People v. Kozel

• Decision Date: 06 July 1982
• Docket Number: Cr. 35095
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Thomas KOZEL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 208

184 Cal.Rptr. 208

133 Cal.App.3d 507

The PEOPLE, Plaintiff and Respondent, v. William Thomas KOZEL, Defendant and Appellant.

Cr. 35095.

Court of Appeal, Second District, Division 5, California.

July 6, 1982.

Hearing Denied Sept. 22, 1982

Norman W. De Carteret, Sherman Oaks, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Sandy R. Kriegler, Deputy Attys. Gen., for plaintiff and respondent.

CHOATE, Associate Justice. ^*

Appellant was sentenced to state prison for violation of section 187, Penal Code, the murder, second degree, of Robert Edelman, with use of a firearm, and for violation of section 217, of the Penal Code, assault with intent to commit murder of appellant's estranged wife, Elizabeth Kozel, with use of a firearm. He had pleaded not guilty and not guilty by reason of insanity. The jury returned verdicts of guilty to count I, murder, first degree, and count II, assault with intent to commit murder. The jury found the appellant to have been sane at the time of the commission of the offenses. The court denied a motion for new trial, but reduced the murder to second degree and denied probation. For the murder, the court imposed the upper term of seven years, with a two-year enhancement for firearm use. The sentence for the felony assault was one year, consecutive, with a gun use enhancement of eight months. The appeal is from the judgment and order denying a motion for new trial.

FACTS

Appellant arrived at Robert Edelman's residence on August 10, 1978, armed with a handgun. He entered to find Edelman and Elizabeth Kozel in the dining area, and fired the pistol at Mrs. Kozel. The bullet struck an adjacent wall and she escaped through a window. Then other shots were fired and Edelman, wounded by two or three of them, was killed by a bullet entering the heart. The coroner found powder burns to Edelman's forearm, chin and neck from shots fired from a range of 18 inches or less.

Appellant is an ex-deputy sheriff and a lawyer. He had been treated by a psychiatrist for months before the shooting. He and his wife were, at the time of the incident, parties to a dissolution action. His testimony was that he began to drink Scotch and to take drugs in the afternoon of August 10, 1978, and was drunk by 7:00 p. m. He had his pistol with him when he drove to his wife's home to resolve a dispute over custody of their children. Unable to find her there, he drove to Edelman's home. He entered Edelman's door, he recalled, and fired the pistol without intent to kill. After the shooting he left the scene and drove to Wisconsin, where he surrendered to police.

Three psychiatrists testified for appellant. Two stated opinions that at the time of the incident he lacked the substantial capacity to appreciate the criminality and wrongfulness of his conduct and could not conform his conduct to the requirements of law. Another found a diminished capacity to premeditate, deliberate, or harbor malice. Two psychiatrists in rebuttal testified that appellant was able to harbor malice, form

the intent to kill and to deliberate, and premeditate.

DISCUSSION

Concerning Prosecutor's Misconduct

Appellant cites a number of instances of the prosecutor's alleged misconduct. No objection was raised to some of these acts of claimed misconduct and they would, therefore, not constitute grounds for appeal. (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.) We discuss and evaluate them, however, because of appellant's claims of defense counsel's incompetency.

The first contention is that by the presentation of modified California Jury Instruction, Criminal (CALJIC) forms to the court and counsel, without indicating that the forms had been modified, the district attorney misled the court with false headings and titles. He cites this as reversible misconduct. He further complains that a non-CALJIC instruction is contrary to public policy. The argument ignores what is a common practice of trial judges and trial lawyers, the results of which can be seen in most records, that is modifying standard CALJIC instructions by obliterations, interlineations and revisions. It is doubtful that what appear to be patent omissions and deletions would mislead. Though a better procedure would have been to label modifications of standard instructions, there is no indication in the record that anyone was misled. There is nothing sacrosanct about CALJIC instructions and there is no violation of public policy, in the giving of an instruction which does not come from that source. (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1006, 118 Cal.Rptr. 391.)

Appellant asserts several instances of misconduct during closing argument. One such, he claims, was the reference by the District Attorney to the testimony of People's witness, Bruce Hamilton. Three days before the killing appellant declared to Hamilton his intention to get rid of Mrs. Kozel, gain custody of the children and serve his time, five to seven years in prison. The prosecutor twice referred to the remark, without objection, as an indication of premeditation of the killing of Mrs. Kozel. Failure to object to the remarks precludes them as an issue on appeal unless the case is closely balanced or unless their harmful effect could not be cured by retraction or the court's admonition. We find no exception existed here. (People v. Green, supra, 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.) The remarks do not constitute misconduct because they referred to the state-of-mind of appellant, were relevant and within the evidence produced. (People v. Bolton (1979) 23 Cal.3d 208, 152 Cal.Rptr. 141, 589 P.2d 396.)

The prosecutor in his summation argued that appellant had told Bruce Hamilton that he knew the "accurate penalty" for a certain crime. Appellant had not used the words "accurate penalty" in the conversation with Hamilton. There was objection. The jury was admonished to disregard the remark. Appellant argues that the prosecutor's misstatement of the evidence may have led jurors to believe that the prosecutor was affirming as accurate that appellant's sentence, if he were convicted would be only five to seven years in prison. The court's admonishment is presumed to have cured the error. (People v. Hardy (1948) 33 Cal.2d 52, 61, 198 P.2d 865.) In addition to the admonition, the court later read CALJIC No. 17.42, the instruction telling the jury that penalty or punishment was not to be discussed or considered by them, and must not in any way affect their verdict. We find that appellant was not prejudiced by the statement.

All of the complained-of comments including some we have not mentioned, were brief, insignificant in the light of the entire argument, and do not raise an inference that they contributed to the verdict, or that it is reasonably probable that a result more favorable to the appellant would have been forthcoming but for the remarks having been made. (People v. Meneley (1972) 29 Cal.App.3d 41, 62, 105 Cal.Rptr. 432; People v. Reyes (1974) 12 Cal.3d 486, 506, 116 Cal.Rptr. 217, 526 P.2d 225.)

Appellant complains that on direct examination of an officer witness by the prosecutor, it was elicited that after appellant had been advised of his Miranda rights, he was asked whether he wished to waive those rights and appellant answered, "No". This was misconduct, he argues, an attempt to produce for the jury an inference of guilt from appellant's refusal to make a statement. However, a reading of the record discloses that the conversation with the officer was related not on direct but on cross-examination. Where error, if it was error, is brought into the record by appellant, he may not complain of it on appeal. (People v. Moran (1970) 1 Cal.3d 755, 762, 83 Cal.Rptr. 411, 463 P.2d 763.) We observe that the results of the cross-examination of the officer were harmless. The testimony revealed a short interrogation, of a lawyer-suspect with no effort on the part of the police to extract a statement by persistent questioning. The circumstances would not have been sufficient in reasonable minds to convert the refusal to waive the right to remain silent into a tacit admission of guilt. (People v. Meneley, supra, 29 Cal.3d 41, 58, 105 Cal.Rptr. 432.)

Concerning Allegations of Judicial Misconduct

Appellant urges that the court was in error when, from the bench, at a recess just after the close of the People's case, it told facts of the case to a class of children which had heard some of the evidence that morning in court. A newspaper article concerning the discussion with the students was published the next day attributing certain comments to the court. After a discussion with counsel in chambers concerning the incident the court took the bench, told the jury that there had been an article in the Thousand Oaks News Chronicle, and reminded them of the admonishment it had given at the beginning of the trial, that they were not to read or view or listen to news accounts of the trial. The court later inquired of jurors whether any of them had read news articles about the case. The response was negative. The appellant cites as judicial misconduct, the court's comments to the visiting students and the court's first mentioning to the jury its admonition and the news article before inquiring whether jurors had read it. Appellant also contends that the judge's recess remarks to the school class reveal that he was not impartial. He argues that the judge related facts from the People's side of the case and ignored the appellant's opening statement and thus revealed his bias.

There is no record of the talk between the judge and the spectators. In chambers with counsel, the trial judge read from the news article as follows: " 'What happens to the little girl', the children wanted to know. [Judge] Brandler told them, 'that depends on whether or not...