threatened Ramirez when they were together in the transportation van. Munoz claimed his reference to “Bear is fucking up” meant only that he was just trying to protect Salinas’ rights. Munoz also said that on May 12, Ramirez admitted the killing in attempting to rob an old man. The reason Ramirez blamed Munoz was that both had dated Aurora Galvan.
Irma Rangel testified that on May 11, Munoz remained at Ophelia’s house from about 7:45 p.m. until after 6 a.m. the next morning.
[1008]Croy testified that while intoxicated on May 12, 1980, he overheard Ramirez who was also drunk tell Munoz he had a gun and along with a couple of other people had tried to rob a man the night before. Rodriguez corroborated that on May 12, he also heard Ramirez say he had killed a man the night before. Samuel Salas, who had previously been convicted of forgery, claimed that while he and Ramirez were both in jail, Ramirez told him he had shot a man while loaded and that Munoz need not worry because Ramirez was going to “cop to it.” Joe Ramirez, no relation to Eduardo Ramirez, testified that on May 12, he refused Eduardo’s request for some .22 caliber bullets.
Appeal
I
The jury was instructed on two alternative theories of first degree murder: premeditated first degree murder and first degree felony murder committed in the course of an attempted robbery. Munoz contends the trial court erred in instructing on premeditated first degree murder since the evidence before the jury was legally insufficient to sustain a conviction on that theory. He insists where a jury is instructed on two legal theories, one of which is not supported by the evidence, and the reviewing court cannot tell which theory the jury utilized, the conviction must be reversed. (People v. Green (1980) 27 Cal.3d 1, 70-71 [164 Cal.Rptr. 1, 609 P.2d 468].)
The issue of premeditation and deliberation in the case before us is a close one. “Numerous decisions have discussed and defined the concept of premeditation as it serves to distinguish first and second degree murder. A killing is deliberate, they explain, if the killer acted “ ‘as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on cooly and steadily, [especially] according to a preconceived design.’” [Citations]; (People v. Anderson (1968) 70 Cal.2d 15, 26 [73 Cal.Rptr. 550, 447 P.2d 942].) ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed.’ [Citations.]” (People v. Velasquez (1980) 26 Cal.3d 425, 435 [162 Cal.Rptr. 306, 606 P.2d 341], judgment vacated and cause remanded (1980) 448 U.S. 903 [65 L.Ed.2d 1132, 100 S.Ct. 3042], reiterated (1980) 28 Cal.3d 461 [171 Cal.Rptr. 507, 622 P.2d 952].) In People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], our Supreme Court explained: “The type of evidence which this court has found sufficient to sustain a finding of premeditation [1009]and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ (People v. Thomas, supra, 25 Cal.2d 880, at pp. 898, 900, 901 [156 P.2d 7]); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (D or (2).
“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Id., at pp. 26-27, italics in original.) Although the evidence must be considered in the light most favorable to the judgment, we believe the requisite solid evidence of premeditated first degree murder is lacking.
At trial, the district attorney argued the only evidence to support the premeditated killing occurred between Munoz’ first contact with Klima and the shooting.5 On appeal, the Attorney General points out the jury could have drawn reasonable inferences of premeditation and deliberation from Munoz’ possession of the weapon after it was given to him by Salinas and in the planning activity during his several confrontations with the victim. On the basis of these facts, combined with Munoz’ senseless desire to shoot [1010]someone that night, the Attorney General asserts the jury had adequate facts to find Munoz guilty of premeditated first degree murder.
Admittedly, this is a difficult case. In our judgment, however, the events surrounding the killing do not contain sufficient solid planning or motive facts of credible value to support a murder conviction on that theory. Under the circumstances of this case the brief time, seconds, from Munoz’ first confrontation with Klima until the shooting do not establish the killing was the result of preexisting reflection, careful thought and weighing of considerations.
The Green rule upon which Munoz relies is limited to situations in which the reviewing court cannot discern upon which theory the jury relied, i.e., there must have been “ample reasons for the jury not to rely on the [legally sufficient] evidence. ...” (People v. Green, supra, 27 Cal.3d at p. 71.) Here, a majority has no doubt the jurors reached their verdict by way of the felony-murder rule’s imputation of malice. To require reversal under these circumstances necessitates an assumption the jury premised its verdict on a legal theory on which a majority agrees there was inadequate evidentiary support with only token argument, while ignoring the uncontradicted evidence of felony murder presented under a theory described by the prosecution as “the more apt to be applicable to this case.” Under these circumstances, the instructional error of which Munoz complains has not resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Green, supra, 27 Cal.3d at p. 74; cf. People v. Murtishaw (1981) 29 Cal.3d 733, 765 [175 Cal.Rptr. 738, 631 P.2d 446].)
II
Munoz’ next contention is the trial court prejudicially erred by allowing the prosecutor to question Munoz and his witnesses regarding Mexican youth gang membership.
In his cross-examination of defense witness Rodriguez, the prosecutor inquired whether Rodriguez and Munoz were in any clubs together. After colloquy on this issue, in the absence of the jury, the court permitted the deputy district attorney “to do some probing and some fishing to see what answers you get” but ordered the People not to use the word “gang” in any of his questions.6 Munoz challenges the court’s semantic solution be[1011]cause it permitted “equally devastating transparent synonyms, ‘association,’ ‘group,’ ‘club,’ and ‘brothers.’”7
[1012]In People v. Cardenas, supra, 31 Cal.3d 897, the California Supreme Court recently addressed the prejudicial effect of questions eliciting gang membership. The concern expressed in the lead opinion was that reference to “common gang membership” creates “a substantial danger of undue prejudice” because a jury could improperly infer the defendant has a criminal disposition from membership in a youth gang which commits criminal acts and thus, from that predisposition, infer guilt in a particular case. {Id., at pp. 904-905.) The plurality opinion states: “In Southern California, Chicane youth gangs have received widespread media publicity for their purported criminal activities. In this case, the prosecutor did not specifically refer to the El Monte Flores as a youth gang. However, the jury undoubtedly identified the group as such, either from their personal knowledge or from their in-court observations of the witnesses’ age, ethnicity, and tattoos.” {Id., at p. 905.) Consequently, at first blush it appears Cardenas stands for the proposition that reference to “gang” membership or words having a comparable connotation is prejudicial. On closer analysis, however, we conclude Cardenas is distinguishable from the present case and the questions asked, even if improper, do not require reversal.
As a general proposition, “. . . a witness may, on cross-examination, be asked about group membership he shares with a party to the action, on the theory that such common membership is a factor that tends to impeach a witness’ testimony by establishing bias. . . . Thus, the prosecution in the instant case properly could inquire of [defense] witnesses ... regarding their friendship with Wing, including their common group membership, as a means of attacking their credibility as witnesses, by establishing a bias in favor of the minor.” {In re Wing Y. (1977) 67 Cal.App.3d 69, 76-77 [136 Cal.Rptr. 390]; see also cases cited in People v. Cardenas, supra, 31 Cal.3d at p. 916, dis. opn. of Richardson, J.) Here, the excerpted portions of the testimony (see fns. 6 and 7, ante) indicate that, with defense counsel’s acquiescence and consistent with Wing Y., the prosecutor limited his inquiry to possible bias or prejudice flowing from a common club or association relationship. Unlike Cardenas, he did not add any fillips relating to violence or hostilities between competing groups.
Arguably, once Rodriguez testified to being Munoz’ friend, any evidence of mutual “club” or “gang” affiliation became cumulative. And, unquestionably, “ ‘[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant.’ ” {People v. Cardenas, supra, 31 Cal.3d at p. 905, quoting from People v. De La Plane (1979) 88 Cal.App.3d 223, 242 [151 Cal.Rptr. 843], [1013]cert, den., 444 U.S. 841 [62 L.Ed.2d 53, 100 S.Ct. 81].) Even assuming error, however, the issue remains whether the error in allowing the questioning was prejudicial.
The determination of prejudice in Cardenas followed from the court’s conclusion there was “cumulative prejudice” resulting from the trial court’s “several evidentiary errors. ” (31 Cal.3d at p. 907, italics supplied.) The several evidentiary errors included not only the cumulative evidence of gang membership, but also the fact that, “[o]n at least two occasions, the prosecutor posed questions . . . .” (id., at p. 905) unrelated to whether the witnesses and defendant were close associates and which “. . . suggested to the jury that hostilities existed between the two youth gangs. Given the widespread publicity concerning violence between rival youth gangs, the jury may well have assumed that members of the Flores gang were accustomed to using violence to further their interests.” (Id., at p. 905.) In addition, and “even more serious,” was the error relating to the prosecutor’s line of questioning which left the impression that the attempted robbery was a gang operation. (Ibid.) “Thus, the trial court’s error in admitting the evidence of common membership in the Flores gang was compounded by the prosecutor’s broad inquiries suggesting that the gang was involved in criminal activities. These questions made it a near certainty that the jury viewed [defendant] as more likely to have committed the violent offenses charged against him because of his membership in the Flores gang.” (Id., at p. 906.) Unlike Cardenas, no such references or inferences occurred in the questioning by the district attorney in the case before us. Cardenas also held evidence of the defendant’s narcotics addiction was improperly introduced to establish a financial motive for the attempted robbery. There, witnesses testified “. . .at great length about [defendant’s] physical condition at the time of his arrest, the length of time [defendant] had been using narcotics, and the alleged size and value of [defendant’s] heroin habit.” (Id., at p. 907.) Again, the record before us is devoid of any such irrelevant evidence similar to that presented in Cardenas.
Whether an evidentiary ruling results in prejudice turns in part on how strong the prosecution case is, as evaluated by the jurors called upon to render judgment. Here, as in Cardenas, the jury deliberated for about 12 hours, indicating the issue of guilt was not “open and shut.” (People v. Cardenas, supra, 31 Cal.3d at p. 907.) Nonetheless, in the context of the limited questions asked and the neutral responses given, we do not believe it is reasonably probable that a result more favorable to Munoz would have been reached if evidence pertaining to club membership had not been admitted. We therefore hold no miscarriage of justice occurred under article VI, section 13 of the California Constitution. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
[1014]III
We also reject Munoz’ contention that it was prejudicial error for the trial court to instruct on consciousness of guilt without including a limiting instruction that such evidence could not be considered on the question of his state of mind before committing the crime. (See People v. Anderson, supra, 70 Cal.2d at p. 32.) Munoz’ failure at trial to request a qualification of this instruction precludes our consideration of this argument in his appeal. Moreover, his assertion of error on this ground was properly rejected. (People v. Mathews (1979) 91 Cal.App.3d 1018, 1027 [154 Cal.Rptr. 628].)
Munoz further urges trial court error in allowing references to a polygraph test. (See fn. 3, ante.) Again, no objection to the tape recording and/ or transcript on this ground was made at trial. In addition, this is not a case where the prosecutor commented on defendant’s rejection of an offer to take a lie detector test. The trial court properly ruled on Munoz’ Evidence Code section 352 objection.
IV
Relying on People v. Dillon, supra, 34 Cal.3d 441, Munoz contends we must reduce his felony-murder conviction from first to second degree. Although Dillon upheld the felony-murder rule against a barrage of constitutional attacks, it also held “that the penalty for first degree felony murder, like all statutory penalties, is subject to the constitutional prohibition against cruel or unusual punishments (Cal. Const., art. I, § 17), and in particular to the rule that a punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender. (In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921].) Because such disproportion is manifest on the record before us—as it was to the triers of fact—we modify the judgment to punish this defendant as a second degree murderer.” (Id., at p. 450.)
At the outset, we stress Dillon's application of a proportionality analysis to reduce a first degree felony-murder conviction must be viewed as representing an exception rather than a general rule. The Dillon majority on this point (Mosk, J., Bird, C. J., Kingsley, J., Reynoso, J.) itself recognized the exceptional nature of its result. After noting the “broad factual spectrum” of acts punishable as first degree felony murder, and further noting the Legislature has provided the same punishment for first degree felony murder as for deliberate and premeditated murder committed with malice aforethought, the majority states: “As the record before us illustrates, however, in some first degree felony-murder cases this Procrustean [1015]penalty may violate the prohibition of the California Constitution against cruel or unusual punishments. [Citation.]” (People v. Dillon, supra, 34 Cal.3d at p. 477, italics added.) Thus, Dillon does not “mandate” a reduction of Munoz’ conviction. (See dis. opn., post, at p. 1019.) A mandatory interpretation of Dillon’s proportionality analysis would effectively eliminate the crime of first degree felony murder. Such a result would contravene the separation of powers inherent in our tripartite system of government (Cal. Const., art. III, § 3; In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921]) and, somewhat ironically, would also nullify Dillon’s defense of the felony-murder rule. We rather doubt the Dillon court intended parts III and IV of its opinion (upholding the felony-murder rule) should self-destruct by virtue of part V (applying its proportionality analysis).
Turning to the merits, unlike Dillon, this is not a case in which disproportionality “is manifest on the record before us—as it was to the triers of fact. ...” (People v. Dillon, supra, 34 Cal.3d at p. 450.) We agree with Dillon’s assessment “that when it is viewed in the abstract robbery-murder presents a very high level of such danger [to society], second only to deliberate and premeditated murder with malice aforethought.” (Id.., at p. 479.) Beyond this point we part company with Dillon. The facts of the crime as committed in this case and the particular nature of the offender who committed that crime (ibid.) prevent us from taking a benign or sympathetic view of Munoz’ individual culpability. We therefore decline to reduce his conviction to second degree murder.
We share the sentencing court’s view of Munoz’ crime. As the court explained to Munoz; “In this sentence I would like to add that the court has been concerned very much about the fact that this was a senseless killing; that there was apparently no previous contact between you and the victim; that a man who was totally innocent, a good citizen apparently, was struck down for no good cause, and I feel that you, having been found guilty of this offense by the jury after a full and fair trial, it will be required that you serve your sentence as required by law.” As is apparent from the court’s remarks and from the facts of the crime (see ante), this is not a case in which the shooting “was a response to a suddenly developing situation that defendant perceived as putting his life in immediate danger.” (People v. Dillon, supra, 34 Cal.3d at p. 488.) The record before us reflects no self-defense nuances or any indications of uneasiness or panic (id., at p. 482) on Munoz’ part. The totality of the circumstances surrounding Munoz’ commission of the crime (id., at p. 479) persuades us punishment for first degree felony murder is not disproportionate to Munoz’ individual culpability.
We reach the same conclusion when we consider Munoz’ background and characteristics as a defendant, including “such factors as his age, prior [1016]criminality, personal characteristics, and state of mind.” (People v. Dillon, supra, 34 Cal.3d at p. 479.) At the time of his offense, Munoz was an adult, one month away from his 21st birthday. As described in the probation report, “[d]uring [Munoz’] adolescent years, past probation officers have noted that he was an intelligent and responsive young man who was capable of demonstrating excellent leadership and control. Unfortunately, instead of serving the Mexican/American community and benefiting them with his courage, strength and rightness, he chose to bring shame on them by frightening and abusing the very community that he should be serving. ... As in past and present investigative reports, the Defendant still continues to enjoy a position of leadership in the gang element in Océano, California.” As suggested in this description, Munoz had an extensive record of prior criminality.8 In short, Munoz does not stand before us as “an unusually immature youth” who has had “no prior trouble with the law.” {People v. Dillon, supra, 34 Cal.3d at p. 488.) Nor did Munoz’ state of mind at the time of the crime (“For the hell of it”) evoke any sympathy from either the jury or the trial judge. We are likewise unmoved.
Absent any showing either at trial or on appeal of Munoz’ “attenuated individual culpability” {People v. Dillon, supra, 34 Cal.3d at p. 486), we need not compare Munoz’ punishment with that given his codefendants or with that which the parties may have expected would be imposed. (See id., at pp. 486-488.)
Writ of Habeas Corpus
Munoz petitions for habeas corpus alleging he was denied the effective assistance of counsel. (See People v. Pope (1979) 23 Cal.3d 412, 421-426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) He claims his [1017]lawyer (1) should have objected to the tape-recorded conversation in the van because it contained improper references to polygraph testing, (2) should have established a better record to show Munoz’ statements were caused by a delayed arraignment and an agency relationship between the police and Ramirez, and (3) should have had Munoz take a polygraph test before trial.
Appellate counsel has asked us to ponder why Munoz’ trial counsel failed to ask certain questions at trial. Why was Munoz’ arraignment delayed nine days? What was the relationship between Ramirez and the police at the time the police surreptitiously taped their conversation in the police van? Counsel legitimately asserts that had these questions been asked they would have led to further inquiry and valid objections on constitutional grounds. (See Rhode Island v. Innis (1980) 446 U.S. 291 [64 L.Ed.2d 297, 100 S.Ct. 1682]; United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183]; Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199].) Although these arguments appear to have merit, we decline to issue an order to show cause or to find lawyer incompetence on this record alone. We adhere to the philosophy expressed in In re Lower (1979) 100 Cal.App.3d 144, 152-153 [161 Cal.Rptr. 24], that except in unusual cases the writ should be filed in the superior court for a factual determination on the issues presented. The record before us is devoid of any statement from Munoz’ trial counsel and we will not foreclose his opportunity to respond. Accordingly, for procedural reasons only we deny Munoz’ petition for writ of habeas corpus. (See also People v. Perry (1979) 100 Cal.App.3d 251, 265 [161 Cal.Rptr. 108]; People v. Adams (1980) 101 Cal.App.3d 791, 802 [162 Cal.Rptr. 72]; People v. Hall (1980) 28 Cal.3d 143, 158 [167 Cal.Rptr. 844, 616 P.2d 826].) We stress, however, the denial of the writ is grounded solely on procedural considerations and should not be construed as a holding on any of the issues presented.
Disposition
Judgment affirmed. Writ denied.
All statutory references are to the Penal Code unless otherwise specified.
The criminal complaint charged Munoz and Galvan with murder and firearm use (count 1) and Galvan and Ramirez with being accessories after the fact (§ 32; count 2). Before the preliminary hearing Ramirez made a deal with the district attorney. In exchange for Ramirez’ testimony consistent with his earlier statements to the police that Munoz was the killer, the district attorney agreed not to file a murder charge against him and to recommend a commitment to the California Youth Authority. Before Munoz’ trial, Ramirez pleaded guilty to being an accessory and when he testified was awaiting sentence on that charge.
The transcript states: “Munoz: Hey, we got to get in touch with Bear. He said that my jefita and my carnala . . .
“Galvan: I know that’s what I heard.
“Munoz: put rata (snitched) on him that he had a gun. I go back to him, I go T do not think that my jefita would do that.’ They just want information on him. He fucked up, man. I told him like that.
“Galvan: And they got it.
“Munoz: They got what?
“Galvan: They seen the gun.
“Munoz: They seen the cuete?
“Ramirez: You know what he told me? You know what he told me?
“Galvan: What? That he threw the cuete away?
“Munoz: That he doesn’t know where it’s at. Right there. He fucked up. You know what else he’s doing?
“Galvan: What?
“Munoz: He’s going to take a lie detector’s test.
“Galvan: He’s going to fuck up.
“Munoz: Don’t take that either.
“Ramirez: They can’t use it in court.
“Munoz: I know, but still don’t take it.
“Galvan: They’ll fuck you around if they catch you in a lie once.
“Munoz: Bear.
“Galvan: It’s stupid.
“Munoz: Bear’s fucking up.
“Munoz: Jud, I thought you were fucking up. You haven’t talked to them?
“Ramirez: Fuck no!
“Munoz: Because you know what’s going to happen if you do (inaudible).
“Ramirez: Oh, I know, I know.
“Munoz: You’re not going to make it through nowhere.
“Ramirez: I know, I know all that shit.
[1007]“Munoz: You’re going to get stuck wherever you go.
“Ramirez: I know all that shit already.
“Munoz: They just want to make it look like I’m the one that done it.
“Ramirez: If there’s anything left out (inaudible).’’
The transcript states: “Munoz: No. And when—that when you told the police that they picked—you picked me up at 2:30, shouldn’t have said that because then that fucked me up. When you go to court testify and tell them that we were at the beach in the daytime and then we went to Faye’s and we had a dinner down there at 8 o’clock and around 8 o’clock we had dinner for Mother’s Day. You know, that we were all there. Me, you, Rachael, Ruben—
“Girl: Uh-huh.
“Munoz: —that girl ’Phelia. I told them we spend the night there.
“Girl: Uh-huh.
“Munoz: From 8 o’clock on.
“Girl: But I didn’t tell them that I seen you at 2:30. I told them—they asked me where I was and it was during that day and I said I was—’cause I was in Santa Maria the day before and I came home at 2:30 and that’s when I got to bed.
“Munoz: I know. But I didn’t want you to say—you shouldn’t have said that. We wanted to be together all during the day and then the night too, because 2:30 you picked me up.
“Girl: Yeah.
“Munoz: The murder happened at 10:30 that night. I wanted to say that—together that night, you know.
“Girl: Yeah.
“Munoz: From 8 o’clock on. I mean all day and at 8 o’clock we went and had dinner at ’Phelia’s house and spent the night there and that was it. Just remember to say that!
“Girl: Yeah.”
On this issue the district attorney’s entire argument is as follows: “In this case, the People’s evidence establishes a willful, deliberate and premeditated murder. If you believe that from the time defendant Munoz contacted the victim the first time, hassled him, asked him directions—and I use the word hassle, not in a normal tone. I mean, ask him directions that Munoz did not really need. Ask him directions, kind of in a nonsense way. If you believe that between that contact—excuse me, and the contact down the street on Vista, if you believe that that contact—between those two contacts you had an intent on Mr. Munoz’s part to kill Mr. Klima for some reason, either because of his statement, ‘For the hell of it,’ that that’s when he decided to kill him for the hell of it, or he was just in the mood to kill someone that night.
“That is the only portion of the act that you could find to be willful, deliberate and premeditated if you believe that happened. And, of course, since Mr. Munoz denied that he was there, you don’t get anything along the lines of his intents from his testimony, other than that he wasn’t there.”
The pertinent dialogue between defense counsel and the court on this issue is as follows:
“Mr. Dorsi: Well, I don’t deny that he has some right to do some probing. What I’m saying, if he’s going to ask him regarding gangs, if he would say clubs or club, that’s fine. He has already explored that, and Mr. Rodriguez has denied the clubs.
“And as long as it relates to some type of club or other type of association, I think that [1011]those questions are appropriate and I haven’t objected to them. I just think Mr. La Barbera [deputy district attorney] is going to try and ask questions that infer an association for purposes of criminal activity, that those questions in themselves would be inappropriate.
“That would be my only objection.
“The Court: All right. I’m going to overrule the objection. I’m going to allow him to ask the questions, but I’m going to restrict the use of the word gang.
“Your motion under section 352 to exclude the evidence as being unduly prejudicial is going to be denied on the condition that the questions do not involve the use of the word gang, but involve the word club. I feel under those circumstances their probative value will outweigh any prejudice that may result.”
The following are all references in the record to which Munoz has directed us on this issue.
“Q. [to Rodriguez]: Well, you indicated you had a group of people that were in an association that is not a very good association, isn’t that true?
“A. Yeah, but they’re just friends.
“Q. Okay. Do you have a name of the association or a club name?
“A. No.
“Q. You’ve never heard of the term Pee Wee Locos?
“A. I’ve heard of it.
“Q. Aren’t you a member of that?
“A. No, I ain’t.
“Q. Is Mr. Munoz a member of that club?
“A. I don’t know.
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“Q. And you’re not aware of whether he’s a member of a club called Pee Wee Locos? “A. No, I’m not.
“Q. Have you ever heard of that club?
“A. Yes, I have.
“Q. Have you ever been in that club?
“A. No, I haven’t.
“Q. Is that club, to your knowledge, in existence today?
“A. I can’t say.
“Q. Are you sworn to secrecy or something?
“A. No, I ain’t.
“Q. Why can’t you say?
“A. ’Cause I don’t know.
“Q. Have you ever tried to get in that club?
“A. No, I haven’t.
“Q. Have you ever heard of the term Océano Trece?
“A. Yes, I have.
“Q. What does that mean?
“A. That means Océano.
“Q. Océano what?
“A. Thirteen.
“Q. Thirteen. Are you one of those thirteen?
“A. No, I’m not.
“Q. Is Mr. Munoz?
“A. I don’t know.
“Q. Have you ever been one of that thirteen?
“A. No.
“Q. And you don’t know if Mr. Munoz is or is not?
“A. No, I don’t.
“Q. He’s [Ramirez] testifying against one of your brothers; isn’t he?
[1012]“A. That’s right.
“Q. One of your club members—I’m sorry, that’s wrong?
“A. That’s wrong.”
The probation report narrates Munoz’ prior record as follows: “The Defendant’s contact with the San Luis Obispo County Probation Department dates back to 1972, when at the age of 13 a Petition in Juvenile Court was sustained for extortion. Subsequent Petitions were sustained involving truancy, intoxication, lack of parental control, joy riding, resisting arrest, and robbery. As a result of these Petitions, the Defendant spent time in a foster home, County level boys camp, and ultimately committed to the California Youth Authority at the age of 17 after robbing an 80 year old man of $15.00. Since being paroled from the California Youth Authority, the Defendant has been a suspect in an armed robbery, and on January 8, 1979, pled guilty to public intoxication and possession of an alcoholic beverage in the San Luis Obispo Municipal Court, Grover City Branch. On April 9, 1979, the Defendant appeared in the San Luis Obispo Municipal Court, Grover City Branch, and entered a plea of guilty to paint sniffing and was placed on bench probation for one year and ordered to pay a $100.00 fine. On October 10, 1979, the Defendant again appeared in the San Luis Obispo County Municipal Court, Grover City Branch, and admitted to a violation of his probation at which time his probation was reinstated, modified, extended and placed on two years formal probation commencing from April 9, 1979, and directed to spend two days in custody commencing on November 2, 1979. On June 18, 1980, at a probation violation hearing, the Defendant’s probation was reinstated and terminated on motion of the court.”