People v. Wharton

• Decision Date: 29 April 1991
• Docket Number: No. S004769,S004769
• Citation: 53 Cal.3d 522,809 P.2d 290,280 Cal.Rptr. 631
• Court: California Supreme Court
• Parties: , 809 P.2d 290 The PEOPLE, Plaintiff and Respondent, v. George Herbert WHARTON, Defendant and Appellant.

Page 631

280 Cal.Rptr. 631

53 Cal.3d 522, 809 P.2d 290

The PEOPLE, Plaintiff and Respondent, v. George Herbert WHARTON, Defendant and Appellant.

No. S004769.

Supreme Court of California,

In Bank.

April 29, 1991.

As Modified on Denial of Rehearing

July 9, 1991.

[53 Cal.3d 540] [809 P.2d 299] Horace N. Freedman, Beverly Hills, for defendant and appellant.

Munger, Tolles & Olson, Bradley S. Phillips, Los Angeles, Livingston & Mattesich, James M. Mattesich, Kenneth L. Adams, Sacramento, Dickstein, Shapiro & Morin, Washington, D.C., Keck, Mahin & Cate, Los Angeles, Steven L. Engelberg, Washington, D.C., Robert Cohen, Silver Springs, Md., and Richard S. Leslie, San Diego, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Donald E. De Nicola, Jennifer S. Cady and Robert D. Breton, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

LUCAS, Chief Justice.

George Herbert Wharton was convicted in 1986 of the first degree murder of Linda Smith. After being advised of and waiving his constitutional rights, he admitted the truth of a single special-circumstance allegation charging a prior conviction of second degree murder. (Pen.Code, § 190.2, subd. (a)(2); all further statutory references are to this code unless otherwise indicated.) He also admitted having suffered various prior felony convictions. (§§ 667, subd. (a), 667.5, subd. (b).) A Santa Barbara County jury set the penalty at death. This appeal is automatic. (§ 1239, subd. (b).) We affirm.

FACTS

Guilt Phase

In response to a telephone call, Officer Rivas went on February 27, 1986, to the home of Linda Smith and defendant around 5:30 or 6:00 p.m., in an attempt to locate Smith. Rivas knocked on the door but received no answer. He observed a package addressed to Smith in the mailbox. Mrs. Lopez, a neighbor, reported having last seen Smith about two weeks before. Rivas procured a ladder, hoisted himself up to the balcony and looked into the apartment, announcing his presence and identifying himself as a police officer. Noticing an open window, he removed the screen and entered the apartment. Finding no one at home, Rivas left a note for Smith and exited the apartment, locking the door behind him. After learning from a neighbor that the apartment contained an attic, Rivas, this time accompanied by Officer Garcia, reentered the apartment and searched the attic but found no trace of Smith. In the kitchen, however, both officers noticed a large cardboard barrel with a plastic bag over the top. Although they shook the barrel, they did not search it. Neither officer had a warrant authorizing these entries.

About 10 o'clock that night, Sergeant Zuniga spoke to Smith's aunt, Mrs. Fechtner, who expressed concern for her niece's safety. Zuniga went to Smith's apartment and observed that the apartment was dark and that there was mail in the mailbox. In addition, the officer noticed Smith's car was not in the driveway or the immediate neighborhood. Because Officer Rivas had left a note inside the apartment, however, Zuniga did not attempt to contact anyone at the residence. Zuniga left the residence about 11:10.

Also around 10 p.m., Iris Short, another neighbor, heard a loud thumping noise on Smith's front door and then someone running up the stairs. When she looked out, she saw the silhouette of someone standing in front of the door. After talking to Mr. and Mrs. Lopez, she called the police. Officers Fryslie and Tracy responded to the call about 11:25. Receiving no answer to their knock, they tried the door and found it unlocked. After announcing their intention to enter the apartment, the officers entered. Although there was no one in the apartment, the officers found what appeared to be a suicide note. Encountering the barrel, Fryslie felt part of the plastic covering that protruded; the contents felt soft and pliable. He then called Sergeant Zuniga and informed him that he may have found a body disposal site. Cutting open the bag inside the barrel, they found Smith's body. The officers immediately ceased their search and left to obtain a search warrant.

The warrant was obtained, executed the next morning (February 28th), and the body was removed. A search of the apartment uncovered, among other things, several empty prescription drug bottles and a note pad with a note that began "Dear Dr. Hamilton." While most of the bottles bore the victim's name, one bore defendant's name. In addition, police found a toolbox in the garage.

An autopsy revealed the victim had been struck three times on the head with a blunt instrument, probably a hammer. The victim received one direct blow and two glancing blows. Any of the blows would have caused instant unconsciousness. Although the victim had no other broken bones or lacerations, the presence or absence of defensive wounds such as bruises could not be determined because of the advanced state of decomposition of the body. Dr. Failing, the pathologist in charge of the autopsy, testified that in his opinion, the victim died of asphyxia rather than the cerebral contusions. Because of the condition of the body, Dr. Failing could not pinpoint the time of death but opined it was probably 10 to 14 days earlier.

Police located defendant that morning in a restaurant, but he fled when police arrived. After a brief search, police found him hiding under a truck and took him into custody.

Defendant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and agreed to speak with Officer Tonello. Defendant stated that he lived with Smith and that he spent the night of February 26th with her in their home. He affirmed that Smith was alive that night. He eventually admitted, however, that they argued and that he killed her. He explained that they had been drinking heavily that night and began to argue. ¹ She threw a book at him and he hit her twice in the head. She may have hit her head on a table, but he was not sure. He admitted he was mentally aware he was hitting her but stated that he was in a rage. He eventually realized she was dead. He began writing a letter to his psychotherapist, Dr. Hamilton, and then took several pills and lay down beside Smith. He tried to kill himself by inhaling gas from the oven. He did not know what he intended to do with the body, moving it from room to room. He also stated he lit a fire in the fireplace and brought Smith's body into the room to keep her "warm." At one point, he held Smith's body to his own. He eventually wrapped Smith's body in blankets and plastic bags and placed it in the barrel, where it was found by police.

Leighton Smith, the victim's ex-husband, was sorting through the victim's belongings after defendant was taken into custody. Although police had already searched the house, Leighton Smith contacted police when he discovered a hammer lying under a day bed. He also noticed many of the victim's possessions were missing, including coins, furs, jewelry, china, a television, a camera, a microwave oven, and a stereo.

There was evidence that, in order to buy cocaine, defendant sold the victim's property after, and possibly before, her death. He bartered away her car to Albert and Americo Perez for a quarter gram of cocaine plus a promise of more cocaine in the future. The Perez brothers sold the car in Mexico but agreed to retrieve it and testify against defendant in exchange for a grant of immunity. Sandra Barney testified that she helped defendant cash some of the victim's checks; on at least two occasions, she saw him write the victim's name on a check. She also testified that they used the money from the checks to buy drugs and alcohol and that defendant tried to sell the victim's jewelry. Jackie Dennis testified that defendant gave her some women's clothes and jewelry to sell and asked if she knew anyone who wanted to buy some dishes.

In addition, defendant's two psychotherapists testified and related various inculpatory statements defendant made in therapy. (See discussion, post, p. 645 et seq. of 280 Cal.Rptr., p. 304 et seq. of 809 P.2d.) Defendant did not present an affirmative defense.

Penalty Phase

The prosecution's case at the penalty phase of the trial consisted of evidence of defendant's prior felony convictions. In June 1975, 61-year-old Jane B. answered her doorbell and found defendant, a neighbor, on her doorstep. He indicated he had been fighting with his wife and asked to use Jane B.'s telephone. She told him it was too late to let him in but made up a package of cosmetics to give to defendant for his wife, thinking it would cheer her up. When she opened the door to hand the package to him, defendant forced his way in and, armed with a butcher knife, forcibly raped her. During the crime, defendant held the knife to her throat, told her he would kill her if she screamed or made any noise, and made several small, shallow cuts on her neck. Defendant told her that if she reported the crime, he would return and kill her. He also threatened to firebomb her house. After defendant left, Jane B. discovered some money, a small radio, and a camera were missing. She testified at defendant's subsequent rape trial that the ordeal was extremely painful and that it left her vaginal area bloody.

After his arrest for rape, defendant admitted he raped and robbed Jane B. but denied making the cuts on her neck. During his interrogation, defendant also admitted killing Robert Pierce after the latter solicited a homosexual act from him. Defendant said he kicked Pierce and continued to kick him after he fell down. Before leaving the scene, he took Pierce's watch. The prosecution's evidence showed that in February 1975, Santa Barbara police found the body of Pierce, a university professor, lying in a doorway. Although they initially believed the death was accidental, an autopsy revealed...