People v. Roberts, Cr. 23845

• Decision Date: 21 January 1983
• Docket Number: Cr. 23845
• Parties: The PEOPLE, Plaintiff and Appellant, v. Larry H. ROBERTS, and Archie Menefield, Defendants and Respondents. A016896.
• Court: California Court of Appeals Court of Appeals

Page 586

188 Cal.Rptr. 586

139 Cal.App.3d 290

The PEOPLE, Plaintiff and Appellant, v. Larry H. ROBERTS, and Archie Menefield, Defendants and Respondents.

A016896.

Cr. 23845.

Court of Appeal, First District, Division 2, California.

Jan. 21, 1983.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Kristofer Jorstad, Charles R.B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Ronald E. Moe, Dixon, for defendants and respondents.

McKIBBEN, Associate Justice. ^*

Both defendants were prisoners at the California Medical Facility at Vacaville, California. Defendant Roberts had previously been convicted of first degree murder and was a life prisoner. Defendant Menefield was not a life prisoner. In the first count of a six count complaint, the defendants were charged with conspiracy "to commit the crimes of murder, in violation of Penal Code section 187, and/or to commit the crimes of assault by a life prisoner with means of force likely to produce great bodily injury in violation of Penal Code section 4500 ...."

As a result of the incident, a prisoner and a correctional officer died.

The defendants were held to answer on a portion of the complaint after a preliminary examination. The Attorney General filed a six count information identical to the complaint in superior court and a motion to reinstate the dismissed portions of the complaint, pursuant to Penal Code section 871.5; defendants filed a Penal Code section 995 motion. Defendant Menefield filed a motion to strike that portion of the information charging him with conspiracy to violate Penal Code section 4500.

All motions were heard together and defendant Menefield's motion to strike the conspiracy to violate Penal Code section 4500 was granted.

The People have appealed from that ruling, contending that defendants are chargeable with conspiracy to violate Penal Code section 4500.

Penal Code section 4500 states in pertinent part: "Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another, other than another inmate, with a deadly weapon ... is punishable with death; ..."

In support of its contention appellant relies principally on People v. Wood (1905) 145 Cal. 659, 79 P. 470; People v. Carson (1909) 155 Cal. 164, 99 P. 970; People v. Buffum (1953) 40 Cal.2d 709, 256 P.2d 317; and Williams v. Superior Court (1973) 30 Cal.App.3d 8, 106 Cal.Rptr. 89, in support of its argument that though Menefield cannot be charged with a violation of section 4500 of the Penal Code that nevertheless he can be prosecuted for conspiracy to violate that section. Appellant further contends that the general rule is it matters not that as a result of a conspiracy charge that respondent will suffer a greater punishment than under the substantive offense itself.

Let us see if that general rule applies here.

Penal Code section 4500 singles out one of the parties charged with the conspiracy for special treatment, that is, the life prisoner.

In Buffum, supra, a conviction of conspiracy to induce abortions was reversed because a woman who consented to an abortion cannot be prosecuted under Penal Code section 274. The problem was analyzed as follows: "Although the language of section 182, standing alone, is sufficiently broad to include any agreement to procure an abortion, the provision, like that in section 31, is general and must yield to the specific provision in section 275. Any other construction would mean that the conspiracy law could be used as a device for defeating the legislative intention of imposing a lesser penalty on a woman who violates section 275 than is prescribed for a person convicted under section 274."

"There are many cases arising under other statutes in which it has been recognized that a defendant may be liable to prosecution for conspiracy to commit a given crime even though he is incapable of committing the crime itself. [Citations.] This rule, however, does not apply where the statutes defining the substantive offense disclose an affirmative legislative policy that the conduct of one of the parties involved shall be unpunished. [Citations.] Similarly, the rule should not be applied where, as here, the Legislature singles out one of the parties for special treatment by enacting a statute which deals only with the conduct of that person and provides for a lesser punishment than is given to the other party...." (Ibid., 40 Cal.2d pp. 722-723, 256 P.2d 317.)

In Williams, supra, a woman who engaged in prostitution, a misdemeanor, was not to be prosecuted as a part of a conspiracy, a felony, on the basis of the same rationale of Buffum, supra.

Wood, supra, dealt with a jury instruction regarding a statute that declared it a crime for a state prisoner, confined for a term less than life, to escape; and if two or more prisoners, one of whom was serving a life term, conspired together to effect the escape of both of them, whether such a life term prisoner could be charged with the crime of conspiracy. The court declared that he could.

Carson, supra, is in accord...