People v. Billings

• Decision Date: 08 October 1981
• Docket Number: Cr. 13032
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cleo BILLINGS, Defendant and Appellant.

Page 392

177 Cal.Rptr. 392

124 Cal.App.3d 422

The PEOPLE, Plaintiff and Respondent, v. Cleo BILLINGS, Defendant and Appellant.

Cr. 13032.

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

Oct. 8, 1981.

Hearing Denied Jan. 27, 1982.

Lawson & Hartnell and Ronald M. McCormick, Redlands, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.

MALKUS, Associate Justice. ^*

In the evening of May 1, 1980 a pump unit of the City of San Diego Fire Department was dispatched to a fire reported at 1603 Donax Street, in Imperial Beach. Upon representatives of the fire department entering the residence, fire damage and dark smoke was observed followed by the discovery of the body of Louis Bowling, a 68-year-old retired Army Captain who resided there. A forensic psychologist employed as a pathologist by the office of the coroner of the County of San Diego testified the cause of death was stab wounds to Mr. Bowling's left chest and further testified that Bowling had been struck several times about the head causing breaks about the cheeks, forehead, chin, jaw and back of the head, including a fracture of the nose and upper jaw, and portions of the body had been singed and charred by fire, which fire, in the opinion of an arson expert, who so testified, was started by an inflamable liquid being poured and then ignited between Bowling's legs.

A jury found Cleo Billings guilty of the murder of Louis Bowling in violation of Penal Code section 187 and also found Billings guilty of burning an inhabited structure in violation of Penal Code section 451, subdivision (b). After the denial of a motion for a new trial, Billings was sentenced to the term prescribed by law of 25 years to life for the murder of Bowling and an additional year for being armed with a deadly weapon. He was also sentenced concurrently to the term of five years for arson. Cleo Billings appeals.

Billings contends the trial court erred in not instructing, sua sponte, he must have had the intent to commit the underlying felony prior to acts resulting in Bowling's death; the trial court erred in not instructing, sua sponte, if the jury had a reasonable doubt as to the commission of the underlying felony, defendant could not be convicted of felony murder; the evidence at trial was not sufficient to convict Billings of first degree murder on the theory of premeditation and deliberation of felony murder; Billings was denied effective assistance of counsel because of failure of counsel to request an instruction on felony murder; he was denied effective assistance of counsel because counsel did not object to the prosecution's calling a confidential psychotherapist as a witness; he was denied effective assistance of counsel by his counsel's agreeing to the use of a dictionary by the jury during jury deliberations; and, the introduction of a dictionary into the jury deliberation process constituted jury misconduct.

It is our determination the trial court did not err in its instructions to the jury. In determining whether error has been committed in giving or not giving jury instructions, the reviewing court must consider the instructions as a whole. The court must also assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them. (People v. Yoder (1979) 100 Cal.App.3d 333, 161 Cal.Rptr. 35.) It is the trial court's duty to instruct the jury as to the general principles of law relevant to the issues raised by the evidence. (People v. Evans (1980) 112 Cal.App.3d 607, 169 Cal.Rptr. 240.) Otherwise stated, it is clear that in criminal cases, even in the absence of a request by counsel, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence and the general principles of law governing the case are those principles closely and openly connected with the facts before the court and which are necessary for the jury's understanding of the case. (People v. Roberts (1975) 51 Cal.App.3d 125, 123 Cal.Rptr. 893.) It is equally as clear that the court is under no obligation to instruct on its own motion as to specific points of evidence. (People v. Atkins (1975) 53 Cal.App.3d 348, 125 Cal.Rptr. 855.)

Billings contends the trial court had a sua sponte obligation to instruct the jury the felony murder rule had no application to his case if he had formed the intent to steal or to commit a robbery after the acts which caused Bowling's death. He also contends the court had a similar obligation to instruct the jury the underlying felonies of burglary and robbery must be proved beyond a reasonable doubt for purposes of finding him guilty of first degree murder under the felony murder theory. While a defendant, upon proper request, has the right to an instruction directing the jury's attention to evidence from the consideration of which reasonable doubt of guilt could be engendered (People v. Guillebeau (1980) 107 Cal.App.3d 531, 166 Cal.Rptr. 45), the trial court has a duty to refrain from instructing on principles of law which are irrelevant to the issues raised by the evidence and which would have the effect of confusing the jury. (People v. McNeill (1980) 112 Cal.App.3d 330, 169 Cal.Rptr. 313.)

The jury instructions which Billings asserts the court should have made sua sponte would have had the effect of confusing the jury. The instructions, read as a whole, indicate the jury was properly instructed in murder of the first degree under a felony murder instruction required the killing occur both as a result of, the commission of or attempt to commit the crime of robbery or burglary. The court's instructions included definitions of the specific mental state required to commit or attempt to commit the crime of robbery or burglary. This constitutes an appropriate statement of the law and the principles of law applicable in this case. Moreover, these instructions relating to the felony murder aspect of the case precluded conviction if the jury were of the mind Billings decided to burglarize or rob Bowling's property only after his death had occurred.

The trial court correctly and adequately instructed the jury a murder of the first degree based on the unlawful killing of a human being which occurs as a result of the commission of or attempt to commit the crime of robbery or burglary and where there was in the mind of the perpetrator the specific intent to commit such crime, must be proved beyond a reasonable doubt. In the absence of a specific request by a counsel concerning a reasonable doubt instruction related to whether a murder occurred in the perpetration or attempt to perpetrate such underlying felonies, no such instruction was required to be given sua sponte. (People v. Whitehorn (1963) 60 Cal.2d 256, 32 Cal.Rptr. 199, 383 P.2d 783; People v. Guillebeau, supra, 107 Cal.App.3d 531, 166 Cal.Rptr. 45.) The trial court did not have a sua sponte duty to instruct the defendant had to have the intent to commit the underlying felony prior to or during the acts resulting in the victim's death or he could not be convicted of first degree felony murder or that if the jury had a reasonable doubt that the underlying felony had been committed, the defendant could not be found guilty of first degree felony murder.

Billings contends the evidence at trial was insufficient to convict him of first degree murder on the theory of premeditation and deliberation or felony murder. We do not agree. On appeal from a criminal conviction, it is the function of the appellate court to determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving defendant guilty beyond a reasonable doubt and not to reweigh the evidence. (People v. La Fontaine (1978) 79 Cal.App.3d 176, 144 Cal.Rptr. 729.) Our test in this case is whether substantial evidence supports the determination by the jury as trier of fact that the People sustain their burden of proving Billings guilty beyond a reasonable doubt. Under this test, we are required to view the evidence in a light most favorable to the People and must draw all inferences in support of the verdict. (People v. Finney (1980) 110 Cal.App.3d 705, 168 Cal.Rptr. 80; People v. Jackson (1980) 110 Cal.App.3d 560, 167 Cal.Rptr. 915.)

Our review of the evidence indicates that Billings was observed approximately 30 to 45 minutes prior to the fire department's units being dispatched to Mr. Bowling's house walking outside the house and towards the house. Mr. Bowling's partially burned body was discovered on the floor in the living room approximately 10-12 feet from the front door where a pool of blood was found by the officers who arrived at the scene in response to the fire. The forensic pathologist testified that Bowling's nose was fractured and his upper jaw was broken. The pathologist testified that breaks discerned about the jaw, eyes and head were the result of blows suffered at the front door area of the house. The pathologist testified that the blows to the head were delivered by an instrument similar to the pistol that belonged to the victim and which was later recovered from Billing's sister-in-law, and the blows were of such a nature as to...