People v. Risenhoover

• Citation: 447 P.2d 925,73 Cal.Rptr. 533,70 Cal.2d 39
• Decision Date: 23 December 1968
• Docket Number: Cr. 10708
• Court: United States State Supreme Court (California)
• Parties: , 447 P.2d 925 The PEOPLE, Plaintiff and Respondent, v. Herman Yvonne RISENHOOVER, Defendant and Appellant.

Page 533

73 Cal.Rptr. 533

70 Cal.2d 39, 447 P.2d 925

The PEOPLE, Plaintiff and Respondent, v. Herman Yvonne RISENHOOVER, Defendant and Appellant.

Cr. 10708.

Supreme Court of California,

In Bank.

Dec. 23, 1968.

Molly H. Minudri, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and Raymond M. Momboisse, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

An information was filed charging Herman Yvonne Risenhoover with the murder of Gary Farina on August 8, 1962, and with one prior felony conviction for grand larceny and two for second degree burglary. On October 22, 1962, the court found defendant presently insane, suspended the criminal proceedings, and committed him to Atascadero State Hospital. About four months later, after the superintendent of the hospital certified that defendant was now sane, the court ordered him returned to the court. A jury found him guilty of first degree murder and sane and fixed his penalty at death. The trial court granted motions for a new trial on all issues.

Defendant admitted the prior convictions, and entered pleas of not guilty and not guilty by reason of insanity. Upon retrial the jury again found him guilty of first degree murder. He then withdrew his plea of not guilty by reason of insanity, and the jury again fixed his penalty at death. A motion for a new trial, reduction of the degree of the crime and modification or punishment was denied, and defendant's automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

Defendant contends (1) the court erred in allowing the prosecutor to ask veniremen questions relating to the felonymurder rule and in giving instructions on that rule, (2) the evidence is insufficient to support the first degree murder verdict in view of the Wells-Gorshen rule of diminished capacity, (3) the court erroneously denied a motion for a change of venue, (4) the court erred in admitting evidence and giving an instruction and (5) under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, veniremen were improperly excused for cause on the ground of their opposition to the death penalty. We have concluded that the first four contentions cannot be upheld and that the judgment as to guilt should be affirmed but that under the compulsion of Witherspoon the death penalty must be set aside and defendant remanded to the trial court for a new trial limited to the issue of penalty.

The Evidence

On August 7, 1962, defendant visited a trading post in Clingan's Junction, which is near Squaw Valley, both of which are in Fresno County. He was then in violation of the terms of his parole since he had not been given permission to leave Los Angeles County. Defendant showed Mr. C. T. Coffelt, the owner of the trading post, a stolen rifle (the weapon that was used the next day to kill the decedent) and asked if it was in working condition. Mr. Coffelt, after checking it, stated that it was. Defendant wanted to trade the rifle for a pistol and said that he would have 'to trade even' because he had no money with him. Mr. Coffelt said he might have time that evening to check a pistol he had that was possibly defective. Defendant gave his name on this occasion as Mr. Dietrich.

About 7 a.m. the next day defendant returned to the trading post, and Mr. Coffelt said he had not yet checked the pistol. Defendant offered to sell for $.50 a gun stolen earlier the same day and said that he needed some gasoline and cigarettes. Mr. Coffelt paid him $2.00 for the gun. On neither date did Mr. Coffelt notice anything unusual about defendant's manner, conduct or speech, although matters such as defendant's color made Mr. Coffelt suspect that defendant had been in jail or that 'something wasn't exactly right.'

Mr. Albert Abe, the owner of a Squaw Valley service station that defendant visitted several times on August 8, 1962, between 11 a.m. and 4 p.m., similarly noticed nothing unusual about defendant's conduct and found his conversations responsive. Defendant was driving a stolen station wagon on August 7 and 8, 1962.

On the evening of August 8, 1962, the station wagon was seen at Avocado Lake, which is about 16 miles from Squaw Valley. Gary Farina, age 18, and his friend Constance Newlands, age 16, had been swimming in the lake that day and decided to leave about 9 p.m. When they walked over to Gary's car, which was parked near the lake, they encountered defendant, who pointed the rifle at Gary and said, 'Take me to Squaw Valley.' Gary agreed to do so and asked defendant if he wanted the car. Defendant replied, 'No. I just want you to take me to Squaw Valley.' He also told them not to try to jump him, that the gun was loaded, and that he did not want to hurt them. Defendant handed tape to Constance and told her to tape Gary's hands, but Gary said that was unecessary and he would not jump defendant and would drive, and defendant agreed. Gary drove, Constance sat beside him, and defendant sat in the back with the rifle. When they passed the station wagon defendant said 'he had been fishing * * * and * * * was out of gas.' Gary asked if defendant wanted some gas, and defendant replied, 'No.'

Gary drove over a mountainous-type road and on reaching Highway 180 turned left towards Kings Canyon Park. After they went a short distance, defendant said they had gone too far and to turn around and go back. They drove back past where they had originally reached the highway and continued on the highway until they came to a sign showing that Squaw Valley was a mile to the left. They turned left and, when they were in the general area of Squaw Valley, defendant told Gary to continue driving, and they eventually reached the highway again. Thereafter, they drove towards Orange Cove. According to Constance, up to this point defendant was rational and coherent, and she noticed nothing unusual about his actions or mannerisms except that his speech was slow. After they drove a few miles further defendant told Gary to pull over because they were approaching the town, and Gary said 'No' that the town was still some disance away, and defendant said, 'Okay.' Gary drove several miles more but stopped when defendant told him to do so. At defendant's request Gary taped Constance's hands behind her, and defendant then taped Gary's hands behind him. Afterwards, defendant drove the car with Gary and Constance as passengers. At first defendant had difficulty operating the car, but his driving improved after he drove a while.

Defendant drove through Orange Cove and headed towards the country. After going several miles defendant parked in an area where there were vineyards on one side of the road and orchards on the other. He sat there for a few minutes because there was a car coming towards them. Then he told them to get out of the car and that he wanted to take them a short distance as hostages. Constance said she could not get out because she was barefoot and there were 'stickers' outside. Gary told defendant Constance would stay in the car and wait for him. She locked one door, and defendant locked the other and told her not to try to flag another car or blow the horn. She succeeded in untaping her hands. After a few minutes she heard a shot, but she remained in the car, waiting for Gary to return. Defendant returned alone and told her to get out of the car and that Gary was all right. She became scared and began to blow the horn and scream. As she unsuccessfully tried to start the car, defendant rammed his rifle through the window, and she left the car on the side opposite him. He overtook her and hit her head with the rifle butt, inflicting severe injuries. He hit her again after she fell but she got up and ran down the road screaming.

She reached a farmhouse, which was a short distance from Gary's car, but was unable to get any response there and ran a little farther down the road before a passing motorist saw her and stopped. The motorist took her to the farmhouse where they were admitted, and a constable was called. The constable arrived about 12:15 a.m. on August 9, 1962, and, after talking to Constance, observed Gary's car parked beside the road and found him in the orchard about 225 feet from his car. His hands were still taped behind him, and he had a bullet in his back. He was taken to a hospital where he died that same day. According to the autopsy surgeon, the cause of death was hemorrhage resulting from a bullet wound that penetrated the heart.

The lethal rifle required a trigger pull of six pounds, and a criminologist concluded from tests he performed that the rifle had been fired at least five feet away from the victim.

Defendant was arrested on the evening of August 9, 1962, as he was walking along a road near Pixley. He was then carrying the rifle and wearing clothing that was stolen earlier on the same day. According to the arresting officer, defendant was 'calm, well spoken * * * sort of slow talking but responsive * * * in (their) conversations.'

In the early morning of August 10, 1962, a stolen Chevrolet was recovered about eight miles from where defendant was arrested. The Chevrolet had been taken from a driveway about a mile from where Gary was shot. The owner of the car had parked it in his driveway about 7:30 p.m. on August 8, 1962. He did not notice if the car was there the next morning and discovered it was gone that afternoon. Heel marks of the same type and size were found in the area of the driveway, near the stolen station wagon at Avocado Lake, and at the scene of the crime. Such heel marks were observed going into a vineyard near Gary's car and coming out of the vineyard near the driveway where the Chevrolet was taken.

Psychiatric testimony was introduced by defendant to support his defense of diminished capacity, and the prosecution introduced psychiatric testimony in rebuttal. The testimony of the...