People v. Noble

• Decision Date: 21 December 1981
• Citation: 179 Cal.Rptr. 302,126 Cal.App.3d 1011
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Leroy NOBLE, Defendant and Appellant. Crim. 39402.

Page 302

179 Cal.Rptr. 302

126 Cal.App.3d 1011

The PEOPLE, Plaintiff and Respondent, v. James Leroy NOBLE, Defendant and Appellant.

Crim. 39402.

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

Dec. 21, 1981.

Hearing Denied March 17, 1982.

Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal 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.

LILLIE, Acting Presiding Justice.

Defendant Noble was tried with Raymond Howard for the murder of Deputy Barthel. A jury acquitted Howard but found defendant guilty of first degree murder and to be true certain special circumstances ¹ (count I), felonious assault (count II) and attempted murder (count III), and to be true the personal firearm use allegations as to each count. He appeals from the judgment.

On April 19 between 7:30 and 8 p. m., Deputy Hollingsworth was injured and Deputy Barthel was shot to death while they were in the process of arresting Clarence Howard, brother of codefendant Howard, and investigating defendant's conduct of throwing to the ground a bottle containing PCP. Each deputy wore the uniform of a deputy sheriff and rode in a sheriff's black and white vehicle.

On patrol, the deputies had observed a group of half a dozen black men standing on a corner which they knew to be a location for criminal activity. The group watched the deputies; Clarence separated from the others and as he walked away he dropped to the grass a bottle containing PCP; Clarence was apprehended by Deputy Barthel and taken to the sheriff's vehicle. Deputy Hollingsworth continued to watch the group and two men break away from it; one of those walking away from the group was defendant whom he and Barthel knew from a prior arrest; as defendant walked he dropped a bottle into a shrub area; he (Hollingsworth) walked over and retrieved it; the bottle contained PCP; at that point he glanced up and saw two people one of whom was defendant. Deputy Hollingsworth then had a conversation with Deputy Barthel about the bottles and defendant, and he decided to go to the radio car and request a backup unit before going to defendant's apartment.

Just as he started for the vehicle, Deputy Hollingsworth heard the crack of a bullet near his head followed immediately by the report of a small caliber weapon; he turned to warn Barthel then heard another crack immediately followed by a shot from a small caliber weapon; Deputy Barthel yelled "They are shooting at us"; he started toward Barthel then heard a third gunshot and was knocked down to one knee; he thought he had been hit in the side; gasping for breath he got back to his feet and was trying to move toward Barthel who yelled "I am hit, I am hit bad" and began to stagger and stumble; he heard five more shots in rapid succession then lost count; the shots appeared to come from a .22 caliber; he ran to Barthel and tried to pull him out of the area. At this time Deputy Hollingsworth saw Clarence in front of the radio car and pointed his revolver at him; Clarence showed his hands which were empty and shook his head saying "It's not me"; Clarence was running backwards and he had to let him run; he and Deputy Barthel were on their knees and blood was running out of the deputy's mouth. Deputy Hollingsworth then looked up and saw two men 12 to 15 feet in front of him; there was one distinct muzzle flash; he pointed his service revolver at them over Barthel's right shoulder at which time he saw a flash directly in front of him; the face of defendant was directly beyond the flash and defendant was one of the two men firing; the other man was codefendant Howard. Deputy Hollingsworth crawled on all fours to the radio car and called for assistance; he returned to Deputy Barthel and the shots continued; at that time Deputy Barthel was either dead or dying.

Various witnesses saw the deputies arrive and apprehend Clarence, heard the shooting and saw the deputies fall wounded. One witness saw the deputies search Clarence then defendant go into his house and come out with a rifle and join another man. Two witnesses saw defendant shoot the deputies with a rifle and the deputies fall. Another was in her apartment with codefendant Howard when defendant came in and said "Ray, the police has your brother," whereupon Howard got up and left.

Immediately after the shooting a .22 caliber rifle cleaning kit was found in defendant's apartment nearby; shortly thereafter defendant was arrested in the park. After he had been advised of his constitutional rights and waived the same, he first denied he "killed the cop" but admitted possession of a .22 caliber rifle. The next time he talked to the deputies he said he started to walk across the street to watch the deputies talk to Clarence when he heard gunshots and ran. A day later he told Sergeant Dorris he saw Clarence stopped by police in front of his house and when he saw "this guy go down" he ran around to the back of his apartment, got a .22 automatic rifle then positioned himself behind a brick wall where he fired one shot then ran.

Defendant testified that he heard a big commotion outside and several gunshots and left with his brother out the back door of his apartment and went to a liquor store; when they returned he stood up against the wall and asked some people what had happened. He denied shooting anyone.

The issue framed by appellant is whether the penalty of life imprisonment without possibility of parole for persons convicted of first degree murder where a special circumstance has been specifically found to be true, imposed without providing for consideration of mitigating circumstances and special guidelines therefor, is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the federal Constitution.

The jury returned a verdict of first degree murder and specifically found to be true two alleged special circumstances, i.e., the victim was a peace officer who, while engaged in the performance of his duties, was intentionally killed; and he was intentionally killed in retaliation for the performance of his official duties. (See § 190.2(a)(7), Pen.Code.) Thereafter, on the penalty trial the jury fixed the penalty as "life without possibility of parole." Subsequently defendant was sentenced to the state prison for the term of life without possibility of parole. (§ 190.2, Pen.Code.)

Appellant attacks the constitutionality of section 190.2, Penal Code on the ground that it provides that the penalty of life imprisonment without possibility of parole is mandatory in every instance ² of first degree murder with one or more special circumstances found to be true irrespective of mitigating circumstances, and that this runs contrary to United States and California Supreme Court authorities that in sentencing, justice requires consideration of more than the acts committed, the surrounding facts of the offense and particular factors relating to the offender should also be considered. Appellant argues that the same mitigating circumstances enumerated in section 190.3, Penal Code to be considered by the jury in determining whether to impose the death penalty "should be considered by the jury in determining whether to impose a straight life sentence or life without the possibility of parole." Appellant's position lacks merit.

First, appellant's argument is based on the false premise that a "straight life sentence" is a possible penalty for first degree murder where one or more special circumstance is found to be true. There is no provision in the Penal Code for the imposition of "straight life" imprisonment in such a case, thus, consideration of such a penalty would never come before the jury. Second, we do not believe that the penalty of life imprisonment without possibility of parole for the intentional murder with malice aforethought of a police officer in the performance of his official duties and in retaliation therefor "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity" (In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921) as to constitute cruel and unusual punishment. (Art. I, § 17, Cal.Const.)

Punishment for first degree murder is "death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5" (§ 190, Pen.Code). If the trier of fact finds defendant guilty of murder first degree, it shall at the same time determine the truth of all special circumstances charged (§ 190.2, Pen.Code); if it specifically finds the special circumstance alleged to be true, the penalty "shall be death or confinement in state prison for a term of life without the possibility of parole ...." (§ 190.2, Pen.Code.) Thus it is clear that by the time the trier of fact has found defendant guilty of first degree murder and specifically found one or more alleged special circumstance to be true, a "straight life" sentence is no longer a possible penalty. The only possible penalty provided by law is death or life imprisonment without possibility of parole. Under these circumstances the trier of fact at the penalty trial can be and is concerned only with which of these two penalties to impose; its duty is clear under section 190.3, Penal Code-it shall fix the penalty at death if it concludes that the aggravating circumstances outweigh the mitigating circumstances, and life imprisonment without possibility of parole if it determines that the mitigating circumstances outweigh the aggravating circumstances. Under California law no choice between "straight life" and life imprisonment without possibility of parole is...