People v. Fisk

• Decision Date: 31 July 1975
• Docket Number: Cr. 7775
• Citation: 123 Cal.Rptr. 414,50 Cal.App.3d 364
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Carl FISK, Defendant and Appellant.

Page 414

123 Cal.Rptr. 414

50 Cal.App.3d 364

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Carl FISK, Defendant and Appellant.

Cr. 7775.

Court of Appeal, Third District, California.

July 31, 1975.

Hearing Denied Sept. 24, 1975.

Evelle J. Younger, Atty. Gen. by Eddie T. Keller and Ramon de la Guardian, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Michael L. Davidson, Foster City, for defendant and appellant.

FRIEDMAN, Acting Presiding Justice.

Defendant appeals after a jury convicted him of voluntary manslaughter and of weapon possession by an ex-felon. (Pen.Code, § 12021.) The indictment charged him as follows: Count I, murder; Count II, weapon possession by ex-felon; Count III, that he was armed with a deadly weapon at the time of the offense mentioned in Count I (Pen.Code, §§ 3024, 12022); Counts IV and V, two prior felony convictions. Defendant admitted the two prior felony convictions and the jury sustained the 'armed with a deadly weapon' allegation. The judgment recited the two prior convictions and the deadly weapon finding.

Defendant had been living with Jackie Johnson while the latter's husband, Ronald, was in jail. After Ronald's release, Jackie returned to her husband but defendant manifested jealousy and expressed a determination to get Jackie back. Armed with two guns and a large knife, he came to the Johnson's apartment, where he engaged in a fight with Johnson. The fight subsided and Johnson, who was using barbiturates, went to bed. Defendant prepared a dose of 'speed' (methamphetamine), injected half the dose into his own arm and half into Jackie's. About an hour later Jackie saw defendant in Ronald's bedroom, stabbing Ronald with a large knife. Jackie ran to the manager's officer to get help. Defendant left the apartment, leaving his Doberman Pinscher dog behind. Police arrived, then an ambulance. When the ambulance arrived, Ronald was dead. Police found narcotics in the apartment.

The next morning defendant was arrested while he was with a friend named Esparza. To Esparza, defendant both admitted and denied the killing.

Ronald Johnson had died of multiple stab wounds in the neck. A contributory cause of death was a high blood level of barbiturates, which had blocked normal reactions to alarm or fright. In view of the barbiturates in his blood, it was likely that Johnson had been asleep when he was stabbed.

At the trial the defense sought to impeach Jackie Johnson's testimony by evidence that she was heavily addicted to methamphetamine and suffered hallucinations; that she dealt in narcotics; that on the day Ronald died she had given him 15 'yellows' which he had swallowed with water. The defense also produced evidence designed to show that the methamphetamine defendant injected into himself shortly before Johnson's death had caused defendant to indulge in irrational behavior and hallucinations. The court instructed the jury on diminished capacity.

Initially, defendant charges the district attorney with manipulation of the grand jury, causing that body to indict defendant for murder rather than a lesser included offense. He argues that the district attorney failed to advise the grand jury of their independent power to order production of evidence and failed to inform the grand jury relative to the defense of diminished capacity. He relies upon an ambiguous remark of the grand jury foreman, inferring that the grand jurors were ignorant of their right to call witnesses. ¹ The remark does not support the inference drawn by defendant. A grand jury receives a charge by the court following its impanelment; thereafter, it is at liberty to call upon the judge for advice. (Pen.Code, §§ 914, 934.) Aside from specified matters, the statutes do not prescribe the contents of the charge to the grand jury. Any well conceived charge should inform the grand jurors that they may summon witnesses independently of the prosecutor. (Pen.Code, § 939.2.) We assume that the Yolo County Grand Jury had this information. The claim that the district attorney kept the grand jury in ignorance of this phase of its authority is not supported by the record.

The record supports the claim that the district attorney failed to reveal the possibility of an indictment for manslaughter. According to the transcribed discussions between the grand jurors and the district attorney, evidence of defendant's drug condition was of deep interest to the grand jurors and they expressed interest in charging defendant with a lesser crime than murder. The deputy district attorney did not inform them that a drug condition might warrant a manslaughter charge; instead, he spoke only in terms of the insanity defense, thereby failing to inform the grand jury of the available alternatives. ² A prosecutor need not volunteer possible defense and mitigating alternatives, such as diminished capacity, to the grand jury. Nevertheless, when members of the grand jury ask questions, he owes them the duty of correct advice. In this case the district attorney of Yolo County did not give the grand jury correct advice. ³ It was not within the prosecutor's prerogatives to close the door to a manslaughter indictment if such was the choice of the grand jury.

On the assumption that the district attorney's misconceived advice resulted in a murder rather than a manslaughter indictment, no miscarriage of justice occurred, for the trial jury accepted defendant's diminished capacity defense and returned a manslaughter verdict. In reviewing for a miscarriage of justice, this court has an independent power to consider the record. (Cal.Const., art. VI, § 11.) Evidence that defendant was hallucinating when he killed Johnson was less than convincing. He was intensely jealous of Johnson, wanted Johnson's wife, had previously assaulted and threatened to kill him and had arrived at the apartment heavily armed. Following the stabbing, witnesses ascribed to him a rational demeanor. Quite aside from the doubt which the grand jurors had expressed, it is this court's opinion that the trial evidence would have supported a verdict of premeditated murder. In returning a manslaughter verdict, the trial jury gave defendant the benefit of all possible doubt. There is no reasonable probability that a manslaughter indictment would have resulted in a verdict of a lesser crime than voluntary manslaughter; hence no miscarriage of justice resulted. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)

Next, defendant charges the trial court with error in rejecting his offer to impeach Jackie Johnson by showing that she had been dealing in narcotics. As described in defendant's brief, his theory was that Jackie was biased and was fabricating her testimony to avoid prosecution. The court's ruling was a proper exercise of discretion under Evidence Code section 352. Other evidence portrayed the lifestyle of Jackie Johnson and her husband, their heavy use of narcotics and barbiturates, the pending felony charge against her in another county and her arrest with her husband on charges of possessing a machine gun and barbiturates. Other witnesses had corroborated Jackie's testimony regarding defendant's animosity toward her husband. The court could reasonably conclude that defendant's offer of proof proposed a roundabout and time-consuming effort to impeach a witness whose untrustworthiness had already been portrayed to the jury.

After defendant took the stand in his own defense, the prosecution called his former parole agent as a rebuttal witness. We reject defendant's claim that the court abused its discretion in permitting the parole agent to testify. Defendant had denied using drugs other than amphetamine; the parole agent testified that tests had been positive to use of morphine and methamphetamine. Defendant had testified to his presence in the Johnson apartment on the night of the murder; the agent testified that defendant had denied being present. According to defendant, he had discussed with the parole agent the possibility of moving to the Bay Area; the latter denied such a discussion. Defendant's credibility, particularly relative to his claim of drug-induced hallucinations, was a central issue. The court did not abuse its discretion in permitting the parole agent's rebuttal testimony.

Defendant attacks his conviction under Penal Code section 12021 as well as the finding of two prior convictions, charging the trial court with failure to give the admonitions required by In re Yurko, 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561. (See also, In re Foss, 10 Cal.3d 910, 930, 112 Cal.Rptr. 649, 519 P.2d 1073.) In open court (but outside the jury's presence) defendant's attorney stipulated with reference to the section 12021 charge that defendant was an 'ex-con.' Defendant admitted two prior felony convictions, one for violation of title 21, section 174, of the United States Code and one for violation of section 11500 of the Health and Safety Code. The trial court said, 'You understand that you are entitled to a hearing on whether or not that is a valid prior conviction. But I understand from your Counsel you are willing to admit that prior conviction this morning, is that correct?' At that point the judge failed to inform defendant of the constitutional rights he was waiving or the penalties he would incur as a result of his admission, thus violating the demands of In re Yurko, supra.

The factors which influenced the court in Yurko to apply the Boykin-Tahl rule to admissions of priors do not necessitate the same approach to stipulations of counsel admitting factual elements of a criminal charge. (People v. McCoy, 40 Cal.App.3d 854, 859, 115 Cal.Rptr. 559.) In McCoy, the stipulation admitted the chemical composition of some capsules but there, as in this case, counsel made a tactical trial decision. In this case the stipulation would preclude the prosecutor from introducing evidence of defendant's prior crimes unless defenda...