People v. Phillips

Citation222 Cal.Rptr. 127,711 P.2d 423,41 Cal.3d 29
CourtUnited States State Supreme Court (California)
Decision Date31 December 1985
Parties, 711 P.2d 423 The PEOPLE, Plaintiff and Respondent, v. Richard Louis Arnold PHILLIPS, Defendant and Appellant. Crim. 21374.
Frank D. Berry, Jr., under appointment by the Supreme Court, and Paul I. Myers III, Los Altos, for defendant and appellant

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones, Nancy Sweet and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

REYNOSO, Justice.

This is an automatic appeal (Pen.Code, § 1239, subd. (b)) 1 after defendant was sentenced to death for robbing and shooting two putative confederates in a drug trafficking scheme, one fatally. He was found guilty by a jury of two counts of robbery ( § 211), one count of attempted murder ( §§ 187, 664) and one count of first degree murder with a special circumstance, i.e., murder in the commission of a robbery (former § 190.2, subd. (c)(3)(i), as enacted by Stats.1977, ch. 316, § 9, pp. 1257- repealed by Prop. 7 of the initiative measure approved by the voters Nov. 7, 1978). Allegations that defendant personally used a firearm in the commission of one of the robberies, the attempted murder, and the murder were found to be true. ( § 12022.5.)

After careful review of each of defendant's arguments, we affirm the judgment on the guilt phase and the special circumstance finding. However, we reverse the judgment on the penalty phase because (1) the trial court failed to give a reasonable doubt instruction regarding evidence of other criminal activity, and (2) the trial court failed to limit admissibility of criminal activity to evidence that demonstrates the commission of an actual crime.


Defendant became acquainted with Bruce Bartulis (the robbery and murder victim) and Ronald Rose (the robbery and attempted murder victim) in September of 1977. Rose and Bartulis, who were in the construction business, began building some houses adjacent to defendant's home in Newport Beach, California. The three men became friendly after defendant allowed the builders to use an electrical outlet located on his premises.

On the first day of November 1977, defendant offered Rose and Bartulis an opportunity to participate in a large cocaine purchase, proposing that they invest $25,000 and promising them a return of five times their investment. Rose and Bartulis accepted, and, on November 2, Rose cashed a check for $10,000 and gave the money to defendant. On several occasions thereafter, defendant prodded them "to come up with the rest of the money." Rose subsequently gave defendant a check for $1,500, but eventually told defendant that they could not deliver any more cash and asked him either to use the amount they had given him or to return the money. Defendant agreed to use the money.

In late November or early December 1977, defendant indicated to Rose and Bartulis, who had told defendant of their difficulties in obtaining insulation for the houses they were construction, that he knew where they could obtain some stolen insulation, since "his brother was a part of this deal." In fact defendant has no brother. Defendant told the builders that they would have to pick up the insulation in Fresno, where it was being stored in a warehouse. Rose and Bartulis agreed to buy some of the insulation.

On the morning of December 7, 1977, defendant informed Rose that the insulation was available to be picked up that night in Fresno. Rose had notarized and given defendant a promissory note for $25,000, which represented the balance of the $25,000 Rose and Bartulis had committed themselves to in the cocaine deal as well as payment for the insulation. Defendant told Rose that they should meet him that evening at a gasoline station just off the freeway, and instructed him to "get as much cash together as [he] could."

Rose obtained between $3,500 and $5,000 in large-denomination bills. With that in hand, he and Bartulis drove to Fresno in Rose's 1977 Ranchero. Rose had an unloaded .44 magnum pistol in the vehicle, with some ammunition behind one of the seats. They checked into a motel designated by defendant and then went to the gasoline station at the appointed time. Within half an hour, defendant arrived, accompanied by his girlfriend, Sharon Colman.

Colman had been living with defendant since October and was acquainted with Rose and Bartulis. That day she had flown from Newport Beach to Fresno. She then called defendant, who had flown to Sacramento, and arranged to have him pick her up at the airport in Fresno. Defendant arrived at the airport about 11 p.m., driving a Toyota he had borrowed from his mother (who resided in Sacramento). He told Colman that they were going to meet Rose and Bartulis at a gas station.

Defendant and Colman met Rose and Bartulis at the gas station about 11:30 p.m. Defendant directed the builders to follow him to where they would meet his brother. They followed as defendant and Colman drove north on Highway 99. In the course of the drive, they stopped at an open gasoline station, where defendant used the restroom. When he came out, he walked over to the Ranchero and borrowed a book of matches. The four then continued their trip.

Eventually, defendant exited the freeway and the vehicles stopped in a vacant area off the road and just east of the off-ramp. Defendant got out of the Toyota and walked over to the driver's side of the Ranchero (which was parked alongside). While Colman sat in the Toyota listening to the radio, the three men talked for a while, drank some beer and smoked a marijuana cigarette. At one point, defendant re-entered his car on the passenger side, continuing his conversation with Rose and Bartulis. The tenor of the conversation was not angry. A few minutes later, defendant again exited the car and stood next to the Ranchero. Defendant leaned inside the driver's window. Suddenly Colman heard shots being fired. She saw gunflashes and, as defendant withdrew his arm from a window, saw a gun in his hand. She heard the driver, Bartulis, moaning; defendant silenced him by striking him over the head with the gun. Defendant leaned Bartulis forward and extracted his wallet, then went around to the other side of the Ranchero and did the same to Rose. In the course of this search, he complained that he could not find the money they were supposed to have. He returned to the Toyota with the two wallets and two handguns (the one he had used in the shooting and another) and handed them to Colman. Defendant had Colman open the trunk of the car, from which he took a can of gasoline. He then poured the gasoline over the Ranchero and its occupants and set them ablaze.

Rose was still alive. After being shot, Rose had "played possum" while being searched and even while gasoline was poured over him. As with the shooting, he did not actually see defendant do either of these things. He did recall that defendant was alone at the window on the driver's side, that the shots came from the direction in which defendant was standing, and that he heard a male voice close to him while his body was being searched. When he was set afire, Rose jumped out of the Ranchero and tried to shed his burning clothing. Defendant, who had run back to the Toyota and begun to turn it around, saw Rose running away. Complaining to Colman that Rose "wasn't dead," defendant drove Defendant and Colman drove to Sacramento. He was calm, though somewhat disturbed at not knowing whether Rose was dead. He lamented several times that he had been unable to find the money that Rose was supposed to have had with him. (The wallets, which Colman handed over to defendant in the car, contained only $120 to $150.) Defendant also commented that his gun "was too big of a calibre because he was too close."

at Rose and hit him, in the process cracking the windshield.

Upon reaching Sacramento, the pair went to the home of defendant's mother. Defendant went to his mother's room and told her he had been to a "disco" dance and that on the way home the windshield had been cracked by some gravel thrown up by a truck. He assured her he would "take care of it" that day. A short time later, hearing voices downstairs, defendant's mother came downstairs to investigate. Though she had originally thought her son was alone, she saw a woman (presumably Colman) with him.

Meanwhile, two Madera County Deputy Sheriffs proceeding along Highway 99 on a routine patrol noted a glow in the sky which turned out, on closer inspection, to be three fires just off the freeway. The deputies ran to Rose and covered him, extinguishing the flames. Rose had suffered five gunshot wounds and burns over 65 percent of his body. When he was taken to the hospital, it was not thought that he would live.

In the Ranchero, Bartulis was found dead, with a bullet wound in the heart. He appeared to have been shot in the left side of the chest and the would indicated that a large--.44- or .45-calibre--bullet was used. Two bullet holes were observed in the Ranchero, and a spent .45-calibre shell was found on the ground near the vehicle. The deputies also found a jacket containing badly burned currency showing $100 denominations.

The day after the killing, Colman flew to Fresno. Defendant remained in Sacramento for a few days. While Colman was in Fresno, defendant told her on the telephone that he had had a friend call the hospital and learned that Rose was in "really bad condition," that he "didn't remember a lot of things" and "couldn't talk or anything." Defendant visited Colman in Fresno and then they rejoined each other in Los Angeles; from there they drove to Salt Lake City, where Colman had relatives.

On December 14, 1977, a warrant issued for defendant's arrest; an arrest warrant was also apparently issued for Colman. Colman later left Salt Lake City,...

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