People v. Gordon

• Citation: 110 Cal.Rptr. 906,516 P.2d 298,10 Cal.3d 460
• Decision Date: 03 December 1973
• Docket Number: Cr. 16724
• Court: California Supreme Court
• Parties: , 516 P.2d 298 The PEOPLE, Plaintiff and Respondent, v. Richard David GORDON, Defendant and Appellant.

Page 906

110 Cal.Rptr. 906

10 Cal.3d 460, 516 P.2d 298

The PEOPLE, Plaintiff and Respondent, v. Richard David GORDON, Defendant and Appellant.

Cr. 16724.

Supreme Court of California,

In Bank.

Dec. 3, 1973.

Norman W. de Carteret, sherman Oaks, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Attys. Gen., Howard J. Schwab, Norman H. Sokolow, and Lawrence P. Scherb II, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Richard David Gordon appeals from a conviction of murder in the second degree. (Pen.Code, §§ 187, 189.) Defendant principally contends the trial court committed prejudicial error in failing to instruct the jury on the law pertinent to the testimony of an accomplice. We conclude the error was not prejudicial and the judgment must therefore be affirmed.

Defendant and Carolyn Thorin ¹ were charged by information with the murder of Carl Pieper on February 21, 1970. Defendant was also charged with the burglary of Carl's residence. At their first trial on these charges, Carolyn was acquitted but defendant was convicted of both first degree murder and burglary. His conviction was subsequently reversed by the Court of Appeal. (People v. Gordon, 2 Crim. 19548, unpublished opn.) At defendant's second trial, he was acquitted of the burglary charge and found guilty of second degree murder.

We briefly summarize the evidence introduced at the second trial. Carolyn and Carl were planning to be married in Las Vegas on Saturday evening, February 21, 1970. Defendant Gordon had also been courting Carolyn; the weekend before the planned marriage, defendant and Carolyn travelled to Texas where they stayed together in a motel. Carolyn described her relationship with defendant as 'platonic.'

According to Carolyn's testimony, in the early morning on February 21, defendant broke into Carl's house in Los Angeles, came to the doorway of the bedroom where Carolyn and Carl were in bed together, and fired a gun at them. A struggle between defendant and Carl ensued during which Carl was shot to death. Defendant then beat Carolyn over the head with his gun.

Carolyn further testified defendant forced her at gunpoint to leave with him in Carl's car. The pair drove to Malibu where they stopped at a restaurant and a liquor store, then checked into a motel on the beach. At the motel she convinced defendant to give her his gun and told him she would drive him to the airport to catch a flight to New York. Before they left the motel Carolyn went outside and buried the gun in the sand underneath the building. She was observed doing so by James D. Miller, an off-duty California highway patrolman, who was playing volleyball with a group of people on the beach adjacent to the motel. Carolyn made no attempt to signal any of these persons for help. Thereafter, she drove defendant to the Los Angeles International Airport where he boarded a flight to New York.

After leaving defendant at the airport, Carolyn drove to her mother's house in Redondo Beach and telephoned the police and her attorney. She told the police of the day's events and took them to the places she had been with defendant. She also informed the police of defendant's whereabouts. He was arrested as he atepped off the plane in New York.

Carl's tenant, who lived in an apartment over the garage in back of the main house, testified the floodlight over the back of the house had been turned off on the evening before Carl's murder. She stated Carl always had the light on at night because he feared burglars. Lights in the den and living room which were normally operated at night by automatic timers were also extinguished the evening before the shooting. In addition, the tenant testified the screen was off the kitchen window when she returned home that evening. The taxi driver who drove defendant to the neighborhood of Carl's house testified defendant arrived there around 5:30 or 6 o'clock in the morning.

Glen Varner, a Los Angeles police officer, testified defendant made three statements to the police, each depicting a defferent version of Carl's death. The first of these statements was consistent with the testimony given at the trial by Carolyn and tended to corroborate her version of events. ² The prosecution also presented physical evidence taken at the scene of the killing from which the jury reasonably could have inferred that defendant shot Carl.

In his own behalf, defendant testified it was Carolyn alone who had done the shooting. He maintained that he and Carolyn planned to be married, that Carolyn devised a plan to convince Carl they were having an affair and that as a result Carl would terminate his relationship with Carolyn. According to defendant, Carolyn wanted to 'let Carl down easy' because he had given her money. Defendant testified he was admitted to Carl's house through the front door by Carolyn, who then called Carl into the living room. After a brief conversation, the three went into the bedroom where Carl and Carolyn began to argue and Carl drew a gun from a dresser drawer. Carl threatened both defendant and Carolyn with the gun and then pistolwhipped Carolyn over the head. Defendant and Carl struggled and the gun was knocked to the floor. According to defendant, Carolyn picked up the gun and shot and killed Carl. Thereafter, defendant agreed to assume blame for the killing and arranged the house to appear as if he had broken in through the back window in the course of a burglary. Defendant testified further that during their stay at the motel in Malibu, he and Carolyn devised the plan for defendant to leave for New York and Carolyn to phone the police from her mother's house.

Defendant contends his conviction should be reversed because of the trial court's failure to instruct the jury Sua sponte on the definition of accomplice and the rules applying to accomplice testimony. In People v. Bevins (1960), 54 Cal.2d 71, 76, 4 Cal.Rptr. 504, 351 P.2d 776, quoting from People v. Warren (1940), 16 Cal.2d 103, 118, 104 P.2d 1024, 1032, we held it is the duty of the trial court in a criminal case to give, on its own motion, instructions on the pertinent principles of law regarding accomplice testimony ". . . whenever the testimony given upon the trial is sufficient to warrant the conclusion upon the part of the jury that a witness implicating a defendant was an accomplice . . .." ³ Defendant argues the evidence was sufficient to allow the jury to conclude Carolyn was such a witness.

Penal Code section 1111 defines an accomplice as 'one who is Liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' (Italics added.) ⁴ In order to be included within this definition, the witness must have 'guilty knowledge and intent with regard to the commission of the crime.' (People v. Duncan (1960), 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 350 P.2d 103.) As in the instant case, where the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witness' liability for prosecution is a question of fact for the jury. That the witness was prosecuted for the same offense as defendant does not alone establish her to be an accomplice. (People v. Williams (1970), 10 Cal.App.3d 638, 641, 89 Cal.Rptr. 143.)

The People contend (1) there is not sufficient evidence to support a determination that Carolyn possessed the requisite knowledge and intent with regard to Carl's death and (2) Carolyn was not an accomplice under section 1111 in any event as she was not liable to prosecution for Carl's death at the time she testified against defendant because of her acquittal at the first trial. Neither of these contentions has merit.

The evidence is clearly sufficient to warrant the conclusion by a properly instructed jury that, prior to her acquittal at the first trial, Carolyn was liable to prosecution for Carl's murder. In his opening statement, the prosecuting attorney indicated to the jury that he personally believed Carolyn was 'involved' in the killing and stated: 'I think that when you finally hear all the evidence and think about it a little bit, that you will conclude that this was a single murder with two people who did it, and one of them is sitting here (referring to defendant).' Although the prosecution's argument is not evidence in the case (People v. Stoll (1904), 143 Cal. 689, 693, 77 P. 818), it indicates that the People believed the case contained evidence of Carolyn's criminal liability for Carl's death and that they tried the case on that theory. Furthermore, defendant's own testimony, which was not inherently improbable, added evidence that reasonably could support a jury finding Carolyn was involved in the crime, and thus warranted a conclusion by the jury that Carolyn was an accomplice under section 1111.

As noted above, Carl's tenant testified that the lights in Carl's house, which were always left on at night, had been turned off the night before his murder and the screen had been removed from the rear window. The evidence also indicated that Carolyn and Carl were the only persons in the house during the evening before Carl's death. It was undisputed that defendant and Carolyn had travelled and stayed together on at least two occasions shortly before Carl's death. Carolyn's son testified he did not know of any plan of Carolyn's to marry Carl on Saturday, February 21, 1970, even though he had seen her in Texas when she was with defendant on the previous weekend and was on his way to visit Carolyn on the date of Carl's death. In addition, the prosecution presented the testimony of Scott Flohr, a friend of defendant, to the effect that on the day prior to Carl's death, defendant himself had planned to marry Carolyn. It is also undisputed that Carolyn failed to solicit aid in escaping from defendant,...