People v. Denney, Cr. F001016

• Decision Date: 28 February 1984
• Docket Number: Cr. F001016
• Citation: 152 Cal.App.3d 530,199 Cal.Rptr. 623
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Douglas DENNEY, Defendant and Appellant. (6257).

Page 623

199 Cal.Rptr. 623

152 Cal.App.3d 530

The PEOPLE, Plaintiff and Respondent, v. Michael Douglas DENNEY, Defendant and Appellant.

Cr. F001016 (6257).

Court of Appeal, Fifth District, California.

Feb. 28, 1984.

[152 Cal.App.3d 534] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and David De Alba, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Appellant stands convicted of robbery (Pen.Code, § 211) and first degree felony murder (Pen.Code, § 189) with special circumstances (Pen.Code, § 190.2, subd. (a)(17)(i)). He was sentenced to life imprisonment without possibility of parole.

We first hold that under Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, it was error to sentence appellant to life imprisonment without the possibility of parole, since no evidence was introduced that appellant specifically intended to kill the victim. Although the killing occurred before the effective date of Carlos, we nonetheless determine that Carlos should be given retroactive application to the present case.

We also hold that while other evidence sufficed to support appellant's conviction of robbery and first degree felony murder, the trial court erred in admitting appellant's confession which had been obtained in flagrant violation of appellant's constitutional rights. Reversal is mandated by established law.

Finally, we advise the trial court on an evidentiary issue that may arise on retrial. (Code Civ.Proc., § 43.)

THE FACTS

On November 24, 1980, appellant, Rocky Laboa, Danny Carl and Michelle Keener went to the trailer house where Juan Antonio Morones lived. They planned to have Ms. Keener commit an act of prostitution with Mr. Morones and then rob him. The men had guns to use during the robbery; appellant was carrying a Colt .357 magnum revolver.

The robbery began as planned. Ms. Keener had sex with the victim. While she was inside, a Charles Spoler drove up. He was acquainted with Danny Carl and was also pimping his wife to farm workers. Danny Carl told him to leave because they were planning to rob the man inside. Appellant, Danny Carl and Rocky Laboa then went into the trailer and ordered Mr. Morones (still naked) down the hall to the bathroom. Appellant was holding his gun in Mr. Morones' face.

As appellant and Carl were tying Morones up in the bathroom, the gun went off. Morones was killed instantly. Everyone left. Michelle took a plastic baggie of Morones' cash, later giving it to Danny Carl. Appellant and the others were upset by the shooting. Appellant reportedly wanted to call an ambulance, said the shooting was an accident and was crying.

The guns were buried in a field alongside the road, and the group returned to Hanford.

Several months later, Ms. Keener went to work in a convenience store. She became friendly with some policemen. Eventually she told them about the shooting and was given immunity. The murder weapon was found through Keener's information. Keener testified to all of the events at trial. Spoler and his wife confirmed they were sent away by Danny Carl because of the robbery. Others, including appellant's heroin connection, testified regarding admissions made by appellant and the others after the shooting. By all accounts, the shooting was accidental.

Police Interrogation

Appellant was first interrogated by two Kern County sheriff's deputies at the Hanford City jail. Before turning on the tape recorder, the officers told appellant they were there because of the homicide and that they knew all about it through Ms. Keener. They told appellant that Keener had been given immunity. The officers also told appellant a "hypothetical" story. They said that in another "accidental" felony/homicide, the actual triggerman cooperated and received a five-year manslaughter sentence; while those who refused to cooperate got life in prison without parole.

Appellant testified at the Penal Code section 1538.5 suppression hearing that after he heard about Keener's immunity and the hypothetical story concerning "cooperation" with the authorities, he requested an attorney but the officers talked him out of it before turning on the tape. One officer testified at the beginning of the suppression hearing that he "did not recall" appellant asking for an attorney, but neither officer rebutted appellant's testimony that he did request an attorney. The only officer who testified confirmed the "hypothetical" story was told.

Appellant's defense was diminished capacity. He testified, and counsel argued, that his use of heroin and alcohol on the day of the crime deprived him of the capacity to form the specific intent to rob the victim. In rebuttal, an undercover narcotics agent was used as an expert witness. He opined that appellant could not have drunk as much alcohol as he claimed after using as much heroin as he claimed, without vomiting. Matlock also inspected appellant's arms and opined that appellant was not a "heavy" heroin user.

The jury was not required to make a specific finding that appellant intended to kill the victim. Appellant's counsel moved to strike the "special circumstances" allegation, partly because of this gap in the instructions, but this motion was denied. There was no evidence that appellant intended to kill, so the absence of an instruction on intent obviously affected the verdict.

Retroactivity of Carlos v. Superior Court

The California Supreme Court has recently held that there must be a specific finding of intent to kill to support a conviction of felony-murder special circumstances under Penal Code section 190.2, subdivision (a)(17). (Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862.)

Appellant's conviction was based on this Penal Code section, but his trial was held before the decision in Carlos was handed down. We must, therefore, decide whether the rule in Carlos should be applied retroactively. This question was explicitly reserved by the Supreme Court in Carlos. (Id., at p. 154, fn. 21, 197 Cal.Rptr. 79, 672 P.2d 862.)

Section 190.2, subdivision (a)(17) of the Penal Code was passed as part of the death penalty initiative (the Briggs Amendment) in 1978. It requires, upon conviction, the imposition of the death penalty or a life sentence without possibility of parole. In Carlos, the Supreme Court found this section ambiguous and uncertain about the necessity for a finding of intent to kill in felony murder situations. (Id., at p. 142, 197 Cal.Rptr. 79, 672 P.2d 862.) The court resolved the ambiguities in favor of defendants and construed the section to avoid serious constitutional questions, i.e., if the section did not require intent, it might violate the cruel and unusual punishment and equal protection clauses. (Id., at p. 151, 197 Cal.Rptr. 79, 672 P.2d 862.) The court found that elimination of the intent requirement was not a purpose of the ballot initiative. (Id., at p. 145, 197 Cal.Rptr. 79, 672 P.2d 862.) The court construed the word "intentionally" in subdivision (b) of section 190.2 to require an intent to kill before a defendant is subject to a special circumstances finding under paragraph (17) of that section. (Id., at pp. 153-154, 197 Cal.Rptr. 79, 672 P.2d 862.)

In Donaldson v. Superior Court (1983) 35 Cal.3d 24, 196 Cal.Rptr. 704, 672 P.2d 110, the Supreme Court held that, "In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law. If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises. [Citations.]" (Id., at p. 36, 196 Cal.Rptr. 704, 672 P.2d 110.) The court also explained there is no issue of retroactivity when it resolves a conflict between lower court decisions or addresses an issue not previously presented to the courts. "In all such cases the ordinary assumption of retrospective operation [citations] takes full effect." (Id., at p. 37, 196 Cal.Rptr. 704, 672 P.2d 110.) Thus, in deciding whether Carlos v. Superior Court applies to this case, we must determine whether Carlos established a "new" rule or standard which might not apply retrospectively.

The United States Supreme Court has attempted to define the decisions involving a "clear break from the past" (see for example, Desist v. United States (1969) 394 U.S. 244, 248, 89 S.Ct. 1030, 1032-1033, 22 L.Ed.2d 248) that raise an issue of retroactivity. In United States v. Johnson (1982) 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 the Supreme Court explained that, "Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court [citations], or disapproves a practice this Court has arguably sanctioned in prior cases [citations], or overturns a long-standing and widespread practice to which this Court has not spoken, but which a near unanimous body of lower court authority has expressly approved."

Applying the foregoing principles, it is clear that no new rule of law was created by the Carlos decision, nor did it represent "a clear break from the past" under the test applied in Desist v. United States, supra, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248.

The Carlos decision construed the felony-murder provisions of the 1978 initiative. The Supreme Court merely applied established principles of statutory interpretation, made findings regarding the intent of the drafters of the initiative and concluded that an intent to kill or aid in a killing is required under this statute. Carlos was the first time the Supreme Court has decided this issue. Thus, no past precedent was overruled.

Nor does the Carlos decision...