People v. Minichilli

• Decision Date: 05 November 1984
• Docket Number: Cr. 15114
• Citation: 161 Cal.App.3d 660,207 Cal.Rptr. 766
• Parties: The PEOPLE, Plaintiff and Respondent, v. Cheryl Ann MINICHILLI and Theodore Calvin Burtt, Defendants and Appellants. D000112.
• Court: California Court of Appeals Court of Appeals

Page 766

207 Cal.Rptr. 766

161 Cal.App.3d 660

The PEOPLE, Plaintiff and Respondent, v. Cheryl Ann MINICHILLI and Theodore Calvin Burtt, Defendants and Appellants.

D000112.

Cr. 15114.

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

Nov. 5, 1984.

Certified for Partial Publication ¹

Hearing Denied Feb. 14, 1985.

Geraldine S. Russell, Lewis A. Wenzell, Appellate Defenders, Inc., San Diego, Victoria Sleeth and Jeffrey J. Stuetz, San Diego, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Frederick R. Millar, Jr., and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

A jury convicted codefendants Cheryl Ann Minichilli and Theodore Calvin Burtt as charged with murder (count one, Pen.Code, § 187 ²) and robbery (count two, § 211) of Hector Lopez. Four special circumstances alleged against Burtt only were also found true. The jury found the murder was: (1) intentional and involved infliction of torture ( § 190.2, subd. (a)(18)); (2) especially heinous, atrocious or cruel ( § 190.2, subd. (a)(14)); (3) intentionally accomplished by the administration of poison ( § 190.2, subd. (a)(19)); and (4) committed during the commission of robbery ( § 190.2, subd. (a)(17)(i)).

Burtt was sentenced to life imprisonment without possibility of parole. Minichilli was sentenced to the term of 25 years to life in prison. Each defendant received an upper term sentence for the robbery which was stayed pursuant to section 654. Defendants appeal, claiming improper denial of pretrial motions, evidentiary and instructional errors warrant reversal of their respective convictions.

The judgments convicting Minichilli of murder and robbery must be reversed because the jury did not receive instructions on the requisite intent of an aider and abettor. (People v. Beeman, 35 Cal.3d 547, 549, 199 Cal.Rptr. 60, 674 P.2d 1318.) Reversal is required upon a second ground since Minichilli was probably convicted of robbery and first degree felony murder upon an aiding and abetting theory of culpability without consideration by the jury of the effect of intoxication upon her intent. As to Minichilli, we address only those issues which are likely to arise in the event of retrial. The judgments convicting Burtt of murder and robbery are affirmed but the special circumstance finding under section 190.2, subdivision (a)(14), is ordered stricken.

FACTS

At approximately 3:20 a.m., September 21, 1981, Hector Lopez died from pulmonary edema caused by inhalation of liquid chloropicrin fumes. Chloropicrin is a highly toxic chemical similar to tear gas but substantially more powerful. Chloropicrin is used in pesticides in highly diluted concentrations to warn of the dangerousness of pesticides by its unpleasant odor and irritant qualities.

Lopez was a clerk at the Eastridge Liquor Store in La Mesa. On September 20, 1981, just before midnight, Lopez was preparing to close the store when Burtt and Minichilli arrived. Lopez knew both Burtt and Minichilli. Burtt lived near the store and was a frequent customer. Upon entering the store, Burtt went the restroom while Minichilli spoke with Lopez. When Burtt came out of the restroom, he threw the contents of a mayonnaise jar containing liquid chloropicrin on Lopez.

Screaming, Lopez ran immediately from the store. A La Mesa police officer patroling the vicinity saw Lopez. The officer was unable to get close to Lopez because he was overwhelmed by the fumes emanating from Lopez' body which caused tearing and burning of the officer's eyes and nose as well as difficulty in breathing. The officer was forced to roll bottles of saline to Lopez so he could rinse himself with the saline to relieve pain and discomfort. Shortly thereafter, another officer arrived at the scene. He found a water hose and tried to wash off Lopez' body until an ambulance arrived. While waiting for the ambulance, Lopez was screaming and indicated someone had thrown acid on him. Lopez identified that person as "Ted." Lopez also told the officers a former female store employee was with Ted at the time.

At the hospital Lopez gave the officers Minichilli's full name, Burtt's first name, physical descriptions of the two suspects, a description of Minichilli's car and told them where Minichilli worked. Medical efforts to save Lopez were unsuccessful; at 3:20 a.m. he died, virtually drowning in his own body fluids.

Dr. Skivlocki, the physician treating Lopez in the hospital emergency room, needed information concerning the identity of the substance producing Lopez' injuries and symptoms. Lloyd Smithson, owner of the liquor store, was contacted by police for more information about Minichilli. The information provided by Smithson and additional information provided by a records check produced Minichilli's home address.

Police officers arrived at Minichilli's home at approximately 5 a.m. Minichilli answered the door. The officers identified themselves and confirmed she was Minichilli. Minichilli matched Lopez' description of the female suspect. Officer Bascom advised her they were there to talk about "what had happened earlier in the evening with she [sic] and Ted." They requested permission to check inside her home for the officers' safety. The officers did not have a warrant for Minichilli's arrest. During a brief check of the premises, the officers did not find anyone else present and did not observe any jars or containers which might have contained liquid similar to that producing Lopez' injuries.

Before she was advised of her constitutional rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), Minichilli told the officers she was waiting until later "to call Smitty [Lloyd Smithson] to find out how Hector was." After she was advised of her rights, Minichilli said she did not know what the chemical was and that none of it was in her house--that two glass jars containing the fluid had been left in the store. While talking to Minichilli, officers saw a wallet on the table, searched it and found Burtt's identification. Minichilli was then arrested for robbery and murder of Lopez.

Minichilli was taken to the Los Colinas detention facility where she was examined by a nurse. Minichilli denied being in the store the previous night but when told the chemical posed an extremely dangerous health hazard to those exposed to it, Minichilli said she had been in the store and had suffered some symptoms associated with chloropicrin. During booking, officers found $285 in cash in Minichilli's purse, the cash was divided into packets of $100 and $185 each. Minichilli indicated the packets were to pay some debts.

Minichilli was interrogated at about 6:40 a.m. Minichilli indicated she had worked at the liquor store but had been laid off. She was familiar with closing procedures at the store but had never closed the store herself. The preceding day, Sunday, she drove to the store with Burtt as passenger, arriving about 10 to 15 minutes before closing. There were no other employees or customers in the store and she talked to Lopez while he was closing up. Minichilli also told the officers she had been smoking what she thought was marijuana the night before. She had smoked "three bongs," starting between 9 and 10 p.m. "I don't know if it made [me] black [out] or what [Minichilli said], but it made me not realize things. I couldn't see things straight, either like--not double vision, but everything looked very different and had a different texture to it."

Pursuant to Minichilli's written consent to search, a search of her home was made later on the day of the 21st. A drinking glass full of change was found in her kitchen. An empty dayshift daily register bank bag from the liquor store was found under a mattress. A search of Minichilli's car produced a credit card receipt for a purchase made with the card of a pest control company. The receipt was signed by Thomas Redding, an employee of Dehoyos Pest Control Company and Burtt's friend. When Minichilli's apartment was searched, the police seized a Schilling food coloring bottle from the refrigerator and a cigarette and bag of tobacco from the living room. Laboratory tests showed the bottle contained phencyclidine (PCP), and the cigarette and tobacco were laced with PCP.

Surveillance of Minichilli's apartment was established. Shortly after 9 a.m. on September 21, Burtt was observed entering Minichilli's house. When officers entered the home to arrest Burtt, Burtt was gone and a rear window screen was pushed out. Burtt was spotted running from the house towards his apartment nearby. Burtt was arrested.

During questioning at the police station, Burtt indicated he had no idea what happened in the liquor store. He could not recall the evening's events but remembered being in the store but not how he got there. Burtt was not sure he had thrown anything at Lopez but said he "thought he had." Burtt stated "It happened. I didn't want it to happen. My mind is blank." He specifically recalled feeling as if his lungs had collapsed, having great difficulty breathing, and feeling like he wanted to run and run. He said he ended up at a church where he passed out on the ground. When he came to he said he felt sick and confused. When asked where he obtained the chloropicrin, Burtt said he thought he found the Miracle Whip jar in an alley next to a garbage can. When the interrogating officer indicated that that would be very unusual, Burtt indicated he thought he found the jar in a field somewhere. Like Minichilli, he said he had been smoking marijuana the night before. He said he also smoked a cigarette laced with PCP.

Firefighters, using special breathing equipment, entered the liquor store September 21 in order to locate the source of the overwhelming fumes emanating from inside the store. A clear, thick substance was found on the floor near the counter. Lopez' shirt, a broken mayonnaise bottle and a lid to the bottle were...