People v. Eaker

• Decision Date: 14 January 1980
• Docket Number: C,Cr. 17462
• Citation: 100 Cal.App.3d 1007,161 Cal.Rptr. 417
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Joseph EAKER, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald David SAGIN, Defendant and Appellant. r. 17780.
• Court: California Court of Appeals Court of Appeals

Page 417

161 Cal.Rptr. 417

100 Cal.App.3d 1007

PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Joseph EAKER, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald David SAGIN, Defendant and Appellant.

Cr. 17462, Cr. 17780.

Court of Appeal, First District, Division 3, California.

Jan. 14, 1980.

Hearing Denied Mar. 13, 1980.

William Flenniken, Jr., San Francisco, for defendant and appellant eaker.

Sheldon Portman, Public Defender, Morris Schachter, Deputy Public Defender, County of Santa Clara, San Jose, for defendant and appellant Sagin.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Charles Michael Buzzell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

Appellants Carl Eaker and Ronald Sagin were convicted after trial by jury of first degree murder (Pen.Code, § 187) and first degree burglary (Pen.Code, § 459). The jury found that appellant Sagin had used a firearm in the perpetration of the murder (Pen.Code, § 12022.5). Both appellants were sentenced to prison.

In the early morning hours of February 11, 1977, after each appellant had consumed a fifth of wine and injected a quarter spoon of heroin, they drove to an apartment building in Santa Clara, forced their way into an apartment, and proceeded to load their car with stolen goods. During the loading process appellants were approached by three men, one of whom, Zemke, the manager of the apartment building, told appellants to return the stolen items. Sagin drew a handgun, with which he shot and killed Zemke. Appellant Sagin testified that he and appellant Eaker committed the burglary, but that the shooting of Zemke was done in self-defense.

Appellant Sagin contends that the court erred in its instructions on the felony-murder doctrine (CALJIC No. 8.21) because the court failed to define malice, a necessary element of murder. The contention is without merit. The felony-murder doctrine imputes malice to a person who kills in the perpetration of a burglary. (People v. Ford (1964) 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892; Pen.Code, § 189)). Sagin further contends that the felony-murder instructions deprived him of his right to have the jury determine whether the killing was in the perpetration of the burglary. The jury was instructed: "A homicide is committed in the perpetration of a felony if the killing and the felony are parts of one continuous transaction. There is no requirement that the homicide occur while committing or while engaged in the felony or that the killing be a part of the felony other than that the two acts be parts of one continuous transaction." This instruction correctly states the law. (People v. Chavez (1951) 37 Cal.2d 656, 234 P.2d 632; People v. Welch (1972) 8 Cal.3d 106, 118, 104 Cal.Rptr. 217, 501 P.2d 225.)

Appellant Sagin argues, in effect, that there was evidence that the homicide occurred during an escape and that an escape after a burglary should not, as a matter of law, be considered as part of the "continuous transaction" begun by the burglary. Sagin concludes, therefore, that the Chavez instruction, which suggests a contrary rule, prejudiced him. However, in People v. Fuller (1978) 86 Cal.App.3d 618, 150 Cal.Rptr. 515, the court rejected the argument that for purposes of the felony-murder rule burglary does not include escape. If the homicide was committed during an escape from the burglary, it was a part of one continuous transaction; therefore, the court properly instructed the jury. Furthermore, there is no evidence that the homicide was committed during an escape from the burglary. The evidence was that the shooting occurred while appellants were in the process of loading the stolen goods into their car. The burglary itself was still in progress. An attempted escape had not begun. The "continuous transaction" instruction was appropriate to instruct the jury as to a homicide committed outside the burglarized structure during the contraband loading process.

The court refused to give an instruction proposed by appellant Sagin, requesting that the jury decide whether, due to his consumption of a fifth of wine and injection of a quarter spoon of heroin, he had the capacity to formulate the specific intent required for a burglary.

Penal Code section 22 provides that "whenever the actual existence of . . . intent is a necessary element to constitute any particular . . . crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the . . . intent with which he committed the act." The foregoing instruction is mandatory when "there is any evidence deserving of any consideration whatever," but "instructions on diminished capacity 'need not be given when the evidence of diminished capacity is minimal.' " (People v. Mayberry (1975) 15 Cal.3d 143, 151, 125 Cal.Rptr. 745, 751, 542 P.2d 1337, 1343, emphasis and citations omitted.) Here, however, Sagin testified that he entered the apartment with the intent to steal. Having made such an unqualified admission, there was no longer any doubt as to his capacity to form the requisite intent. Under the rule of Mayberry, the refusal to give the instruction was proper.

The trial court instructed the jury on first degree burglary and felony murder, but refused both appellants' requests for instructions on second degree murder and manslaughter. "(B)ased on the elementary principle that the court should instruct the jury on every material question" (People v. St. Martin (1970) 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 170, 463 P.2d 390, 394), a court is obliged to instruct "on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present" (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 9, 518 P.2d 913, 921), or "whenever there is 'any evidence deserving of any consideration whatsoever' " that "tends to prove" that a lesser crime was committed. (See Sedeno at p. 716, 112 Cal.Rptr. at p. 9, 518 P.2d at p. 921; St. Martin, 1 Cal.3d at p. 533, 83 Cal.Rptr. 166, 463 P.2d 390.)

An erroneous failure to give instructions on lesser included offenses is curable, however. If the jury is Fully instructed on the factual issue raised by the defendant, and it is clear from a verdict based on such instructions that the jury Necessarily resolved the factual question adversely to the defendant, then the failure to instruct on lesser included offenses will not constitute grounds for reversal. (Sedeno, supra, 10 Cal.3d 703, 721, 112 Cal.Rptr. 166, 463 P.2d 390.)

Appellant Eaker did not testify at trial. However, he presented evidence similar to that of Sagin, that he had consumed a fifth of wine and injected a quarter spoon of heroin shortly before the burglary. He thereby put into issue the question of capacity to form the intent required for conviction of burglary and felony murder. As such it was appropriate to give lesser included offenses instructions on second degree murder and manslaughter. The error, however, was "cured" by an application of the principles enunciated in Sedeno. The jury here was fully instructed as to the elements of Eaker's diminished capacity defense and the applicability of the defense to the burglary and felony murder charges. It was also clearly instructed that it must acquit Eaker of both charges if it found diminished capacity. In finding him guilty on both counts, therefore, the jury clearly and necessarily rejected the defense. Although the trial court erred in failing to instruct on lesser included offenses, the error was cured by the thorough instructions given on diminished capacity and felony murder.

Both appellants also contend that the evidence raised a sufficient question as to whether the homicide was committed in the perpetration of the burglary to warrant instructions on lesser included offenses. It appears, however, that the jury was fully instructed on what constituted a killing in the perpetration of a felony as related to the one continuous transaction principle, as we have previously discussed, and it is implicit in the jury's verdict that they concluded the killing was perpetrated during the commission of the burglary.

We turn now to Sagin's contention that the court erred in determining that he was ineligible for commitment to the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5. Subdivision (b) of section 1731.5 provides that a court is precluded from committing to the Youth Authority any person sentenced to life imprisonment. Sagin received a life sentence as required by former Penal Code section 190. ¹

Sagin contends, however, that Welfare and Institutions Code section 707.2 permits a different result. Section 707.2 provides in pertinent part: "No minor who was under the age of 18 years when he committed any criminal offense . . . shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority." Sagin was 17 at the time of the homicide.

Here, Sagin was committed to the Youth Authority for presentencing evaluation and report, as required by Welfare and Institutions Code section 707.2. The Youth Authority considered Sagin to be a fit and proper subject for treatment in the Youth Authority facilities. However, they were of the opinion, in accordance with directions from the Attorney General, that Sagin was ineligible for Youth Authority commitment because he had been convicted of a crime requiring life imprisonment, and therefore was ineligible pursuant to Welfare and Institutions Code section 1731.5....