People v. Anderson

• Decision Date: 23 December 1968
• Docket Number: Cr. 10603
• Citation: 70 Cal.2d 15,447 P.2d 942,73 Cal.Rptr. 550
• Court: California Supreme Court
• Parties: , 447 P.2d 942 The PEOPLE, Plaintiff and Respondent, v. Robert Arthur ANDERSON, Defendant and Appellant.

Page 550

73 Cal.Rptr. 550

70 Cal.2d 15, 447 P.2d 942

The PEOPLE, Plaintiff and Respondent, v. Robert Arthur ANDERSON, Defendant and Appellant.

Cr. 10603.

Supreme Court of California,

In Bank.

Dec. 23, 1968.

Paul A. Mansfield, San Jose, under appointment by the Supreme Court, for defendant and appellant; Eugene M. Premo and Marcel B. Poche, San Jose, of counsel.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and Jerome C. Utz, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Defendant was indicted for the murder of Victoria Hammond, a 10-year-old girl, in 1962. The jury found defendant guilty of first degree murder, found that he was sane, and fixed the penalty at death. This court, in People v. Anderson (1965) 63 Cal.2d 351, 46 Cal.Rptr. 763, 406 P.2d 43, reversed the judgment both as to conviction and penalty, one of the grounds being that the introduction of defendant's extrajudicial confession violated Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

After a second trial, the jury again found defendant guilty of first degree murder, found that he was sane, and fixed the penalty at death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Defendant correctly contends that veniremen were excluded from the jury panel in violation of the standards set forth by the Supreme Court in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 and that therefore the death penalty was unconstitutionally imposed. We do not find it necessary to remand the case for a new penalty trial, however, because we conclude that the evidence is insufficient to support a verdict of first degree murder on the theory of either (a) premeditated and deliberate murder, or (b) murder committed during the perpetration or attempted perpetration of a violation of Penal Code section 288.

The Facts.

Defendant, a San Jose cab driver, had been living for about eight months with a Mrs. Hammond and her three children, Cynthia, aged 17, Kenneth, aged 13, and the victim, Victoria, aged 10. On the morning of the day of the murder, December 7, 1962, Mrs. Hammond left for work at 7:30 a.m., leaving only Victoria at home with the defendant. Defendant was still in bed. He had been home from work for the previous two days, during which time he had been drinking heavily, and apparently he did not go to work on the day of the murder.

The owner of a nearby liquor store testified that defendant purchased a quart of whisky from him sometime between 1 and 2 p.m. on December 7, 1962. The only other witness who testified as to defendant's whereabouts that day prior to the discovery of the murder was the victim's 13-year-old brother Kenneth.

Kenneth testified that he arrived home from school at 3:30 p.m. on December 7. He found the front door locked, which was not unusual, so he went around to the back of the house and down to the basement. Kenneth stayed there awhile working with his miscroscope. In a short time he heard noise coming from upstairs in the house which sounded like boxes and other things being moved around, like someone was cleaning up. He then heard the shower water running. A police officer later verified that a person in the basement could hear water running in the shower and movement in Victoria's bedroom.

Kenneth testified further that he then came up from the basement and went to the back porch screen door. The screen door was locked, which also was not unusual, so Kenneth jerked on it so the hook would pop out. Kenneth then went from the back porch directly into his bedroom to change his clothes. He then returned through the back porch to the kitchen door which was also locked. Kenneth knocked on the door and the defendant opened it. Kenneth testified that the defendant was wearing slacks only. Kenneth went into the kitchen and asked defendant for $1.00 for a teen club dance he intended to attend that evening. Defendant obtained a dollar for him out of the pocket of another pair of slacks hanging on the knob of a bedroom door. When Kenneth noticed the blood on the kitchen floor and asked defendant about it, the defendant told Kenneth that he had cut himself. This explanation apparently satisfied Kenneth, as he finished dressing and left the house sometime before 4 p.m.

Kenneth testified that no one else was at his house when he was there between 3:30 and 4 p.m. He further testified that about 6:30 he realized that he had forgotten his wallet and returned home. As he approached the front door, his mother came out and asked to see the cut on his arm, and Kenneth explained that he had no cut. His mother then asked defendant about the blood she had noticed and defendant told her that Victoria had cut herself, but that the mother should not worry, as the cut was not serious. After defendant told her that Victoria was at a friend's for dinner, the mother wanted to take Kenneth with her to get Victoria. Kenneth went back to his room to get a jacket. Because he had a 'weird' feeling, he looked into Victoria's room. He found her nude, bloody body under some boxes and blankets on the floor near her bed. Kenneth ran out of the room screaming that defendant had killed her. Mrs. Hammond, after seeing Victoria's body, went next door to phone the police.

Mrs. Hammond testified that she returned home from work at 4:45 p.m. The front door was locked, she rang the doorbell, and defendant answered. Mrs. Hammond noticed blood on the couch in the living room, and when she asked defendant about it, he told her that Kenneth had cut himself playing with a knife and that he was at a teenage dance. Mrs. Hammond then went to the grocery store and returned about 5:30 p.m. She testified that at both times she arrived home defendant was drinking a highball. She also testified as to examining Kenneth's arm for a cut when he returned home for his wallet and as to defendant's subsequent explanation that Victoria had been cut, but not seriously. Mrs. Hammond discovered Victoria's body after Kenneth came out of Victoria's room.

A classmate of Victoria, who was the last person to see Victoria alive, testified that she left Victoria in front of the Hammond house about 3:45 p.m. after the two of them had walked home from school.

When the police arrived at 7 p.m. the shades were down on all the windows and the doors were locked. Defendant finally opened the front door for one of the officers who arrested and handcuffed defendant. The arresting officer testified that defendant was wearing slacks, no shirt or shoes, and that there was no blood on him.

The arresting officer found Victoria's body on the floor near her bed. He found defendant's blood-spotted shorts on a chair in the living room, and a knife and defendant's socks, with blood encrusted on the soles, in the master bedroom. The evidence established that the victim's torn and bloodstained dress had been ripped from her, that her clothes, including her panties out of which the crotch had been ripped, were found in various rooms of the house, that there were bloody footprints matching the size of the victim's leading from the master bedroom to Victoria's room, and that there was blood in almost every room including the kitchen, the floor of which appeared to have been mopped.

The TV cameraman who covered the murder story for channel 11, the officer who drove defendant to the police station, and the officer who 'observed' defendant for four hours at the station the night of December 7, 1962, all testified that defendant did not appear intoxicated. The officers who talked to defendant testified, however, that they smelled alcohol on his breath; a blood test taken at 7:45 p.m. indicated that the alcohol content in defendant's blood was .34 percent, which was more than necessary for an automobile driver to be classified as 'under the influence.'

Over 60 wounds, both severe and superficial, were found on Victoria's body. ¹ The cuts extended over her entire body, including one extending from the rectum through the vagina, and the partial cutting off of her tongue. Several of the wounds, including the vaginal lacerations, were post mortem. No evidence of spermatozoa was found in the victim, on her panties, or on the bed next to which she was found.

The prosecution contended that the murder was sexually motivated. The defendant, who pleaded not guilty and not guilty by reason of insanity, presented no defense whatsoever. The court instructed the jury on two theories of first degree murder, premeditated and deliberate murder, and murder committed in the perpetration or attempt to perpetrate an offense under section 288 of the Penal Code; second degree murder; and voluntary and invol untary manslaughter. The court also instructed the jury on diminished capacity due to voluntary intoxication and its relationship to second degree murder and manslaughter. The jury found the defendant guilty of murder in the first degree. Initially, prior to an exposition of our reasons for reducing the judgment to second degree murder, we dispose of defendant's contention that the invalidity of the indictment vitiates the entire proceeding. ²

1. The trial court's refusal to allow defendant to withdraw his plea in a case in which defendant had not waived his right to attack the indictment did not constitute an abuse of discretion.

Defendant was indicted in 1962. The only evidence presented to the grand jury connecting defendant with the crime was an extrajudicial confession obtained in violation of Escobedo v. Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. (See People v. Anderson, supra, 63 Cal.2d 351, at pp. 360--362, 46 Cal.Rptr. 763, 406 P.2d 43.) After the reversal of defendant's first conviction and before defendant's second trial, defendant moved to withdraw his plea of not guilty to enable him to move to set aside his indictment under Penal Code section 995. The trial court's denial of defendant's motion did...