People v. Wesley, Cr. 7013

CourtCalifornia Court of Appeals
Citation89 Cal.Rptr. 377,10 Cal.App.3d 902
Decision Date28 August 1970
Docket NumberCr. 7013
PartiesPEOPLE of the State of California, Plaintiff, Appellant and Respondent, v. Johnny WESLEY, III, Defendant and Respondent, Rodney Westbrook, Defendant, Respondent and Appellant.

Henry Ramsey, Jr., Richmond, for Rodney Westbrook, under appointment by the Court of Appeal.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for the People.

AGEE, Associate Justice.

Defendants Rodney Westbrook and Johnny Wesley were convicted by a jury of second degree murder (Pen.Code § 187), assault with a deadly weapon (Pen.Code § 245) and discharging a firearm at an inhabited dwelling (Pen.Code § 246). The jury also found that both defendants were each personally armed with a deadly weapon at the time of the commission of the foregoing offenses. 1

The defendants were sentenced to state prison for the term prescribed by law on each of the three convictions. The court ordered that the sentence as to discharging a firearm at an inhabited dwelling run concurrently with the sentence as to assault with a deadly weapon and that the sentences as to the murder and firing at dwelling house convictions be stayed pending any appeal and during the service of the sentence that may thereafter be set by the Adult Authority as to the assault with a deadly weapon, at which time the stay as to the sentences imposed on the other two convictions would be made permanent.

The People have appealed from the judgment but they seek only a reversal of that portion which stays the execution of the murder sentence. Defendant Westbrook has appealed from the judgment of conviction. Codefendant Wesley has not appealed, being apparently satisfied with the sentence he received. (We add that the record shows that he was represented by competent counsel.)


On the evening of March 10, 1967, defendant Wesley and one Phillips were involved in a fist fight in the carport of an apartment building in Richmond. Afterwards Wesley went into the building and entered the apartment of one Frances Dove; a gunshot was subsequently fired from outside which ricocheted off the kitchen window of the apartment. Later that evening Wesley described the incident to a police officer investigating the shooting and told him, 'You better pick up Mr. Phillips before I do because I'm going to go out and get him before he gets me and shoot him dead.'

On the following day, March 11, about 2:00 p.m., Phillips was in his apartment with his sister Wanda, one Mary Ruth Smith, and a third female. Three gunshots were fired from the outside into the apartment; Mary was hit by one of the shots, resulting in her death. Wanda testified that she heard Wesley call out to Phillips after the first shot had been fired. After the third shot was fired, she looked out and saw Wesley standing outside, then heading out of the gate.

Evie Huntley, a Richmond garbage man, testified that he heard gunfire, then saw two men standing beside a fence pointing guns toward the building. He heard three shots fired altogether, then saw the men run past his stopped truck; from photographs he identified one as Wesley, carrying a hand gun, and the other as Rodney Westbrook, carrying a rifle.

Milton Hill, a school community worker, testified that he observed two men leaning against the fence, and recognized one as Wesley, whom he had known for about two years. Then he conversed with Huntley, heard one shot, turned his car around, and heard two more shots. He stated he did not see who fired the shots, but observed two young men crossing the street.

On that same day, but prior to the shooting, all of the five original defendants had been seen together in a car in Richmond by witness Johnnie Marie Thorn, Wesley's cousin; Wesley, Hunt and other individuals had visited the house of witness Patsy Shaw; Wesley and other persons had been seen inside a car by witness Lee; and Rodney Westbrook, Wesley, Odell Westbrook, and Gardner had been observed inside a parked car by witness Shirley Vaughan, who was Phillips' sister. Rodney Westbrook had asked Shirley where Phillips was and she had told him she did not know. Shortly after the defendants had left, Shirley received a telephone call from Wanda and then notified Mary Smith's parents that Mary had been shot.

Felony-Murder Instruction

The court gave an instruction on the felony-murder doctrine based upon CALJIC 305 (Revised), the relevant portions of which are as follows:

'Murder of the second degree is the unlawful killing of a human being with malice aforethought which is not perpetrated by (certain means not present here) * * * and which is not committed in the perpetration (of any of six specified felonies, none of which are involved herein) * * *. In practical application this means that the unlawful killing of a human being with malice aforethought is murder of the second degree in any of the following cases: * * * (3) When the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life, such as discharging a firearm at an inhabited dwelling.'

The same instruction was given in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, except that the underlying felony example therein stated was, 'such as an assault with a deadly weapon,' whereas the example of an underlying felony in our case was posited as 'such as discharging a firearm at an inhabited dwelling.'

In Ireland a second degree murder conviction was reversed because of the giving of this instruction, the court stating that the jury might have concluded therefrom that it should find the defendant therein guilty of second degree murder if it found Only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon. 'This * * * would have relieved the jury from a specific finding of malice aforethought.' (P. 539, 73 Cal.Rptr. p. 197, 450 P.2d p. 589.)

Mr. Justice Sullivan, speaking for the court, therefore concluded 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 by the prosecution shows to be an offense included In fact within the offense charged.' (P. 539, 75 Cal.Rptr. p. 198, 450 P.2d p. 590.) Justice Sullivan explained that 'an offense may be included In fact within the offense charged even though it is not embraced within the statutory definition of the greater offense.' (Pp. 539--540, fn. 14, 75 Cal.Rptr. p. 198, 450 P.2d p. 590; italics by the court.)

In People v. Wilson (1969) 1 Cal.3d 431, 440--441, 82 Cal.Rptr. 494, 500--501, 462 P.2d 22, 28--29, Mr. Justice Mosk stated: 'In Ireland, we rejected the bootstrap reasoning involved in taking an Element of homicide and using it as the Underlying felony in a second degree felony-murder instruction. * * * To hold otherwise, we would have to declare that because burglary (based upon fact that defendant entered wife's apartment with intent to commit assault with a deadly weapon) is not technically a lesser offense included within a charge of murder, burglary constitutes an Independent felony which can support a felony-murder instruction. However, in Ireland itself we did not assert that assault with a deadly weapon was a lesser included offense in murder; we asserted only that it was 'included in fact' in the charge of murder, in that the elements of the assault were necessary elements in the homicide. (Citation.) In the same sense, a burglary based on intent to assault with a deadly weapon (or, as herein, discharging a firearm at an inhabited dwelling) is Included in fact within a charge of murder, and cannot support a felony-murder instruction.' (Italics ours.)

Justice Mosk pointed to certain other states that have adopted the merger doctrine, i.e., the 'concept that only felonies independent of the homicide can support a felony-murder instruction; felonies that are an integral part of the homicide are Merged in the homicide.' (Italics by the court.)

In the instant case, the Attorney General, while recognizing the authority of Ireland and the many other decisions which followed it, argues that the underlying felony, i.e., discharging a firearm at an inhabited dwelling, is not an offense 'included in fact' within the murder charged in this case. We do not agree.

It is undisputed that the homicide and the underlying felony referred to in the court's instruction were committed by the same act. The discharge of the firearms by the defendants was the means by which the homicide was committed and was In fact an 'integral part' and a 'necessary element' of the homicide. Under the rule of Ireland and Wilson, the question as to whether the criminal act of committing the two lesser offenses was done with 'malice aforethought' should have been left to the jury.

Some of the cases which have followed the Ireland decision since its rendition on February 28, 1969 are: People v. Jenkins (August 1969) 275 A.C.A. 632, 80 Cal.Rptr. 257; People v. Nabayan (September 1969) 276 A.C.A. 448, 80 Cal.Rptr. 779; People v. Blakeslee (December 1969) 2 Cal.App.3d 831, 82 Cal.Rptr. 839; People v. Wilson, supra, (December 1969) 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22; People v. Stines (December 1969) 2 Cal.App.3d 970, 82 Cal.Rptr. 850; People v. Sears (March 1970) 2 Cal.3d 180, 84 Cal.Rptr. 711, 465 P.2d 847.

Based upon the foregoing authorities and the record herein, we hold that neither the commission of the offense of discharging a firearm at an inhabited dwelling (Pen.Code § 246) nor the commission of the offense of assault with a deadly weapon (Pen.Code § 245) was a felony independent of the homicide charged and that the giving of an instruction on the felony-murder...

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