People v. Beyea

• Citation: 113 Cal.Rptr. 254,38 Cal.App.3d 176
• Decision Date: 28 March 1974
• Docket Number: Cr. 11337
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Stanley BEYEA and Marvin William Gilbert, Defendants and Appellants.

Page 254

113 Cal.Rptr. 254

38 Cal.App.3d 176

PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Stanley BEYEA and Marvin William Gilbert, Defendants and Appellants.

Cr. 11337.

Court of Appeal, First District, Division 2, California.

March 28, 1974.

Hearing Denied May 22, 1974.

Gregory C. Dyer, Frank D. Rothschild, Mill Valley, for Marvin William Gilbert (Court Appointed Counsel).

Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, for Russell Stanley Beyea.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, John T. Murphy, Jean M. Bordon, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Presiding Justice.

Codefendants appeal from judgments ¹ entered on jury verdicts finding them guilty of second degree murder (Pen.Code, § 187). Both urge reversal or, in the alternative, reduction of the sentences to manslaughter, on the grounds that: 1) the evidence was insufficient to sustain the verdict and conviction; 2) the trial judge abused his discretion in allowing reference to their membership in the Hell's Angels; 3) the admission of the testimony of two witnesses from the preliminary hearing was improper as the prosecution failed to exercise due diligence to ensure their appearance at trial; 4) they were deprived of their right to confrontation as the prosecution was permitted to impeach the testimony of its own preliminary hearing witnesses with prior hearsay statements; and 5) there were instances of prejudicial prosecutional misconduct. Gilbert individually argues that: 1) the prosecution was guilty of several acts of misconduct; 2) misstated the law of accomplices in its argument; and 3) the trial court erred to his prejudice as it failed to rule that Hunter was an accomplice as a matter of law. Beyea individually contends that the court below: 1) failed to give Sua sponte the refused cautionary instruction on oral admissions by defendants; 2) wrongfully instructed the jury on murder by torture; 3) erroneously denied a motion for a new trial on the basis of newly discovered material evidence; and 4) allowed to a prosecution eyewitness a discriminatory grant of immunity subsequently denied to a potential defense eyewitness. For the reasons stated below, we have concluded that both convictions should be affirmed.

Viewing the facts in the light most favorable to the judgments, the following appears: On February 24, 1972, Beyea and Gilbert were sitting in Connie Perry's kitchen. Beyea was 6 1 tall and weighed 265 pounds; Gilbert was 6 tall and weighed 205 pounds. Also present in the house were Ms. Perry, Paul Kimdem, Dennis Sanders, Ms. Perry's 'old man,' and Frank Hunter, also known as 'Lurch.' Both Beyea and Gilbert were members of the Hell's Angels. Gilbert wanted some parts from a motorcycle in the basement, so he and Ms. Perry left the kitchen and went downstairs to the basement. The basement was divided into two rooms. The entrance to the basement opened into the larger room that contained a pool table; from this room there was an opening to a smaller room that contained two motorcycle frames. The lighting in the smaller room was fair.

At approximately 6 p.m., Bradley Parkhust, the decedent, arrived at the residence with his friend, Clyde Burk, and entered the smaller basement room, then occupied by Ms. Perry and Gilbert, who was working on one of the two motorcycle frames. Parkhurst was 5 10 tall, weighed 167 pounds, and was carrying a pool cue. After Ms. Perry introduced Parkhurst to Gilbert, and the two shook hands, Gilbert said 'That's a Nigger's handshake.' Parkhurst responded 'I'm no Nigger.' Gilbert and Parkhurst argued and a fight erupted. Burk testified ² that he did not observe who struck the first blow, but Parkhurst knocked Gilbert down. Parkhurst and Gilbert fought on the ground. At first, Parkhurst was getting the better of the fight.

Ms. Perry left the basement, ran into the kitchen upstairs and said 'Russ, Marv is in trouble.' Beyea then ran out the back door, followed by Hunter and Sanders. Beyea entered the basement first, pushed Burk against the wall, and ordered him to stay there. Hunter observed Gilbert staggering in the corner, and saw Beyea hit Parkhurst twice in the mouth with his fist. Hunter shoved Burk up against a wall. Hunter testified ³ that he kept Burk against the wall for about a minute to a minute and a half, although Burk testified that he was held up against the wall for 15 or 20 minutes, as long as the fighting lasted.

Hunter testified that he could see out of the corner of his eye that Beyea and Gilbert were hitting Parkhurst. Hunter saw Gilbert hit Parkhurst once, he thought in the chest. Burk testified that he could see some black boots that appeared to be making a motion to kick. Burk heard a thud, and then Parkhurst's voice, 'It's cool. Stop.' Burk heard Parkhurst repeat this several times and also heard Parkhurst moaning. Burk also heard some slapping noises and saw Parkhurst being thrown against a bicycle frame. Kindem was then brought into the larger basement room by Sanders, who had told him 'They want to talk to you downstairs.' Burk heard Parkhurst being asked his name, and then heard the fighting noises begin again.

Kindem testified that he saw Hunter holding Burk against the wall with one hand and holding a hammer in the other. From the pool table room, Kindem could hear noises from the other room, including Parkhurst saying 'Hey, Brother, I know you from the compound.' A voice answered, 'You don't know me. I wasn't out there last year,' and then 'Well, let me see your wallet. Give me your wallet.' Beyea then walked into the pool room, pointed his finger at Kindem's face and said, 'You didn't see nothing and you didn't hear nothing.' Kindem replied, 'You are right. I didn't.' Kindem heard moaning and coughing from the other room while Beyea was talking to him; Beyea said 'Well, don't worry; nothing is going to happen to you.'

Kindem than heard Gilbert say 'Well, how come you tell me your name is this and it says in your wallet your name is something else? Now, what's your name?' and then 'What is your fucking name, Man?' Then followed a thud which Kindem testified resembled a kick. Parkhurst said 'No more, please. I've had enough.' The moaning sound grew louder after the sound resembling a kick.

Gilbert said: 'Shut up, punk. I don't dig snivelers,' and 'You know, I am not going to ask you one more time. If you don't tell me your name you are not going to leave here alive.' Beyea then said 'You'd better answer if you know what's good for you.' Parkhurst replied 'I've told you my right name,' and continued to choke and moan. Kindem observed Hunter release Burk. Burk saw Parkhurst lying on his back, his face bloody. Gilbert resumed work on the motorcycle and left a few minutes later with Beyea. Hunter testified that he had heard Gilbert ask Parkhurst whether he was all right before leaving, to which Parkhurst replied 'Yes.'

After Gilbert and Beyea left the basement, Hunter, Kindem and Burk, with Sanders' assistance, made efforts to revive Parkhurst for approximately three and one-half hours after the latter suffered a convulsion. Hunter injected Parkhurst twice with methamphetamine; after the second shot, given about 15 minutes after Gilbert and Beyea's departure, there were no more sounds from Parkhurst. Burk gave Parkhurst mouth-to-mouth resuscitation, and Kindem massaged Parkhurst's heart, in spite of the fact that he could hear no heart beat or respiration. Kindem gave Parkhurst two more injections, to no avail. Kindem was unable to inject into a vein because there was no blood flowing. Around 9:00 or 9:30, Hunter, Sanders, Kindem, and Burk left the basement. Burk drove Parkhurst to Highland Hospital where he told a doctor that Parkhurst had had an overdose.

An autopsy was performed on Parkhurst on February 25 by Dr. Allan B. McNie, who testified at trial. The autospsy disclosed numerous wounds suffered within the preceding 24 to 48 hours. Dr. McNie testified that Parkhurst had sustained multiple superficial abrasions and lacerations of the head, back and extremities. Parkhurst's front tooth was found in his stomach. Parkhurst's injuries were consistent with being caused by blows, kicks or strikes with a blunt instrument. The injuries to the extremities were consistent with having been caused by kicks as if decedent were trying to protect himself. Methamphetamine and amphetamine were found in decedent's body, but Dr. McNie testified that neither contributed to Parkhurst's death.

Dr. McNie found three internal areas of hemorrhage: one two-inch area in the abdominal wall to the left of the umbilicus, and two one-inch areas at the lower rib margin. The three internal areas of hemorrhage could have resulted from multiple blows. Dr. McNie testified that the cause of death was a laceration of the spleen and the resulting massive loss of blood into the abdominal cavity. Further, Parkhurst's spleen was abnormally large as the result of chronic intravenous administration of amphetamines and heroin; his spleen weighed 400 grams as opposed to a normal 200 to 225 grams. In Dr. McNie's opinion, it would take a less violent blow to cause a laceration of decedent's spleen that it would to cause the laceration of a normal spleen. A person with an enlarged spleen can live for years without a rupture. A normal spleen may rupture if sufficient trauma is applied to the area. Dr. McNie believed that the rupture of the decedent's spleen was not caused by the heart massage. In the doctor's opinion, the decedent's body was, at a minimum, subjected to 15 to 20 applications of blunt force. The laceration of the spleen was caused by a blunt injury. The three internal areas of hemorrhage were consistent with kicks, and with the injury which brought about the rupture of the spleen.

I. Beyea and Gilbert's joint contentions on appeal.

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