People v. Bonillas

• Decision Date: 01 May 1989
• Docket Number: C,No. S004525,No. 23117,S004525,23117
• Court: California Supreme Court
• Parties: , 771 P.2d 844 The PEOPLE, Plaintiff and Respondent, v. Louis Lujan BONILLAS, Defendant and Appellant. rim.

Page 895

257 Cal.Rptr. 895

48 Cal.3d 757, 771 P.2d 844

The PEOPLE, Plaintiff and Respondent, v. Louis Lujan BONILLAS, Defendant and Appellant.

No. S004525, Crim. No. 23117.

Supreme Court of California,

In Bank.

May 1, 1989.

Certiorari Denied Oct. 16, 1989. See 110 S.Ct. 288.

[48 Cal.3d 765]

[771 P.2d 846] John M. Bishop, Riverside, under appointment by the Supreme Court, and Dennis A. Fischer, Santa Monica, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Asst. Atty. Gen., John W. Carney, Robert M. Foster, Steven H. Zeigen, Michael D. Wellington and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

KAUFMAN, Justice.

Defendant Louis Lujan Bonillas was sentenced to death under the 1978 death penalty

law (Pen.Code, § 190 et seq.) ¹ upon convictions of murder and burglary with a finding of a burglary felony-murder special circumstance. This appeal is automatic

[48 Cal.3d 766] We conclude that the judgment should be affirmed in all respects except that the judgment of death should be vacated and the cause remanded for reconsideration of [771 P.2d 847] the automatic application for modification of the death verdict ( § 190.4, subd. (e)), and for sentencing on the burglary count.

FACTS

1. The Offense

The guilt phase evidence was largely uncontested, and was based primarily on defendant's videotaped reenactment of the crime.

Defendant was, at the time of the offense, staying at his parents' home. The victim, Linda Martinez, lived next door with her husband and two children.

On the morning of Tuesday, September 8, 1981, ² defendant intended to steal something from the Martinez residence. Defendant climbed over the fence between the two houses, removed a screen from a window and climbed into the Martinez home. He wandered from room to room, looking for something to steal. He found a television set in the living room, but it was too large to carry.

Through the front window, defendant saw Linda Martinez arrive home in her car. Instead of escaping through the window he had entered, defendant ran to the baby's bedroom and hid in the closet. He left the closet door slightly ajar so he could see out.

Martinez came into the bedroom and placed her baby in the crib. Martinez left the room, but came back when the baby began to cry. She placed the baby in a baby swing near the living room. Defendant heard the telephone ring, and he attempted to leave. He came out of the closet, but he saw Martinez hang up the telephone, so he ran back and hid in the closet again. Martinez began running the vacuum cleaner in the baby's room. The clothes rack in the closet where defendant was hiding fell down. Martinez heard the noise, opened the closet door and saw defendant.

Defendant stated he tried to get up and run out, but Martinez held onto him. She grabbed a glass jar of cotton swabs as she struggled with him. Defendant stated he was trying to get away, but they wrestled to the floor. He got the jar of swabs away from Martinez and hit her on the back of the [48 Cal.3d 767] head with the jar as she was on her hands and knees trying to get up. After defendant hit her, she did not move any more.

Martinez was unconscious and no longer struggling. Defendant nevertheless tore the cloth belt from Martinez' dress, wound it tightly around her neck, and knotted it twice. Defendant stated that he ripped off the victim's underwear, and then he left and returned home over the fence. Defendant denied sexually assaulting Martinez and he also denied removing any jewelry from her person.

Defendant denied that he had been drinking that morning, but he stated that he had smoked one PCP cigarette and three marijuana cigarettes. Defendant stated he had acted alone and that no one had been with him.

The victim's husband discovered the body when he returned home from work that afternoon. The victim was lying face down on the floor in the baby's room. Martinez' wedding ring, which she always wore, and a gold watch she had given to her husband were missing. Martinez' husband also believed Martinez' wristwatch and a camera were missing, but he was not certain.

Dr. Irving Root performed an autopsy on the victim. He determined that death was caused by asphyxia resulting from ligature strangulation. The ligature appeared to be a cloth belt torn from the victim's dress.

Martinez had also suffered three or four injuries to the back of the head. Some glass fragments were found in her hair. Martinez had also received a hard blow to the face. The head injuries and blows could have caused unconsciousness, but were not fatal. There were also extensive injuries in the vaginal and anal area. A recent episiotomy (Martinez' baby had been born only five weeks before the killing) had been torn open. These injuries occurred before death. Dr. Root opined that it [771 P.2d 848] would have taken some "fairly extensive blunt force," "more likely than not" the insertion of a broom handle or similar object, to have caused the tearing injuries he observed. Dr. Root testified it was possible, although "highly unlikely," that a kick could have caused the injuries to the genital and anal area

Defendant presented no evidence in his defense at the guilt phase.

2. Procedural Facts

The procedural facts are particularly significant with respect to the primary issue in the case; i.e., whether the jury properly made an express finding of the degree of the murder.

[48 Cal.3d 768] Defendant was charged by amended information with the murder of Linda Martinez ( § 187), burglary of the Martinez residence ( § 459), penetration of the victim's vagina with a foreign object ( § 289, subd. (a)) and penetration of the victim's anus with a foreign object ( § 289, subd. (a)). A special circumstance of murder in the commission of a burglary was alleged ( § 190.2, subd. (a)(17)).

Trial was to a jury. Defendant's motion for judgment of acquittal pursuant to section 1118.1 was granted with respect to the vaginal and anal penetration charges. On January 27, 1983, a Thursday, the jury returned verdicts finding defendant guilty of murder as charged in the information and finding the burglary-murder special circumstance true. Defendant was also found guilty of the burglary.

Because there were to be further proceedings in the case, the court, after receiving these verdicts, admonished the jurors not to discuss the case among themselves or with anyone, and to refrain from reading anything about the case in the newspapers. The jury was then excused and the jurors were ordered to call in on February 2 to receive instructions on when to reconvene for the penalty phase.

Apparently on the following day, Friday, January 28, defense counsel brought to the court's attention that the guilty verdict on the murder charge had failed expressly to specify the degree of murder. On the next court day, Monday, January 31, 1983, the court ordered the jury to reassemble in advance of the date scheduled for penalty phase proceedings. Defendant moved to have the court fix the degree of the murder as second degree pursuant to section 1157. ³ The court denied the motion, and, instead, instructed the jury to retire and consider the question of the degree of the murder. For that purpose the court provided the jury with two verdict forms, one finding the murder to be in the first degree and the other finding the murder to be in the second degree. Within minutes the jury returned a verdict finding the murder to be murder in the first degree.

GUILT PHASE ISSUES

1. Finding of Degree of Murder

Defendant argues that this case is controlled by section 1157, which specifies the appropriate procedure when a jury fails to find the degree of a [48 Cal.3d 769] crime divided into degrees. (See fn. 3, ante.) However, the jury here did expressly find the degree of the murder in its January 31st verdict, so the question presented is whether the January 31st verdict was lawful. We hold it was.

In the first instance, the jury was instructed that if it found defendant guilty of murder it was required to find the degree of the murder. However, for some unknown reason it was not furnished a verdict form by which to specify the degree, and the guilty verdict it did return on January 27 specified only that defendant was guilty of murder "as charged in the information." Because the instructions required the jury to specify the degree of the murder and the verdict returned failed to do so, the verdict was incomplete under the [771 P.2d 849] law and the instructions. ⁴ (People v. Scott (1960) 53 Cal.2d 558, 561-562, 2 Cal.Rptr. 274, 348 P.2d 882; People v. Schroeder (1979) 96 Cal.App.3d 730, 734-735, 158 Cal.Rptr. 220; cf. People v. Galuppo (1947) 81 Cal.App.2d 843, 850-851, 185 P.2d 335.)

There is no question that, had the court noted the omission at once and required the jury to retire at that time to complete its verdict, the verdict fixing the degree of the murder would have been lawful. Section 1161 provides in pertinent part: "When there is a verdict of conviction, in which it appears to the Court that the jury may have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict...." There are numerous decisions applying this principle to jury verdicts incomplete or inconsistent with the court's instructions. (People v. Scott, supra, 53 Cal.2d 558, 561-562, 2 Cal.Rptr. 274, 348 P.2d 882 [where evidence showed and jury instructed only on first degree robbery or innocence, trial court properly refused to accept verdicts contrary to law and instructions of second degree robbery, and ordered jury to resume further deliberations (citing § 1161) ]; People v. Schroeder, supra, 96 Cal.App.3d 730, 734-735, 158 Cal.Rptr. 220 [11 overt acts alleged on conspiracy count; jury failed to mark verdict finding as to [48 Cal.3d 770] any one; at defendant's suggestion court polled jurors and determined they had agreed on overt act number...