People v. Graham

• Decision Date: 18 June 1969
• Docket Number: Cr. 11714
• Citation: 71 Cal.2d 303,455 P.2d 153,78 Cal.Rptr. 217
• Parties: , 455 P.2d 153 The PEOPLE, Plaintiff and Respondent, v. Wallace L. GRAHAM and Ernest Shepard III, Defendants and Appellants.
• Court: California Supreme Court

Page 217

78 Cal.Rptr. 217

71 Cal.2d 303, 455 P.2d 153

The PEOPLE, Plaintiff and Respondent, v. Wallace L. GRAHAM and Ernest Shepard III, Defendants and Appellants.

Cr. 11714.

Supreme Court of California,

In Bank.

June 18, 1969.

Donald F. Roeschke, Tarzana, and Gilbert F. Nelson, Los Angeles, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The District Attorney of Los Angeles County filed an information against Wallace Graham, Ernest Shepard, and Judy Shepard, charging them with murder and robbery, both of the first degree. At the conclusion of a joint trial, the jury acquitted Judy Shepard but found defendants and appellants Graham and Ernest Shepard guilty of murder of the first degree and robbery of the first degree. Following a separate trial on the penalty phase for the murder convictions, the same jury fixed Shepard's penalty at death and Graham's penalty at life. Shepard's appeal before this court is automatic. (Pen.Code, § 1239, subd. (b).) Graham flied a separate notice of appeal to the Court of Appeal, Second District; we transferred the cause to this court to be heard concurrently with Shepard's appeal.

We shall point out why we have concluded, as to defendant Graham, that the judgment convicting him of first degree murder must be reversed because the trial court admitted certain prior, inconsistent, extrajudicial statements of a witness as substantive evidence of the truth of the matters asserted therein. (Evid.Code, § 1235.) In People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, we held that extrajudicial statements admitted under section 1235 against a criminal defendant violated his Sixth Amendment right to confront an adverse witness. The People have not sustained their burden of proving that this error was 'harmless beyond a reasonable doubt.' (Chapman v. California (1968) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

The judgment convicting Graham of robbery of the first degree must also be reversed because the trial court inadequately instructed the jury as to the requirement for finding one of the elements of first degree robbery, namely, that the perpetrator was 'armed with a dangerous or deadly weapon.' (Pen.Code, § 211a.)

We have concluded, as to Ernest Shepard, that the judgment convicting him of murder of the first degree must be reversed because the trial court failed to instruct the jury on voluntary and involuntary manslaughter in the specific context of Shepard's diminished capacity defense. (People v. Conley (1966) 64 Cal.2d 310, 318--326, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Modesto (1963) 59 Cal.2d 722, 729--731, 31 Cal.Rptr. 225, 382 P.2d 33; see generally, People v. Castillo (1969) 70 A.C. 274, 74 Cal.Rptr. 385, 449 P.2d 449.)

Although defendant Shepard introduced evidence of intoxication worthy of consideration, the court did not give an adequate instruction that the jury could find defendant Shepard guilty of voluntary manslaughter due to diminished capacity from intoxication. (People v. Conley, supra, 64 Cal.2d at pp. 324--326, 49 Cal.Rptr. 815, 411 P.2d 911 & fn. 4; People v. Modesto, supra, 59 Cal.2d at p. 730, 31 Cal.Rptr. 225, 382 P.2d 33; People v. Castillo, supra, 70 A.C. at pp. 279--282, 74 Cal.Rptr. 385, 449 P.2d 449.) Furthermore, the judge completely omitted an instruction that the jury could find the defendant guilty of involuntary manslaughter on this basis. Yet defendant Shepard's defense consisted of evidence that he was unconscious from intoxication caused by alcohol and drugs.

In People v. Conley, supra, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, we determined that evidence tending to show unconsciousness caused by voluntary intoxication requires the trial court to instruct the jury on involuntary manslaughter. (64 Cal.2d at pp. 323--325, 49 Cal.Rptr. 815, 411 P.2d 911; see also, People v. Wilson (1967) 66 Cal.2d 749, 760--764, 59 Cal.Rptr. 156, 427 P.2d 820.) The failure to give such an instruction deprived defendant Shepard of his 'constitutional right to have the jury determine every material issue presented by the evidence,' and requires a reversal of defendant's murder conviction. (People v. Modesto, supra, 59 Cal.2d at p. 730, 31 Cal.Rptr. 225, 230, 382 P.2d 33, 38.) We do not find the failure to give the manslaughter instructions to be invited error.

Shepard's conviction for robbery of the first degree fails because the trial court did not adequately instruct the jury on the requirement for finding that the perpetrator was 'armed with a dangerous or deadly weapon.' (Pen.Code, § 211a.)

1. The Facts.

On the afternoon of August 31, 1966, defendant Ernest Shepard and defendant Judy Shepard, Ernest's wife of four months, were at the home of Ernest Shepard's mother. Ernest left the house, went to a liquor store, purchased a fifth of wine, and, upon returning home, consumed the wine in about 45 minutes. At 6:30 p.m. Ernest's friend Wallace Graham came to visit. The two went out and bought another fifth of wine, which they shared. Returning again to the liquor store, the men purchased a pint of scotch. Back at Shepard's home, Graham drank some scotch but Ernest Shepard drank two-thirds of the bottle.

Judy Shepard awoke from a nap and saw the two men and the empty bottles. The two men spoke of getting some money. Born in Mexico, Judy had a poor command of the English language; she had planned to attend church that evening with Ernest's mother, but at her husband's insistence, she left the hose with the men. Their wanderings that night eventually culminated in their arrests for the murder of Miguel Navar.

Ernest Shepard testified that before leaving the house he consumed a cube of sugar containing the chemical LSD; that he remembered nothing of the events of that night until he was in police custody. A defense witness, the Reverend Walter Sloan, testified that he observed the three defendants at approximately 10 p.m., near the corner of Adams and South Kenwood Avenue in the City of Los Angeles. Sloan observed Ernest Shepard crouched over and crying, 'Oh, Lord, help me! Help me, somebody! Help me" Sloan asked Graham if he could help, and offered the use of his brother's phone to call an ambulance. At this moment, a police car turned the corner; the defendants spoke with the officers. When the police left, the defendants had disappeared.

Except for this one occurrence, no evidence at trial disclosed the events prior to those immediately preceding the homicide. Two eyewitnesses and Judy Shepard testified that at 11:50 p.m. the three defendants were sitting on a bus stop bench near the corner of Vermont and Adams in Los Angeles. Judy testified that again there was talk of taking money from someone. The eyewitnesses testified that the three defendants stood up and proceeded south on Vermont, following the victim, Mr. Navar. Navar went from Vermont to Dana Street and the two men followed. Judy Shepard stayed at the corner, turned to the two eyewitnesses who were sitting at a taco stand on the corner of Vermont and Adams and made a motion as if she wished them to follow. Less than two minutes after the two male defendants had rounded the corner onto Dana, Judy Shepard followed them; the two eyewitnesses ran to the corner and observed Navar lying on the sidewalk. The defendants had disappeared. Navar was bloodied, his clothing was torn, and his right pants pocket had been torn off. Navar died as a result of multiple injuries to his had and neck, caused by blows.

Officers investigating the scene of the crime discovered Navar's right pants pocket abandoned about 150 yards west of the body. Based on descriptions given by the two eyewitnesses, the defendants were apprehended and arrested at 1 a.m. several blocks from the scene of the crime.

At trial, an officer from the Scientific Investigation Division of the Los Angeles Police Department testified that the clothing worn by Ernest and Judy Shepard on the night in question contained human blood of the same type as that of the decedent. He further testified that a footprint photographed at the scene of the crime matched the shoes worn by Ernest Shepard when he was arrested.

Wallace Graham did not take the stand. Ernest Shepard did testify; his defense consisted of his alleged intoxication to the point of unconsciousness from LSD and alcohol. He described various hallucinations which he experienced that night and stated that these weird sensations, mental images, and flights of fancy blocked out all consciousness of what in fact occurred. In their case in chief, the People's police witnesses who had contact with Ernest Shepard on the night of the crime testified that he in no respect appeared to be under the influence of alcohol or any drug. Following Ernest's testimony, the People called in rebuttal a psychiatrist who cast doubt upon the likelihood that Shepard experienced continuous hallucinations as described. He further testified that if a person while under the influence of LSD attacked another he would remember the experience. On cross-examination, the witness conceded that the state of knowledge about the effects of LSD are such that one cannot predict with certainty the nature of a person's experiences while under the influence of the drug, except that the drug would affect a person's ability to reason and evaluate.

Judy Shepard's testimony in her own defense provided the missing details surrounding the homicide. She testified that when her husband and Graham left the bus stop bench and proceeded after Navar, she believed they intended to rob him; that she stood on the corner and waved to the two eyewitnesses because she wanted to save Navar. When she turned onto Dana Street, she observed her husband striking Navar on the face again and again. Navar fell to the ground but...