People v. Masters, Cr. 40950

• Decision Date: 22 July 1982
• Docket Number: Cr. 40950
• Citation: 134 Cal.App.3d 509,185 Cal.Rptr. 134
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jarvis Jay MASTERS, Defendant and Appellant.

Page 134

185 Cal.Rptr. 134

134 Cal.App.3d 509

The PEOPLE, Plaintiff and Respondent, v. Jarvis Jay MASTERS, Defendant and Appellant.

Cr. 40950.

Court of Appeal, Second District, Division 4, California.

July 22, 1982.

As Modified July 30 and Aug. 3, 1982.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, William Blum, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

BERG ^*, Associate Justice.

In an information defendant was charged with 14 counts of robbery (Pen.Code § 211). Each count alleged the use of a handgun within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1).

Appellant denied the allegations and pleaded not guilty and not guilty by reason of insanity. A jury acquitted defendant of one robbery count, but found him guilty of the remaining 13 robbery counts. ¹ The use allegations were found to be true. In the sanity trial, defendant was found legally sane. He was sentenced to state prison for 23 years. He appeals from the judgment of conviction. We affirm as to all counts but count 8, reversing as to that count only.

With the exception of counts 8 and 10, each robbery conviction was supported by identification testimony. Identification was bolstered by defendant's confession which was specific as to many of the robberies. The entire defense case consisted of a three page summary of a psychiatric examination of defendant by Dr. Joel Moskowitz. This report will be discussed later.

The trial court instructed on robbery (CALJIC No. 9.10), diminished capacity to form the required specific mental state (CALJIC No. 3.35--Wells-Gorshen Rule) ² as requested by the defense, and voluntary intoxication (CALJIC No. 4.21), ³ also on defense request. No lesser included offense was either requested or given sua sponte.

We now deal with appellant's assertions of error.

I

Did the Trial Court Err in Not Instructing Sua Sponte That Assault with a Deadly Weapon was a Lesser Included Offense of Robbery, Having Instructed the Jury on Diminished Capacity? No.

The purported defense of diminished capacity consisted of a three page summary of Dr. Moskowitz's psychiatric examination. He had the clinical impression that defendant was a "sophisticated sociopathic character." He added that "[t]his is not to say that he may not have a severe underlying emotional disorder or for that matter even an organic brain condition e.g. psychomotor epilepsy." But he concluded: "I cannot state with certitude that defendant at the time of commission of the alleged offense could have had the mental capacity to form the specific intent to take property of another by force of fear.... It is my impression that Mr. Masters suffers from a lack of conscience as a result of mental defect and hence was not sane at the time of commission of the alleged offense." No testimony was offered by either side on this issue.

It has been held that "a mere sociopathic personality with schizoid tendencies is insufficient without more to authorize an instruction on diminished capacity." (People v. Washington (1976) 58 Cal.App.3d 620, 627, 130 Cal.Rptr. 96; People v. Powell (1974) 40 Cal.App.3d 107, 162-163, 115 Cal.Rptr. 109. See also In re Walker (1974) 10 Cal.3d 764, 785, 518 P.2d 1129, holding that a mere unstable personality and emotional instability without more are insufficient to suggest an inability to harbor the requisite mental state.)

Defendant asserts that the trial court was required to instruct sua sponte that assault with a deadly weapon is a lesser included offense of robbery, since the jury was instructed on diminished capacity. On the contrary, the only clinical impression that can be gleaned from the report is that the defendant is a sociopath, lacking in conscience. That did not justify an instruction on diminished capacity under CALJIC 3.35 ⁴ let alone the lesser charge. The psychiatrist's vaguely couched reference to defendant's specific intent was too weak to support the diminished capacity instruction. Equivocal evidence does not suffice to merit such an instruction (People v. Flannel (1979) 25 Cal.3d 668, 686, 160 Cal.Rptr. 84, 603 P.2d 1; also see p. 684, 160 Cal.Rptr. 84, 603 P.2d 1.) Defendant cannot be heard to complain that he was entitled to compounded error or enlarge generosity in giving an instruction on the lesser offense. The error here was favorable, not detrimental or prejudicial. (See People v. Flannel, supra, 25 Cal.3d at p. 686, 160 Cal.Rptr. 84, 603 P.2d 1.)

II

Was There a Duty to Instruct on the Lesser Included Offense of Assault With a Deadly Weapon Because of the Gun-Use Allegation as Appellant Contends? No.

We need not extend discussion on whether a gun-use allegation in a robbery charge is "part of the charge" requiring the giving of a lesser included offense of assault with a deadly weapon. ⁵ Under circumstances similar to the case at bench, the Supreme Court readily disposed of this issue. "Whether or not assault with a deadly weapon is a lesser included offense when a defendant is charged both with a robbery and a 'use' allegation, a trial court, as we explained in People v. Flannel, supra, 25 Cal.3d 668, 683-686, 160 Cal.Rptr. 84, 603 P.2d 1, is required to give such an instruction only if there is substantial evidence to support a jury's determination that the defendant was in fact only guilty of the lesser offense. In this case, contrary to appellant's contention, there is no evidence from which the jury could reasonably conclude that defendant was only guilty of assault with a deadly weapon and not robbery. The evidence pointed unmistakably to the fact that appellant had taken money from the Taco Bell; appellant had presented no evidence to suggest that he did not have the specific intent to steal. [Citation.] Under these circumstances the trial court did not err in failing to instruct on assault with a deadly weapon." (People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908.)

We put aside discussion of count 8, which presents a special problem, and of counts 3 and 6, to be covered next. As to all other counts, the evidence pointed unmistakably to the commission of the robberies. The defense psychiatrist's reference to defendant's capacity to form a specific intent was ambiguous at best. The psychiatrist's only clearly expressed opinion was that defendant was lacking in conscience. The overwhelming evidence pointed solely to defendant's specific intent to steal. The contention, therefore, is meritless.

III

Did the Trial Judge Commit Prejudicial Error by Failing to Instruct on Assault with a Deadly Weapon as a Lesser Included Offense of Robbery, Having Instructed on the Subject of Voluntary Intoxication? No.

An instruction on voluntary intoxication was given to the jury. (CALJIC No. 4.21.) No lesser included offense was given. We feel compelled to discuss whether the trial judge was required sua sponte to instruct on assault with a deadly weapon (ADW) as a lesser included offense of robbery, in view of certain testimony referring to intoxication.

As to count 3 (November 6, 1980 at 7:30 p. m.), Sheryl Brown testified that defendant at gunpoint ordered her to give him money, which she did. She testified that defendant was "intoxicated" and "staggering" on that occasion and a later occasion when she was an eyewitness, but not an alleged victim, namely count 6 (November 11, 1980 between 8:30 and 8:40 p. m.). Defendant committed each robbery at gunpoint at the same Taco Bell in the City of Long Beach. In his confession, defendant stated that on one occasion, the robbery of Sheryl Brown on November 6th, he was intoxicated. The victim of count 4, Demir Demirov, testified that on November 11, 1980 at 7:45 p. m. when he was robbed by defendant at the 7-11 store in Long Beach (approximately 45 minutes before Miss Brown witnessed the robbery in count 6) defendant did not appear unusual, no unusual odor was smelled, and his eyes did not appear abnormal. No other testimony related to this subject of intoxication as to these counts.

Unlike robbery, assault with a deadly weapon is a general intent crime (People v. Rocha (1971) 3 Cal.3d 893, 479 P.2d 372) so that evidence of intoxication does not relieve one of responsibility (People v. Hood (1969) 1 Cal.3d 444, 458, 462 P.2d 370). " 'The court should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.' " (People v. Flannel, supra, 25 Cal.3d at 685, 160 Cal.Rptr. 84, 603 P.2d 1.) There was sufficient evidence of intoxication to present to the jury the alternative finding of the lesser included offense of ADW as to counts 3 and 6.

Even if there is an erroneous failure to instruct on lesser included offenses, that error may not be prejudicial. (People v. Sedeno (1974) 10 Cal.3d 703, 721, 518 P.2d 913. ⁶ ) The rule has been summarized this way: "If the jury is fully instructed on the factual issue raised by the defendant, and it is clear from a verdict based on such instructions that the jury necessarily resolved the factual question adversely to the defendant, then the failure to instruct on lesser included offenses will not constitute grounds for reversal." (People v. Eaker (1980) 100 Cal.App.3d 1007, 1013, 161 Cal.Rptr. 417 (emphasis in original), summarizing People v. Sedeno, supra, 10 Cal.3d 703, 721, 518 P.2d 913.)

Applying the Sedeno principle to the instant case: just as in Eaker, the defendant here did not testify; however, evidence was presented regarding intoxication (in counts 3 and 6); voluntary intoxication negating specific intent was put in issue by the court's instruction under CALJIC 4.21; even if the lesser included offense of ADW should have been given as to those counts, the error was "cured." The jury was...