People v. Sears

Decision Date13 March 1970
Docket NumberCr. 10699
Citation2 Cal.3d 180,465 P.2d 847,84 Cal.Rptr. 711
CourtCalifornia Supreme Court
Parties, 465 P.2d 847 The PEOPLE, Plaintiff and Respondent, v. Earl Clarence SEARS, Defendant and Appellant.

Edward D. Nino, San Jose, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., John T. Murphy and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

In 1963 a jury found defendant guilty of the first degree murder of his stepdaughter Elizabeth Olives, the attempted murder of his wife Clara Sears, and the attempted murder of his mother-in-law Frances Montijo. The penalty for the murder was fixed as death. On appeal this judgment was reversed, largely because of the erroneous admission of a confession. (People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938.) A second trial started on September 28, 1966, but this ended with a mistrial on October 11 because the prosecutor asked defendant a palpably improper question. Defendant's third trial commenced on October 18, 1966. The jury returned the same verdict as the jury in the first trial, and again fixed death as the penalty for the murder. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Defendant married Clara Sears in 1960. The spouses agreed that Clara and her three children by a former marriage would continue living in a cottage which she and the children had occupied before the marriage, while defendant would sleep in a nearby garage until he completed an addition to the cottage. Defendant never completed the addition, and Clara refused to let defendant sleep in the cottage even after one of her daughters married and moved out. Defendant had his meals and watched television in the cottage.

Around the end of April 1963 defendant moved to a hotel. On Sunday, May 12, defendant visited his wife. According to her testimony, defendant threatened that he would kill her and the children if she got a divorce.

On May 16, 1963, defendant completed his work for the day and went to a neighborhood tavern where he drank beer with friends until about 7:30 p.m. Defendant then returned to his hotel and went to dinner with one Robert Kjaerbye. At 10 p.m. the two went to a tavern where defendant was a regular customer. After each man had drunk a beer, they drove approximately one block to the cottage occupied by Mrs. Sears.

Defendant and Kjaerbye entered the cottage through the unlocked front door. While Kjaerbye stayed in the living room, defendant went into the bedroom. Elizabeth was asleep and Clara was reading. Defendant told Clara that he wanted to talk with her, and she put on a robe and accompanied defendant to the kitchen. Because the floor was cold, Clara returned to the bedroom to get a pair of slippers. As she reentered the kitchen, defendant grabbed her robe and said, 'If you won't want to come back to me. * * *' Then defendant unbuttoned his shirt and drew out an iron bar that he had stuck in his pants before entering the cottage. He struck Clara about the head until she lost consciousness. Elizabeth awakened and approached the kitchen. As she cried out for defendant to leave her mother alone, defendant turned on her with the iron bar. Clara regained consciousness and unsuccessfully tried to place herself between defendant and Elizabeth, but she again became unconscious.

Clara's mother, Frances Montijo, who lived next door with Clara's brother Patrick Montijo, heard the noise from her daughter's home and decided to investigate. As she approached the cottage Kjaerbye was leaving. He told her that he knew nothing of what was happening inside. Frances entered to find defendant on top of the screaming child. When defendant saw Frances, he attacked her with a knife he had taken from Clara's kitchen. After cutting her face, defendant threw Frances into a chair, rolled the iron bar against her throat and chest, and stabbed her with a barbecue fork, also taken from the kitchen.

Patrick's wife, Dolores, became concerned when Frances did not return from Clara's, and decided to investigate. As she arrived at the cottage, the injured Frances was making her escape. Dolores took Frances to a neighbor's house and went back to her own house for Patrick.

Patrick went over to the cottage. As he entered, defendant was standing over Clara with the barbecue fork in his raised hand. Patrick asked defendant what he was doing; defendant did not reply, but lunged at Patrick with the fork. A fight ensued, and defendant stabbed Patrick in the neck and chest. Defendant then ran to his car and drove away.

Elizabeth died from a knife wound that punctured her jugular vein. She also suffered numerous other cuts and bruises. Clara suffered multiple lacerations as well as a fractured jaw and a fractured arm. Frances received several wounds on her face, neck, and hands.

Defendant testified that he returned to the cottage to discuss their marital situation and effect a reconciliation; that he particularly wanted to ask her to accompany him that weekend to inspect some rental units he hoped to move to; that before entering the cottage, he saw an iron bar, picked it up and stuck it in his pants; that he intended only that his wife see the bar, hoping that she would then sit down and talk with him; and that he did not have any intent to use it on Clara or to scare her. 1 Whether the bar was visible is disputed. Clara testified that she did not see it until defendant pulled it out from beneath his shirt.

In his argument to the jury, the prosecutor urged at some length that the first degree felony-murder doctrine was applicable, urging that defendant committed a burglary in entering the cottage. He emphasized repeatedly that burglary included an entry with an intent to commit any felony, not merely theft, and he repeatedly asserted that defendant entered with intent to assault.

The jury was instructed on first and second degree murder. In connection with the felony-murder rule, the trial judge instructed the jury: 'I will now instruct you on the law concerning first degree murder in the perpetration of burglary. The unlawful killing of a human being, whether intentional, unintentional, or accidental, which is committed in the perpetration or attempt to perpetrate burglary, the commission of which crime itself must be proved beyond a reasonable doubt, is murder of the first degree.

'Every person who enters any structure such as is shown by the evidence in this case, with intent to commit theft or any felony is guilty of burglary. The essence of a burglary is entering a place such as I have mentioned with such specific intent; and the crime is complete as soon as the entry is made, regardless of whether the intent thereafter is carried out.'

After instruction on the defense of intoxication and the crime of manslaughter, the jury was instructed on attempted murder and assault with a deadly weapon. The instruction on assault with a deadly weapon did not identify that offense as a felony or otherwise tie the instruction to the felony-murder instruction. The instruction on the offense of assault with a deadly weapon was placed in the context of an instruction on a lesser included offense.

Subsequently, the jury returned to the courtroom and asked the judge the following question. 'Does assault on wife constitute a felony regardless of intent upon entering and if so, does felony murder doctrine dictating first degree murder apply?' The court reread the felony-murder instruction, and the instruction on burglary. It did not instruct on assault with a deadly weapon or assault. The court also stated: 'In answer to the specific inquiry, the court would advise that the specific intent to commit the assault must exist at the time of entry, otherwise the felony-murder rule does not apply. Does that answer your question?' Whereupon the foreman of the jury stated that he believed it did.

The jurors continued their deliberations for six hours after the above instruction before retiring for the night. The jury returned its verdict the following morning, apparently one and a half hours after resuming deliberations.

In People v. Ireland, 70 Cal.2d 522, 537 et seq., 75 Cal.Rptr. 188, 450 P.2d 580, we considered the applicability of the second degree felony-murder rule to a situation where the claimed felony in the course of which the homicide occurred was an assault with a deadly weapon. We explained the felony-murder doctrine as follows:

'The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of All felonies inherently dangerous to human life, and (2) to posit the existence of malice aforethought And to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. (Citations.)' (70 Cal.2d at p. 538, 75 Cal.Rptr. at p. 197, 450 P.2d at p. 589.)

We further stated: 'We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule 'beyond any rational function that it is designed to serve.' (People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 1360, 134.) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced...

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