People v. Talamantez

• Decision Date: 19 June 1985
• Citation: 215 Cal.Rptr. 542,169 Cal. App. 3d 443
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roland TALAMANTEZ, Defendant and Appellant. D000160. Crim. 15331.

Page 542

215 Cal.Rptr. 542

169 Cal.App.3d 443

The PEOPLE, Plaintiff and Respondent, v. Roland TALAMANTEZ, Defendant and Appellant.

D000160.

Crim. 15331.

Court of Appeal, Fourth District, Division 1, California.

June 19, 1985.

Review Denied Sept. 25, 1985.

[169 Cal.App.3d 450] Jeffrey J. Stuetz, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

After filing and publication of the decision in this cause, this court granted a rehearing. The opinion, as modified, is now reissued. It reads as follows:

The amended information accused defendant Roland Talamantez with the murder of Richard Heggie. (Pen.Code, § 187.) Three special circumstances were alleged: (1) Talamantez killed the victim because of his race (Pen.Code, § 190.2, subd. (a)(16)); (2) Talamantez killed Heggie while in commission of kidnapping (Pen.Code, § 207), in violation of Penal Code section 190.2, subd. (a)(17)(ii); and (3) Talamantez intentionally killed the victim while inflicting torture upon him (Pen.Code, § 190.2, subd. (a)(18)). It was also charged Talamantez suffered three prior felony convictions (Pen.Code, § 667.5, subd. (b)). After denial of a series of pretrial motions and upon a jury trial, Talamantez was convicted of murder in the first degree based upon a finding of torture murder. The special circumstances of murder by torture, killing because of race and killing during the commission or attempted commission of a kidnapping, were found to be true. Upon bifurcated trial of the penalty phase, the jury returned a verdict fixing the punishment at confinement in state prison for life without possibility of parole. Talamantez was sentenced to state prison for life without possibility of parole plus two years for prior convictions. He appeals, charging multiple errors.

FACTS

At about 9:15 a.m. on July 30, 1980, the body of Richard Heggie was discovered below a highway turnout near Warner Springs. The autopsy established numerous external injuries to the victim's eyes, neck, forehead and ribs. A blow from the front or side had caused an injury to the mesentery of the victim's intestines and in addition Heggie's voice box had been broken. Death was caused by injuries to the neck with the damaged mesentery being a contributing factor.

Heggie met his death in this manner: On July 29, 1980, various people living on the Los Coyotes Indian Reservation met at the local swimming pool. Those present included John Cassell, his brother Robert, Scott Deatherage, Joe Rozzo, Aussie Vito, Alvin Curo, Ken Gorman, Glen Duro and Talamantez, Duro's half-brother. With Talamantez was 15-year-old Edie Ortiz. They spent the day at the pool, leaving occasionally to purchase more beer or wine. About 5 o'clock that afternoon Cassell and others went to get more beer. They were to meet Talamantez at Gorman's gas station to pick up a CB radio to trade for more beer. On the way to the gas station, Cassell saw a black man--victim-to-be Heggie--walking along the road. At this time nothing was said or done. The group obtained, exchanged the radio for more beer.

As the group was walking back to the truck, Cassell heard Talamantez say "We're going nigger hunting." Five people, including Cassell, Deatherage, Rozzo, Talamantez and Ortiz, climbed in the truck. On the way back to the reservation the walking black man was again seen. Talamantez told Deatherage to stop the truck. Deatherage made a U-turn and stopped. Talamantez left the truck, approached Heggie, saying "Hey, nigger" and started punching him. Glen Duro in another car approached on the opposite side of the road. The group in Duro's car watched the beating. Heggie pleaded to be left alone but Talamantez and Rozzo (who had said "Let me at that nigger") threw him onto the bed of the truck and continued to pound on him. Deatherage told Talamantez to remove Heggie from the truck. Rozzo dragged Heggie to Duro's car and threw him in the trunk.

The group in Duro's car decided to turn Heggie over to the sheriff. They drove into the driveway of Curo's residence to wait for the truck. When the truck did not arrive, the others went looking for it. The truck riders were found walking because the truck had a flat tire. Duro told Talamantez his group intended to turn Heggie over to the sheriff. Talamantez agreed but said if Heggie was not wanted by the sheriff, he wanted to stab him.

The group drove to the gas station but no one had a dime to telephone the sheriff. Talamantez then said "Come on, let me stab him." Duro's group then drove two miles to a large turnout on the roadway where Talamantez and Rozzo dragged the pleading victim from the car. They battered him for a further 10 to 15 minutes until they got tired. They took a break from their attack to have a beer. During this time Heggie crawled down an embankment away from the attackers. Talamantez yelled "You are not going anywhere, nigger. This is where you are going to die." Talamantez and Rozzo followed Heggie down the embankment and continued beating him.

Deatherage testified he went down the embankment to prevent Talamantez from using his knife on the victim. He saw Talamantez attacking Heggie and telling Rozzo to hit Heggie in the throat. Deatherage returned to the car. Choking and gasping sounds were heard.

Talamantez and Rozzo returned to the car. Talamantez laughed and said "This is the hardest nigger I ever killed." Rozzo admitted he squeezed the victim's Adam's apple until it "busted." Talamantez threatened he would get anyone who told what happened. The group returned to the swimming pool.

The day after the killing Talamantez drove to Gorman's gas station and told Ms. Banner to say nothing about his being seen at the reservation. He told Gorman "That nigger was in the wrong place at the wrong time." He said he had killed Heggie even before Rozzo choked him. Talamantez appeared proud of his acts. Gorman reported this statement to the deputy sheriff.

After Talamantez' arrest, and while in the county jail, he was involved in smuggling heroin into the jail. As a result, a conversation between Talamantez and a visitor to the jail was monitored (July 11, 1982). During that discussion Talamantez spoke of the need to prevent Edie Ortiz from testifying at his trial because she could hang him. Although he ordered her kidnapped, she was never abducted. Talamantez also made similar unsolicited statements to an inmate in the county jail.

The defense tendered a diminished capacity defense based upon a claim of Talamantez' brain damage and intoxication. There was evidence from several witnesses of heavy drinking. Substantial medical evidence suggested Talamantez suffered from substantial long-term chronic alcoholism and as a result had chronic brain damage. Talamantez also sought to blame the killing on Cassell and Deatherage. Against this factual backdrop, Talamantez makes multiple contentions of trial court error.

DISCUSSION

I

Talamantez contends the trial court never properly informed the jury that it would first have to find a murder, i.e., an unlawful killing of a human being with malice aforethought, before finding first degree murder under a torture theory. As a general rule, " '... If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetuated by one of the means enumerated in the statute....' " (People v. Dillon, 34 Cal.3d 441, 465, fn. 11, 194 Cal.Rptr. 390, 668 P.2d 697.) However, in cases involving the felony-murder doctrine, malice aforethought is not an essential element of first degree felony murder. Independent proof of malice is not required in such cases. (Id., at p. 465, 194 Cal.Rptr. 390, 668 P.2d 697.)

The failure to instruct on an essential element of a crime may be prejudicial per se. A defendant is entitled to have a jury determine every material issue essential to establishing guilt. (People v. Hill, 141 Cal.App.3d 661, 668-669, 190 Cal.Rptr. 628.) Talamantez complains the court's jury instructions on murder and first degree torture murder "did not convey to the jury that the essential element of malice aforethought had to be established before there could be a guilty verdict of first degree murder under a torture theory." However, examination of the instructions actually given reflects the jury was fully and properly instructed on the elements of murder (including malice aforethought) as well as the elements of murder by torture--defined as murder in the first degree. There was no need to reinstruct using different language.

Talamantez next complains of the instruction given in connection with the definition of torture murder. In part, the jury was charged: "The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased ...." This instruction was properly given and for the following reasons: The court first defined murder most carefully and correctly. The court began the definitions of murder in the first degree by first giving a complete and accurate definition of premeditated murder, then murder in the first degree by torture was defined. It was in connection with the torture murder definition that the challenged statement was made.

The legal reason for such instruction is clear. A determination that torture was involved establishes the degree of the murder. If there is a murder and the murder is committed through torture, then it is by definition a first degree murder. The instruction clearly stated murder which is perpetrated by torture is murder of the first degree. Before the jury could reach a determination of torture murder in the first degree, the jury must have concluded there had been a murder as previously defined by the court. In so doing the jury must have...