People v. Croy

• Decision Date: 31 December 1985
• Citation: 41 Cal.3d 1,710 P.2d 392,221 Cal.Rptr. 592
• Court: California Supreme Court
• Parties: , 710 P.2d 392 The PEOPLE, Plaintiff and Respondent, v. Patrick CROY, Defendant and Appellant. Crim. 21109.

Page 592

221 Cal.Rptr. 592

41 Cal.3d 1, 710 P.2d 392

The PEOPLE, Plaintiff and Respondent, v. Patrick CROY, Defendant and Appellant.

Crim. 21109.

Supreme Court of California,

In Bank.

Dec. 31, 1985.

Rehearing Denied March 20, 1986.

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Gail R. Weinheimer and Allan H. Keown, Deputy State Public Defenders, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Edmund D. McMurray, Robert D. Marshall, Michael T. Garcia and Garrett Beaumont, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GRODIN, Justice.

Appellant stands convicted of first degree murder (Pen.Code, §§ 187, 189), ¹ conspiracy to commit murder ( § 182), attempted murder ( § 664), robbery ( § 211), and assault with a deadly weapon on a peace officer ( § 245, subd. (b) ). In addition, the jury found two special circumstances--committing murder in the course of a robbery and murdering a police officer in the line of duty (former § 190.2, subd. (c)(1) & (c)(3)(i) )--and imposed upon appellant the sentence of death pursuant to the 1977 death penalty statute. This appeal is automatic.

Most of appellant's arguments we find to be without merit. Analysis of the jury instructions in light of recent case law reveals, however, two fundamental errors. First, in connection with the robbery count, the jury was instructed in terms which permitted them to convict appellant of that crime on the prosecution's aiding and abetting theory without necessarily determining appellant acted with requisite intent. In People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, we held that such instructions are erroneous. Here, as we shall explain, the error requires reversal of the murder conviction as well as the robbery conviction, since the jury was permitted to find appellant guilty of first degree murder on the basis of a felony-murder theory, using the robbery charge as its predicate. Similarly, the erroneous instruction requires reversal of the attempted murder convictions inasmuch as the same felony-murder instruction was given as a predicate for conviction on those counts, thereby eliminating the necessity that the jury find the element of malice.

Accordingly, while we affirm appellant's convictions of conspiracy to commit murder and assault with a deadly weapon, we must reverse the judgments of conviction of murder, attempted murder, and robbery, subject of course to the People's right to retry defendant on those counts.

Facts

Appellant Patrick Croy, a 23-year-old employee of a logging camp, left work on Friday, July 14, 1978, intent upon a weekend of "partying"--drinking, smoking marijuana and hashish, dancing, and relaxing with friends. This he soon proceeded to do. By Sunday evening, July 16, 1978, appellant had consumed large quantities of whiskey, beer, and drugs.

Approximately 5:30 Sunday night, the party had moved to the apartment of Willie Griffith, on the second floor of an apartment complex in Yreka. Roughly 20 people were in attendance at the party by this point, including appellant and 4 individuals who would become codefendants--Norma Jean Croy, Carol Thom, Jasper Alford, and Darrell Jones. ² Appellant was drinking whiskey and seemed to "be in good spirits."

A witness who lived in a neighboring apartment testified the party was audible from her unit, and that at approximately 10:30 she heard the sound of several people rapidly making their way from the second floor to the first, apparently leaving the gathering. The sound of breaking glass soon followed.

Shortly thereafter a police car arrived in the parking lot, responding to a call from a neighbor directed at quelling the "disturbance" allegedly caused by appellant and his companions. The witness glanced out her window and noticed the officers leave the lot, only to return about 20 minutes later. At that point appellant engaged one of the officers in a heated conversation. Appellant attempted to strike the officer, but was restrained by two of his friends. The witness testified she saw the officers leave, and appellant return to the apartment building. He was talking to himself, and was overheard muttering, "I'm going to get a gun."

After a discussion among several of the people at the party, during which a witness who lived in the building testified she heard it suggested a gun and bullets be obtained so that the unidentified speakers could "tear Yreka up tonight," a group including Willie Griffith, Jasper Alford, Carol Thom, Darrell Jones, Barbara Thom, Patty Yoachem, and appellant prepared to leave the apartment. On their way to a car, another unidentified male voice proclaimed either, "I'm going to shoot him," or "I'm going to shoot the sheriff," though once in the car the group discussed where to go next to "party," and someone suggested they hunt deer in the woods nearby. The group stopped to pick up Norma Jean Croy and Annette Yoachem, who were drinking in a field, then drove to the apartment of appellant's girlfriend, Barbara Conrad, with whom he had been living and where he kept some of his belongings, including his rifle.

Conrad was pregnant, so had chosen not to join in the drinking and smoking that night. She testified appellant entered her apartment and asked her for bullets for his rifle. Because appellant appeared to Conrad to be quite intoxicated, she only pretended to look for the bullets, rather than actually turn some over to him. As a result, appellant left without the bullets. When he emerged from the apartment he was carrying a rifle, however. He returned to the car, where Willie Griffith recalled hearing Carol Thom state she "wanted to get some cops." Griffith drove the group to the nearby town of Montague where Thom's car had been left. During the ride another person suggested buying some beer, reiterating the idea to shoot deer, and someone said they would have to get more shells as they had none.

Griffith left appellant, Jasper Alford, Darrell Jones, Norma Jean Croy, Carol Thom, and another friend, Tad Super, in Montague where they picked up Thom's car and drove to the Sports and Spirits Liquor Store in downtown Yreka.

Appellant had been to the liquor store earlier that evening. During this previous visit, he had purchased two 6-packs of beer with a check. An argument had ensued with the clerk, John Thurman, over the amount charged, and the change to which appellant was entitled. The dispute was not resolved, because appellant's money had become mingled with the change tendered by Thurman, and there was thus no way to tell precisely how much change appellant received. Thurman believed that appellant had been given $2 in excess change.

Given his perception of what had transpired during this earlier incident, Thurman was angered by seeing appellant, who appeared to be intoxicated, enter his store again that evening. Thurman demanded the return of the additional change from appellant, declaring he did not "appreciate being ripped off." Appellant seemed apologetic but told Thurman he did not have $2. By this point Tad Super joined appellant, and suggested the difficulty was due to Thurman's failure to dispense the proper change, not any lack of honesty on appellant's part.

Now Norma Jean Croy and Carol Thom entered the store. Thom demanded of Thurman, "What's your beef?" She then proceeded to become loud and abusive. Thurman "did not want to hear it any more," and directed Thom to leave if she wished to persist. He then returned to the task of setting up a cigarette display case. The members of the group began to talk among themselves. Thom then approached the counter and knocked over the cigarette display. Thurman grabbed the tray as it was falling, only to have Thom further disrupt the items on the counter.

Thurman, seeking, in his words, "to get the upper hand," ordered the group to leave his store. He went to the telephone with the intention of calling the police, for he feared Thom would escalate the scuffle and felt unable to contain her from "tearing up the store." Thurman began dialing when he felt a sharp pain in his back. Norma Jean Croy had placed a sharp object, possibly a can opener, against Thurman's shirt, and stated, "Don't give me any trouble, but we're going to the cooler." She forced him toward the back of the store where the walk-in cooler was located. As she did so, Thom began grabbing Thurman's hair and face, and exclaimed "stab him, stab him." In the struggle his glasses were lost making it difficult for him to identify persons. Concerned for his safety, Thurman raced from the store. He yelled to the attendant of a neighboring gasoline station that he had been stabbed--though in truth, he had not--and told the attendant to call the police. As Thurman ran he noticed a person, apparently appellant, but whom he could not identify, standing near the car in which he had seen appellant and his companions arrive. The car was now parked parallel to the store in a position from which it could be driven forward to the highway. The car had been parked facing toward the store earlier. Thurman implored appellant, "Stop them. I think they're trying to rob me," to which appellant who had begun walking back to the store, replied, "No, they are not." A police officer drove up almost immediately. Appellant returned to the driver's side of the car, where he was met by Thom and Norma Jean Croy. Appellant drove away with Norma Jean Croy, Carol Thom, Darrell Jones, and Jasper Alford. Tad Super had left the group. Thurman pointed his finger in the direction of the vehicle and yelled to the officer on the scene, "Get them!"

When Thurman returned to the store after the group had driven off he found the cash register apparently untouched, though some items in the store had been knocked to the ground, and there was a $20 discrepancy between the money in the till and the total on the tape. Among...