People v. Baglin

• Decision Date: 03 April 1969
• Docket Number: Cr. 15199
• Citation: 76 Cal.Rptr. 863,271 Cal.App.2d 411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Le Roy BAGLIN, Defendant and Appellant.

Page 863

76 Cal.Rptr. 863

271 Cal.App.2d 411

The PEOPLE of the State of California, Plaintiff and Respondent, v. Le Roy BAGLIN, Defendant and Appellant.

Cr. 15199.

Court of Appeal, Second District, Division 1, California.

April 3, 1969.

Linn Davis, Los Angeles, for appellant by appointment of the Court of appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas E. Warriner, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Charged by information with murder and a prior felony conviction, defendant pleaded not guilty and denied the prior. An expert was appointed to examine him as to his sanity (Evid.Code, § 730), and defendant thereafter entered an additional plea of not guilty by reason of insanity and two more experts were appointed to examine defendant (Pen.Code, § 1027; Evid.Code, § 730). Subsequently he withdrew his plea of not guilty by reason of insanity, and the court--jury having been waived on such issue--found the alleged prior felony conviction to be true. After a jury trial defendant was found gulity of first degree murder and the penalty fixed at life imprisonment. He appeals from the judgment; the attempted appeal from the order denying defendant's motion for a new trial is dismissed.

Myron Johnson was the owner of an auto parts store in Palmdale. Shortly before 8:00 p.m. on August 11, 1967, James Bland heard a shot inside the store and saw a man, later identified as defendant, run from the store; he carried a gun in his right hand and a generator box in his left; entering a blue Plymouth he drove away. A few seconds later Bland saw Johnson come out of the store; his chest was bleeding and he told Bland he had been shot and was dying. Deputy Sheriff Compton responded to Bland's telephone call; upon arrival he saw Johnson lying on the sidewalk with Bland bending over him; he noticed a blood trail from behind the counter of the store to the spot where Johnson was lying. Inside the store Deputy Compton observed a bullet hole through the back wall and removed a slug embedded therein; he testified that it was his opinion that the shot was fired from the customer's side of the counter. Johnson's wallet was empty upon arrival at the coroner's office although, according to his wife, he always kept between ten and fifteen dollars for business transacted after the store was closed.

Deputy Shanley received a radio message of the shooting, including a description of the suspect and his car. After a license check, Shanley ascertained that the car was registered to defendant and that he resided at a certain address. Defendant not being home when Shanley called, the latter was directed to the residence of defendant's girl friend. Upon Shanley's arrival at about 1:30 a.m. defendant was there; near his person Shanley found a .38 caliber revolver and eight .38 caliber bullets. Defendant's car was located later that morning on an old desert road; it was stuck in the sand. A cardboard box containing a generator was found about 100 yards from the vehicle; fingerprints, concededly those of the defendant, were on the generator box. There was testimony that the slug found embedded in the wall of defendant's store was fired by defendant's .38 caliber revolver; that the weapon would not have fired unless the trigger was pulled.

Johnson's widow testified that she and her husband lived in an apartment directly above the store; she last saw him alive about 7:30 p.m. when he was downstairs in the store putting stock away; the cash register drawer was then not out on the counter. A part-time employee, called to the store by the widow shortly after the shooting, noticed that the cash register drawer was on the counter, and stated that he had never seen this happen before; he also noticed the number of a generator written on the order pad (on the counter) belonging to a type that fitted 1942 to 1947 Chrysler products.

There was evidence tending to establish 'diminished capacity.' Although defendant's girl friend stated that he was not drunk upon arrival at her home early on the morning of August 12, she did testify that she was with him the previous afternoon when he drank one quart of beer and wanted to take her to Lancaster. Robert Bowen was with defendant before the latter saw his girl friend later that afternoon; according to him defendant consumed four to five quarts of beer during their four hour visit. Defendant's brother (David) last saw defendant at 6:00 p.m., about two hours before the offense was committed at which time defendant was drunk; he testified that defendant had the mind of a ten-year child. Another witness corroborated the testimony of Robert Bowen that defendant consumed four to five quarts of beer; she testified that he was drunk and nearly fell out of his car when he drove away.

Dr. George Thompson, court-appointed psychiatrist, conducted extensive tests and examination with a view to ascertaining defendant's mental capacities; he reached the following conclusions: Defendant suffers from a mental deficiency of the upper moron level, with an overall intelligence quotient of 69--his mental age was considered to be about ten years; because he suffers from chronic mental deterioration, he is more subject to the effect of alcohol than a person without such impairment--defendant told the witness that he had no recollection of the shooting; defendant 'was probably sane at the time of the commission of the offense' although 'his mental state was probably clouded by the alcohol he had consumed'; defendant probably had the mental capacity to form the specific intent to commit the crime of robbery but it was doubtful whether he had the mental capacity to deliberate, premeditate or to harbor malice--'he had diminished capacity to form specific intent to kill and to steal because of limited intellectual functioning and poor impulse control.'

With on exception (presently to be noted), the trial court generally followed the suggested form of instructions found in People v. Conley, 64 Cal.2d 310, 324--326 (fn. 4), 49 Cal.Rptr. 815, 411 P.2d 911. In addition to defining homicide and robbery, the court gave the following instructions designated as 'Adaptation of Conley Rule.' ¹ No instruction was given on second degree murder, which appellant claims constituted prejudicial error. Preliminarily, and prior to instructing the jury, the court told counsel in chambers that 'In respect to the Wells, Gorshen, Connelly (sic) and other leading cases, the Court has prepared its own special instruction adapted from the footnote in People versus Connelly (sic) * * * The Court feels that there is no possible tenable theory on which this could be a second degree murder since there is no substantial evidence under any other theory for second degree murder and that if diminished capacity reduces defendant's ability to form the various specific intents that may be material, it would be reduced all the way to voluntary or involuntary manslaughter, as the case may be.'

We agree with the trial court's analysis of the problem. A homicide committed in the perpetration of a robbery is murder of the first degree. (Pen.Code, § 189; People v. Lookadoo, 66 Cal.2d 307, 314, 57 Cal.Rptr. 608, 425 P.2d 208.) On the other hand, the nature and extent of the felony-second-degree murder rule in this state have been thus expressed: 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder.' (Emphasis added; People v. Ford, 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 635, 388 P.2d 892, 907.) Section 189 has been construed as not requiring a strict causal relation between the felony and the homicide, and the homicide is committed in the perpetration of a felony if the killing and the felony are parts of one continuous transaction. (People v. Mason, 54 Cal.2d 164, 168--169, 4 Cal.Rptr. 841, 351 P.2d 1025.) In the present case defendant was seen leaving the store with a gun in his hand after the sound of a shot apparently originating within those premises. He carried a generator box which was found near his car and bore his fingerprints. When found the victim's wallet was empty although he always carried a sum of money; too, the cash box on the store counter was empty. The bullet embedded in the wall of the store was fired by defendant's revolver, and there was evidence that the weapon could not have been discharged accidentally.

As noted above, the form of instructions suggested in Conley included an instruction on second degree murder; ² but, as pointed out in the first paragraph of the footnote (fn. 4, 64 Cal.2d at p. 324, 49 Cal.Rptr. at p. 824, 411 P.2d at p. 920), the suggested instructions are for cases where diminished capacity is a defense And 'the felony murder doctrine is not involved * * *.' Under the 'felony murder doctrine' a killing whether intentional or unintentional is murder in the first degree if committed in the perpetration of attempt to perpetrate six designated felonies, including robbery. (People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) The ordinary elements of first degree murder--malice and premeditation--are eliminated by the doctrine, the only criminal intent required being the specific intent to commit the felony. As shown in Coefield, 'when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime, and the law fixes upon the offender the intent which makes any killing in the perpetration of of attempt to perpetrate the robbery a murder of the first degree.' (37 Cal.2d at p. 868, 236 P.2d at p. 572.)

But, says defendant, if there was no specific intent to commit robbery at the time of the killing or if the intent to take the generator was formed after the killing, the jury could have found him guilty of murder in the second degree. As noted...