Allen v. Superior Court

• Decision Date: 09 December 1980
• Citation: 113 Cal.App.3d 42,169 Cal.Rptr. 608
• Court: California Court of Appeals Court of Appeals
• Parties: Jimmy Doyle ALLEN, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; The PEOPLE, Real Party in Interest. Civ. 5613.

Page 608

169 Cal.Rptr. 608

113 Cal.App.3d 42

Jimmy Doyle ALLEN, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

Civ. 5613.

Court of Appeal, Fifth District, California.

Dec. 9, 1980.

As Modified Jan. 8, 1981.

Hearing Denied Feb. 5, 1981.

Simrin & Moloughney and Stanley Simrin, Bakersfield, for petitioner

No appearance for respondent.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for real party in interest.

OPINION

ZENOVICH, Acting Presiding Justice.

Petitioner seeks a writ of prohibition and/or mandate directing the respondent court to strike the special-circumstance allegation "that the murder ... was especially heinous, atrocious, or cruel, manifesting exceptional depravity ..." from the information.

Petitioner Jimmy Doyle Allen was charged with having committed two criminal offenses. The first count alleged that petitioner "did willfully, unlawfully, feloniously and with malice aforethought murder Jesus Lara, a human being, in violation of Section 187 of the Penal Code." It was further alleged that: (1) petitioner used a deadly and dangerous weapon (i.e., a knife) in the commission of the offense (Pen.Code, § 12022, subd. (b)); (2) the murder occurred while petitioner was engaged in the commission of a robbery (Pen.Code, §§ 211, 190.2, subd. (a)(17)(i)); and (3) the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity (Pen.Code, § 190.2, subd. (a)(14)). The second count of the information alleged that petitioner committed robbery by taking a 1969 Ford automobile from the possession of Jesus Lara. It was further alleged that: (1) petitioner used a deadly and dangerous weapon (i.e., a knife) in the commission of the offense (Pen.Code, § 12022, subd. (b)); and (2) petitioner intentionally inflicted great bodily injury upon Lara in the commission of the offense (Pen.Code, § 12022.7).

Following arraignment and entry of a not guilty plea, petitioner withdrew his plea and thereafter filed a demurrer to the information. The grounds for the demurrer were: (1) the special-circumstance allegation of Penal Code section 190.2, subdivision (a)(14), could not be filed in the absence of charging first degree murder; and (2) the special-circumstance allegation was unconstitutionally vague under due process requirements. Respondent court overruled the demurrer. ¹

This cause now comes to us from the Supreme Court after we summarily denied his initial petition.

Since this is a demurrer, there are no material facts to consider. Nonetheless, we note that the prosecution's original opposition papers reflected that Jesus Lara had been stabbed 30 times and that petitioner continued stabbing the victim "because it felt good." ²

I

Petitioner initially contends that he must be specifically charged with commission of first degree murder before the prosecution can allege the special circumstance contained in Penal Code section 190.2, subdivision (a)(14). ³ We are not persuaded.

It is well established that, in charging a crime divided into degrees, it is unnecessary to state the method or degree of murder. (People v. Risenhoover (1968) 70 Cal.2d 39, 50, 73 Cal.Rptr. 533, 447 P.2d 925, cert. den. 1969, 396 U. S. 857, 90 S.Ct. 123, 24 L.Ed.2d 108; People v. Romo (1975) 47 Cal.App.3d 976, 989, 121 Cal.Rptr. 684, disapproved on another point in People v. Bolton (1979) 23 Cal.3d 208, 213-214, 152 Cal.Rptr. 141, 589 P.2d 396; People v. Hamilton (1969) 2 Cal.App.3d 596, 606, 82 Cal.Rptr. 700; cf. Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, § 200, p. 189.) The present indictment for murder charges all offenses necessarily included in the crime of murder, including voluntary and involuntary manslaughter. (People v. Heffington (1973) 32 Cal.App.3d 1, 11, 107 Cal.Rptr. 859.) The question as to what crime, within the ambit of murder, was committed is one for the jury. (See People v. Stansbury (1968) 263 Cal.App.2d 499, 503, 69 Cal.Rptr. 827; People v. Coston (1948) 84 Cal.App.2d 645, 648, 191 P.2d 521.) Furthermore, in capital cases, the jury initially decides the degree of murder and, if first degree is found, then determines whether the offense was attended by one of several special circumstances. Section 190.2 merely requires a conviction of first degree murder ⁴ as a prerequisite to application of the special-circumstance allegation. There is no requirement that the information allege first degree murder; only a conviction is required. We therefore conclude that there was no infirmity with merely charging petitioner with murder.

Petitioner's reliance on Owen v. Superior Court (1979) 88 Cal.App.3d 757, 152 Cal.Rptr. 88 is misplaced. Owen merely decided that special-circumstance allegations may not be charged "when there has been no death" and the information only charged the defendant with conspiracy to commit a murder. (Id., at pp. 760-762, 152 Cal.Rptr. 88.) Since a death was alleged in the present information, Owen requires no specific allegation so far as degree of crime is concerned.

Petitioner then contends that evidence of special circumstances will be introduced at the guilty phase and thereby prejudice the jurors' determination of degree of murder. Specifically, he contends that the prosecution might attempt to prove the special circumstance by introducing such prejudicial evidence as extremely bloody pictures which depict dismemberment of the victim and the amount of pain that the victim might have suffered. We are not persuaded for the following reasons.

Gruesome photographs are relevant as circumstantial evidence of malice or degree of crime, as showing the circumstances of the murder, or as an aid to the autopsy surgeon in explaining the position of wounds. (See People v. Jackson (1980) 28 Cal.3d 264, 302-303, 168 Cal.Rptr. 603, 618 P.2d 149; People v. Cruz (1980) 26 Cal.3d 233, 253, 162 Cal.Rptr. 1, 605 P.2d 830; People v. Salas (1972) 7 Cal.3d 812, 819, 103 Cal.Rptr. 431, 500 P.2d 7; cert. den. 1973, 410 U. S. 939, 93 S.Ct. 1401, 35 L.Ed.2d 605, People v. Hawkins (1978) 76 Cal.App.3d 714, 720, 143 Cal.Rptr. 106; People v. Jentry (1977) 69 Cal.App.3d 615, 627, 138 Cal.Rptr. 250.) Moreover, petitioner was also charged with having committed a robbery and alleged to have inflicted great bodily injury upon the victim. Both these considerations show that evidence of special circumstances would be admissible and relevant in establishing malice/degree of murder at the guilty phase. Furthermore, any harm from the presentation of gory evidence could be prevented by a timely 352 (Evid.Code, § 352) hearing or by limiting instructions which admonish jurors to consider the proof merely for purposes of establishing the truth of the special-circumstance allegations. In our opinion, petitioner has failed to demonstrate prejudice, since the evidence would be introduced notwithstanding any special-circumstance allegations. ⁵

Thus, the special-circumstance allegations do not have to be stricken because the prosecution failed to charge petitioner with first degree murder.

II

Petitioner then contends that it was error for respondent court to overrule his demurrer and to retain the special-circumstance allegation of section 190.2, subdivision (a)(14). He argues that the allegation is void for vagueness under due process requirements. We disagree.

We note that the First District in People v. Superior Court (Engert ) (1980) 105 Cal.App.3d 365, 165 Cal.Rptr. 449, agreed with the vagueness contention advanced by petitioner. Our state Supreme Court then denied a petition for hearing in Engert. The remittitur in the opinion was stayed because the Attorney General filed a petition for certiorari to the United States Supreme Court. The court granted certiorari in Engert, vacated the opinion, and remanded the matter to the First District so it could specify whether the ruling was based on federal and/or state constitutional grounds. Since Engert has been vacated, we are the first Court of Appeal to consider the constitutionality of section 190.2, subdivision (a)(14), after the United States Supreme Court's order.

Section 190.2, subdivision (a)(14), provides:

"The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true: ... The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity, as utilized in this section, the phrase especially heinous, atrocious or cruel manifesting exceptional depravity means a conscienceless, or pitiless crime which is unnecessarily torturous to the victim." (Emphasis added.)

Under this statutory scheme, the jury first determines whether an accused is guilty of first degree murder. Once this determination is made, the jury decides whether the offense was attended by one of several special circumstances enumerated in section 190.2. A penalty of death or life without possibility of parole is mandatory following the finding of a special circumstance. (See People v. Superior Court (Reed ) (1979) 98 Cal.App.3d 39, 45, 46-48, mod. 98 Cal.App.3d 1016c, 159 Cal.Rptr. 310.) Subsequently, an evidentiary hearing on aggravation/mitigation is held to determine whether the penalty should be death or life confinement without the possibility of parole. (§ 190.3.) The defendant is entitled to specific findings that each special-circumstance allegation is either true or not true. (§ 190.4, subd. (a).) The judge may override a jury-imposed death penalty if "the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented." (...