People v. Freeman

Opinion

ABBE, J.

The single issue presented in this appeal is whether a person who hires another to kill a human being is subject to the special circumstance finding under Penal Code section 190.2 subdivision (a)(1)

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that the murder was intentional and carried out for financial gain even if the hirer is not himself shown to be financially motivated. We conclude the answer is yes and affirm.

Appellant was convicted of first degree murder (§§ 187, 189) upon his plea of nolo contendere. He subsequently made appropriate waivers of a jury trial and submitted the issue of the truth of the charged special circumstance on the preliminary hearing transcript. The prosecution agreed not to request the death penalty. Both parties stipulated the killer, Sidney Bruster, carried out the murder of appellant’s wife for Bruster’s financial gain.

The trial court found the special circumstance that the murder was intentional and committed for financial gain to be true. The court expressly stated the finding was based solely on the financial gain to be received by the killer who appellant aided and abetted and not on any financial benefit

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acquired by appellant. The only evidence introduced at the preliminary hearing of financial gain to appellant from his wife’s death was his hearsay statements to Bruster that appellant was the beneficiary of insurance policies on his wife’s life. These statements were introduced to show Bruster’s mental state and not appellant’s.

The evidence otherwise establishes that appellant offered certain financial inducements to Bruster to kill his wife; that appellant planned several ways Bruster could do this; finally gave Bruster a hammer, set up a plan to get his wife into an isolated place where she could be killed by Bruster, acted with Bruster to get her into this place and left her there with Bruster so appellant could go elsewhere to establish an alibi while Bruster killed her.

We find subdivision (b) of section 190.2 subjects the hirer of a contract killer liable to the death penalty or life imprisonment without possibility of parole. The subdivision provides in pertinent part as follows: “Every person whether or not the actual killer found guilty of intentionally aiding . . . counseling . . . inducing, soliciting ... or assisting any actor in the commission of murder in the first degree shall suffer death or confinement in state prison for a term of life without the possibility of parole, in any case in which one of the special circumstances ... of subdivision (a) . . . has been charged and specially found. . . .” Subdivision (a) provides such special circumstance for persons convicted of first degree murder when “(1) [t]he murder was intentional and carried out for financial gain.”