Jones v. Superior Court

• Decision Date: 28 August 1981
• Citation: 176 Cal.Rptr. 430,123 Cal.App.3d 160
• Parties: Neil Robert JONES, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest. Sterling Bruce JONES, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 52059, 52095.
• Court: California Court of Appeals Court of Appeals

Page 430

176 Cal.Rptr. 430

123 Cal.App.3d 160

Neil Robert JONES, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest.

Sterling Bruce JONES, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest.

Civ. 52059, 52095.

Court of Appeal, First District, Division 3, California.

Aug. 28, 1981.

As Modified on Denial of Rehearing Sept. 25, 1981.

Hearing Denied Oct. 28, 1981.

Michael C. Ciraolo, Oakland, for petitioner Neil Robert Jones.

James R. Jenner, Public Defender, County of Alameda, Albert J. Wax, Asst. Public Defender, Oakland, for petitioner Sterling Bruce Jones.

George Deukmejian, Atty. Gen. of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, John B. Moy, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

Petitioners Sterling and Neil Jones are presently charged by information with first degree murder of Charlotte Andrea Turner (§ 187). ¹ Indisputably the evidence adduced at the preliminary hearing demonstrates that Turner met her death execution-style. As just punishment, the People seek imposition of the death penalty. The information alleges four special circumstances: (1) that the murder of Charlotte Turner was committed while defendant Neil Jones was engaged in and was an accomplice in the commission, the attempted commission, and the flight thereafter of the felony rape (§ 190.2, subd. (a)(17)(iii); (2) the same allegations as to defendant Sterling Jones; (3) that the murder of Charlotte Turner was committed while the defendant Neil Jones was engaged in and was an accomplice in the commission, the attempted commission, and the flight thereafter of the felony of oral copulation (§ 190.2, subd. (a)(17) (vi)); (4) the same allegations as to defendant Sterling Jones.

The Superior Court of Alameda County (Honorable Martin Pulich) denied petitioners' section 995 motions to dismiss the special circumstances allegations against them. These petitions for writs of mandamus and/or prohibition in compliance with section 999a followed. In each action we ordered that the alternative writ of prohibition issue and therewith stayed further proceedings on the special circumstances allegation alleged in the information. Initially, the answers to the questions posed by the record presented proved to be somewhat elusive. Before oral argument we requested the parties to submit further briefing addressing issues not initially covered by the petitions and the preliminary opposition.

For purposes of this opinion, a lengthy summary of the preliminary examination testimony is not required. It is sufficient to state that the evidence of record is that on Sunday morning, July 20, 1980, shortly after 1:00 a. m., petitioners each raped Ms. Turner and forced her to orally copulate them. These felonious sexual assaults were perpetrated within the confines of Turner and Vernon Greer's home at gunpoint (Greer held at bay). Their sexual crimes physically completed, petitioners conferred.

Greer overheard petitioners' discussion proposing the alternatives of killing on site or taking the couple to the Alameda. They decided to take them to the Alameda, and Neil Jones told them they would not be killed but would be taken to "the man" to determine if Greer was a dope dealer. Ms. Turner was ordered out of the house first and threatened violence if she ran.

Petitioners' station wagon was used (Sterling driving) to transport their hapless victims to a roadside location some two miles distant. The kidnapping culminated with petitioner Neil Jones first shooting and killing execution-style Ms. Turner and then shooting and felling Greer who fled when the gun held at his head jammed. ²

The parties agree that the preliminary record reveals that Ms. Turner was raped and forced to orally copulate at a different location and time from where and when she was subsequently killed. Consequently, petitioners' challenge to the trial court's order requires that this court determine whether the killing of Ms. Turner can be found to have occurred while petitioners were "engaged in" or were in "the immediate flight after committing" the crimes of rape and oral copulation within the meaning of section 190.2, subdivision (a)(17) (iii) and/or (vi).

Section 190.2, subdivision (a) provides for the alternative punishments of death or confinement for life without possibility of parole in any case of first degree murder in which one or more of a long list of special circumstances "has been charged and specifically found ... to be true." The particular special circumstances charged here are contained in subparagraph (17): "The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:

"(iii) Rape in violation of Section 261.

"(vi) Oral copulation in violation of Section 288a." ³

Thus, the question presented in these petitions naturally divides into two parts. Determining the answer in both parts depends more upon the legal boundaries of the quoted terms of the statute than upon the inferences to be drawn from the evidence.

Part I

Was there sufficient evidence to sustain a finding that the murder was committed while the defendants were "engaged in" the commission of rape and/or oral copulation?

We think a lay person's answer to this question would be obvious: The sex crimes were completed some time before the killing took place. Petitioners both argue for this conclusion, stressing that the killing took place in a different location and at a different time from the alleged rape and oral copulation. The Attorney General argues, however, that the sex crimes were not completed for purposes of the statute until petitioners had reached a place of temporary safety.

The Attorney General's argument begins by noting dicta in the decision in People v. Green, supra, 27 Cal.3d 1, 61, 164 Cal.Rptr. 1, 609 P.2d 468, where the Supreme Court explained that the purpose of special circumstances is to provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not. "The Legislature declared that such a distinction could be drawn, inter alia, when the defendant committed a 'willful, deliberate and premeditated' murder 'during the commission' of a robbery or other listed felony. (Citation.) The provision thus expressed a legislative belief that it was not unconstitutionally arbitrary to expose to the death penalty those defendants who killed in cold blood in order to advance an independent felonious purpose, e. g., who carried out an execution-style slaying of the victim of or witness to a holdup, a kidnapping, or a rape." (Emphasis added.) The Attorney General then argues that the murder here was committed to conceal the identity of the criminals who raped and orally copulated Ms. Turner. This argument fails to note that section 190.2, subdivision (a)(10) is a more specific provision which might be applicable to such a killing. (See fn. 3, supra.)

Next, the Attorney General argues that it would be irrational to subject to the death penalty one who killed the victim at the time and place of the crime, but not one who transported the victim to a secluded spot and killed her. He asserts that the latter person is more culpable because he has kidnapped her in the process. The argument fails to note the possibility that such a killing would arguably be covered by the kidnapping special circumstance enumerated in section 190.2, subdivision (a)(17)(ii). (See fn. 3, supra.)

The Attorney General's proposal for a more rational reading of the special circumstance statute is bottomed upon a line of cases which has developed in the felony-murder context and which finds that the underlying felony has not been completed until the defendant has reached a place of temporary safety. (See People v. Ramirez (1979) 93 Cal.App.3d 714, 156 Cal.Rptr. 94; People v. Fuller (1978) 86 Cal.App.3d 618, 623, 150 Cal.Rptr. 515.)

In an early statement of felony-murder law, the Supreme Court in People v. Boss (1930) 210 Cal. 245, 250-251, 290 P. 881, rejected a contention that a killing during immediate flight with robbery loot was not in the "perpetration" of the robbery, stating inter alia: "It is a sound principle of law which inheres in common reason that where two or more persons engage in a conspiracy to commit robbery and an officer or citizen is murdered while in immediate pursuit of one of their number who is fleeing from the scene of the crime with the fruits thereof in his possession, or in the possession of a co-conspirator, the crime is not complete in the purview of the law, inasmuch as said conspirators have not won their way even momentarily to a place of temporary safety and the possession of the plunder is nothing more than a scrambling possession. In such a case the continuation of the use of arms which was necessary to aid the felon in reducing the property to possession is necessary to protect him in its possession and in making good his escape. Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. Without revolvers to terrify, or, if occasion requires, to kill any person who attempts to apprehend them at the time of or immediately upon gaining possession of said property, their plan would be childlike. The defense of felonious possession which is challenged immediately upon the forcible taking is a part of the plan of robbery, or as the books express it, it is res...