Cummiskey v. Superior Court, S024295

Decision Date23 November 1992
Docket NumberNo. S024295,S024295
CourtCalifornia Supreme Court
Parties, 839 P.2d 1059 Michelle CUMMISKEY, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent. The PEOPLE, Real Party in Interest.

Farris N. Salamy, Christie S. Warren and Quin Denvir, Sacramento, for petitioner.

John T. Philipsborn, San Francisco, as amicus curiae, on behalf of petitioner.

No appearance for respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson and Michael Weinberger, Asst. Attys. Gen., and W. Scott Thorpe, Deputy Atty. Gen., for real party in interest.

John J. Meehan, Oakland, Kent S. Scheidegger and Charles L. Hobson, Sacramento, as amici curiae on behalf of real party in interest.

LUCAS, Chief Justice.

The Grand Jury of the County of Sacramento returned an indictment charging petitioner with the first degree murder of Philip Inhofer in violation of Penal Code section 187 (all further statutory references are to this code unless otherwise stated), and with use of a deadly and dangerous weapon (a knife) in violation of section 12022. The indictment further alleged the special circumstance of murder committed during a robbery under section 190.2, subdivision (a)(17)(i). Following the indictment, the prosecution announced it would not seek the death penalty.

The superior court denied petitioner's motion to set aside the indictment pursuant to section 995. We granted review after the Court of Appeal summarily denied her petition for a writ of mandate and/or other appropriate extraordinary relief. 1

Although the transcript of the testimony before the grand jury, on which the indictment was based, contains substantial evidence supporting a finding of probable cause that petitioner committed the crimes charged against her, she claims there were several errors made by the prosecutor that require us to dismiss the indictment. First, she asserts she was denied fundamental fairness in the indictment proceedings because the grand jury was misled into believing that it could return an indictment if it found "sufficient cause" to do so. She claims the grand jury may indict only if it is instructed pursuant to section 939.8 that "all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury."

Next, petitioner contends the prosecutor interfered with the grand jury's attempt to ask questions and to gather additional evidence in contravention of section 939.7, which allows the jury to consider other evidence "when it has reason to believe that other evidence within its reach will explain away the charge." Finally, petitioner complains that the prosecutor failed to instruct the grand jury on lesser included offenses, and violated his duty to present exculpatory evidence. (See Johnson v. Superior Court (1975) 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792.) As explained below, we find no error.


Henry Inhofer, the son of victim Phillip Inhofer, testified before the grand jury that on the night of March 7, 1991, he went to his father's mobilehome in Sacramento and, finding no lights on in the home or any vehicle in the carport, entered the home. He found his father's body in a pool of blood. The victim had been stabbed over 30 times. A plastic bag was over his head, and the tip of a knife was embedded in his collar bone. The victim's 1975 Mercedes was missing from the carport.

Officer Wilson, a police officer in Biloxi, Mississippi, testified that in May 1991 he saw a Mercedes in the open back of a rental truck that was parked along the highway. He approached the two occupants of the truck, Crystal Woodruff and petitioner. Woodruff permitted him to examine the car. After finding that it had no license plates and appeared to be freshly painted, he ran a vehicle identification check on the car, and determined it had been stolen. The officer also learned of an outstanding warrant for petitioner's arrest in connection with the Inhofer murder. He arrested petitioner at the scene.

Officer Cabrera of the Sacramento Police Department testified that he interviewed petitioner in Biloxi two days after her arrest. After being advised of her constitutional rights, petitioner told Cabrera that she hurt Inhofer, but she did not kill him. She claimed she originally met the victim when she was working as a prostitute for an escort service in Reno. Petitioner stated that before having sex, the victim became angry with her because another prostitute (Dana Outland) had taken two of his rings. Eventually, however, the dispute was settled and petitioner and the victim had sexual intercourse.

Thereafter, while Inhofer was in the shower, petitioner took some LSD. Petitioner claims she then saw a monster in front of her, it attacked her, and she attempted to defend herself. She also stated that she hurt the victim, and that she lost her soul because she hurt someone she loved. Petitioner said that she had red all over her and that it made her sick. She then took some towels and cleaned everything up and spent the night in the residence.

According to petitioner, the day after the murder, Satan told her to take Inhofer's car and to paint it silver. Petitioner claims that Satan told her he would protect her, and that he wanted her to be the "best evil machine possible."

Police found petitioner's diary inside Inhofer's car. In an entry dated March 27, 1991, petitioner wrote, "sitting in my hotel room I am just informed of some awful news. It seems that my sister has been very naughty, so I have to move on." The diary contained another entry dated April 9, 1991, that stated, "He took me back to my hotel. On the way I spotted a six-inch hunter's knife ... then I realized it would be a wise choice to go home by myself ... knives and/or suffocating will be the death of me. Father said that if you live by the sword you shall die by the sword."

Police also found a journal marked "sales and or cash received journal" which had an entry dated January 3 that stated: "charges, five hundred. Payments, five hundred. Customer name: Philip Inhofer."

Outland also testified before the grand jury. She stated that about two months before Inhofer's murder, petitioner told her that she met a customer and was going to kill him and take his Mercedes. Outland, however, did not take petitioner seriously. Several times over the next two months, petitioner told Outland she intended to "get my Mercedes." On one occasion, petitioner took a substantial amount of LSD, said she was going to poison "the client's food," and asked Outland to take her to the store to buy rat poison.

On the day before the murder, petitioner asked Outland to give her a ride to the victim's mobilehome. She said she was "going to get" the Mercedes. When petitioner picked up Outland in Reno, petitioner was carrying four pieces of luggage. As they were driving to Inhofer's mobilehome in Sacramento, petitioner had Outland stop at a store so she could purchase rat poison. After arriving at the mobilehome, petitioner introduced Outland to Inhofer. Before leaving petitioner and Inhofer, Outland stole one of Inhofer's rings and pawned it the next morning. She admitted to the grand jury that she had previously been convicted of two felonies, and that the prosecutor promised her that if she testified, she would not be charged with stealing the ring.

A. Standard of Proof

Under the California Constitution, article I, section 23, "One or more grand juries shall be drawn and summoned at least once a year in each county." (See also §§ 904, 905.) After the names of the grand jury are drawn and the jury is summoned ( § 906), it is sworn pursuant to the oath contained in section 911, and then is "charged by the court" ( § 914). The jury is also informed of its "powers" and "duties" as a panel. ( § 914.1.) These powers and duties are set forth commencing with section 925 and include sections 939.8 (informing grand jury an indictment shall be returned when evidence would "warrant a conviction by a trial jury"), 939.7 (giving grand jury power to subpoena additional witnesses), and 939.2 (informing grand jury that superior court judge may issue subpoena at grand jury's request), which provisions we discuss in greater detail below.

When the present grand jury was impaneled, each member was given a copy of the "Grand Jury Handbook," which sets forth all statutory provisions relating to grand juries. The jury was then further instructed by the superior court on the standard of proof necessary to return an indictment as follows:

"What is the degree of evidence sufficient to warrant the return of an indictment? The law specifically provides that an indictment should be found when all of the evidence before you, taken together, if unexplained or uncontradicted, would, in your judgment, provide sufficient cause to believe that a public offense was committed and that the person accused is guilty of it. For sufficient cause there must be enough evidence to support a strong suspicion or probability of (1) the commission of the crime or crimes in question, and (2) the accused's guilt thereof. In determining the existence of sufficient cause, you may consider circumstantial evidence, that is, proof based on logical inference. Conjecture and surmise alone, however, can never be sufficient. Only when the evidence measures up to the standard fixed by law may you return an indictment. To do otherwise would be a violation of your oath." (Hereafter "sufficient cause" instruction.)

Six and one-half weeks after it was impaneled, the prosecutor repeated the superior court's foregoing "sufficient cause" instruction to the grand jury. Petitioner now claims the jury should have been instructed under the exact language of section 939.8, which provides that: "The grand jury shall find an...

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