People v. Garcia

• Decision Date: 06 August 1984
• Docket Number: Cr. 22799
• Citation: 205 Cal.Rptr. 265,684 P.2d 826,36 Cal.3d 539
• Court: California Supreme Court
• Parties: , 684 P.2d 826 The PEOPLE, Plaintiff and Respondent, v. Lawrence Richard GARCIA, Defendant and Appellant.

Page 265

205 Cal.Rptr. 265

36 Cal.3d 539, 684 P.2d 826

The PEOPLE, Plaintiff and Respondent, v. Lawrence Richard GARCIA, Defendant and Appellant.

Cr. 22799.

Supreme Court of California,

In Bank.

Aug. 6, 1984.

As Modified on Denial of Rehearing Oct. 29, 1984.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Supreme Court, Edward H. Schulman, Deputy State Public Defender, Robert E. Moore, Jr., Glendale, under appointment by the Court of Appeal, and Lawrence Richard Garcia, in pro. per., for defendant and appellant.

John K. Van de Kamp and George Deukmejian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington, Jay M. Bloom and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, held that proof of intent to kill or to aid a killing was essential to a finding of a felony-murder special circumstance under the 1978 death penalty initiative. (Pen.Code, § 190.2, subd. (a)(17).) We granted a hearing in the present case to decide whether to give retroactive effect to our Carlos decision and to determine the test of prejudice applicable when a trial court fails to instruct a jury in accord with that decision.

We have concluded that because the Carlos opinion does not overturn prior law, but stands as the first authoritative construction by this court of the felony-murder provision of the 1978 initiative, it should apply to all cases not yet final arising under that enactment. Selecting a test of prejudice, however, presented us with a closer and more difficult question. We are persuaded, however, that under controlling decisions of the United States Supreme Court the failure to instruct upon intent as an element of a special circumstance, because it takes the issue of intent from the trier of fact, denies the defendant due process of law in violation of the Fourteenth Amendment. We further conclude that absent exceptional considerations not found in the present case the United States Supreme Court would hold such constitutional error was necessarily prejudicial. Therefore, while affirming defendant's conviction, we reverse the finding of a special circumstance under section 190.2 I. Summary of facts and proceedings.

On August 10, 1979, defendant drove Orlando Sandoval, his nephew, to a shopping center in Oxnard. Defendant stopped in front of a liquor store to let Sandoval out, then parked the car in a nearby alley. Sandoval entered the store and shot Al Wieczorek, a clerk. Wieczorek died of a bullet wound to the chest caused by a dum-dum bullet. ¹ Sandoval fled the store, apparently without taking anything, got in the car, and defendant drove away.

A few days later defendant was arrested while sitting in his car. The police found the gun used to kill Wieczorek under the pillow where defendant had been sitting. Defendant waived his right to remain silent and to counsel and agreed to talk to the police, but denied involvement in the crime. After the police talked to Sandoval, however, defendant admitted that he drove Sandoval to rob the liquor store, and that he knew Sandoval had a gun with dum-dum bullets. Sandoval told him that he panicked when he entered the store, and shot the clerk. ²

Defendant was charged with attempted robbery and murder, with the special circumstance of felony murder. The prosecution did not seek the death penalty. ³

At trial the prosecution introduced defendant's confession and other evidence proving defendant acted as the get-away driver for Sandoval's robbery. It also presented testimony by James Odra Smith, who was confined in jail awaiting retrial on a murder charge. Smith testified that defendant admitted to him that he furnished the gun and bullets to Sandoval. The defense, seeking to impeach Smith, presented evidence that Smith had been a police informant in numerous cases and received substantial benefits in return for his activity, including a reduction in bail on Smith's murder charge from $250,000 to $25,000. Smith also knew that defendant might be a witness for the prosecution in Smith's murder case. The defense also presented psychiatric testimony, not to show insanity or diminished capacity, but to explain that defendant would be prone to confess falsely if he thought the confession would help a relative such as Sandoval.

The jury was instructed that it should find defendant guilty of first degree murder if it found that he had the specific intent to commit robbery and that the killing occurred in an attempt to perpetrate the crime of robbery. With regard to the special circumstance, the jurors were told only that the prosecution must prove beyond a reasonable doubt that the murder was committed while the defendant was an accomplice in the attempted commission of a robbery. They were not instructed that felony-murder special circumstances required an intent to kill or to aid in a killing. The jury returned a verdict finding defendant guilty as charged of attempted robbery and first degree murder, with the special circumstance of felony murder. The court, after denying a motion for new trial, sentenced defendant to life imprisonment without possibility of parole.

II. Issues relating to guilt.

Defendant argues that his confession was induced by an implied promise of leniency, and should have been excluded. (See People v. Jimenez (1978) 21 Cal.3d 595, 611-614, 147 Cal.Rptr. 172, 580 P.2d 672.) The record shows only that one detective told defendant: "If you guys were doing a robbery, he shot the guy, he panicked or whatever, that's the price he's going to have to pay. We're going to focus our thing on him--Orlando. But there's no sense you going down the way he is, that, that far down with him, as a trigger man ...."

This statement does not constitute an offer of leniency on the part of the police or the prosecution in return for a confession; it advised defendant that an accomplice is generally better off than a triggerman. That was sound advice; even if we do not take Carlos into account, an accomplice is far less likely to receive the death penalty than the triggerman. (See Enmund v. Florida (1982) 458 U.S. 782, 794-795, 102 S.Ct. 3368, 3375-3376, 73 L.Ed.2d 1140.)

In People v. Hill (1967) 66 Cal.2d 536, 549, 58 Cal.Rptr. 340, 426 P.2d 908, we observed that "[t]he line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police.... When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity." We agree with the trial court that under the reasoning of Hill defendant did not receive an improper inducement to confess. ⁴

Defendant also contends that James Odra Smith was a police agent when he talked to defendant, and that Smith's testimony reporting their conversations should be excluded. Defense counsel, however, did not object to Smith's testimony at trial. Moreover, in view of defendant's confession, which established his guilt of attempted robbery and first degree murder, Smith's testimony concerning defendant's guilt of those crimes was harmless by any applicable test of prejudice.

III. Issues relating to the special circumstance finding.

In Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, we held that proof of intent to kill or to aid a killing is essential to a finding of felony-murder special circumstances under the 1978 death penalty initiative. Our decision necessarily implied that an instruction on intent to kill is required when the special circumstance issue is tried to a jury. No such instruction was given in the present case.

The effect of the Carlos decision upon the present case and other pending cases depends on whether that decision is given retroactive effect, and upon the standard of harmless error applied when the required intent instruction is not given. We deferred resolution of those issues in Carlos, believing the issues were of sufficient difficulty and importance as to call for briefing and argument in a separate case. ⁵

A. Retroactivity.

In Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36-37, 196 Cal.Rptr. 704, 672 P.2d 110 we explained that "In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, inquiring whether the decision established new standards or a new rule of law. If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises. [Citations.] Neither is there any issue of retroactivity when we resolve a conflict between lower court decisions, or address an issue not previously presented to the courts. In all such cases the ordinary assumption of retrospective operation [citations] takes full effect."

Following this initial inquiry, California courts employ a tripartite test derived from Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 to determine the retroactive effect of a decision. ⁶ Under this test, the court considers three factors: "(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards." (Stovall v. Denno, supra, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199; People v. Kaanehe (1977) 19 Cal.3d 1, 10, 136 Cal.Rptr. 409, 559 P.2d 1028.) The three factors, however, are not of equal weight: "the factors of reliance and burden on the administration of...