People v. Ross

Decision Date28 March 1979
Docket NumberCr. 17894
Citation154 Cal.Rptr. 783,92 Cal.App.3d 391
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Jeffery Ray ROSS, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Harriet Wiss Hirsch, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, David D. Salmon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RACANELLI, Presiding Justice.

Defendant Jeffery Ray Ross and codefendant Lanny Atkins were charged by information with crimes of murder, robbery, burglary and arson; the murder count included a penalty enhancement allegation that it had been committed by means of torture with intent to kill. An arming clause as to defendant Ross was stricken and the cases were severed for trial. A jury returned a verdict of guilty as to all counts, fixing the degree at first degree on the three crimes first mentioned and finding the murder penalty enhancement allegation true. On appeal from the judgment, defendant claims a number of errors related to sufficiency of the evidence, instructions, use of the codefendant's extrajudicial statements, prosecutorial misconduct, and penalty. Our review of those claims in light of the whole record requires reversal of the arson conviction and affirmance of the remainder of the judgment as modified.

Facts

The essential facts may be summarized as follows:

During the afternoon of February 1, 1977, the Berkeley Fire Department responded to a fire at the scene of the crime where they discovered the body of the 90-year-old victim, Remi L. Dufau, lying next to a smoldering bedroom mattress; the victim's hands and feet were trussed together behind his back with a piece of electric cord and a knotted cloth was found next to the victim's neck. Their investigation revealed that the fire, which began in the area of the victim's head and shoulders, was of incendiary origin. Police investigation disclosed that the apartment had been thoroughly ransacked; the widow (who arrived later) provided a list of items missing from the apartment, including the victim's wallet, his Mastercharge card, several bottles of liquor and some jewelry. Upon defendant's arrest two days later, a search of his room uncovered the victim's wallet and identification. The next day the director of Harper House 1 delivered to the police a bottle of Christian Brothers brandy taken from the defendant's room as well as a bottle of Courvoisier cognac found in the codefendant's room; the brands matched those taken from the Dufau household.

At trial, forensic evidence established that the victim sustained (1) multiple rib fractures and associated hemorrhaging, and hemorrhage of the brain consistent with the infliction of blows, (2) a contused larynx caused by an attempted ligature strangulation and (3) extensive burns in the skull region. In the opinion of the pathologist the victim was still alive during the burning and that the cause of death was cardiorespiratory failure due to thermal burns and blunt trauma. In a recorded statement following his arrest, defendant confessed to his complicity in the planned burglary and robbery and in assisting Atkins in tying the victim and carrying him into the bedroom. Defendant denied any culpability for the arson and murder contending that codefendant Atkins alone administered the beating with a pipe and undertook preparations with the announced intention to set afire the blindfolded and gagged victim; that despite his protestation, codefendant Atkins continued his grisly preparations prompting the defendant to leave (with some of the loot) before Atkins lit the match in order to avoid involvement in the anticipated murder. When Atkins later rejoined him outside, he informed the defendant that he had "burned him up" and that the event should prove newsworthy. Upon their return to their place of residence, they divided the stolen property.

Defendant did not testify, relying on the testimony of the only witness called by the defense, Anthony Deloney, a roommate to whom Atkins confessed his guilt of the charged crimes without mention of another's involvement or participation. Proof of Atkins' earlier convictions for the same crimes and torture allegation was offered into evidence by the defense pursuant to stipulation.

On rebuttal, the prosecution introduced impeachment testimony over objection consisting of two in-custody statements by Atkins to the authorities wherein he admitted guilt in the burglary and robbery incidents but denied any complicity in the arson and homicide or any such admission to Deloney. The net effect of Atkins' statements was to reciprocally shift the blame for the arson and torture-murder onto his confederate. 2

We consider defendant's claims in an order and context promoting convenience of discussion.

I. Sufficiency of the Evidence

Defendant severally contends that the record is barren of any substantial evidence linking him to the crimes of arson and murder by means of torture. Upon review of such contentions the applicable test on appeal is whether substantial evidence exists to support the verdict, viewing the evidence and its inferences in a light favorable to the respondent. (See People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

Defendant first contends, relying chiefly on what defendant terms the Toledo doctrine (People v. Toledo (1948) 85 Cal.App.2d 577, 193 P.2d 953), that since his exculpatory statements were introduced during the People's case in chief, " '(t)he prosecution . . . is bound by the evidence in the absence of proof to the contrary.' " (See People v. Toledo, supra, at p. 581, 193 P.2d 953, 955.) The argument is flawed in many particulars.

[1,2] First, the so-called Toledo doctrine (whose genesis seems to have been merely an argument offered on appeal) 3 actually refers to a principle of judicial review invoked in homicide prosecutions obviating a defendant's burden of showing mitigation or justification where the prosecution's proof itself tends to show same or a lesser unlawful homicide. (Pen.Code, § 1105; see, e. g., People v. Chapman (1968) 261 Cal.App.2d 149, 177, 67 Cal.Rptr. 601; People v. Mercer (1962) 210 Cal.App.2d 153, 159, 26 Cal.Rptr. 502; People v. Salaz (1924) 66 Cal.App. 173, 181, 225 P. 777; People v. Estrada (1923) 60 Cal.App. 477, 482-483, 213 P. 67.) The rule in its amended form is properly restricted to those cases where "all the prosecution evidence points to Excuse or mitigation. If there is substantial evidence incompatible with the theory of Excuse or mitigation, the jury may consider all the evidence and determine whether the act amounted to unlawful homicide. (Citations.)" (People v. Chapman, supra, 261 Cal.App.2d 149, 177, 67 Cal.Rptr. 601, 618; emphasis ours.) To the extent that the doctrine is founded upon a notion that the prosecution is bound by their witnesses' statements (see People v. Davis (1965) 63 Cal.2d 648, 655, 47 Cal.Rptr. 801, 408 P.2d 129) on the antiquated theory of vouchsafing one's own witnesses (see Witkin, Cal.Evidence, § 1270, pp. 1176-1177), that theory has long since been discarded in favor of the modern rule allowing impeachment of a witness by any party, "including the party calling him." (Evid.Code, § 785; People v. Chacon (1968) 69 Cal.2d 765, 779, 73 Cal.Rptr. 10, 447 P.2d 106.) In the final analysis the question of defendant's guilt must be resolved from All the evidence considered by the jury. (See People v. Davis, supra, 63 Cal.2d at p. 655, 47 Cal.Rptr. 801, 408 P.2d 129; People v. Chapman, supra, 261 Cal.App.2d at p. 177, 67 Cal.Rptr. 601.)

Herein, in addition to his confessed participation in the crimes of burglary and robbery, defendant admitted his active participation in hog-tying the victim and carrying him into the bedroom where he watched Atkins whose propensity for committing arson crimes was known heap clothing and debris upon the victim's upper body and douse them with a combustible toilet lotion. Under such circumstances the jury was entitled to find that the defendant knew of Atkins' maniacal purpose and that his conduct actively aided and promoted its commission; conversely, it was likewise entitled to reject defendant's claim that he had left the premises after his futile remonstrance but before the actual arson and killing. Under established principles defining the derivative liability of an aider and abettor, the issue of whether upon such evidence the defendant knowingly aided and abetted Atkins in the depraved act, with resultant liability for its natural consequences, presented questions of fact for the jury. (People v. Durham (1969) 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198, cert. den. 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 and 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671; People v. Villa (1957) 156 Cal.App.2d 128, 134, 318 P.2d 828; see also People v. Stendifer (1974) 38 Cal.App.3d 733, 743-744, 113 Cal.Rptr. 653.) Such determination based upon substantial evidence, as here, may not be disturbed on appeal. (See People v. Redmond, supra, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

[4,5] Defendant next contends that since death resulted solely from an act in which he did not participate (arson), the evidence cannot support his conviction for the crime of murder by torture. The record refutes his contention. Expert testimony disclosed that the terminal cardiorespiratory failure was caused by Both the inflicted trauma and thermal burning. 4 Where concurring causes contribute to the fatal result, one may be criminally liable by reason of his own conduct which directly contributes to such result. (See People v. Lewis (1899) 124 Cal. 551, 559, 57 P. 470; 1 Witkin, Cal....

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