People v. Jackson

• Decision Date: 26 August 1985
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Junior JACKSON, Defendant and Appellant. A024565.

Page 540

217 Cal.Rptr. 540

171 Cal.App.3d 609

The PEOPLE, Plaintiff and Respondent, v. Charles Junior JACKSON, Defendant and Appellant.

A024565.

Court of Appeal, First District, Division 1, California.

Aug. 26, 1985.

Certified for Partial Publication ^*

John K. Van de Kamp, Atty. Gen., Morris Lenk, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

James Alcabes, Oakland, for defendant and appellant.

HOLMDAHL, Associate Justice.

The defendant in this case forced his victim to perform an act of oral copulation on him, then killed her by strangling her and severing her carotid artery.

An error in jury instructions requires, under existing statutory and case law, that defendant's conviction of first degree murder be reversed or reduced to second degree murder. That judgment is reversed. ¹

Defendant's judgment of conviction of forcible oral copulation is affirmed, but remanded for resentencing.

Statement of Facts

On January 5, 1982, at about 3:45 p.m., Joan Stewart left her home on Scout Road in the Montclair area of Oakland to walk to a shopping area about a 15-minute walk away. She did not return. Joan Stewart's husband found her dead body the next morning, lying among some trees and shrubbery down the hill to the side of Scout Road. The contents of her purse were spilled out near the body, except for her wallet, which was missing.

The presence of sperm in the mouth of the corpse proved that an act of oral copulation had taken place. Multiple scrapes and bruises on Joan Stewart's face, left arm, legs, right hip, abdomen, and back, which had been inflicted before her death, proved that her participation in that act had not been voluntary. She had died as a result of strangulation and a cut on the left side of her neck, which had sliced through her carotid artery.

A web of circumstantial evidence, plus the defendant Charles Junior Jackson's admission to the police of his presence in the area of the crime scene, proved that he had perpetrated the sexual attack on Joan Stewart and had killed her. Defendant does not contest the sufficiency of that evidence on this appeal.

Procedural History

An information filed in Alameda County Superior Court charged defendant in three counts with murder, forcible oral copulation, and robbery. Forcible oral copulation and robbery were charged as special circumstances in connection with the murder. Use of a deadly and dangerous weapon and intentional infliction of great bodily injury were charged in connection with all three counts. Eight prior felony convictions were charged.

The trial court overruled defendant's demurrer to the information, denied his motions to set aside the information and to exclude evidence of his statements to the police, and made other pretrial rulings not material to this appeal. Defendant admitted all eight prior felony convictions.

On February 4, 1983, a jury found defendant guilty of first degree murder and of forcible oral copulation, and not guilty of robbery. The jury found that the allegation of forcible oral copulation as a special circumstance was true, and that the allegation of robbery as a special circumstance was not true. The jury found the deadly and dangerous weapon use allegation and the intentional infliction of great bodily injury allegation true, in connection with both the murder and the forcible oral copulation.

The trial court sentenced defendant to eight years in prison for forcible oral copulation, and ordered enhancements of three and five years to be served consecutively, for a total of sixteen years. For the murder, the trial court sentenced defendant to life imprisonment without possibility of parole, with a 16-month enhancement for deadly and dangerous weapon use to be served consecutively.

Refusal to Set Aside the Information ²

Sufficiency of Weapon Use Enhancement Language

Each of the three weapon use enhancement clauses of the information was charged in identical language, as follows:

"The District Attorney of the County of Alameda further charges that in and during the commission and attempted commission of the above offense, the said CHARLES JUNIOR JACKSON personally used a deadly and dangerous weapon, to wit: a sharp instrument." Defendant's points and authorities in support of his demurrer to the information contended that this language is "OVERLY VAGUE AND ... DEMURRABLE ... FOR UNCERTAINTY."

On appeal, defendant contends that the words "a sharp instrument" in the weapon use enhancement clauses of the information do not comply with the specificity The People assume that the grounds for demurrer listed in section 1004 ⁶ are exclusive, and reason as follows. Subdivisions 1, 3, 4, and 5 of section 1004 all allude to the manner in which accusatory pleadings charge offenses. Subdivision 2 alludes to sections 950 through 952, all of which deal with the manner of charging offenses or crimes. Therefore, the People conclude, "a demurrer lies only to test the sufficiency of language charging a crime, or an offense." (Original italics.) In other words, an enhancement allegation, no matter how defective it might be, is invulnerable to a demurrer.

                requirements of Penal Code sections 950, 3 952, 4 and 969c. 5  Defendant specifically cites People v. Perales (1904) 141 Cal. 581, 75 P. 170 in support of his contention that the words "a sharp instrument" fail to set forth the nature of the weapon which the defendant used, as explicitly required by section 969c.  Defendant also alludes to the due process requirement of fair notice of charges, which exists independent of statutory requirements, citing Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 81 Cal.Rptr. 173
                

In spite of the fact that defendant cites Mandel v. Municipal Court, supra, and the People themselves cite People v. Yoshimura (1976) 62 Cal.App.3d 410, 133 Cal.Rptr. 228, the People ignore a long tradition of the non-statutory, common law demurrer as a vehicle for constitutional and The People are correct, however, in pointing out that sections 950 through 952, relating to how crimes and offenses are charged, do not apply to how enhancement allegations are charged. Our inquiry must focus on section 969c, which explicitly requires that a weapon use enhancement allegation must set forth the nature of the weapon.

                other attacks on the sufficiency of an accusatory pleading.  (In addition to Mandel and Yoshimura, see, e.g., People v. Clenney (1958) 165 Cal.App.2d 241, 331 P.2d 696;  Choung v. People of State of California (E.D.Cal.1970) 320 F.Supp. 625;  Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 150 Cal.Rptr. 543;  In re Rudolfo A.  (1980) 110 Cal.App.3d 845, 168 Cal.Rptr. 338;  Lamadrid v. Municipal Court (1981) 118 Cal.App.3d 786, 173 Cal.Rptr. 599;  Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 178 Cal.Rptr. 480;  Ulloa v. Municipal Court (1981) 126 Cal.App.3d 1073, 179 Cal.Rptr. 332;  Peer v. Municipal Court (1982) 128 Cal.App.3d 733, 180 Cal.Rptr. 137;  In re Jamil H.  (1984) 158 Cal.App.3d 556, 204 Cal.Rptr. 816.)   Contrary to the People's position, erroneous overruling of a non-statutory demurrer by a trial court is possible, and can result in reversal of a judgment of conviction on appeal.  (People v. Clenney, supra.)
                

Defendant apparently assumes that "nature" means "type," and that section 969c, therefore, requires an allegation as to type of weapon: E.g., knife, sword, razor, etc. However, the authority to which defendant refers us does not stand for that proposition. People v. Perales, supra, discusses the specificity required for an information charging assault with a deadly weapon. Perales concludes that the term "deadly weapon," by itself, is a sufficiently particular statement of the nature of the weapon allegedly used. (People v. Perales, supra, 141 Cal. at p. 583, 75 P. 170.) People v. Congleton (1872) 44 Cal. 92, 94 explains the point at greater length. "That an indictment for an assault with a deadly weapon, with intent to do bodily injury to another, may in general terms aver the assault to have been made 'with a deadly weapon,' we have no doubt.... [T]he nature of the weapon, as being deadly or otherwise, is alone important; and it is essential to aver it in some appropriate way to have been deadly in its character." (Emphasis in original.) An information charging assault with a deadly weapon need not allege the specific type of deadly weapon claimed to have been used. (People v. De La Roi (1944) 23 Cal.2d 692, 697, 146 P.2d 225, cert. den. (1946) 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656; People v. Martin (1961) 198 Cal.App.2d 322, 17 Cal.Rptr. 808; People v. Collins (1953) 117 Cal.App.2d 175, 255 P.2d 59, 181, cert. den. and app. dsm. (1953) 346 U.S. 803, 74 S.Ct. 33, 98 L.Ed. 334.)

An interpretation of the specificity requirement for pleading the nature of a deadly or dangerous weapon in a weapon use enhancement allegation in harmony with the specificity requirement for pleading the nature of a deadly weapon in an allegation charging assault with a deadly weapon is appropriate.

We hold, therefore, that the allegation of the information in this case, that defendant "personally used a deadly and dangerous weapon, to wit: a sharp instrument," is more than sufficiently particular to withstand a demurrer, on both statutory and constitutional grounds.

Authority for Sentence Enhancements

Defendant's second complaint is that, in sentencing for forcible oral copulation, the trial court imposed an enhancement of three years for weapon use, but stated that the enhancement was pursuant to section 12022, subdivision (b), which authorizes an enhancement of only one year. Resentencing is necessary, therefore, for forcible oral copulation so that the trial court can clarify its intention.

If, upon resentencing for forcible oral copulation the trial judge wishes to impose a weapon use enhancement, he should either impose one year pursuant to section 12022, subdivision (b) or three years ...