People v. Birreuta

• Decision Date: 05 December 1984
• Docket Number: Cr. F002400
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ramon BIRREUTA, Defendant and Appellant.

Page 635

208 Cal.Rptr. 635

162 Cal.App.3d 454

The PEOPLE, Plaintiff and Respondent, v. Ramon BIRREUTA, Defendant and Appellant.

Cr. F002400.

Court of Appeal, Fifth District, California.

Dec. 5, 1984.

Certified for Partial Publication. ¹

As Modified Dec. 26, 1984.

John K. Van de Kamp, Atty. Gen., Joel Carey and Garrett Beaumont, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

INTRODUCTION

Appellant killed his wife, Nellie Amavisca, and a neighbor, JoAnn Raborn, after a long evening of conflict. Both victims were very drunk. Police responded to a "shots fired" call and found appellant walking down the street carrying a rifle. On request, appellant handed the gun to the officers. Appellant was then put in handcuffs and placed in the back of a patrol car. When appellant's stepdaughter told them some of what had happened, the officers went to Ms. Raborn's house and found her body on the bedroom floor. She had six gunshot wounds and two stab wounds. Appellant's wife's body was lying on the bed. She had been shot four times at close range.

Appellant's defenses were self-defense, unreasonable self-defense, provocation, heat of passion, intoxication and other theories that might justify the homicides or reduce the degree of the offenses from first to second degree murder or to manslaughter. Appellant's self-defense theories were drawn from a fight with Ms. Raborn in which she threatened appellant with a knife and then a gun. The jury was instructed on transferred intent. This instruction was given immediately after the instructions on homicide and proximate cause. It is not clear whether the transferred intent instruction was requested or whether it was given by the trial court on its own motion (the People's request for instructions does not list it, appellant's request is not in the clerk's transcript, and no hearing on the instructions is in the record.)

After a jury trial, appellant was convicted of two counts of first degree murder with use of a firearm, and the jury found the special circumstance (multiple murder under Pen.Code, § 190.2, subd. (a)(3)) true. Appellant was sentenced to two concurrent terms of life without parole, and firearm enhancements were stayed.

For the reasons to be explained, we reverse appellant's conviction of the first degree murder of his wife and the special circumstance finding. We affirm the conviction of the first degree murder of JoAnn Raborn and the firearm enhancement.

DISCUSSION

I

Appellant's Marsden Motion ^*

II

Appellant's Statement to the Police *

III

Failure to Specifically Instruct the Jury on the Effect of Intoxication on Premeditation and Deliberation *

IV Transferred Intent Instruction

Appellant was charged with and convicted of two murders. He confessed to killing JoAnn Raborn, but denied knowing that his wife was in the room or that he intended to kill her. The evidence indicates that the bedroom where the shooting occurred was dark. Appellant told police that he went into the bedroom and shot JoAnn, started to leave, heard a noise, turned and fired again (apparently thinking that he was again shooting JoAnn). If appellant's story is believed, the killing of his wife was accidental. The jury was instructed using CALJIC No. 8.65 (4th ed. 1979) on transferred intent. ³ Appellant argues that his conviction for first degree murder of his wife must be reversed because this instruction is invalid, anachronistic, unfair and inappropriate in first degree murder cases, particularly when the intended victim is also killed. ⁴

The transferred intent doctrine has been explicitly approved by the California Supreme Court. (People v. Sears (1970) 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847; People v. Antick (1975) 15 Cal.3d 79, 88-89, 123 Cal.Rptr. 475, 539 P.2d 43; People v. Sutic (1953) 41 Cal.2d 483, 490-492, 261 P.2d 241.)

Although the validity of the transferred intent doctrine as a general proposition is not open to question at our level of the appellate process, its application to a case where the intended victim has been actually killed appears to be an open question. The only California appellate opinion that touches on the point does so in dicta, unsupported by any real analysis. (People v. Carlson (1974) 37 Cal.App.3d 349, 357, 112 Cal.Rptr. 321.) The most recent explanation of the transferred intent doctrine by the California Supreme Court is in somewhat ambiguous terms:

"Where a defendant assaults one or more persons killing one, his criminal responsibility for the homicide should not depend upon which of the victims died but should be the greatest crime committed viewing each victim of the attack individually and without regard to which in fact died." (People v. Sears, supra, 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847.)

The antecedent dependent phrase, "whe[re] a defendant assaults one or more persons killing one" suggests that the doctrine applies only when a single victim dies. (See People v. Sutic, supra, 41 Cal.2d at pp. 491-492, 261 P.2d 241.) The remainder of this quoted sentence, however, suggests that each death should be considered as a separate crime. If the intended victim dies, that is one murder; if the accidental victim also dies, arguably that is a second murder. If each homicide is viewed individually, it does not matter whether the intended victim dies. The "greatest crime," under this evidence, could be two first degree murders, one ordinary--the intended victim, and one via transferred intent--the accidental victim. (See People v. Carlson, supra, 37 Cal.App.3d at p. 357, 112 Cal.Rptr. 321.)

Appellant argues that Penal Code section 654 ⁵ bars application of the transferred intent doctrine. This argument depends on a strained attempt to avoid the rule that "even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim." People v. Ramos (1982) 30 Cal.3d 553, 587, 180 Cal.Rptr. 266, 639 P.2d 908, emphasis added, revd. on other grounds California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171, on remand, People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430; People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) Murder is certainly a crime of violence, so this general rule supports appellant's convictions. Appellant attempts to avoid this rule by arguing that the same facts regarding intent and deliberation were used to convict appellant of first degree murder of his wife and Ms. Raborn and that there was no evidence of premeditation and deliberation regarding his wife. This difference, if it is a difference, does not take this case out of Ramos' language. There are still two victims of violent crime. The fact that appellant killed two victims is enough to avoid Penal Code section 654. (People v. Flores (1981) 115 Cal.App.3d 67, 76-77, 171 Cal.Rptr. 365.)

Appellant's argument that the transferred intent doctrine violates constitutional double jeopardy principles is subject to similar criticism. He relies on People v. Wilder (1981) 411 Mich. 328, 308 N.W.2d 112, a Michigan case which held that a defendant may not be convicted of both robbery and felony murder for the same acts. This case has not been followed in California, and California's law sharply diverges from Michigan's on felony-murder issues. (People v. Dillon (1983) 34 Cal.3d 441, 465, 194 Cal.Rptr. 390, 668 P.2d 697.) California has already developed a rule avoiding double punishment under Penal Code section 654, and multiple convictions for robbery and felony murder are routine. (E.g., People v. Dillon, supra.) As noted by respondent, the purpose of the double jeopardy clause is to prevent multiple prosecutions for one act (United States v. DiFrancesco (1980) 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328), not to prevent the state from separately punishing the killing of two or more people. (See, e.g., People v. Carlson, supra, 37 Cal.App.3d at p. 352, 112 Cal.Rptr. 321; People v. Majors (1884) 65 Cal. 138, 146-147, 3 P. 597; Annot., Single Act Affecting Multiple Victims As Constituting Multiple Assaults Or Homicides (1981) 8 A.L.R.4th 960, 964.)

A more convincing argument against use of the transferred intent doctrine in the circumstances of this case may be derived from the purpose of the doctrine. The function of the transferred intent doctrine is to insure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims. But for the transferred intent doctrine, such people could escape punishment for murder, even though they deliberately and premeditatedly killed--because of their "lucky" mistake. The transferred intent doctrine is borne of the sound judicial intuition that such a defendant is no less culpable than a murderer whose aim is good. It insures that such a defendant will not be allowed to defend against a murder charge by claiming to have made a mistake of identity, a poor aim or the like.

When the intended victim is killed, however, there is no need for such an artificial doctrine. The defendant's premeditation, deliberation, intent to kill and malice aforethought are all directly employable in the prosecution for murdering his intended victim. The accidental killing may thus be prosecuted as a manslaughter or second degree murder without ignoring the most culpable mental elements of the situation. There is no danger that a premeditated killing will go unpunished or be treated as a manslaughter because the murder of the intended victim will presumably be the subject of prosecution.

We conclude that the interests of justice are best served by differentiating between killers who premeditatedly and deliberately kill two people, and killers who only intend to kill one person, and accidentally kill another. Both types should be...