People v. Douglas

• Decision Date: 17 May 1990
• Docket Number: No. A045435,A045435
• Citation: 220 Cal.App.3d 544,269 Cal.Rptr. 579
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander DOUGLAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 579

269 Cal.Rptr. 579

220 Cal.App.3d 544

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alexander DOUGLAS, Defendant and Appellant.

No. A045435.

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

May 17, 1990.

Certified for Partial Publication ^*

Review Denied Aug. 30, 1990.

Fern M. Laethem, State Public Defender, Susan M. Kwan, State Deputy Public Defender, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supr. Deputy Atty. Gen., Dane R. Gillette, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

STEIN, Associate Justice.

Alexander Douglas appeals from a conviction of attempted murder (Pen.Code, §§ 664, 187) ¹ and assault with a firearm (§ 245, subd. (a)(2)). The jury also found that he acted willfully, deliberately and with premeditation (§§ 189 and 664, subd. (1)), used a handgun during the offenses (§§ 12022.5 and 1203.06, subd. (a)(1)(i)) and intentionally inflicted great bodily injury on the victim (§ 12022.7). After finding him sane at the time of the offenses, and denying his motion for new trial, Douglas was sentenced to state prison for a life term with a consecutive five-year term for the gun use and great bodily injury enhancements. Sentence was stayed on the assault charge.

Douglas contends that the trial court erred by failing to instruct the jury on the offense of attempted second degree murder. He further asserts that the jury's failure to specify the degree of the offense established the crime as attempted second degree murder as a matter of law and, thus, the trial court lacked jurisdiction to impose sentence for other than attempted second degree murder. We find both of these arguments based on the erroneous premise that there exists a crime of "attempted second degree murder." [[-]]

FACTS

Alexander Douglas lived in a dormitory at the Veteran's Home in Yountville. Alfreda, a volunteer at the home, and Douglas became romantically involved and spent the evening of July 1 and the morning of July 2, 1987, together at her home. In the morning Douglas called Alfreda names and accused her of "running around with three other men," specifically naming Ralph Colin, another resident of the home. Alfreda drove Douglas back to the Veteran's Home later that morning. He was still upset and told her he never wanted to see her again.

Upon returning to his dormitory at the Veteran's Home, Douglas told Colin that he had a present for him which he would give him later. Douglas seemed normal to Colin; he did not raise his voice. Later that morning, Douglas asked Norman Spencer, another resident of the Veteran's Home, for a ride to San Francisco. Spencer first drove Douglas to the dormitory where he waited outside while Douglas went inside to collect some belongings. Douglas seemed normal to Spencer.

Inside the dormitory Douglas asked Colin to follow him in order to get the present. Colin went with him and stood about six feet from Douglas as he opened his locker. Douglas said he had the present as he turned around displaying a gun in his hand. Douglas backed into the middle of the hall, called Colin a "chiseler," and ordered him to turn around. Nicholas Vratari, who was also present in the dorm, looked up and saw Douglas holding a gun. Douglas then said to Colin, "I'll teach you to two-time on me," and shot him in the back of the neck. Douglas ordered Vratari to leave threatening to shoot him if he did not.

Spencer, who was waiting in the car, did not hear the gunshot nor did he see a gun when Douglas came out of the dorm. They drove to San Francisco where Spencer left Douglas.

Douglas knew Alfreda kept a gun under her mattress. After the shooting, she discovered the gun was missing.

Colin remained hospitalized for three days. The bullet had entered through the right side of his neck, missed all of the major structures and exited through the front. Colin sustained muscle damage to Douglas was arrested in Las Vegas, Nevada, on October 3, 1988, 15 months after he shot Colin and threatened Vratari.

his neck and back. Had the bullet traveled a slightly different path, however, Colin could have sustained partial to complete paralysis or death.

In his defense Douglas testified that he loved Alfreda and had seen Colin with her at a dance. On June 29, 1987, he hurt his back and was prescribed Tylenol and codeine. By July 1, the pain from his back was "driving [him] crazy." He was angry with Alfreda because she wanted to go to a dance at the home and leave him at her house. He denied that he was angry about Alfreda's relations with other men and denied stealing her gun. By July 2, Douglas was still in pain and took some of the medication. He could not remember how many pills he took or when he last took the medication. He recalled Alfreda driving him back to the Veteran's Home, where he deposited one check and cashed another. The last thing Douglas remembered was having a discussion with Colin. Months later, in Nevada, he regained consciousness. He did not remember telling Colin about a present, anything about the shooting, or how he managed to get from the Veteran's Home in Yountville to Nevada.

DISCUSSION

I. Are There Degrees of Attempted Murder?

Douglas claims that the crime of attempted murder is divided into degrees. From this premise he argues that attempted second degree murder is a lesser-included offense of willful, deliberate and premeditated attempted murder; in other words, of attempted first degree murder. (See People v. Wickersham (1982) 32 Cal.3d 307, 329-330, 185 Cal.Rptr. 436, 650 P.2d 311; Stone v. Superior Court (1982) 31 Cal.3d 503, 517, 183 Cal.Rptr. 647, 646 P.2d 809.) Douglas defines attempted second degree murder as an attempted killing of a human being with specific intent to kill and express malice aforethought; the crime does not require proof of premeditation and deliberation. (Wickersham, supra, at p. 330, 185 Cal.Rptr. 436, 650 P.2d 311.) Respondent, relying on People v. Wein (1977) 69 Cal.App.3d 79, 93, 137 Cal.Rptr. 814, and People v. Macias (1982) 137 Cal.App.3d 465, 471-472, 187 Cal.Rptr. 100, argues that there is only a single crime of attempted murder, not distinguished by degrees.

At the time of the Wein and Macias decisions, Penal Code section 664, subdivision (1), provided for the same length of imprisonment--either from one-to-twenty years at the time of Wein, or for five, seven or nine years at the time of Macias--if the completed crime carried a maximum life sentence. Since both first and second degree murder carry potential life sentences, the law imposed a uniform punishment for attempted murder, regardless of the degree. Thus, the continued validity of the holdings of the Wein and Macias cases, that the crime of attempted murder is not divided into degrees, can be questioned, since the Legislature amended section 664, subdivision (1), in 1986. The statute now provides for a punishment of life in prison with the possibility of parole for an attempted murder which was willful, deliberate and premeditated; however, if the attempted murder is not specifically found to be willful, deliberate and premeditated, it is punishable by imprisonment for five, seven, or nine years. ² Penal Code section 664, which governs attempted crimes, provides at subdivision 4 that an attempt may be of any degree of the underlying crime, and the punishment shall be determined as provided by that section. ³

The Legislature did not necessarily create different degrees of attempted murder by imposing different penalties. It can provide for varied punishments for a single crime depending on factors involved in the commission of that offense without dividing it into degrees. For example, the punishment for grand theft varies widely depending upon the nature of the articles stolen. ⁴ Kidnapping is generally punishable by imprisonment for three, five, or eight years, but if the person kidnapped is under 14 years of age, the kidnapper faces imprisonment for five, eight, or eleven years. (Pen.Code, § 208.) In neither of these examples did the Legislature silently create degrees of grand theft (itself the greater degree of the crime of theft) or kidnapping.

The imposition of separate penalties for different levels of culpability for attempted murder may resemble the degree gradations of the completed crime; however, the power to define criminal conduct and determine penalties is exclusively vested in the legislative branch, subject to constitutional provisions. (People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal.Rptr. 390, 668 P.2d 697.) The division of a crime into degrees carries more than linguistic...