People v. Balderas

• Decision Date: 31 December 1985
• Court: California Supreme Court
• Parties: , 711 P.2d 480 The PEOPLE, Plaintiff and Respondent, v. David BALDERAS, Defendant and Appellant. Crim. 21979.

Page 184

222 Cal.Rptr. 184

41 Cal.3d 144, 711 P.2d 480

The PEOPLE, Plaintiff and Respondent, v. David BALDERAS, Defendant and Appellant.

Crim. 21979.

Supreme Court of California.

Dec. 31, 1985.

As Modified March 27, 1986.

Allan B. O'Connor, Santa Cruz, for defendant and appellant.

Raymond L. Brosterhous Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

GRODIN, Justice.

In a single proceeding, defendant David Balderas was tried on sixteen felony counts set forth in two informations and arising from three separate incidents. The principal information, No. 21050, first charged defendant with crimes against Randy L. and Corrine S. in the early morning of December 24, 1979. The jury convicted defendant, as charged, of two counts each of forcible kidnaping (PEN.CODE, § 207 )¹ and robbery ( § 211), and one count each of forcible rape ( § 261, former subd. (3)), oral copulation ( § 288a, subd. (c)), and sodomy ( § 286, subd. (c)). As to each count, the jury found that defendant had used a firearm (a sawed-off shotgun). ( § 12022.5.)

Information No. 21050 also charged offenses committed against Neil Wanner later in the morning of December 24, 1979. In the Wanner incident, defendant was convicted of kidnaping for purposes of robbery ( § 209), robbery ( § 211), and first degree murder ( § 187). The verdict specified that defendant intentionally inflicted great bodily injury during the kidnaping and robbery of Wanner. ( § 12022.7.) ² A charge that defendant possessed a sawed-off shotgun on December 24, 1979 ( § 12020, subd. (a)) was also upheld. Under the 1978 death penalty law, the jury found true a charged special circumstance that defendant committed the Wanner murder while engaged in the commission or attempted commission of a robbery. ( § 190.2, subd. (a)(17)(i).)

A second information, No. 21762, charged defendant with an escape from custody on August 20, 1980. ( § 4532, subd. (b).) Included were two counts each of assault with a deadly weapon on a police officer (i.e., two jail guards) ( § 245, subd. (b)) and false imprisonment (of the guards) ( §§ 236, 237). Defendant was convicted on all counts.

The jury assessed the death penalty for the murder. The trial court denied defendant's motion for a new trial and affirmed the death sentence. ( § 190.4, subd. (e).) It also imposed a total sentence of 20 1/3 years on the noncapital offenses, including a conviction in a separate trial (action No. 20849) for an auto theft committed on January 10, 1980. (Veh.Code, § 10851.) ³ The trial in action No. 20849 had also served as a probation revocation hearing in action No. 19490, a 1978 auto-theft conviction, and defendant's probation had been revoked. Sentencing in action No. 19490 was consolidated with the instant proceeding. The court imposed the upper term of three years for the 1978 offense, the sentence to run concurrently with those for the other counts. Defendant received 592 days of custody, work, and good-time credit. ( §§ 2900.5, 4019.) The court ordered that if the death sentence was overturned or not carried out for any reason, any sentence ultimately imposed for the Wanner murder should be served consecutively to all others. This appeal is automatic.

We reject all defendant's challenges to his convictions for the crimes charged. However, we reverse the sole "special circumstance" determination--that the murder was committed while defendant was engaged in a robbery ( § 190.2, subd. (a)(17)(i))--because the jury was not instructed that this special circumstance requires a finding of specific intent to kill. (People v. Garcia (1984) 36 Cal.3d 539, 550, 555-556, 205 Cal.Rptr. 265, 684 P.2d 826, cert. den. (1985) 469 U.S. 1229, 105 S.Ct. 1229, 84 L.Ed.2d 366; Carlos v. Superior Court (1983) 35 Cal.3d 131, 152-154, 197 Cal.Rptr. 79, 672 P.2d 862.) This, in turn, requires that the judgment of death be overturned. (E.g., People v. Turner (1984) 37 Cal.3d 302, 329-330, 208 Cal.Rptr. 196, 690 P.2d 669; People v. Whitt (1984) 36 Cal.3d 724, 748, 205 Cal.Rptr. 810, 685 P.2d 1161.) For guidance on any penalty retrial, we briefly discuss certain penalty-phase issues which are likely to recur and have not yet been decided.

I. GUILT TRIAL

A. Prosecution case.

Under a grant of immunity, Joseph Hix, a friend of defendant, testified that he and defendant attended a party in Bakersfield on the evening of December 23-24, 1979. The two had been drinking premixed Harvey Wallbanger cocktails and snorting "crank" all during the preceding day. ⁴ While defendant had used PCP in the past, Hix believed he had discontinued its use in recent weeks, and he did not see defendant use PCP on the day or evening of December 23.

About midnight, defendant asked to borrow Hix's car to leave the party; defendant seemed drunk. Hix next saw defendant around 8:30 or 9 the next morning, December 24, at Hix's house. Defendant looked and acted sober. He said that, after leaving the party, he had run Hix's car into a ditch on a rural road near Lamont, where both lived, and had abandoned it. While walking home, defendant said, he had come upon a black couple in a parked car, kidnaped them at the point of a shotgun, raped the woman, forced her to engage in oral copulation, and left both victims in separate places with their clothing cut off.

Randy L. and Corrine S. testified that, sometime after midnight on December 24, 1979, they were parked in front of her mother's Lamont home in Randy's car, a 1965 white Chevrolet Impala. A man both positively identified as defendant approached the driver's side from between two buildings across the street, holding a shotgun at his side. He tapped on the car window and asked if the couple knew a woman named "Black" or "Blackum" from whom he was supposed to purchase narcotics. When both replied "no," he stuck the gun in the window. Holding the weapon at Randy's head, he got into the car and ordered Randy to drive as directed.

During an erratic journey into rural fields, defendant divested Randy and Corrine of their leather coats and jewelry, including Corrine's rings and earrings and the watches the two had exchanged as Christmas presents. He then ordered Corrine to remove her clothes and throw her undergarments out the window; she complied. He told her to get in the back seat with him, where he forced her to engage in oral copulation and raped her. During this time, he continued to train the shotgun on Randy, who was still driving.

After the car stopped at an isolated dead end, defendant made Corrine get in back with him again, where new acts of oral copulation and rape occurred. The routine was repeated several more times during a wandering trip back toward Lamont--"over four" in all.

A dust storm was blowing outside and, at one point, defendant told Randy to pull over until visibility improved. Later, defendant smashed the rear-view mirror with the shotgun when he noticed Randy using it to get a look at him.

Finally, defendant ordered Randy to stop and take off his clothes, which Randy did. Defendant held a knife at Randy's throat and asked if he could feel how sharp it was. Then he cut off the skirt portion of Corrine's dress and the legs and pockets of Randy's pants. ⁵

Soon Randy was told to stop again. Defendant ordered him out of the car, gave him back his cut-off pants, and directed him to lie down in the roadway. The weather was windy and cold, and Randy was naked except for the pants and his socks. Before leaving, defendant told Randy, "I hope you freeze, nigger."

Defendant placed Corrine in the driver's seat and told her to continue driving, but she said she was too upset. Defendant drove away himself, sitting on the center console, steering with one hand and brandishing the shotgun with the other. He stopped in another isolated area, again forced Corrine to engage in oral copulation, and sodomized her. During this time, he asked about her children and then said, "Do you think I give a fuck about your damn kids?" He also declared he should kill her so she could not identify him.

Finally, defendant ordered Corrine out, threw her the cut-off dress, and left in the car. Corrine made her way through fields to a house trailer whose residents helped her call the police. Vaginal swabs taken the next day disclosed the presence of sperm.

On cross-examination, Randy disclosed that defendant gave off an odor Randy associated with PCP, but Corrine did not notice any smell. Both said that defendant seemed excited and his driving instructions were erratic, but his speech was clear and his coordination normal.

When defendant showed up at Hix's house later that morning, Hix testified, the two set out in defendant's brother's pickup to find Hix's car. They went past defendant's house; parked in front was a white 1965 Chevrolet Impala which defendant said he had taken from the black couple. Hix and defendant drove around the Bakersfield area for several hours; each took some "crank" during this time. The "crank" only made Hix feel more alert and wide-awake, and he noticed no different effect on defendant.

The truck ran low on gas, and the two stopped at the home of a friend of Hix's to borrow a small amount of gas money. When fuel was needed a second time, Hix and defendant drove to Kern County Medical Center, hoping to steal some money from parked cars. In the parking lot, they saw a man sitting in a pickup truck. Defendant announced he was going to rob the man.

Hix said he wanted no part of a robbery and told defendant he would be at the home of Rachel Jaurez, where the previous night's party had taken place. Defendant then took the sawed-off shotgun, which he had brought along, walked over to the occupied truck, and got in.

Steve Wanner testified that his father, Neil, had dropped him at the medical center about 10 a.m., intending to wait in the Wanners' pickup while Steve's broken ankle was examined. When Steve emerged, Neil and the Wanner pickup had disappeared, and Steve never...