People v. Hill

• Decision Date: 30 January 1992
• Docket Number: No. C004755,C004755
• Citation: 3 Cal.App.4th 16,4 Cal.Rptr.2d 258
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tharon Bob HILL, Sr., Defendant and Appellant.

Page 258

4 Cal.Rptr.2d 258

3 Cal.App.4th 16

The PEOPLE, Plaintiff and Respondent, v. Tharon Bob HILL, Sr., Defendant and Appellant.

No. C004755.

Court of Appeal, Third District, California.

Jan. 30, 1992.

Review Denied April 16, 1992.

Ross Thomas, San Francisco, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren and John K. Van de Kamp, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Sr. Asst. Attys. Gen., W. Scott Thorpe, Supervising Deputy Atty. Gen., and Janet G. Bangle, Deputy Atty. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

A jury convicted defendant of conspiracy to commit first degree murder by explosive. (Pen.Code, §§ 182, 189; further statutory references to sections of an undesignated code are to the Penal Code.) On appeal, defendant contends the trial court erred: (1) in failing adequately to deal with the jury's request for further instruction, and (2) in denying his new trial motion which was based on jury misconduct in considering the issue of penalty during deliberations. We shall affirm, holding, inter alia, that Evidence Code section 1150, subdivision (a), which excludes evidence of the jurors' subjective reasoning processes to impeach their verdict, has not been abrogated by the "Right to Truth in Evidence" provision of the California Constitution (art. I, § 28, subd. (d)).

In early 1987, defendant came to Chico to live near his estranged wife, Vicky Hill. Defendant wanted to reconcile with Vicky or failing that, to have her killed. On April 20, 1987, Vicky and defendant had a violent argument. Shortly thereafter, Dalton Moss sold defendant six or seven sticks of dynamite, several blasting caps and fuse cord. Defendant planned to dynamite Vickie's truck or trailer home. Defendant's daughter, Shanna Lopes, recommended John Keefe to defendant to carry out his plan. In early May 1987, Keefe agreed for the sum of $1,000 to be paid by defendant to dynamite Vicky's trailer home while Vicky was inside. Defendant gave Keefe some dynamite, blasting caps and fuse cord. Subsequently, Keefe decided not to blow up Vicky's trailer home, but told defendant he would dynamite her truck for the same $1,000 fee. On May 29, 1987, Keefe threw dynamite near Vicky's unoccupied truck, where it exploded.

Defendant still wanted Vicky killed. Dalton Moss delivered four more sticks of dynamite to Lopes for defendant. Lopes arranged for Mike Hoskison to dynamite Vicky's trailer home or truck. On June 25, 1987, Vicky shot Hoskison as he attempted to light dynamite just outside her trailer home. Hoskison ran off a short distance where he collapsed. He died soon thereafter. ¹

Defendant denied any involvement in the May 29 bombing or the June 25 bombing attempt. Defendant specifically denied an agreement with Keefe to dynamite Vicky's trailer home in order to kill her.

The information charged that defendant "conspire[d] with another person [sic] to commit the crime of First Degree Murder by Explosive." The theory of the prosecution was that Keefe, Lopes and Moss, all of whom testified for the prosecution under grants of immunity, were co-conspirators.

In convicting defendant of conspiracy to commit first degree murder, the jury found two overt acts: (1) defendant obtained dynamite and fuse cord from Dalton Moss in April or May of 1987 and (2) defendant supplied dynamite and fuse cord to John Keefe in May of 1987.

I

Defendant contends the trial court committed reversible error by failing adequately to respond to the jury's apparent difficulty with the definitions of "conspiracy" and "overt act." During the second day of deliberations, the jury foreman sent the following note to the trial court: "At what point of time does a person's frame of mind hold them [sic] responsible for the act of conspiracy to commit murder[?] Example: At first conspirators planned to commit murder[,] then before act was actually committed they changed their minds and agreed to just do damage to property--And please help clarify pages [ ] 43 & 43A [No. 6.10] in the CALJIC." (Emphasis in original.) ²

Upon receiving the note, the trial court ordered counsel to appear the next morning to discuss an appropriate response to the jury's question. At the conference, defense counsel suggested the trial court instruct that under the circumstances presented in the jury's example there would be no conspiracy to commit first degree murder. Defense counsel agreed the jurors need not be reminded they could submit additional questions to the court. The prosecutor argued the defendant's suggested instruction would impinge upon the jury's role as factfinder. The trial court decided to refocus the jury's attention upon the conspiracy instructions, CALJIC Nos. 6.10 through 6.24, and directed the jurors to re-read those instructions and to consider them in the light of all the other instructions.

When a deliberating jury desires to be informed "on any point of law arising in the case," the jury must be returned to court and "the information required must be given." (§ 1138.)

Defendant asserts the trial court's response to the jury's inquiry was inadequate, because instead of clarifying or enlarging upon the explanation of "conspiracy" and "overt act" in CALJIC No. 6.10, the trial court simply had the jurors re-read the conspiracy instructions which presumably they already had read.

We first reject the People's contention that defendant waived this issue by failing to object. (See People v. Kageler (1973) 32 Cal.App.3d 738, 746, 108 Cal.Rptr. 235; People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433, 193 Cal.Rptr. 711.) Although defense counsel stated he did not want the jurors specifically reminded they could submit to the court additional questions, he did not "tacitly approve" the trial court's instruction to the jurors to re-read CALJIC Nos. 6.10-6.24 in light of all the other instructions. Defense counsel specifically requested that the jury's inquiry be answered directly. The trial court refused that request. No objection was required to preserve the point for appeal. (§ 1259.)

The jury's question indicated uncertainty as to the synergizing effect of an overt act upon an agreement to commit a crime. This is explained in CALJIC No. 6.10 which defines conspiracy as an agreement to commit a crime "followed by" an overt act done for the purpose of accomplishing the object of that agreement.

"The court has a primary duty to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251 .) This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213 [275 Cal.Rptr. 729, 800 P.2d 1159].) Indeed, comments diverging from the standard are often risky. (E.g., People v. Lee (1979) 92 Cal.App.3d 707, 716 .)" (People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311.)

After consulting counsel and considering the matter, the trial court in its discretion decided a direction to the jury to re-read certain instructions was the appropriate response. Although the court did not directly address the issue of abandonment of the conspiracy implied in the example given in the jury's inquiry, its response was adequate to the occasion. (Cf. Beardslee, at pp. 96-97, 279 Cal.Rptr. 276, 806 P.2d 1311.) There was no error.

Moreover, if, as defense counsel urged, the trial court had directly answered the jury's inquiry, it would have been constrained to inform the jury that once conspirators agree to murder and one of the conspirators commits an overt act in furtherance of that end, the crime of conspiracy to murder is complete, and the conspirators are not relieved of criminal liability therefor even though they subsequently agree to abandon that object and agree instead only to damage property. The conspirators' abandonment of the agreement to murder would preclude conviction for conspiracy to commit murder only if such abandonment precedes the commission of an overt act by a conspirator in furtherance of the object of murder. (People v. Sconce (1991) 228 Cal.App.3d 693, 701-703, 279 Cal.Rptr. 59; see Wharton's Criminal Law (14th ed. 1981) § 734, p. 557.)

Given the evidence before the jury, this clarifying instruction could hardly have been to defendant's advantage. The prosecution evidence established that defendant and Keefe agreed to murder Vicky Hill, and to achieve that object defendant gave Keefe dynamite, blasting caps and fuse cord. The defense was denial of any involvement in a conspiracy, a defense which the jury disbelieved, implicitly finding an agreement to murder and expressly finding the transfer of explosive materials from defendant to Keefe occurred and constituted an overt act. The prosecution evidence consistently shows that the crime of conspiracy was complete before Keefe changed his mind and told defendant he would dynamite Vicky's truck but not her trailer house. There was no evidence the conspirators abandoned their original objective before an overt act was performed, i.e., before Keefe received the explosive materials from defendant. Had the court delivered a legally correct exegesis on the jury's hypothetical question, the jury, having rejected defendant's evidence, would have been led inexorably to the identical verdict that was in the event returned, guilty of conspiracy to commit first degree murder. Thus, even if it were error not to answer directly the jury's question, it was harmless beyond a reasonable doubt.

II

Defendant contends the jurors improperly considered the question of penalty during deliberations. Defendant's motion for new...