People v. Remiro

• Decision Date: 27 February 1979
• Docket Number: Cr. 8309
• Citation: 153 Cal.Rptr. 89,89 Cal.App.3d 809
• Parties: , 2 A.L.R.4th 1135 The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Michael REMIRO and Russell Jack Little, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 89

153 Cal.Rptr. 89

89 Cal.App.3d 809, 2 A.L.R.4th 1135

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Michael REMIRO and Russell Jack Little, Defendants and Appellants.

Cr. 8309.

Court of Appeal, Third District, California.

Feb. 27, 1979.

Rehearing Denied March 23, 1979.

Hearing Denied May 3, 1979.

Turner & Sullivan, Richard K. Turner, Sacramento, James D. Garbolino and Alan V. Pineschi, Roseville, under appointment by the Court of Appeal, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Joel E. Carey and Eddie T. Keller, Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

Defendants were convicted of the first degree murder of Oakland School Superintendent Marcus Foster and the attempted murder of Foster's deputy superintendent Robert Blackburn. The trial was lengthy, the record is voluminous and the contentions are numerous. For reasons which will appear, we shall affirm the judgment as to defendant Remiro and reverse as to defendant Little.

A brief summary of facts will provide overall context for the discussion. Additional facts will be set forth as necessary in conjunction with the separate treatment of the several contentions.

In the early evening of November 6, 1973, Superintendent Marcus Foster was shot and killed from ambush as he walked from his office to his automobile after a school board meeting. Deputy superintendent Robert Blackburn, who was with Foster at the time, was seriously wounded by a shotgun blast. Bullets removed from Foster's body had been hollowed out in the tip and filled with cyanide. The authorities made no public mention of the use of cyanide bullets.

On November 8, 1973, several Bay area newspapers and a radio station received identical documents purporting to originate with the so-called Symbionese Liberation Army (SLA). The document bore a drawing of a seven-headed cobra below which were the letters SLA; entitled "Communique No. 1," the document purported to order the execution of Foster and Blackburn by cyanide bullets and inveighed at length against, among others, the Oakland School Board, the "fascist ruling class" and the "fascist government of Amerika (Sic )."

In the early morning of January 10, 1974, a Chevrolet van driven by defendant Little in which defendant Remiro was a passenger was stopped for investigation by a police officer in Concord. In the ensuing confrontation, Remiro fired several shots at the officer from a .380 automatic pistol. Remiro escaped immediate apprehension but Little was arrested and the van seized. Inside the van were SLA documents. Later that morning Remiro was arrested. He was armed with a Walther .380 automatic pistol. This pistol was established at trial as the gun which fired five of the bullets removed from Foster's body and eight expended .380 shells found at the murder scene. One of the bullets removed from Foster's body and another bullet and empty shell found at the murder scene were possibly fired from a .38 caliber Rossi revolver owned by Little.

In the early evening of January 10, 1974, firemen extinguished a fire of incendiary origin at a house near Concord close to the site where Little and Remiro had been stopped earlier that morning in the Chevrolet van. Among the items discovered in the Concord house were firearms, ammunition, empty shells which had been fired from the .380 Walther and the .38 caliber Rossi, pipe bombs and Molotov cocktails, several SLA "communiques" (including the original of Communique No. 1 from which the copies received by the news media had been duplicated), a typewritten list containing the names and addresses of the five news organizations to which Communique No. 1 had been sent, a hand-drawn map of the Foster ambush-murder scene, Oakland School District publications from which Foster's photograph had been torn out, a document containing the time and date of the school board meeting following which Foster had been killed, cyanide bullets similar to those which killed Foster and the materials with which they were made, and a shotgun shell which had been fired from or at least worked through the same shotgun which wounded Blackburn. Fingerprints of both defendants and of avowed SLA members Donald DeFreeze, Patricia "Mismoon" Soltysik, and Nancy Ling Perry were found on various documents seized in the house. A wallet containing personal identification papers of Little and other papers bearing his name were found in a bedroom of the Concord house.

The Chevrolet van was registered to N. G. Ling, the maiden name of Nancy Ling Perry. Both defendants had been observed working on the van in the driveway of the Concord house. The house had been rented to Nancy Ling Perry and Little using the aliases Nancy and George DeVoto. Both defendants had been seen around the property during the past several months. Each of them carried keys to the house.

Both defendants were shown to have been associated with other avowed SLA members during the past two years, including DeFreeze, Soltysik, Perry, Angela Atwood, Camilla Hall and Willie Wolfe. The latter six individuals perished in May 1974 when the house from which they were engaging Los Angeles police in a gun battle caught fire and was completely incinerated. Found in the ashes of the Los Angeles house, next to the outstretched hand of the dead Nancy Ling Perry, was Little's .38 caliber Rossi revolver; also found were a number of sawed-off rifles, the separated barrels of which had earlier been recovered from the Concord house, a shotgun which Remiro had purchased in Oakland in 1973 and various other guns and ammunition. Several of the weapons found in the Los Angeles ruins had fired some of the expended shells which had been found in the Concord house.

The prosecutor sought to prove that even though defendants may not have been the trigger men, they were members of a criminal combination which planned and executed the shootings of Foster and Blackburn as part of a larger conspiracy to wage war, in the words of the SLA manifesto, on the "Fascist United States Government, The Facist (Sic ) Capitalist Class" and their supporters by means of terroristic acts including murder and kidnapping of officials and prominent members of the community, thereby fomenting violent upheaval and promoting revolutionary change.

Neither defendant testified. Following a trial which consumed 46 court days spread over 71 calendar days in which 137 different witnesses were called and over 500 exhibits offered into evidence, defendants were each convicted of first degree murder and attempted murder.

I. GAINER INSTRUCTION

By far the most troublesome of the numerous contentions raised by defendants involves an instruction given to the deliberating jury and later disapproved by the Supreme Court in People v. Gainer (1977) 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, decided more than two years after the trial in this case. The instruction is frequently referred to as the "dynamite charge" or the "Allen " instruction after the case in which it was first approved, Allen v. United States (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.

This case was submitted to the jury on May 30, 1975. After having deliberated 10 days, the jury reconvened in the courtroom at 9 a.m., on June 9, and the following proceedings took place:

"THE COURT: The record may reflect the jurors are present and in their proper places, and the two accused persons are present in court.

"Mr. Foreman, you reported to me a figure yesterday that the jury had ballotted (Sic ); and once again I of course, it is my duty to admonish you that the Court, as well as counsel and anyone else other than the jury, are not entitled to know how the jury leans, whether for innocence or for guilt, but in this case the Court gave to you eight possible verdicts.

"First, I'd like to know whether or not the jury has voted on more than one of those?

"FOREMAN: Your Honor, the eight possible verdicts, the jury has rejected two and adopted two.

"THE COURT: In other words, you have a unanimous opinion as to two, is that correct?

"FOREMAN: That is correct, Your Honor.

"THE COURT: And two you have rejected, is that true?

"FOREMAN: That is correct.

"THE COURT: Okay. Can you tell me this: Do these that you vote on pertain to one or both of the defendants?

"FOREMAN: The verdicts which the jury has reached, Your Honor,

"THE COURT: I don't want to know which ones. I just want to know whether

"FOREMAN: Both concern a single defendant.

"THE COURT: I see. Those that you have resolved pertain to one of the defendants, is that correct?

"FOREMAN: That is correct, Your Honor.

"THE COURT: And, I take it, the other two (Sic ) pertain to the other defendant?

"FOREMAN: That is correct, Your Honor. Your Honor, the most recent ballot which was taken yesterday reflected numerical count of three to nine.

"I believe the jury is of the opinion that there may be a potential impasse, and we would appreciate any further guidance or instruction the Court might want to give.

"THE COURT: Well, I'm going to read to you a statement that has been helpful to juries in other cases, and possibly may be of assistance to you, and it is as follows: . . ."

Without consulting counsel, the court then read an instruction containing both the objectionable features expressly condemned in People v. Gainer, i. e., an admonition to minority jurors to reevaluate their positions in light of the views of the majority and an assertion that the case at some time must be decided. ¹

Deliberations then resumed extending throughout the day. At 6:30 p. m. on June 9, the jury returned to the courtroom. After some discussion, the court reread two instructions, CALJIC Nos. 1.00 and 17.40. ² The foreman indicated that the instructions were sufficient and asked to resume deliberations. At 6:37 p. m.,...