People v. Green, Cr. 20555

Citation609 P.2d 468,164 Cal.Rptr. 1,27 Cal.3d 1
Decision Date24 April 1980
Docket NumberCr. 20555,C
Parties, 609 P.2d 468 The PEOPLE, Plaintiff and Respondent, v. Charles Alan GREEN, Defendant and Appellant. In re Charles Alan GREEN on Habeas Corpus. r. 21068.
CourtUnited States State Supreme Court (California)

Quin Denvir, State Public Defender, under appointment by the Supreme Court, Ezra Hendon, Chief Asst. State Public Defender, and Richard E. Shapiro, Deputy State Public Defender, for defendant and appellant and petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones, Arthur G. Scotland, Roger E. Venturi and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment sentencing him to death on his conviction of murder in the first degree, robbery, and kidnaping. 1 In a proceeding consolidated herewith he also petitions for a writ of habeas corpus, alleging principally that he was denied effective assistance of counsel. We have concluded that the judgment must be affirmed as to the convictions of first degree murder and robbery, but reversed as to kidnaping; that the findings of "special circumstances" elevating the murder to a capital offense must be set aside; and hence that the judgment must also be reversed insofar as it relates to penalty.

Defendant was charged by information with murder in violation of section 187 (count I), robbery in violation of section 211 (count II), and kidnaping for the purpose of robbery in violation of section 209 (count III), all committed against his wife Karen Green on October 11, 1977. 2 Count I also charged two "special circumstances," i. e., that the murder was willful, deliberate and premeditated and was personally committed by defendant (1) during the commission of a robbery in violation of section 211 (former § 190.2, subd. (c) (3)(i)) and (2) during the commission of a kidnaping in violation of section 207 or section 209 (id., subd. (c)(3)(ii)). For enhancement purposes it was further charged that defendant used a firearm in all counts ( § 12022.5), and in counts II and III that defendant intentionally inflicted great bodily harm on the victim ( § 12022.7). No prior convictions were alleged.

Defendant entered pleas of not guilty to the offenses charged, and denied the special circumstances and enhancement allegations. The jury found defendant guilty of first degree murder and robbery as charged in counts I and II; on count III the jury found defendant guilty of the lesser included offense of simple kidnaping in violation of section 207. The jury further found the special circumstances allegations true, except that the second of such circumstances was found to be murder committed during the commission of a simple kidnaping rather than a kidnaping in violation of section 209. The enhancement allegations were found true.

The jury subsequently fixed the penalty for the murder at death. The court denied motions for modification of the verdict (former § 190.4, subd. (e)) and for new trial, and on count I sentenced defendant to die. 3

Facts

On the morning of October 12, 1977, an unclothed body of a young woman was found in a secluded area along the Feather River, near the town of Nicolaus in Sutter County. An autopsy established that the cause of death was a shotgun wound in the anterior portion of the head, and that death had been instantaneous and had occurred within the previous 24 hours. The woman was identified from a fingerprint as defendant's wife Karen. 4

As there was no eyewitness to the actual killing, the prosecution's case was built largely on evidence that the defendant had both a motive and an opportunity to murder his wife, and subsequently admitted the crime by word and deed. This evidence was presented in the form of testimony by a number of friends and acquaintances of defendant and Karen, all of whom lived in or about Sacramento. Viewing that testimony in the light most favorable to the People, as we must on this appeal (People v. Vann, 1974) 12 Cal.3d 220, 225, 115 Cal.Rptr. 352, 524 P.2d 824), the following appear to be the principal events surrounding the murder.

Defendant and Karen were married in August 1977, and lived with Laura Schmidt, Karen's sister, in September and the first part of October. Their marriage was unstable; conflicts between the parties became frequent, and defendant struck his wife on several occasions.

At midmorning on October 10, 1977, defendant and Karen drove in a borrowed pickup truck to the house of Larry Creech, an acquaintance who had a motorcycle repair shop on his premises. Karen left in due course with the pickup, but defendant remained all day working on his motorcycle. During this time defendant told Creech he thought his wife had been "fooling around."

That night defendant slept at the Creech house and Karen slept at her parents' residence. At 4 a. m. defendant telephoned Laura Schmidt and asked, "where the hell (is) Karen?" Schmidt told him Karen was sleeping at their parents' house, and defendant asked her to have his wife call him. At 6:30 a. m. on October 11, 1977, Karen telephoned her friend Pamela Robison and asked if she could move in with her. She was crying and upset, and said she was leaving defendant. Robison agreed to take her in, and Karen arrived at her house about an hour later. She said to Robison that her marriage "just wasn't working"; that she had spoken with defendant that morning and told him she did not want to see him any more and intended to get an annulment, and that defendant had replied he would kill her if she left him.

Karen and Robison then returned the pickup to the Creech house. Karen left it in the driveway with the keys in it, telling Robison she was afraid to go inside. Robison drove Karen back to her sister's house to pick up her clothes. Karen took only her personal belongings, leaving defendant's behind, then returned to the Robison house.

Meanwhile, another acquaintance of defendant, David Khan, arrived at the Creech house about noon. Defendant asked Khan to locate Karen for him, saying she had "ripped off" $800 of his money and was "fooling around on him." He gave Khan some telephone numbers to call and $5 for gas, and offered to pay him $50 if he found her. Defendant and Khan then drove to the Khan house in the latter's car.

A substantial amount of testimony was directed to establishing that defendant acquired a sawed-off shotgun during the afternoon of October 11. At the Khan house defendant encountered Don Sheehan, who earlier that day had traded a pistol for such a shotgun owned by David's brother, Donnie. Defendant indicated an interest in buying or borrowing the weapon, and Sheehan agreed to sell it for a pound of marijuana to be delivered in a day or two. Defendant took possession of the gun, cleaned it, and wrapped it in a piece of white cloth. Several of the persons at the Khan house saw the wrapped weapon in defendant's possession during lunch. Later in the afternoon David Khan and defendant returned to the Creech house, and defendant carried the shotgun inside. Creech asked what the object was, and defendant replied it was "a toy" he took from someone and "it might get somebody in trouble."

Defendant and David Khan then continued on to the house of Diane Scott (Donnie Khan's girlfriend) and her sister Linda Reeves. There a number of witnesses saw defendant carry the wrapped gun into the house under his coat. Using a telephone on the premises, Khan called Linda Schmidt at defendant's request in an effort to reach Karen. Schmidt informed him Karen was at Pamela Robison's house, and furnished the number of the latter. Khan next called the Robison house and, at defendant's direction, told Karen that her husband was in trouble and needed her to pick up some of his belongings from her sister. Karen agreed to go with Khan for this purpose, and added that if he saw defendant he was to tell him she had an appointment for an annulment at 4:30 the next afternoon. Khan relayed this message to defendant as soon as the conversation ended. Defendant then instructed him to pick Karen up and bring her back to the Scott-Reeves house. He also told Khan that if it looked as if there were any police watching the place he should "keep on going."

Taking his brother Donnie with him, Khan then drove his car to the Robison house. There, Karen entered the vehicle and sat between David and Donnie on the front seat. Before she left, Robison asked her what to do about a man who was coming to visit her; Karen replied, "just keep him company, I'll be right back." To explain his return route, Khan told Karen he was taking his brother to his girlfriend's house. Karen made no objection, and the trip proceeded normally.

When they arrived at the Scott-Reeves residence, defendant was sitting on the front lawn. Upon seeing him Karen sat up in her seat, appeared excited, and asked Khan if he knew defendant was there; he replied he did not. Donnie got out of the car and went into the house. Khan's mother and Linda Reeves came over to the car and engaged David in conversation. Karen remained silent and made no attempt to leave the vehicle. Defendant got up from the lawn, went briefly to another parked car, then entered the front passenger seat of Khan's vehicle next to his wife. As he did so, he took the wrapped shotgun from underneath his coat and slid it beneath the seat. He said to Khan, "let's drive somewhere," and indicated he wanted to go to a secluded place. The three then drove away.

Khan proceeded towards the town of Nicolaus in southern Sutter County, driving for some 20 minutes. During this time Karen told defendant "she had got a derringer," and he replied, "well, I have a toy of my own." About five miles short of Nicolaus, Karen said to defendant that if he was going to beat her he had better make it "a good one" because "it would be the...

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