People v. Salas

• Decision Date: 18 August 1972
• Docket Number: Cr. 12937
• Citation: 7 Cal.3d 812,500 P.2d 7,103 Cal.Rptr. 431
• Court: California Supreme Court
• Parties: , 500 P.2d 7, 58 A.L.R.3d 832 The PEOPLE, Plaintiff and Respondent, v. Francisco Carrasco SALAS, Defendant and Appellant. In Bank

Page 431

103 Cal.Rptr. 431

7 Cal.3d 812, 500 P.2d 7, 58 A.L.R.3d 832

The PEOPLE, Plaintiff and Respondent, v. Francisco Carrasco SALAS, Defendant and Appellant.

Cr. 12937.

Supreme Court of California,

In Bank.

Aug. 18, 1972.

Robert Carl Anderson, Aptos, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr., Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

A jury found defendant guilty of first degree murder (Pen.Code, §§ 187, 189) and first degree robbery (Pen.Code, §§ 211, 211a) and fixed the penalty for the murder at death (Pen.Code, § 190). ¹ Defendant's motion for a new trial was denied. As the death penalty cannot be constitutionally imposed we modify the judgment in accordance with People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (see also Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)), reject defendant's various contentions on this automatic appeal (§ 1239, subd. (b)) which are not directed to the impropriety of the death penalty and, as modified, affirm the judgment.

On the morning of June 7, 1968, five or ten minutes after midnight, defendant entered the Hub Bar in Sacramento and asked the bartender, George Finnegan, for a six-pack of beer. After Finnegan reached into the cooler for the beer he saw that defendant was pointing a pistol directly at him. David Wright, a customer, and Richard Schwab, an insurance salesman who entered the bar at this moment, were ordered to lie down on the floor at the back of the barroom. Defendant then ordered Finnegan to deliver all the money in the bar's cash register.

The cash register had two drawers and after Finnegan had emptied the contents of one of them (amounting to about $150) into a cloth bank bag, defendant asked, 'How about the other drawer on the register'? Upon being satisfied that the second drawer was empty defendant took the bank bag, ordered Finnegan to lie down near the other men, told them not to move or he would shoot them and backed out of the front door.

Defendant had been driven to the bar by Arlin Damion, a friend who remained in the car during the robbery. When defendant emerged from the bar and entered the vehicle on the passenger's side of the front seat, Damion drove away.

Shortly after midnight Deputy Sheriff George O'Neal received a radio broadcast advising that the Hub Bar had just been robbed. He immediately drove his patrol car three-tenths of a mile to an intersection 1.2 miles from the bar. He knew that this intersection was on a route frequently used by robbers in making escapes from the general area. Just as he reached the intersection he saw an approaching car with two men who appeared to be of Mexican descent. The car approached from the direction of the bar and was the only vehicle in sight. The deputy followed the car and was then advised by radio that the suspect was a 'male Mexican.' After further radio communication the deputy activated the red light and siren of the police vehicle and the suspects eventually stopped their vehicle.

The deputy halted his patrol car about 15 to 18 feet behind the suspects' car, stepped out and shouted to the two men to put their hands out of the car windows. Neither suspect responded to the demand; the deputy thereupon reached for his shotgun. Damion opened the door on the driver's side of his car and fled on foot into an open field. Defendant, however, did not respond to the officer's further demands.

A second deputy sheriff, Kenneth B. Royal, arrived in his patrol car. Royal drew his service revolver and walked toward the suspects' car on the driver's side. O'Neal heard shots fired and saw Royal fall to the ground. Defendant emerged from the car on the passenger's side with a gun in his hand. O'Neal fired his shotgun at defendant. Defendant fell to the ground and then arose. Royal fired his revolver, and O'Neal fired his shotgun a second time. Defendant again fell to the ground, but once more got up and continued down the road away from the deputies. Defendant fell to the ground again and was then apprehended by another officer who had arrived at the scene. Royal died of a single gunshot wound in the neck.

Finnegan and Schwab testified that defendant did not sway, stagger, slur his words, or in any other way appear to be drunk. Defendant, on the other hand, testified that he was 'pretty well drunk' on the night of the killing. He claimed that after Damion fled from the car he saw a police officer with a gun pointed a his face and that he saw a flame from the officer's gun and felt something hot on his face. He further claimed that he did not recall shooting his gun and that he did not intend to shoot the officer. He admitted that he committed the robbery, and he had a clear recollection of most of the details of that crime.

Evidence was received in behalf of defendant disclosing that a blood sample taken from him at 2:50 a.m. on the morning of the homicide had a blood alcohol content of .23 percent. A criminologist testified that the judgment and memory of a person with a blood alcohol level of about .25 percent would be impaired.

Defendant also called a psychiatrist who had examined defendant in the Sacramento County jail five weeks after the homicide. The psychiatrist testified that defendant's mental capacity had been reduced by his intoxicated state to the extent that 'there is considerable doubt that he had sufficient capacity to premeditate and deliberate' at the time of the crimes.

Defendant's various contentions of trial error and further factual matters specifically related thereto will be individually examined in the order of their claimed occurrences. He first contends that the trial court committed prejudicial error in granting a motion by Damion, who was jointly charged with defendant, for a separate trial. Defendant claims that he was prejudiced because he was deprived of Damion's testimony when the latter refused to testify on the ground of self-incrimination at defendant's trial. At that time Damion's trial had not taken place. In People v. Massie (1967) 66 Cal.2d 899, 916--917, 59 Cal.Rptr. 733, 745, 428 P.2d 869, 881, we noted that the more recent cases hold that the trial court should separate codefendants for purposes of trial where there is a 'possibility that at a separate trial a codefendant would give exonerating testimony.' At the time of the motion for separate trials there was evidence before the court that defendant had made statements exonerating Damion. The trial court ordered separate trials specifically because 'Damion would, in a joint trial, be deprived of exculpatory testimony by (defendant) . . . (because) there would be no way in which Damion could compel this testimony during the trial.'

Defendant argues that he was deprived of his 'right under due process of law to have all necessary witnesses to testify in his own defense.' However, if he had been jointly tried with Damion, he would not have had the 'right' to Damion's testimony, in that Damion could have refused to take the witness stand. (See, e.g., Bruton v. United States, 391 U.S. 123, 127--128, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476.)

It should be noted, also, that defendant did not at any time prior to his motion for new trial make any objection to Damion's motion for separate trials, the order granting separate trials, or the order setting Damion's trial after that of defendant. At the time the motion for a new trial was heard, defense counsel acknowledged that he had not, at the time of the motion or order for separate trials, requested a later trial date. He also stated at the hearing on the motion for a new trial that he did not know whether Damion's testimony would be favorable to his client; and on appeal he does not claim to have such knowledge. He thus fails to demonstrate not only error but also any prejudice suffered by the granting of the motion for separate trials.

Defendant next claims error in the denial of his motion for change of venue because of the nature of pretrial publicity. In Maine v. Superior Court (1968) 68 Cal.2d 375, 383--384, 66 Cal.Rptr. 724, 438 P.2d 372, we held that a motion for change of venue or continuance must be granted whenever it is determined that due to the dissemination of potentially prejudicial material there is a reasonable likelihood that a fair trial cannot be had in the absence of such relief. We also held in Maine that consistent with Sheppard v. Maxwell (1966) 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600, appellate courts must make an independent evaluation of the evidence to determine whether a defendant has obtained a fair and impartial trial. (68 Cal.2d at p. 382, 66 Cal.Rptr. 724, 438 P.2d 372; see also People O'Brien (1969) 71 Cal.2d 394, 400, 79 Cal.Rptr. 313, 456 P.2d 969.) Our independent review of the evidence in the instant case indicates that defendant received a fair and impartial trial under the standard of 'reasonable likelihood' set forth in Maine.

In Maine we considered such factors as the nature, frequency and timing of the publicity; evidence of continued community interest; the limited size of the community in which the crime occurred; and the standings of the victim and the accused in the community. In the present case, the bulk of the news stories concerned the circumstances of the arrest, including details as to the pursuit and the use of weapons. It is doubtful that anyone reading or listening to such stories would recall the details; the stories do not have the kind of intrinsic impact that reports of a confession would have. (Cf. 68 Cal.2d at p. 386, 66 Cal.Rptr. 724, 438 P.2d 372.) ²

With respect to the frequency and currency of reports, most of the reports by the news media appeared on June 7, 1968, the day of the crime. The only mention of defendant's case thereafter consisted of a one-minute film on the victim's...