People v. Carr

• Decision Date: 14 November 1972
• Docket Number: Cr. 13829
• Citation: 502 P.2d 513,8 Cal.3d 287,104 Cal.Rptr. 705
• Court: California Supreme Court
• Parties: , 502 P.2d 513 The PEOPLE, Plaintiff and Respondent, v. Charles H. CARR, Jr., Defendant and Appellant. In Bank

Page 705

104 Cal.Rptr. 705

8 Cal.3d 287, 502 P.2d 513

The PEOPLE, Plaintiff and Respondent, v. Charles H. CARR, Jr., Defendant and Appellant.

Cr. 13829.

Supreme Court of California,

In Bank.

Nov. 14, 1972.

Marvin W. Friedman, San Francisco, under appointment by the Supreme Court for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edward A. Hinz, Jr., and Nelson P. Kempsky, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

A jury found Charles H. Carr, Jr., guilty of first degree murder and fixed the penalty at death. A motion for a new trial was denied, and this appeal is now before us automatically under subdivision (b) of Penal Code section 1238.

The decedent, Clay Von Hastings, was a 75-year-old widower who lived by himself in Oroville, California.

Several people testified that they had last seen the decedent alive on the night of February 21, when they were playing cards with him at the Liberty Club in Oroville. Decedent often played low ball poker at the Liberty Club, and on February 21 he was present from approximately noon until at least 11 p.m. He lost about $200 that day.

Decedent was known to have frequently carried between $400 and $1,100 in his wallet, and he took little care to hide the fact that he was carrying such large amounts on his person. On February 21, he was not careful when reaching into his wallet for money to purchase chips.

Decedent's body was discovered after his sister and brother-in-law became worried after receiving no answer to their phone calls on the 22d, 23d and 24th. They called Charles Conrad, an acquaintance of decedent, and he went to decedent's home and found the body. He called the police. Decedent's face was covered with a sheet. There was blood both on the walls and floor. The police thought that decedent may have taken his own life and checked for weapons. The dresser and desk drawers in the bedroom were open. The police also found a brochure for a GE portable radio that decedent owned, but no radio was found on the premises. A dresser in the bedroom contained a box of empty shells for a .300 Savage rifle, which decedent owned, but neither live cartridges nor the rifle were found. There was no money in decedent's wallet and only a small amount of change in his pockets.

The pathologist who performed the autopsy testified that decedent's death was caused by multiple fractures of the head with injuries to the brain. He estimated that the homicide occurred between 1 and 6 a.m. on the 22d of February. He concluded that while some of decedent's injuries were consistent with a fall from a great height, others were not and that the wounds were consistent with the theory that the injuries were caused by multiple blows from a blunt instrument such as a hammer.

The pathologist testified that the decedent could not move after his injuries, would have been instantly unconscious, would have died within a few minutes, and could not have pulled the sheet over his head. The pathologist also stated that the wounds were consistent with decedent's being on the floor when he was beaten.

A clinical bioanalysis showed that the decedent's blood was type AB, a relatively infrequent type found only in about 4 percent of the population.

Defendant had been living with his uncle, who testified that defendant had brought home a GE portable radio and wanted to sell it to him.

The defendant was seen with an unidentified man at the Liberty Club on February 21. They watched the play at the table, and defendant borrowed one dollar from a player.

Defendant offered to sell the GE radio and a rifle similar to the one owned by the decedent. During the week after decedent's death the defendant had played cards at the Liberty Club losing approximately $100 to $200.

On March 11, 1969, Sergeants Hall and McElhaney of the Oroville Police Department went to the rented residence of Lionel Tholmer, part of a duplex on Ithaca Street in Oroville where the defendant occasionally stayed. The duplex was owned by Vernon Corporon and his wife. The officers looked through the windows, did not see any clothing and only a few bits of furniture and thought the premises were abandoned. Officer Hall saw what seemed to be blood stains on a door which led under the house. He opened it, crawled under the house, and found one board which was much newer than the others. Upon lifting the board he discovered a hammer covered with blood and hair. The hammer belonged to defendant's uncle who could not recall when he had last seen it. There was expert testimony that the blood was AB human and that the hair was the same as a sample of the decedent's.

Officer Hall testified that he had received prior consent from the owner of the building, although it was somewhat unclear as to which of the Corporons consented. Prior consent was also indicated by Vernon Corporon's testimony.

Defendant was first questioned on March 12, 1969, by Lieutenant Spinale. At that time defendant was in the Butte jail for a traffic offense, and he denied knowledge of the homicide.

On March 16, Spinale again questioned defendant. Defendant agreed to talk to Spinale after he was given his constitutional warnings. At that time defendant declined to confess. Defendant then asked to see his parents, and Spinale brought him to his parents' home. Defendant was not handcuffed or otherwise visibly restrained. A conversation then took place between defendant, Spinale and defendant's family dealing with the homicide and other matters.

Defendant, his mother and his sister testified that Spinale promised that if defendant would confess he would see to it that defendant was charged with second degree murder as a maximum. Spinale denied having made any such promise. Two witnesses testified that in a case involving robbery, Spinale had offered a deal in exchange for a confession. Spinale denied having made such a deal. Defendant also claimed that he requested counsel, but that the requests were ignored. Spinale denied that defendant had requested counsel.

Defendant at first refused to discuss the homicide, claiming that if he talked he would expose himself to retaliation by an unidentified person. However, defendant finally admitted that he killed decedent although he did not specify any of the details.

After the admission, defendant claimed that he told Spinale that he wanted to think things over, but that Spinale said that if he did not confess immediatey he would ask the district attorney to ask for the gas chamber. Spinale denied making any such statement.

Spinale then took defendant back to the station and again gave him the constitutional warnings. At one point he was shown the hammer. Defendant agreed to confess on video-tape, and after he did so, he signed a written confession.

In the taped confession, defendant said that he had asked to use the decedent's telephone. Upon entering the house he waited for the opportunity and hit the decedent over the head. Defendant stated that he only wanted to hit the decedent hard enough for the decedent to lose his memory of defendant's presence. He also indicated that he had been smoking marijuana. A friend of defendant's told him to stop hitting decedent. Defendant covered the decedent's head with a sheet so as not to have to look at the body. He admitted taking decedent's wallet containing $741 and the radio and rifle. Defendant then went to his friend's house and divided the money. The friend said that he would get rid of the hammer.

Similar statements were contained in the written confession. In addition he stated that 'If I had not had been smoking pot before it happened I probably don't think I could have gotten the guts to do it in the beginning, as I stated before I am very sorry for this to happen to my life.'

On the next day Spinale went to the defendant's parents' home and obtained the radio. Defendant was shown the radio at the station and said he told his brother to get rid of it.

Although defendant testified in hearings on the admissibility of evidence, he did not take the stand on the general issue of guilt.

The judge instructed the jury that murder was the unlawful killing of a human being with malice aforethought and that '(a)ll murder which is perpetrated by means of any kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate robbery, is murder in the first degree, and all other kinds of murder are of the second degree.' While the judge gave lengthy instructions on the definition of malice, he did not define premeditation-deliberation. He also instructed the jury that it could only find defendant guilty of murder in the first degree or acquit him.

Defendant requested that the jury be instructed as to second degree murder and voluntary manslaughter on the ground of diminished capacity.

Although instructions should be given on diminished capacity whenever there is evidence that the defendant was unable to form the requisite specific criminal intent (People v. Conley, 64 Cal.2d 310, 316--318, 49 Cal.Rptr. 815, 411 P.2d 911), no such instructions need be given when there is no evidence from which a jury composed of reasonable men could have concluded that there was diminished capacity sufficient to negate the requisite criminal intent (People v. Nichols, 3 Cal.3d 150, 165, 89 Cal.Rptr. 721, 474 P.2d 673; People v. Fain, 70 Cal.2d 588, 597--598, 75 Cal.Rptr. 633, 451 P.2d 65; People v. Miller, 57 Cal.2d 821, 830--831, 22 Cal.Rptr. 465, 372 P.2d 297). The instructions need not be given when the evidence of diminished capacity is minimal. (People v. Harris, 7 Cal.App.3d 922, 926, 87 Cal.Rptr. 46.)

It has been held that merely showing that the defendant consumed some alcohol prior to commission of the crime without showing the effect of the alcohol on him is not sufficient to warrant an instruction on diminished capacity. (People v. Bandhauer, 66 Cal.2d 524, 528, 58 Cal.Rptr. 332, 426 P.2d...