People v. Milan

• Decision Date: 28 March 1973
• Docket Number: Cr. 15377
• Citation: 507 P.2d 956,107 Cal.Rptr. 68,9 Cal.3d 185
• Court: California Supreme Court
• Parties: , 507 P.2d 956 The PEOPLE, Plaintiff and Respondent, v. Michael Damien MILAN, Defendant and Appellant. In Bank

Page 68

107 Cal.Rptr. 68

9 Cal.3d 185, 507 P.2d 956

The PEOPLE, Plaintiff and Respondent, v.Michael Damien MILAN, Defendant and Appellant.

Cr. 15377.

Supreme Court of California,

In Bank.

March 28, 1973.

Elliot E. Stanford, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and William R. Pounders, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

Michael Milan was found guilty by a jury of first degree murder of Keith Burney, kidnaping Burney for the purpose of robbery with bodily harm, first degree robbery of Burney, attempted murder of Horace Robert, and first degree robbery of Raymond Lester.The jury fixed the penalty at death for the murder and at life imprisonment without possibility of parole for the kidnaping, and the court imposed prison sentences for the other crimes.¹A motion for a new trial was denied, and defendant's automatic appeal is now before us.(Pen.Code, § 1239, subd. (b).)

Defendant contends that the court erred in admitting certain evidence, in instructing the jury, and in denying his challenge to the petit jury panel.We have concluded that none of the contentions can be upheld.However, the judgment must be modified to rovide for a penalty of life imprisonment instead of death for the murder in accord with our holding in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880.(See alsoFurman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.)²Certain modifications of the judgment are also required as a result of the proscription in Penal Code section 654 against multiple punishment.We affirm the judgment as hereinafter modified.

After 8 p.m. on April 15, 1970, Horace Robert, a cab driver, and Keith Burney, a cab-driver-trainee who was riding as a passenger in the front seat, picked up defendant at Marie's Bar in Bell Gardens.Defendant stated that he wanted to go to Redondo Beach, and, after a discussion regarding the fare, they started towards that destination.

They stopped twice en route so that defendant could get matches at a liquor store and attempt to use a restroom.At the second stop it was possibly 9 p.m.According to Robert, at neither stop did defendant stagger or walk in an unusual manner.Robert further testified that he never smelled alcohol on defendant's breath and that during conversations defendant seemed to make sense and his words were not slurred.

After defendant was in the cab 30 minutes or so Robert heard a click that sounded like the shifting of an automatic weapon and on glancing back saw defendant holding a gun against the back of Burney's head.Defendant stated not to do 'anything stupid.'Robert continued driving in the same general direction and after pushing a button to transmit the conversation said 'We'll take you wherever you want to go.We're in Manhattan Beach and you have the gun.'He then, in an attempt to attract the attention of the police, went through a stop sign, which was about eight or ten blocks from the place he heard the click.When Robert went through the sign, defendant shifted the gun to the back of Robert's head, said 'that was stupid,' shot a hole in the windshield and told Robert that the next one would be in the back of his head and to 'stop looking for stop signs, and if a police vehicle shows up, you're dead.'Robert nevertheless continued to try to get the attention of the police by committing additional traffic violations, including going through two or three more stop signs, speeding at possibly 40 miles an hour, and going through a red traffic signal.

During a conversation defendant stated, inter alia, that he'wanted no witnesses' and that Robert and Burney would be found dead the next morning.Defendant eventually directed Robert to turn down a street and stop.They were then in a residential section with narrow streets and many parked cars.Robert stopped in the middle of the street but defendant directed him to back against the curb.There was a small sidewalk there adjacent to a high hedge and overhanging tree.Defendant told Burney to give him his wallet and keys, and Burney complied.Defendant then asked for Robert's money, but Robert replied that he did not have any.While they were parked at this location, a man parked in front of them and got out of his car.He subsequently looked in the direction of the cab and then reentered his car.Defendant then told Robert to drive off, and Robert did so.

They made one or two additional stops.One stop was four or five blocks from the first stop.At the last stop defendant told Robert to get out and empty his pockets on the car hood.As defendant began to get out of the car, Robert alighted and ran down the street.He heard four shots but succeeded in reaching a house where he sought help.

The police were called, and Robert accompanied the officer to the location where he last saw the cab, but it was no longer there.Later that same night they found the cab parked under a carport in an alley at the rear of an apartment building in Manhattan Beach.Burney's body was in the driver's seat of the cab.It was stipulated that the cause of his death was a gunshot wound of the head.

A resident of the apartment building heard a bang from the carport about 9:45 that night.A couple of minutes later he heard two more bangs, which sounded like gunshots.On looking out he saw a man who appeared to be carrying a gun.The man walked briskly out of the carport and toward the beach; he swayed or slouched forward in an abnormal manner.The resident also noticed a cab in the carport and on looking inside saw a man slumped over the steering wheel.The resident thereupon summoned the police.

Shortly before 10:00 that same night defendant entered Ercole's Cafe, which was in the same neighborhood as the apartment building behind which Burney's body was found.Defendant ordered a drink, but the bartender, Raymond Lester, refused to serve him because the way he walked in and sat down 'didn't seem right.'Defendant appeared to be in a hurry and was not steady, and the bartender thought defendant might have had a drink or so, although defendant's speech was not slurred and the bartender did not conclude that defendant was intoxicated.After a while defendant showed the bartender a gun and told him to fill a bag defendant was carrying with money.The bartender obtained money and checks drawn by customers from the cash registers and put them in defendant's bag.Defendant left after threatening the bartender, and the police were then called.

On the same night Officer Mebius saw defendant talking along the street several blocks from Ercole's Cafe and observed that he fit the description broadcasted of the robber of that cafe.Mebius and several other officers who arrived on the scene placed defendant under arrest.On defendant's person they found, among other things, a gun, a bag containing $309 in currency, the checks taken in the robbery at Ercole's Cafe, and a key that activated the ignition to the cab in which Burney's body was found.

A search of the cab and surrounding area revealed four spent cartridges.An officer concluded on the basis of tests he performed that these cartridges had been fired from the gun that was found on defendant's person.The officer further testified that the bullet recovered from the deceased's body could have been fired from the same gun but was so mutilated that he could not form an absolute opinion that if had been fired from that gun.

Defendant, testifying in his own behalf, stated: During the day and early evening on April 15, 1970, he consumed specified alcoholic beverages and Librium pills.After having some drinks at Marie's Bar he asked a cab driver to take him to Redondo Beach.They stopped at a liquor store where he bought some whiskey, which he consumed in the cab.He remembered being angered at the cab driver for going through a stop sign.He recalled the driver tried to run and he shot at him and missed.The next thing he remembered was the police grabbing him.He had no recollection of asking Burney or Robert for their wallets, telling them he was going to kill them, or of shooting Burney.Defendant admitted on cross-examination having previously been convicted of armed robbery and receiving and concealing stolen property.

In rebuttal Officer Dutchess, who had custody of defendant on the night of the arrest for about three hours, testified that, although defendant had an odor of alcohol on his breach and appeared to be lightly 'under the influence,'defendant did not appear drunk, appeared to know what he was doing, and had no problem walking or conversing.Officer Skay, who participated in defendant's arrest, similarly testified that defendant was not under the influence of alcohol.Skay did not smell an odor of alcohol on defendant.

No claim is made, or properly could be, that defendant's act in compelling Burney to be transported around in Manhattan Beach under the circumstances heretofore recited did not amount to conduct proscribed by Penal Code section 209 as we construed it in People v. Daniels, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 910, 459 P.2d 225, 238.Under the Daniels test brief movements of the victim that 'are merely incidental to the commission of the robbery' and that 'do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself' do not come within section 209.

People v. Timmons, 4 Cal.3d 411, 414--415, 93 Cal.Rptr. 736, 738, 482 P.2d 648, 650, stated that the increased likelihood that the victim would be robbed is not 'what we meant in Daniels (at p. 1139 of 71 Cal.2d, 80 Cal.Rptr. 897, 459 P.2d 225) when we spoke of movements which 'substantially increase the risk of harm' beyond that inherent in the underlying crime.(Fn. omitted.)Rather, we intended to refer to an increase in the risk that the victim may...