People v. Houts

• Citation: 86 Cal.App.3d 1012,150 Cal.Rptr. 589
• Decision Date: 30 November 1978
• Docket Number: Cr. 3009
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel J. HOUTS, Defendant and Appellant.

Page 589

150 Cal.Rptr. 589

86 Cal.App.3d 1012

The PEOPLE, Plaintiff and Respondent, v. Daniel J. HOUTS, Defendant and Appellant.

Cr. 3009.

Court of Appeal, Fifth District, California.

Nov. 30, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, Richard E. Shapiro and Richard L. Phillips, Deputy State Public Defenders, Sacramento, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel E. Carey and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HOPPER, Associate Justice.

This is an appeal from a second degree murder conviction in which the jury also found that the defendant was armed with a firearm (Pen.Code, §§ 12022 and 3024, subd. (a)).

The facts are these: In November of 1975, Robert Sinor lived in the town of Friant, Fresno County. A man of 61 years old, he lived alone in a small cabin and was in poor physical condition. He drank heavily at times, had cirrhosis of the liver, severe emphysema of the lungs and severe coronary arteriosclerosis. He was five feet, six inches tall and weighed 140 pounds.

Appellant (Houts) was an 18-year-old high school student who began a camping trip in the Table Top Mountain area near Friant on November 16, 1975.

On Monday, November 17, 1975, Sinor stopped in at the Lost Lake Bait and Tackle Shop, owned and operated by his sister-in-law, Mattie Lee Sinor. Sinor purchased some lunch meat, cigarettes, a bottle of wine and some other items. When he paid for the items, Mattie Sinor noticed Robert Sinor had a lot of $10 and $20 bills in his wallet. He mentioned that he was going to pay cash for a washing machine the next day.

At the time Robert Sinor arrived at the store, Houts was also there and had been looking around the store. Houts made a small purchase and told Mattie Sinor he wanted to make a telephone call to Fresno. Houts appeared to Mattie like he was "on dope" because his eyes looked funny and because of his general demeanor. Another customer of the store, Laurie Sparks, agreed, stating that Houts had "freaky looking eyes."

Sometime later on the same day (Monday, November 17), Houts and Sinor went together to the Friant Trading Post. When they approached the check stand, the victim introduced Houts as his nephew. Marilyn Norman, the cashier at the store, had known Sinor for five years, but had never seen Houts or any other young man with him before. Sinor bought some beer, which was presumed to be for Houts, since it was known that Sinor only drank wine.

Later that day, Houts and Sinor went to Sinor's cabin where they shot some bottles with Sinor's shotgun and pistol. Houts had a headache and took a Dalmine pill shortly after his arrival. They then sat around the table talking while Sinor drank wine and Houts drank beer. A couple of times during the talk Sinor had touched Houts' legs with his hands, but it had seemed like a friendly gesture. Eventually Houts went to sleep in his sleeping bag which he had laid on the floor of the room adjacent to the kitchen.

The following day, Tuesday, November 18, 1975, Sinor returned briefly to the Friant Trading Post about 9 a. m. and bought a small bottle of wine.

Houts also testified as follows: When he awoke on November 18, 1975, it was already light. He wasn't sure if it was morning or afternoon and he felt mixed up and run down. He had a headache and believes he took Dalmine for it. From his position in the sleeping bag he could see Sinor sitting at the same spot at the table. Houts again sat at the table and Sinor kept putting his hands on Houts' legs. (According to other testimony, later in the day, around noon, Sinor went alone to a local tavern owned by Leroy Plaskett. Sinor stayed there about 45 minutes and bought a drink for Plaskett and another patron. As he paid for the drinks, Plaskett noticed that Sinor's wallet was loaded with money.)

Houts began packing his backpack with the intention of leaving, but Sinor returned just as he finished packing. Sinor now seemed very drunk. This was substantiated by the fact that Sinor's blood contained .24 percent alcohol at the time of his death. Sinor began telling Houts how lonely he was and putting his hands on Houts' legs. He stated that he had not had a woman in a long time and that he had been eating laxatives to clean out his system. He also stated that he wanted Houts to "butt fuck" him. Houts had been pushing Sinor's hands away. Houts got up and declared, "I ain't going to do that stuff." Sinor jumped up and grabbed him by the throat so tightly that Houts could not breathe. Houts grabbed a bottle and hit Sinor over the head, shattering the bottle. Sinor continued choking him, so Houts grabbed a relish bottle and hit Sinor on the head again. This bottle also broke and it cut Houts' hand. Houts thought he might die. His hand came in contact with Sinor's handgun which was lying on the kitchen counter and he brought the gun up and shot Sinor. Sinor continued choking, and Houts thinks he pulled the trigger again, but the gun would not fire.

Houts then wrote a note on an envelope which he placed on the table. On the envelope was written "the old man tried to rape me and stab me. I thought you would blame me so I left." After he began writing, he thought of obtaining Sinor's identification. He went through Sinor's pockets, removed some identification and left the wallet and the papers on the table.

Just prior to leaving, he decided to take an undetermined amount of money. He also took the gun "for the purpose of getting rid of it." Houts hitchhiked back to Fresno where he arrived home prior to 5:30 in the evening.

Other evidence established the following: The next morning (Wednesday, November 19, 1975), Roger Sinor observed that Robert Sinor had not come to get his dog, so he tried to call Robert. Roger and his wife then went to check on Robert. After reaching Robert's residence, Roger entered and found Robert's body on the floor. There was broken glass on the floor and it appeared as though a struggle had taken place. Roger also observed that Robert's pants had been pulled down about six or eight inches, although his underwear had not been pulled down.

After police investigators arrived on the scene, it was determined that there were two partially-consumed bottles of wine. The victim's wallet was out of his pocket and had been gone through. The victim's pockets had been turned inside out. The victim had a deep laceration on the top of his scalp which penetrated to the skull. The neck of a broken wine bottle found near the body yielded fingerprints which matched Houts'. Footprints on the floor of the cabin appeared to have been made by some "waffle-stomper" shoes owned by Houts.

An autopsy of the victim indicated there was small glass fragments near the scalp wound. There was also a gunshot wound in the victim's lower left side in the kidney area which had been made by a .25-caliber weapon. In addition, the victim had been strangled, both manually and with a length of cord. There were other abrasions about the face of the victim. The strangulation had taken place after the victim was either in deep shock or actually dead. There were also some abrasions on the victim's right hip which had been made before he died. At the time of his death, the victim's blood contained .24 percent alcohol.

Houts admitted at trial that he killed Sinor. However, as pointed out hereinbefore, he claimed that Sinor had wanted Houts to sodomize him and that when Houts refused, Sinor attacked and started choking Houts. Houts then allegedly hit the victim over the head with a relish jar and a wine bottle, shot him with a .25-caliber handgun which he found in the cabin, and strangled him manually and with a length of cord in self-defense.

Houts was charged with first degree murder (with an allegation of use of a firearm in the commission of a murder). The prosecution argued at trial that the evidence established first degree felony murder (robbery). The jury was instructed on first degree felony murder and was also instructed on second degree felony murder (attempted sodomy) and on second degree murder other than felony murder. On this appeal Houts contends, inter alia, that the trial court erred in instructing the jury that malice could be implied if Sinor's death was a direct result of the commission of or an attempt to commit the crime of sodomy.

The prosecution tried this case on several theories, argued each of those theories and requested instructions on each of those theories. The court gave the requested instructions. One theory was first degree felony murder with robbery as the felony. That theory was rejected by the jury. The jury did find the defendant guilty of second degree murder. Two theories of second degree murder were presented to the jury. One was a theory of second degree felony murder rule which substituted attempted sodomy for malice, and the second theory was one requiring proof of malice.

The trial court gave CALJIC instructions 8.31, 8.32 and 10.50, as modified. ¹

Houts contends that CALJIC 8.31 (and the related instructions) should not have been given because there was no evidence of sodomy or attempted sodomy and that sodomy is not a felony inherently dangerous to human life in the abstract.

Respondent argues that the doctrine of invited error applies in that at least CALJIC 8.32 was invited by defense counsel, and that even if Houts' contention were cognizable on appeal, any error in instructing the jury on second degree felony murder was harmless. ²

The position of respondent on invited error is basically as follows: Defense counsel failed to object to instructions characterizing sodomy as an inherently dangerous felony for purposes of second degree felony murder. This failure was due to a tactical decision as is shown by a...