People v. Fonville

• Court: California Court of Appeals
• Writing for the Court: GEO. A. BROWN
• Citation: People v. Fonville, 111 Cal.Rptr. 53, 35 Cal.App.3d 693 (Cal. App. 1973)
• Decision Date: 20 November 1973
• Docket Number: No. 1397,1397
• Parties: The PEOPLE, Plaintiff and Respondent, v. Billy Charles FONVILLE, Defendant and Appellant.

Page 53

111 Cal.Rptr. 53

35 Cal.App.3d 693

The PEOPLE, Plaintiff and Respondent, v. Billy Charles FONVILLE, Defendant and Appellant.

No. 1397.

Court of Appeal, Fifth District, California.

Nov. 20, 1973.

David L. Skinner, Jr., San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Eddie T. Keller and Kevin Corrington, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

GEO. A. BROWN, Presiding Justice.

After a 13-day trial a jury found the appellant guilty of murder in the first degree (Pen.Code, § 187), found him sane in a subsequent sanity trial lasting two days, and in a five-day penalty trial fixed the penalty at death.

Under the mandate of People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, we are required to modify the judgment to provide for a punishment of life imprisonment; for the reasons hereinafter stated the judgment will otherwise be affirmed.

Appellant's core contention is that as a matter of law the first degree murder conviction cannot stand because there is not substantial evidence to support the jury's determination that the murder was committed with premeditation and deliberation. Appellant asks this court to reduce the degree of the crime to second degree. (Pen.Code, § 1181, subd. 6; People v. Anderson (1968) 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942.) Supportive of this contention he introduced evidence in the trial court and argued before the trial court and in this court that due to appellant's ingestion of drugs and alcohol and due to mental illness he did not have the capacity to act with premeditation and the deliberation required for first degree murder (Pen.Code, § 189) or to form the necessary intent to commit robbery.

In this connection we observe initially that the case was tried both on the theory of a 'willful, deliberate and premeditated killing' (Pen.Code, § 189) and on the felony (robbery) murder doctrine, requiring only the necessary mental capacity to form the specific intent to commit robbery.

Appellant also seeks reversal of the judgment and a new trial on a second ground: that the trial court improperly permitted the playing of a surreptitiously recorded jail conversation between the appellant and his uncle.

On January 19, 1971, Jancinto Corpuz, a male of Filipino extraction, was the victim of a homicide. There is no substantial conflict in the evidence with respect to the occurrence of the events leading up to his death.

On that evening, at approximately 9 to 9:30 p.m., the appellant and Ruth Mae Rowland, his 17-year old associate, and the victim were at the Lamont Cafe (also known as Alice's Cafe) in Lamont, California. While seated together, the appellant persuaded Mrs. Rowland to have intercourse with the victim for $20. Appellant thereafter, out of the presence of the victim, indicated to her that she need not actually have intercourse with the victim but only go out with him, whereupon appellant would 'roll' or rob the victim for money. The victim then left the cafe to obtain money from his car to pay appellant. During his absence appellant approached John Doctolera, who was working at the cafe, and asked for a club or a gun in order to roll the victim for $300. Mr. Doctolera stated to the appellant, 'You don't need to kill anyone,' and did not produce the requested weapons, whereupon appellant replied, 'You are right.' Also while at the cafe the appellant stated to one Kenneth George Claunch that he was going to rob and kill the victim.

After the exchange of money between appellant and the victim, the appellant, Mrs. Rowland and the victim left the cafe. Mrs. Alice Doctolera, realizing what was going to happen, attempted to keep the victim from going with the appellant and Mrs. Rowland by pulling him back into the cafe and trying to divert his attention by offering to sell him a watch and by other stratagems. Nevertheless, appellant finally succeeded in getting the victim out of the cafe by telling him, 'Come on, let's go,' and grabbing hold of his hand.

Appellant, Mrs. Rowland, and the victim then got into the victim's car and left. The victim drove out of town for some distance, whereupon appellant took over at the wheel and drove the car off the road into a field and stopped.

After exiting the car the appellant told the victim to get out and said, 'Let's fuck him.' When the victim was outside the car, appellant started to him with his fists. The victim pleaded with appellant to stop hitting him, but appellant persisted, mimicking the victim's Filipino accent. Appellant told Mrs. Rowland to find things for appellant to hit the victim with, and in compliance she gave him a theremos bottle that appellant used to strike the victim on the head. She then gave him a screwdriver which appellant used to hit the victim in the stomach. Appellant stated to Mrs Rowland that, 'This wouldn't do it,' and told her to find something else. She then produced a sharp foot-long object, and she held the victim's head while the appellant hit him on the head with the weapon. When the victim was unconscious, appellant removed the victim's wallet, money and key chain from him and looked into the trunk, glove compartment and under the seat of the car for money. The wallet, key chain, screwdriver and sharp object were put into Mrs. Rowland's purse. Thereupon appellant and Mrs. Rowland got back into the car and the appellant drove it back and forth over the victim's body two or three times.

Appellant and Mrs. Rowland then drove to the house of appellant's cousin, Ricky Fonville. When Ricky came out of the house appellant said, 'Hurry up, I just killed somebody,' or something like that. Ricky Fonville then got in his car and followed appellant and Mrs. Rowland to a canal. At Mrs. Rowland's suggestion, appellant attempted to wipe off the fingerprints in the victim's car with a blanket, and the car was then pushed into the canal.

Ricky Fonville drove the appellant and Mrs. Rowland back to Alice's cafe. While at the cafe Shirley Mahan, a waitress at the cafe, noticed blood on the appellant's shirt and asked what had happened. He replied that he thought he had killed a guy. Alice Doctolera also noticed blood on appellant's shirt and pants and noticed that appellant and Mrs. Rowland were looking back and forth at each other and then would look at her. She asked if anything was wrong, whereupon appellant replied, 'Yes, I think I just killed that little guy.' Sometime later appellant stated that he had only been teasing.

Shortly thereafter appellant and Mrs. Rowland left the cafe. The appellant asked Mrs. Rowland to get rid of the screwdriver, the sharp object, the key chain and the wallet, whereupon Mrs. Rowland told him he would have to get rid of those items himself and gave them to him.

Due to the heavy responsibility placed upon this court in reviewing a first degree murder conviction and the meticulous scrutiny with which we must examine the record when the defense is that of insuffciency of the evidence to support the trial court's finding that an appellant was not suffering from diminished capacity (see authorities Infra), we summarize the evidence on this issue in some detail.

There is substantial conflict in the evidence as to whether the appellant was suffering from diminished capacity due to intoxication or mental illness. Vera Mardis, appellant's grandmother, testified that on the morning of January 19, at about 9 a.m., she saw appellant and noticed that appellant appeared strange and unusual, that his eyes were dilated, and that he was highly nervous, staggering a little and running into things. She said he wasn't acting naturally and that his hands were shaky and his speech was slurred.

Eva Kilium testified that she saw the appellant between noon and 4 or 5 p.m. on the day in question and that he was restless, talking all the time, was not making any sense, and was acting the way people act who are under the influence of drugs.

Appellant's cousin, Ricky Fonville, testified that on the afternoon of the 19th he and the appellant, along with two women, consumed more than two-fifths of whiskey and that he and appellant also consumed a six-pack of beer. He testified further that appellant's condition was 'feeling pretty good,' but that he was not 'real sloppy drunk.' That appellant was stuttering and slurring his words and was 'goofier than hell.' He also said that after 5:30 p.m. he believes appellant took three or four reds, but he didn't actually see him put them in his mouth. He said that the appellant also had two or three beers to drink at Alice's Cafe. Ricky Fonville also testified that the appellant returned to his house on the night of the event and slept there all night. When they got up the next morning he noticed blood on the appellant's clothing. The appellant said he must have gotten into a fight the night before but he couldn't remember that or how he got into Ricky's house. Later that morning they saw on television that a man had been killed, and when he asked the appellant about it the first time the appellant said he didn't remember, and then later he remembered something about running over someone.

Virginia White, appellant's former wife, testified that she saw appellant about 6 p.m. on the evening of the murder and that he was 'funny acting' and 'he had a funny look out of his eyes as if--was kind of far away glassy type look,' and that he was acting so strangely that she left her house until after he left because she was afraid of him.

Contradicting this testimony was that of four witnesses who observed the appellant that evening at the cafe near the time of the crime, including Mrs. Rowland, who testified on behalf of the prosecution.

Mrs. Rowland said that she had seen appellant on various occasions under the influence of alcohol and drugs and was of the opinion that on that particular night appel...