People v. Robles

• Decision Date: 03 September 1969
• Docket Number: Cr. 10851
• Citation: 71 Cal.2d 924,458 P.2d 67,80 Cal.Rptr. 123
• Court: California Supreme Court
• Parties: , 458 P.2d 67 The PEOPLE, Plaintiff and Respondent, v. Anthony Jose ROBLES, Defendant and Appellant.

Page 123

80 Cal.Rptr. 123

71 Cal.2d 924, 458 P.2d 67

The PEOPLE, Plaintiff and Respondent, v. Anthony Jose ROBLES, Defendant and Appellant.

Cr. 10851.

Supreme Court of California,

In Bank.

Sept. 3, 1969.

Rehearing Denied Oct. 1, 1969.

Herbert E. Selwyn, Los Angeles, under appointment by the Supreme Court, A.L. Wirin and Fred Okrand, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

A jury found Anthony Jose Robles and Henry Garcia Banuelos guilty of the first degree murder and robbery of Victor Brill and fixed the penalties for Brill's murder as death for Robles and life imprisonment for Banuelos. Robles' appeal is automatic (Pen.Code, § 1239, subd. (b)). Banuelos is not a party to this appeal.

Defendant Robles contends that the trial court should not have given an instruction to the jury on first degree premeditated and deliberate murder, as well as murder committed during the perpetration of or attempt to perpetrate a robbery. As we shall point out, sufficient evidence supports the instruction given by the trial court, and the verdict of guilt must stand. As to the jury's determination of the penalty we consider and reject defendant's argument that the trial court's introductory remarks to the prospective jurors concerning defendant's right to appeal constituted reversible error. Defendant's contention that he should have been permitted to close the argument at the penalty phase fails because no such procedure prevailed at the date of his trial, and even if it had, its non-fulfillment could not have been prejudicial. Finally, we conclude that no prospective jurors were excluded in transgression of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

Hanna Brill testified at the guilt phase as to the circumstances of her husband's death. According to her testimony, defendant and Banuelos entered a ready-to-wear and tuxedo rental shop operated by the Brills at 2 p.m., June 29, 1966. They said that they wished to purchase some shirts and slacks; with Mrs. Brill's assistance they selected several items of clothing. As she was writing up the sales slips, defendant walked into an adjacent workshop, where Mr. Brill was pressing some slacks. She heard her husband say, 'This is a holdup'; at that point Banuelos told her to get out from behind the counter. Defendant and Brill Moved back into the shop area, and defendant told the Brills to stand in a particular place. He then asked, 'Where is the money?' Brill replied, 'in the cash drawer. Just help yourselves, and if there is anything you want we are not going to resist.' Defendant continued to question the Brills about the money and held a gun to Mrs. Brill's head, saying, 'If you don't tell us where the money is, I will kill her.'

Defendant and Banuelos then told the Brills to move into the office area of the shop; after entering the office Mrs. Brill was instructed to get to her knees, and her hands were tied behind her back. Banuelos held her down by placing his knee on her shoulder. Hearing a scuffling sound, she turned around and saw her husband on his knees with defendant behind him. Defendant's hand, holding a gun, was in the air, and she observed her husband raise his arm. At that point Banuelos turned her around. She then heard a noise sounding like a firecracker, and, turning around, she observed her husband lying on the floor. Defendant and Banuelos left the store, whereupon she summoned the police and an ambulance.

The cash register, which had earlier contained about $25 or $30, was empty, and the clothing selected by defendant and Banuelos was gone. Brill had suffered two gunshot wounds from a .25 caliber automatic, either of which would have been fatal. One bullet had passed laterally through his chest, and the other had entered from his back.

Investigating officers recovered two empty shell casings as well as a live round from the floor. They recovered a gun from defendant's locker at his boarding house which, according to expert testimony, had fired the bullets. In addition, finger and palm prints, identified as those of Robles and Banuelos, were found on the counters in the store.

1. Instructions on first degree murder

Defendant contends that the trial court should not have instructed the jury that it could find him guilty of first degree murder if it found that the murder was willful, deliberate, and premeditated. He argues that Mrs. Brill's testimony does not provide a sufficient basis for an inference that defendant deliberately fired the gun with intent to kill. She testified: 'I saw my husband on his knees with Robles behind him, and he had him all bound, and (Robles's) hand was up in the air with this gun in it. * * * It was his right hand and I saw my husband, his arm come up. I don't know what arm it was, to ward it off.' Defendant argues that the testimony at most reveals that during the course of a struggle with Brill the gun discharged.

We find sufficient evidence from which the jury could conclude that defendant committed willful, deliberate, and premeditated murder. (People v. Schader (1969) Cal., 80 Cal.Rptr. 1, 457 P.2d 841; People v. Anderson (1969) 70 A.C. 58, 66--77, 73 Cal.Rptr. 550, 447 P.2d 942.) He entered the shop with a loaded gun and threatened to kill Mrs. Brill. Two bullets were fired from the gun, one of which struck Brill from the back. From the testimony that a live round was found upon the floor of the store, the jury could properly infer that defendant had ejected the round in order to insure that his gun was loaded. Moreover, the jury need not have delieved that Brill was struggling with defendant; Brill had earlier stated that he would not resist, and the gesture described by Mrs. Brill was protective in nature.

2. Alleged misconduct of district attorney

Defendant assigns as misconduct the prosecutor's argument to the jury at the penalty phase that the killing was 'cold-Blooded' blooded' and that defendant had apparently ejected the live round, found upon the floor of the store, in order to insure that his gun was loaded. These statements are not without evidentiary support in the record. Furthermore, defendant urged no objection at trial to these arguments. 'Although some comments by a prosecutor may place the defense at a disadvantage which no admonition by the trial judge can effectively cure before irreparable harm results (citations), the remarks challenged in this case were not of that character.' (People v. Modesto (1967) 66 Cal.2d 695, 716, 59 Cal.Rptr. 124, 138, 427 P.2d 788, 802.)

3. Instruction to veniremen that defendant, if found guilty, had the right to appeal

Defendant assigns as error affecting the penalty phase the trial court's instruction to the veniremen that defendant, if found guilty, would have the right to appeal. ¹ He relies on People v. Linden (1959) 52 Cal.2d 1, 26--27, 338 P.2d 397, in which the prosecuting attorney stated in argument to the jury that if a death penalty was imposed, defendant would have an automatic appeal to the court. We held that '(t)he jury have no concern with and should not be informed of the automatic appeal where judgment of death is imposed * * *.' (52 Cal.2d at p. 27, 338 P.2d at p. 410.)

In People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810, we explained the vice of the argument condemned in Linden: 'Since the jury undertakes the task of assessing the penalty in the wide latitude of absolute discretion and in the absence of statutory guide lines, the suggestion that higher authorities will review its decision must profoundly affect it. * * * The impact of the instruction must necessarily weaken the jury's own sense of responsibility. Yet nothing should be introduced to the jury to detract from its most careful consideration of the choice of penalty. That effort should not be adulterated by the infusion of foreign and deflecting factors.' (60 Cal.2d at p. 649, 36 Cal.Rptr. at p. 212, 388 P.2d at p. 44.)

We do not condone the trial court's statement to the veniremen. Nevertheless, we conclude that no 'substantial deviation from the standards established in Morse * * * has occurred.' (People v. Hines (1964) 61 Cal.2d 164, 170, 37 Cal.Rptr. 622, 626, 390 P.2d 398, 402.) (Italics added.) The admonition could not have significantly affected the jury's deliberations as to the penalty. ² The trial court did not inform the jury of the automatic appeal in the event it imposed the death penalty but rather referred only to the consequence of a verdict of guilt. The improper argument in Linden and instruction in Morse, we held, distorted the jury's function in exercising its discretion as to the choice of penalty. The trial court's instruction in the instant case, however, viewed in context, merely stressed the importance of adhering to the law as set forth by the trial court.

In People v. Mitchell (1966) 63 Cal.2d 805, 48 Cal.Rptr. 371, 409 P.2d 211, we found a similar error nonprejudicial. In Mitchell the trial court had, in answer to a venireman's question, informed the prospective jurors of the right of automatic appeal. We pointed out that, '(t)here was no particular emphasis placed on the statement, and at no time did it tend to diminish the jury's sense of responsibility in determining the penalty to be imposed.' (63 Cal.2d at p. 814, 48 Cal.Rptr. at p. 377, 409 P.2d at p. 217.)

4. Closing argument at the penalty phase

Defendant further contends that the trial court should have permitted him to make the final argument in the penalty phase of the proceedings. In People v. Bandhauer (1967) 66 Cal.2d 524, 58 Cal.Rptr. 332, 426 P.2d 900, we reconsidered the practice of permitting the prosecution to open and close argument at the trial on the issue of penalty. Noting that '(e)qual opportunity to argue is * * * consistent with the...