People v. Walker

• Decision Date: 25 October 1976
• Docket Number: Cr. 19278
• Citation: 18 Cal.3d 232,133 Cal.Rptr. 520,555 P.2d 306
• Court: California Supreme Court
• Parties: , 555 P.2d 306 The PEOPLE, Plaintiff and Respondent, v. John Earl WALKER, Defendant and Appellant.

Page 520

133 Cal.Rptr. 520

18 Cal.3d 232, 555 P.2d 306

The PEOPLE, Plaintiff and Respondent, v. John Earl WALKER, Defendant and Appellant.

Cr. 19278.

Supreme Court of California.

Oct. 25, 1976.

Rehearing Denied Nov. 24, 1976.

John Earl Walker, in pro per.

Norman W. de Carteret, Sherman Oaks, under appointment by the Supreme Court, and Herbert F. Blanck, Encino, under appointment by the Court of Appeal, for defendant and appellant.

Sheldon Portman, Public Defender, Santa Clara, Richard C. Neuhoff, Deputy Public Defender, Saratoga, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders, Nash, Deputy Attys. Gen., for plaintiff and Nash, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

The primary question at issue on this appeal is whether a defendant must Personally use a firearm in the commission of a charged felony if he is to be subjected to the increased penalties provided by Penal Code section 12022.5. ¹ We answer that question in the affirmative but as defendant was sentenced to a life term by virtue of the conviction of the charged offense, such term cannot be increased because of his use of a firearm in the commission of the charged crime.

Defendant John Earl Walker and Cindy Lou Young were charged with murder (§ 187); only defendant is alleged to have used a firearm within the meaning of section 22022.5. A motion to sever was granted and on the day of defendant's trial, but prior to the selection of a jury, he unsuccessfully moved to substitute counsel. This appeal is from the judgment of conviction of first degree murder (§§ 189, 190) aggravated by the use of the firearm.

The record discloses that in the late evening David Wallace observed Frank Simpson, the victim herein, approach a young woman later identified as Cindy Lou Young. Simpson asked if he could buy her a drink; when she replied that she did not drink, he asked 'What do you do?' Wallace did not hear her reply.

A half hour later Wallace saw the pair walk out of an alley and cross a street. Soon defendant emerged from the alley and crouched several times behind parked vehicles while he appeared to watch the couple walk arm in arm into and down another alley.

Wallace proceeded down the street and saw defendant meet with two other men in a parking lot near the alley which the victim had entered. All three men crouched behind a parked car. Shortly thereafter Wallace heard a loud noise which sounded like a gunshot in the parking lot, whereupon defendant and the other two men ran from the parking lot and crossed the street, passing within 12 feet of Wallace. He flagged down a patrol vehicle operated by Police Officer Trone and reported what he had observed, stating that defendant was wearing a red jacket and a red golf cap. Trone conducted an unsuccessful search for the suspects. Meanwhile, the victim approached another patrol vehicle and shouted that he had been 'shot by three colored guys in the alley.' He then lapsed into unconsciousness and expired as the result of a wound caused by a bullet which had entered his back from close range and penetrated his heart. No money, credit cards, or identification were found on his person although a witness testified that the victim had carried a large sum of money that evening.

Officer Van Coutren heard over the police radio that the three suspects were running in a northerly direction and drove his patrol car to the described area. He saw defendant, who was bareheaded and wearing a light colored shirt, run into an alley and drop an object. Defendant thereafter ran out of the alley and was walking on the street when stopped by Van Coutren. The officer noted that defendant was perspiring and had a rapid heartbeat. After taking defendant into custody the officer recovered a holstered .22 caliber revolver from the alley. Ballistics tests established that the gun was the murder weapon. No fingerprints were found on the revolver or on the holster.

Defendant testified in his own behalf and denied any involvement in the homicide. He offered an alibi that he had had a fight with Cindy Lou Young, with whom he lived, and was looking for her when police officers seized him. He denied owning any weapons, running through the alley, or disposing of the gun therein.

Defendant attacks his conviction on the ground that he was denied due process because he was not permitted to substitute counsel prior to trial. An experienced deputy public defender represented defendant at the preliminary examination and for four months prior to the trial. Defendant moved for the substitution on the ground that counsel had not consulted with him sufficiently to prepare properly for trial. He also complained that counsel had not moved for defendant's release on bail and had not conferred with defense witnesses.

The trial court heard defendant's reasons for the requested substitution and then asked defense counsel to respond. (See People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.) Counsel conceded that he had not visited defendant at the jail because of his busy trial schedule. He indicated, however, that he had consulted with defendant on at least nine occasions in court and had twice taken as full and complete a statement as his client was prepared to give. He made no motion for release of defendant on bail because of the seriousness of the charges and the likelihood that if bail were set the minimum would be $100,000, the amount which had been set for Cindy Lou Young. The public defender's investigator had interviewed more than ten prospective defense witnesses even though defendant had provided only two names. Counsel stated his opinion that defendant's expression of dissatisfaction would not impair the effectiveness of his representation.

It is a matter of judicial discretion whether to substitute court-appointed counsel in the absence of a sufficient showing that a defendant's right to counsel would otherwise be substantially impaired. (People v. Carr (1972) 8 Cal.3d 287, 299, 104 Cal.Rptr. 705, 502 P.2d 513, and the cases there cited.) Defendant's initial refusal in the instant case to cooperate with appointed counsel by itself was not sufficient cause to require substitution of counsel (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 935--936, 106 Cal.Rptr. 631, 506 P.2d 1007), and there appears to be no abuse of the trial court's discretion or impairment of defendant's right to the assistance of effective counsel.

Defendant attacks the finding that he used a firearm on grounds that the trial court improperly instructed the jury and that insufficient evidence existed to support such a finding. With respect to the allegation of use of a firearm, the jury was instructed in the language of CALJIC No. 17.19. ² The jury commenced deliberations at 9:30 a.m. but returned to court at 2:35 p.m. on the same day for clarification of the word 'used.' The trial court's clarification was not reported. The jury retired to deliberate again at 2:40 p.m. and returned with the verdict at 3:30 p.m. on that day.

At the probation and sentencing hearing defense counsel moved to strike the use allegation. Denying the motion the court stated: 'I want the record to reflect that following the defendant's conviction, both counsel and the Court had the opportunity to talk with the jurors, and I believe that we all agreed that the jury was not convinced beyond a reasonable doubt and to a moral certainty that the defendant himself had personally used the firearm in question, but that they returned such a finding based upon the Court's good-faith instruction to them that they could do so based on an aiding and abetting theory, and that instruction was given to them by the Court based in turn upon the case (People v. Johnson (1974) 38 Cal.App.3d 1, 112 Cal.Rptr. 834) that was cited in either the comment or the use note citation that appeared at the bottom of (CALJIC No. 17.19).' Defense counsel remarked that the judge had reread 'the instructions having to do with the fact that under the law, for the application of a 12022.5 allegation, it need not be proved that the defendant actually physically held the gun so long as the jury was satisfied that someone during the perpetration of the offense did in fact do so.'

The note referred to by the trial court reads as follows: 'A confederate who aids and abets in a robbery in which a victim was shot and killed by another principal, uses a gun within the meaning of Penal Code, § 12022.5. People v. Johnson (supra) 38 Cal.App.3d 1, 112 Cal.Rptr. 834.' But the confederate in Johnson, one Kelly, was himself armed with a revolver which he pointed at several of the robbery victims while Johnson fired the fatal shot from another weapon. Clearly Johnson does not support an instruction allowing a finding that a defendant is deemed to use personally a firearm which is in fact used by an accomplice in the perpetration of the charged crime. ³ It stands instead for the proposition that a weapon may be used in the perpetration of a crime even though it is not used to inflict physical injury.

The People, relying on Johnson and People v. Bush (1975) 50 Cal.App.3d 168, 123 Cal.Rptr. 576, contend that the finding that defendant in the instant case 'used' a firearm was proper. As previously noted their reliance on Johnson is misplaced. Bush holds that an unarmed defendant 'used' a firearm by taking the victims' wallets while his confederate held them at gunpoint. The jury instruction given by the trial court and which the appellate court held did not require reversal of a judgment of conviction was as follows: '(I)f 'a robbery is committed by two or more persons, and only one person uses a firearm in the commission of that robbery, all persons are responsible under Penal Code section 12022.5 for using a firearm in the commission of the...