People v. Aubrey

• Decision Date: 25 August 1967
• Docket Number: Cr. 12914
• Citation: 61 Cal.Rptr. 772,253 Cal.App.2d 912
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lloyd Wilson AUBREY, Jr., Defendant and Appellant.

Page 772

61 Cal.Rptr. 772

253 Cal.App.2d 912

The PEOPLE, Plaintiff and Respondent, v. Lloyd Wilson AUBREY, Jr., Defendant and Appellant.

Cr. 12914.

Court of Appeal, Second District, Division 4, California.

Aug. 25, 1967.

Rehearing Denied Sept. 8, 1967.

Hearing Denied Oct. 19, 1967.

Marvin Zinman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Appellant and Ronald Stephanson were charged with three offenses: Count I, the murder of Mickey L. Garron (Pen.Code, § 187); counts II and III, assault with a deadly weapon with intent to murder Keford Roberts and Lee Myles respectively (Pen.Code, § 217). Appellant was tried separately from his codefendant. A jury found appellant guilty of murder in the first degree and fixed the penalty at life imprisonment. On counts II and III he was found guilty of assault with a deadly weapon (Pen.Code, § 245), a lesser and included offense. This appeal is from the judgment.

The evidence, read in the light most favorable to the respondent, as the rules of appellate review require (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778), shows the following:

At about 2:10 a.m. on February 10, 1966, appellant, aged 26, Stephanson, aged 19, and Stephanson's brother-in-law, Daniel, aged 15, left a bar in Burbank where they had been drinking beer. Appellant suggested that they obtain Stephanson's shotgun and 'go into Watts.' They proceeded to Stephanson's apartment in appellant's automobile, a white 1954 Studebaker. Stephanson placed the shotgun in the back seat and gave three shells to appellant and two to Daniel. Stephanson said, "Are we going down into Watts?" and appellant said "Yes." As they left the apartment appellant was driving and the other two were in the front seat beside him. Sometime later they stopped to open some cans of beer. Stephanson moved into the rear seat and Daniel drove, with appellant in the right front seat. As they drove, Stephanson asked Daniel for a shell, and Daniel handed him one.

At about 3 a.m. Mickey Garron, a Negro, wearing a navy uniform, was standing at a bus stop at the intersection of Broadway and Florence in Los Angeles. As the white Studebaker drove by, appellant directed the driver to stop and back up. Stephanson then fired the gun, killing Garron. Appellant asked, "Did you get him?" and Stephanson answered "Yes."

A few moments later on Florence Avenue near Main Street the Studebaker came alongside a car driven by Keford, with Myles as a passenger. Stephanson pushed the barrel of his gun through the window of the Studebaker and pointed it at Keford and Myles, who were about 6 feet away. Keford shouted a warning and 'jammed the brakes,' as both he and Myles fell to the floorboard. The Studebaker went on past, and no shot was fired.

The shooting of Garron was reported to the police by eyewitnesses, and at 3:54 a.m. the police stopped the white Studebaker on East 118th Street and arrested the occupants. Three shotgun shells were found in appellant's pocket. One of the arresting officers testified that appellant was sober. Other officers were of the opinion all three men were under the influence of alcohol, but not drunk.

Daniel was called as a witness for the prosecution and testified as to the events preceding the killing. His credibility was impeached by some conflicts between his testimony and some statements he had made before the trial. He admitted that he had at first told the police falsely that appellant was the passenger in the rear seat who had fired the gun. But the case does not rest upon the testimony of Daniel alone. Persons in the vicinity of the shooting testified that the shots came from a white Studebaker containing three white men. The expended shell, found at the scene, was shown to have been fired from the shotgun which was in appellant's car at the time of the arrest. Even without Daniel's testimony it is established that the fatal shot was fired from appellant's automobile, while appellant was in the vehicle, and that additional shells for the gun were being carried in appellant's pocket.

Appellant offered no evidence except the extrajudicial statements of Daniel, which were offered solely as impeachment.

Several contentions made by appellant here may be disposed of very briefly.

Appellant's argument that the evidence is as a matter of law insufficient to establish first degree murder appears to be based upon the assumption that this court must reject the testimony of Daniel in its entirety. This argument fails because of the established principle that credibility is an issue exclusively for the jury. There is nothing inherently incredible about Daniel's testimony that appellant suggested that they take a shotgun and drive to Watts. Indeed that is the only explanation in the record for what we know happened afterwards. Although appellant never touched the shotgun, the jury could reasonably find him criminally responsible either as a member of a conspiracy or as one who aided and abetted a malicious and premeditated killing.

There is no merit in appellant's contention that the trial court gave the prosecution too much latitude and unreasonably restricted appellant's examination of Daniel. The portions of the transcript cited in appellant's brief do not support the charge. The trial court handled this difficult and delicate task with an even-handed skill which leaves little basis for hindsight criticism.

It was not error to refuse to receive in evidence the written notes which had been made and signed by Daniel when he had been interviewed by a police officer and by a deputy district attorney prior to the trial. These documents had been furnished to the defense, so that appellant's attorney was able to cross-examine Daniel at the trial concerning the inconsistencies between his testimony and the documents. As a part of the cross-examination, appellant offered these documents in evidence. In refusing the offer, the court pointed out that counsel had already put in evidence everything in them which was pertinent to Daniel's testimony, and that there was other matter in the documents which was not in evidence and which would be damaging to the appellant. The only legitimate purpose of the offer was to attack the credibility of Daniel; and since the appellant had already had the benefit of this, through Daniel's testimony that he had made the earlier conflicting statements, the documents were at most cumulative.

The difficult issue in the case is the sufficiency of the instructions given to the jury. In approaching that problem it is necessary to note that Daniel testified that all three of them had been drinking beer, and that all three were very drunk. Thus it became the duty of the court to explain to the jury the effect appellant's intoxication would have upon his culpability.

In its instructions, the court explained that manslaughter is distinguishable from murder in that malice is an essential element of the latter. Malice was defined and explained. The jury was told that if it found from the evidence that at the time the alleged crime was committed the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication, or any other cause, it must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder; and that if his mental capacity was so diminished that there was a reasonable doubt whether he did harbor malice, he could not be found guilty of murder.

The court further instructed:

'Manslaughter is the unlawful killing of a human being without malice. The definitions of two kinds of manslaughter are as follows:

'1. Voluntary manslaughter is that which is committed upon a sudden quarrel or heat of passion.

'2. Involuntary manslaughter is that which is done in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.'

The instructions elaborated upon the meaning of 'heat of passion.'

Appellant makes no contention that any of these instructions is erroneous as an abstract statement of law. His point is that the jury was not told that he could have been convicted of the kind of manslaughter which is defined in People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911.

In Conley, a conviction of first degree murder was reversed because of the failure of the trial court to instruct on manslaughter. The defendant had testified that he did not intend to kill and he could not remember what he had done. A blood test showed alcohol sufficient for intoxication. The opinion points out that evidence of intoxication may be considered by the jury to rebut malice. Referring to an earlier case, the court said (at p. 318, 49 Cal.Rptr. at p. 820, 411 P.2d at p. 916):

'We thus gave effect to the statutory requirements for the offense of manslaughter, 'the unlawful killing of a human being without malice,' and recognized that since the statute had been enacted before the concept of diminished capacity had been developed, its enumeration of nonmalicious criminal homicides did not include those in which the lack of malice results from diminished capacity. That enumeration could not be exclusive, for in the absence of malice a homicide cannot be an offense higher than manslaughter. (Citations.) Accordingly, a finding of provocation sufficient to reduce murder to manslaughter is not the sole means by which malice can be negated and...