People v. Marshall
| Decision Date | 16 July 1981 |
| Docket Number | Cr. 11801 |
| Citation | 175 Cal.Rptr. 497,121 Cal.App.3d 627 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. William MARSHALL, Defendant and Appellant. |
Quin A. Denvir, State Public Defender and Handy Horiye, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.
Convicted of robbery (PEN.CODE, S 211)1, murder in the first degree under the presence of special circumstances (§ 187; § 190.2 subd. (a)(17)(i)), and findings he personally used a firearm to commit both crimes (§ 12022.5), 2 William Marshall alleges the court prejudicially erred by:
(1) admitting previously recorded testimony of an unavailable witness because (a) in a capital case this denies him the right of confrontation (Cal.Const., art. I, § 15); (b) since the previously recorded statement showed the robbery was to acquire guns in order to kill two police officers, the evidence should have been excluded under Evidence Code section 352 and, (c) it was not a prior inconsistent statement;
(2) failing to instruct sua sponte on the limited use of evidence of other crimes or acts;
(3) the jury instructions on attempt did not inform the jury how to determine when an attempt to rob terminates for the purposes of the felony murder rule; and
(4) concluding felony murder, without more, can establish both murder in the first degree and the special circumstance to impose the death penalty or life imprisonment without possibility of parole. He claims section 190.2 subdivision (a)(17) precludes this interpretation and, in any event, such result constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution and article I, section 17 of the California Constitution.
Each allegation is without merit.
Marshall shot and killed Claude Johnson, owner of a sporting goods store in Oceanside, California. Marshall told his friend, Jeffrey Hall, he needed a gun, and asked him to help him get one by robbery. When Hall refused, Marshall went alone to Johnson's store and waited for the customers to depart. Upon leaving, one customer overheard Marshall ask Johnson a question (although she did not understand its specific contents). Johnson inquired whether Marshall was old enough, Marshall produced some type of identification and Johnson commented "I guess you are old enough."
From this point the facts are disputed. Marshall testified he intended to rob the sporting goods store and gave Johnson a false identification card in order to establish he was old enough to purchase a weapon. He says he abandoned his intent to rob when he saw Johnson was armed, but continued the subterfuge of purchasing a gun because, in his words, he was "puzzled" and "didn't know what to do." To this time Marshall contends Johnson had no reason to suspect Marshall had ever intended to rob him.
According to Marshall, trouble began when Johnson noticed the identification card was false, and Marshall produced his own military I. D. When Johnson became increasingly disturbed and threatened to report Marshall to the police, Marshall asked for his true identification back, stating he wanted to leave. Johnson, however, refused and began to write. Marshall then reached for his I. D., but Johnson pushed him away and they struggled. Marshall punched Johnson in the face twice, and Johnson reached for his gun.
Marshall, however, managed to maneuver behind Johnson as the struggle continued. Once in this position, a single shot was fired by Johnson, the bullet passing through Johnson's abdomen and thigh, finally lodging in Marshall's left leg. Johnson fell to the floor and began raising his pistol in Marshall's direction. Marshall claims he grabbed a different pistol from a holster behind the counter area and in self-defense, aimed it at Johnson and fired twice, one head shot at point blank range killing Johnson instantly. 3
Marshall fled, leaving behind his true identification card.
On cross-examination he could not explain why, after getting back the false identification card but before presenting his own, he did not simply leave the store.
The prosecution offered substantial evidence and expert testimony to support its re-creation of the killing. It differs or adds to Marshall's version significantly in the following respects:
(1) Marshall placed the pistol barrel to Johnson's head, firing the fatal bullet in an execution style;
(2) The entire struggle lasted only one to two minutes;
(3) Blood, later observed on Marshall's forehead, was caused by "blowback" from Johnson's head wound in the instant following the fatal shot; and,
(4) The fatal shot, in the expert's opinion, was not an accident.
The prosecution presented evidence showing:
The victim normally carried a loaded .45 caliber automatic pistol in a hip holster under his shirt. This pistol was later found on Marshall, and proved to be the weapon firing the bullet in his leg; establishing Marshall had lain aside the actual death weapon opting instead to steal the .45 caliber pistol from Johnson's hand before fleeing the scene.
Before selling a weapon the first thing Johnson normally did was fill out a bill of sale in his receipt book. The book, found on the floor after the killing, contained the date 2/21/79, and on the line beneath that the letter "W."
Also found at the scene was a metal box cutter similar to one found on Marshall two days before the homicide when Marshall was cited by two Oceanside police officers for drinking in public.
Marshall told one of the persons previously in the store, he had just shot the man in the store, suggesting "let's go back and rob the joint." Later, Marshall asked this person to lie by telling the police he had not been at the sporting goods store.
After the killing, Marshall told Jeffrey Hall he had committed a robbery, gotten a gun and been shot, and that he had to kill a man. The same day he told another friend, Dorothy Mendez, that during the struggle he had said, " "
Mendez later repeated these statements at the preliminary hearing, reporting further Marshall told her he robbed Johnson for money and guns; wanting the guns to kill two police officers. Over objection, a transcript of this testimony was admitted at trial upon a showing of unavailability.
Marshall argues the jury instructions on attempt were inadequate and incomplete because they did not inform the jury when an attempt terminates for purposes of the felony murder rule. On the present facts, he claims, the trial court had a sua sponte duty to formulate an instruction as follows: if the victim Johnson at no time knew a robbery was being attempted, even though Marshall had in fact committed the crime of attempted robbery, but he thereafter abandoned his intent to rob before the killing occurred, then the crime of attempted robbery will have been completed before the killing, and the felony murder rule does not apply.
Marshall contends, under such circumstances, traditional analysis of attempt and felony murder do not apply.
Although we can envision a state of facts which, pursuant to this reasoning, might require such a sua sponte clarifying instruction to amplify the meaning of CALJIC No. 6.01, 4 this is not that case. Marshall did not rely on this theory below, rather basing his defense solely on the premise he had abandoned his intent to rob before committing any direct act toward the ultimate commission of a crime. Thus, he argued there was no attempt committed.
Indeed, he requested a special instruction to cover the theory (CALJIC No. 6.02, mod.; see People v. Sears, 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 465 P.2d 847) and argued the premise in closing. 5 To now place a sua sponte duty on the trial court to formulate an instruction encompassing an entirely different theory is an unreasonable and unjust burden. (People v. Flannel, supra, 25 Cal.3d 668, 681, 683, 160 Cal.Rptr. 84, 603 P.2d 1.)
Moreover, Marshall overlooks the determinative factor that in addition to felony murder he was convicted of robbery. (§ 211.)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Id.)
Here, clear evidence shows Johnson died immediately upon being shot in the head, before Marshall took the .45 caliber pistol and fled. Since "force" or "fear" may only be inflicted upon a living person the jury obviously rejected Marshall's theory of abandonment, and found the homicide committed in furtherance of a robbery. (Cf. People v. Green, 27 Cal.3d 1, 54, fn. 44, 164 Cal.Rptr. 1, 609 P.2d 468.) The problem to which he now speaks is simply not present.
Thus, while his reasoning might be significant had he been acquitted on the robbery count, but convicted of felony murder, with attempted robbery as the underlying felony, it has no relevance here where the jury found him guilty of robbery and rejected self-defense. There is substantial evidence supporting the verdict. The instructions were sufficient.
Marshall also cites error in the court's failing to instruct sua sponte under CALJIC No. 2.50:
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People v. Marshall
...Cal.Rptr. 689 696 P.2d 81 PEOPLE v. William MARSHALL. Cr. 22267. Supreme Court of California. Nov. 26, 1984. Prior report: 121 Cal.App.3d 627, 175 Cal.Rptr. 497. The above entitled cause is retransferred to the Court of Appeal, Fourth Appellate District, Division One, for reconsideration in......