People v. Welch

• Decision Date: 04 October 1972
• Docket Number: Cr. 14034
• Citation: 8 Cal.3d 106,104 Cal.Rptr. 217
• Court: California Supreme Court
• Parties: , 501 P.2d 225 The PEOPLE, Plaintiff and Respondent, v. Richard WELCH, Defendant and Appellant. In Bank

Page 217

104 Cal.Rptr. 217

8 Cal.3d 106, 501 P.2d 225

The PEOPLE, Plaintiff and Respondent, v. Richard WELCH, Defendant and Appellant.

Cr. 14034.

Supreme Court of California,

In Bank.

Oct. 4, 1972.

Molly H. Minudri, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Daniel J. Kremer and Willard F. Jones, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

A jury found Richard Welch guilty of first degree murder of Randall Jenkins and of assault with a deadly weapon with intent to commit murder upon Diane Bradford and fixed the penalty at death for the murder. No sentence was imposed for the assault. A motion for a new trial was denied, and defendant's automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

Defendant contends that the court erred in denying his motion for a change of venue, in admitting a tape recording of certain conversations, in giving instructions regarding rape and the felony-murder rule, and in failing to give an instruction on mistake of fact. ¹ We have concluded that none of the contentions can be upheld but that, since the death penalty cannot consti tutionally be imposed, the judgment should be modified in accordance with People v. Anderson, 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.) We affirm the judgment as so modified.

On the afternoon of September 25, 1968, Randall Jenkins, age 17, and Diane Bradford, age 18, began hitchhiking from San Jose to go to Salt Lake City, Utah. Following several rides they reched Bakersfield. Around 10:00 that night defendant, who was 27, and his 17-year-old wife Anita, offered them a lift, and they accepted. Since the back seat of the car was full of belongings, all four rode in the front seat. After Anita drove a short way, defendant took over the driving and Anita sat next to him, then Diane, and then Randall.

Diane fell asleep but awoke upon hearing gunshots. The car was stopped when she awoke. Randall fell on her lap, and defendant and Anita told her 'It's all right.' Defendant got out of the car, pulled Randall out and dropped him on the ground. Defendant then reentered the car and sat by Diane. His wife was still in the car. He asked Diane if she had any money, and she replied that she did not. He then put his hand up her blouse and said something to the effect that he was going to rape her. Diane said that she had gonorrhea, and he replied that he did not believe her. He told her to get out of the car and she complied. He agreed that she could use a blanket that was in the car. Upon his order she removed her capri pants and underpants. He thereupon stated, 'Well, I don't think I will because you might have something.' He subsequently shot her in the head and drove off with Anita.

Around 2:00 a.m. on September 26, 1968, Diane regained consciousness. She managed to get her underpants on but as a result of her weakened condition was unable to put on her capris. After observing that Randall appeared lifeless, she stumbled toward the highway to get help. A motorist stopped and took her to the sheriff's substation in Mojave, and from there she was taken to a hospital where she underwent surgery. Bullet and bone fragments were imbedded in her brain.

An ambulance driver located Randall's body a few miles east of Mojave. According to the autopsy surgeon, the cause of death was a bullet wound in the head.

At the scene of the shootings officers found, among other things, Diane's capri pants and a bullet. Expert testimony indicated that the bullet from Randall's head, a bullet fragment from Diane's head, and the bullet at the scene were fired from a specified gun, and the gun was shown to have been purchased by defendant in August 1968 and to have been found along the highway around November 1968.

After the shooting defendant and his wife returned to Bakersfield and from there went to Texas after obtaining money from Anita's mother. Anita spent a few days with her parents and then went with defendant to a motel. There he beat her up and threatened to kill her if she 'said anything.' On October 5, 1968, she was arrested, and two days later defendant was arrested.

Defendant made a statement to the F.B.I. agent who arrested him to the following effect: In the latter part of September 1968 in Bakersfield defendant and his wife picked up two hitchhikers, a boy and a girl who said they were going to Salt Lake City, Utah. Defendant subsequently overheard the girl say to the boy 'Do you still plan to?' or 'Are you still going to do what you said you were going to do?' He became concerned that they were going to rob or harm his wife and himself. He therefore obtained a gun from his car trunk and placed it near him. After going through Mojave he stopped to let his car cool. He noticed that the boy hitchhiker, who seemed to be sleeping, appeared to reach into his boot for what defendant thought might be a gun or knife, although he never saw a gun or knife. Fearing that he and his wife were about to be harmed defendant reached for his gun. The boy raised his head, and defendant told him 'not to do what he was going to do, to stop,' but the boy continued to raise up. At that point defendant shot the boy in the head. After removing the boy from the car, he told the girl hitchhiker to get out. He had her lie on a blanket. He then shot her in the head because she was a witness to the shooting of her companion. When he left he assumed they were both dead. He threw the gun away en route back to Bakersfield.

Defendant, testifying in his own behalf, gave a version similar (although not identical in all details) to that he had given to the F.B.I. agent. Defendant stated, inter alia, that he shot Randall because he thought Randall was reaching for a weapon and that he subsequently panicked and shot Diane. He denied asking Diane for money and stating that he was going to rape her and testified that she did not remove any of her clothes while he was there.

Richard Burdick, a psychiatrist called to the stand by the defense, testified: He examined defendant on three occasions in 1969. Defendant does not have a mental illness but has an 'emotionally unstable personality,' and 'This is characterized by impulsivity, usually very poor judgment under situations of stress.' Defendant also has 'significant elements of paranoid personality, although not to the extent that he would be characterized as a paranoid personality.'

In the doctor's opinion at the time of the alleged murder defendant was incapable of deliberating and premeditating or harboring malice aforethought, although he might have the ability to do so on other occasions. The opinion was based in part upon the assumption that certain matters stated by defendant were true, such as that defendant became concerned that Randall and Diane might harm him and his wife and thought Randall was going to obtain a weapon from his boot. The doctor believed the offense had 'no reasonable motive, except in terms of being an impulsive act. . . .' In his opinion neither a robbery nor rape motive seemed very plausible.

The defense also elicited testimony that Diane and Randall took L.S.D. and marijuana on the night of September 24, 1968, and the defense called as a witness a truck driver who testified that he gave Diane and Randall a lift on September 25, 1968, and that they both appeared 'hopped up' and told him they were 'on acid.'

Dr. Thomas Ungerleider, a phychiatrist called as a defense witness, testified that a person under the influence of L.S.D. often will not respond to an order such as 'Stop what you are doing.' He further stated that an L.S.D. trip usually lasts 12 to 18 hours but may last several days and that marijuana could prolong the effect of L.S.D.

In rebuttal the prosecution called to the stand a patrolman who stated that he talked with Diane and Randall in Bakersfield on the night of September 25, 1968, and that they did not appear to be under the influence of anything. A service station attendant in Bakersfield who talked with Diane on the same night stated he noticed nothing strange in her behavior. An investigator testified that during an interview on September 26, 1968, the truck driver who testified for the defense discussed giving Diane and Randall a lift and did not mention that he thought they were under the influence of any drug.

The evidence is sufficient to support the conviction of the murder and aggravated assault, and defendant makes no argument to the contrary. He seeks, however, to have the judgment reversed on the following grounds:

Asserted Error in Denying Motion for a Change of Venue

On June 23, 1969, before the proceedings for the selection of the jury, defendant moved for a change of venue on the ground that as a result of publicity he could not get a fair trial in Kern County. (See Pen.Code, § 1033.) In support of the motion he presented testimony that there were at least 15 broadcasts on KAFY that Mrs. Welch pled guilty to being an accessory to (1) murder and (2) assault with a deadly weapon with intent to commit murder. The broadcasts were on six days, and it may be inferred that the broadcasts were on various dates from December 26, 1968, to May 16, 1969. ² Evidence was also presented that there was newspaper publicity concerning Mrs. Welch's plea; the date or dates of such publicity were not established. In addition, defense counsel represented that '(r)ecently' the Bakersfield Californian contained an article which he believed stated that there were 17 or 18 defendants in the Kern County jail awaiting trial for murder, and defense counsel further stated that judicial notice should be taken 'that there has been a good deal of publicity in this matter,' the exact nature of which was not shown except as set forth above. The court, in ruling on the motion stated, 'I doubt if very...