People v. Murtishaw

Decision Date27 July 1981
Docket NumberCr. 20958
CourtCalifornia Supreme Court
Parties, 631 P.2d 446 The PEOPLE, Plaintiff and Respondent, v. David Leslie MURTISHAW, Defendant and Appellant.

Page 738

175 Cal.Rptr. 738
29 Cal.3d 733, 631 P.2d 446
The PEOPLE, Plaintiff and Respondent,
David Leslie MURTISHAW, Defendant and Appellant.
Cr. 20958.
Supreme Court of California, In Bank.
July 27, 1981.
As Modified Aug. 26, 1981.

[29 Cal.3d 740]

Page 741

[631 P.2d 449] Quin Denvir, State Public Defender, under appointment by the Supreme Court, Laurance S. Smith and Stephen Berlin, Deputy State Public Defenders, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Edmund D. McMurray, Vincent J. Scally, Jr., and Nancy L. Sweet, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

On April 9, 1978, defendant and Gregory Lufenberger, his brother-in-law, went shooting in the Mojave Desert. They chanced upon four college students who were filming a movie. Several hours later, as the students prepared to leave, defendant began to fire at them, killing three of the students and injuring the fourth.

Defendant admitted the shooting but claimed diminished capacity. The jury rejected the defense and found him guilty of three counts of first degree murder, and one count of assault with intent to commit murder. The jury found the special circumstance of multiple murder [29 Cal.3d 741] and returned a verdict imposing the death penalty. The trial court denied defendant's motions for modification of sentence and for a new trial. Defendant's appeal to this court is automatic. (Pen. Code, § 1239, subd. (b).)

The State Public Defender, representing defendant on this appeal, presents a number of significant contentions in his behalf. We state our conclusions respecting those contentions.

1. Defendant contends that no substantial evidence supports the verdict of first degree murder on either a theory of premeditated murder or a theory of felony murder. We explain that the evidence is clearly adequate to show a deliberate and premeditated killing. Although the evidence that defendant killed in the course of an attempt to rob the victims of their automobile is marginal, consisting almost entirely of Lufenberger's testimony that defendant earlier in the day said "he wSAVEd to steal the car or something" in view of the convincing evidence of premeditated murder, any error in submitting the issue of felony murder to the jury was not prejudicial.

2. The day after the crime sheriff's deputies interviewed defendant at the Norwalk police station, then took him to Bakersfield where they taped a second interview. In both interviews defendant admitted the killings, but did not admit to malice, premeditation, or to intending to steal the car. We conclude that defendant voluntarily waived his Miranda rights and acknowledged killing the victims.

Defendant contends that the deliberate police destruction of their notes of the Norwalk interview violated the requirements of People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, requiring suppression of the Norwalk interview and arguably the Bakersfield interview as well. We observe, however, that apart from admitting the killings, which were proven by eyewitness testimony in any case, defendant's statements were largely exculpatory: the statements clearly did not admit all elements of first degree murder. Accordingly, they should be classed as admissions rather than confessions. The introduction of these statements was not prejudicial to defendant.

3. Defendant points to numerous instances of prosecutorial misconduct, of

Page 742

[631 P.2d 450] which the most serious is the district attorney's repeated references to Lufenberger's testimony as "uncontradicted"; since defendant could not contradict that testimony without taking the stand, those [29 Cal.3d 742] references may constitute an impermissible comment upon defendant's exercise of his right to avoid self-incrimination. Defense counsel, however, did not object to any of these comments. Since the harm could probably have been obviated by timely objection and admonition, we conclude that defendant is barred from raising this issue on appeal.

4. In People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, we held that in future cases a defendant is entitled (if the evidence warrants) to a sua sponte instruction that an honest but unreasonable belief in the necessity to act in self-defense may rebut malice and reduce a homicide to manslaughter. Since defendant Murtishaw's trial antedated the finality of Flannel, the trial court did not err in failing to instruct sua sponte on the doctrine of unreasonable self-defense.

5. The trial court, instructing the jury on the charge of assault with intent to commit murder, failed to explain to them that this crime requires express malice, and cannot rest upon theories of implied malice or felony murder. Its failure to so instruct was error (see People v. Mize (1889) 80 Cal. 41, 22 P. 80; People v. Martinez (1980) 105 Cal.App.3d 938, 165 Cal.Rptr. 11), but since overwhelming evidence demonstrates that defendant acted with express malice, the error is not prejudicial.

6. The trial court denied a defense motion for discovery of prosecution investigations and records relating to the jury panel, or alternatively for funds to hire an investigator to investigate the prospective jurors. Although precedent supports the trial court's order, the manifest unfairness of permitting a secret prosecution investigation of prospective jurors when the defense lacks funds to conduct a similar investigation demonstrates the need to reconsider our position on this issue. In future cases the trial judge should have the discretion to grant the defense access to prosecution jury records and investigations. The value of such an investigation in the present case, however, is so speculative that the trial court's ruling should not form a basis for reversible error.

7. At the penalty phase the prosecution called Dr. Ronald Siegel, a psychopharmacologist, who testified that defendant would probably engage in violent and perhaps homicidal behavior in a prison setting. As we explain, psychological forecasts of future violent behavior are of questionable reliability. Moreover, such evidence, while only marginally relevant to the penalty jury's task under former Penal Code section [29 Cal.3d 743] 190.3, 1 is likely to prove highly prejudicial. We therefore conclude that the trial court should not have permitted Dr. Siegel to testify as to his opinions concerning defendant's future conduct in prison.

The judgment imposing the death penalty must be reversed because the trial court erred in admitting over timely objection the penalty phase testimony of Dr. Siegel. The judgment of guilt is not affected by prejudicial error and is affirmed.

I. Statement of Facts.

On the morning of April 9, 1978, defendant (age 20) and Gregory Lufenberger, defendant's brother-in-law, decided to go shooting in the desert. 2 After acquiring two .22 rifles and purchasing cartridges and beer, they drove to the Town of Mojave. Leaving Mojave, after buying more beer, they drove down a dirt road in the desert. Defendant stalled the car and, apparently because of a defective starter, was unable to restart it. They remained by the car;

Page 743

[631 P.2d 451] defendant set up a beer can on the car, shot at it, and then fired several shots at the car itself.

In the early afternoon defendant and Lufenberger encountered four college students Lance Bufflo, Martha Soto (Bufflo's wife), James Henderson, and Ingrid Etayo who had parked their car, a white Chevrolet, about two-tenths of a mile from defendant's vehicle. The students were filming a movie for Bufflo's cinema class at the University of Southern California. The plot involved a man (played by Henderson) stranded in the desert by car failure. He grows progressively weaker and is finally confronted by a hooded female figure (Etayo) symbolizing impending death. He shoots at the figure, using a .38 revolver and blank cartridges, but is unable to harm it, and succumbs to his fate.

Defendant and Lufenberger asked the students for a ride to a gas station to arrange car repairs; the students agreed to do so when they had finished filming. Defendant and Lufenberger then returned to their car and again attempted unsuccessfully to start it. During this period, according[29 Cal.3d 744] to Lufenberger, defendant "kept on saying, let's shoot the people, or something like that. He wanted to steal the car or something." Defendant in his interview with the sheriff's office denied making any such statement.

Later in the afternoon defendant and Lufenberger encountered the two women students driving by in the Chevrolet. They asked the women for a ride into town, but the women replied that they were not going to town, but only to pick up some lunch. Defendant and Lufenberger then returned to the site of the filming. Bufflo went over to talk to them, examined and test-fired defendant's rifle, and showed them his rented .38 revolver, which he loaded with blanks. Defendant watched him load the gun, but it is not clear whether he knew the cartridges were blanks. Defendant and Lufenberger again returned to their car; according to Lufenberger defendant again suggested shooting the students.

Defendant and Lufenberger had been drinking beer steadily throughout the day, and had consumed from two to three six-packs of beer. Bufflo and Lufenberger both described defendant as smelling of alcohol, but said that they observed no slurring of speech, unsteadiness, or other physical symptoms of extreme intoxication. 3

About 5 p. m., the shadows grew too long for filming. After completing the scene in which Henderson futilely shoots at the hooded figure, the students prepared to leave. Defendant followed the students back toward their car. As the students reached the car defendant, then about 80 feet away from the car, began to shoot at them.

According to Bufflo, Henderson, who was...

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