People v. Whitt

Decision Date25 October 1990
Docket NumberNo. 24585,No. S004689,S004689,24585
CourtCalifornia Supreme Court
Parties, 798 P.2d 849, 59 USLW 2343 The PEOPLE, Plaintiff and Respondent, v. Charles Edward WHITT, Defendant and Appellant. Crim.

Brian O'Neill, under appointment by the Supreme Court, Brian C. Lysaght, Frederick D. Friedman, Carol K. Lysaght and O'Neill & Lysaght, Santa Monica, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., Michael D. Wellington, Louis R. Hanoian and Lilia E. Garcia, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

EAGLESON, Justice.

A jury convicted defendant Charles Edward Whitt of one count of first degree murder (Pen.Code, § 187), 1 one count of robbery (§ 211), and one count of assault with a deadly weapon (§ 245, subd. (a)). Before trial, defendant pled guilty to one count of possession of a firearm by an ex-felon (§ 12021). The jury found true a special circumstance that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(i)). After a penalty On automatic appeal, this court affirmed the guilt judgment, but set aside the special circumstance finding and reversed the death judgment. (People v. Whitt (1984) 36 Cal.3d 724, 205 Cal.Rptr. 810, 685 P.2d 1161 (Whitt I ).) The sole basis for reversal was the trial court's failure to instruct on intent to kill as an element of the felony-murder special circumstance under Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862. After special circumstance and penalty retrials, the jury once again imposed the death penalty. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal is automatic. (§ 1239, subd. (b).)

[798 P.2d 853] trial, the jury sentenced defendant to death under the 1978 law.

The appellate record discloses no prejudicial error. The judgment will be affirmed in its entirety.

A. Special Circumstance Retrial

As in the original guilt trial (see Whitt I, supra, 36 Cal.3d at pp. 729-732, 205 Cal.Rptr. 810, 685 P.2d 1161), prosecution evidence established that defendant committed the charged crimes on July 6, 1980, in two neighboring mountain communities in San Bernardino County.

At 8 o'clock that evening, defendant arrived in his truck at the Yucaipa home of acquaintance Clella Ann Goforth. Defendant asked to see Goforth's business partner, Harold Williams, but Williams was not there. Defendant told Goforth that he wanted to sell some livestock and tools because he and his wife were separating and he needed the money.

During their 10- to 15-minute conversation, defendant and Goforth stood about 1 foot apart. They were separated by a five to six feet high cement wall, but could see each other through large holes in the decorative blocks that lined the top two feet. 2 Defendant said he was "angry" about the marital breakup, but Goforth thought he acted "coolly." His speech was "coherent," and he did not appear to be under the influence of drugs or alcohol.

Defendant walked back to the driver's side of the truck, which stood facing Goforth about four feet from where defendant had been standing. He got in and, through the open window, calmly said "I'll be back to see Harold." Goforth watched him through the hole in one cement block, and rested her hand in another. Suddenly, defendant fired a shotgun at her. The force of the blast knocked her to the ground, but no pellets hit her. The blast left a "crater" and some pellets in the wall directly in front of where she had been standing.

Goforth stood up and saw defendant drive to the intersection of Juniper and Bryant Streets. Defendant momentarily stopped the truck, evidently reloaded the gun, and then sped away. 3 Goforth called the sheriff.

About 20 minutes later, defendant arrived at the Elkhorn General Store in Forest Falls. He bought a can of Michelob beer and a pack of Camel cigarettes from the clerk, Linda Weisz. Two other customers were in the store at the time. Weisz sensed that defendant was "nervous" but in "control." He displayed no signs of intoxication. Defendant left the store after making his purchases, and the other two customers soon followed suit.

Defendant reentered the store a few minutes later. He pointed a shotgun at Weisz, led her by the arm to the cash register, demanded that she give him the "big bills," The victim of the shooting, William McCafferty, was discovered on the ground in front of the store by local residents who heard the gunshot and/or saw a truck like defendant's speeding away from the store between 8:30 and 8:48 p.m. 4 McCafferty died within minutes as a result of a shotgun wound to the right side of the neck. Fingers on his left hand had also been injured by the blast. The sheriff was called, and descriptions of defendant and the truck were broadcast over police radio.

[798 P.2d 854] and said she would not get hurt if she complied. She gave him about $250. He then backed out of the store at an angle, watching and pointing the gun at her the entire time. Five to ten seconds after defendant had passed through the doorway, Weisz heard a gunshot. She then heard the sound of tires on the gravel parking lot. Weisz locked the door and called her boss.

Shortly after 9 p.m., a patrol car stopped defendant in his truck a few miles from Forest Falls. He was arrested and taken to the sheriff's station, where approximately $250 in cash was found on his person. A blood test administered at 11:09 p.m. showed a .10 percent blood-alcohol level. Expert testimony established that depending upon various factors--such as the rate of alcohol absorption and burnoff, body weight, and drinking pattern--defendant's blood-alcohol level near the time of the initial stop could have been lower than .10 percent or higher than .14 percent.

Pursuant to a warrant, officers searched defendant's truck and found a loaded 20-gauge, sawed-off shotgun on the floor of the passenger compartment and several live rounds of 20-gauge ammunition in the glove compartment. A pack of Camel cigarettes and an empty Budweiser beer bottle were also seized from the truck.

An expert criminalist tested defendant's shotgun and ammunition, and opined that the trigger responds to "average" force; it is neither "hard" to pull nor a "hair trigger." The witness also testified that based on "shot pattern" comparisons, McCafferty was standing six to nine feet from the end of the barrel at the time the gun was fired. The pathologist who performed the autopsy on McCafferty confirmed that the neck wound was inflicted at "close range," but that the gun was "not held directly against the body" at the time.

The day after the crimes, defendant was placed in a county jail cell with Jimmy DeLoach, who was awaiting sentencing following extradition from Georgia on an escape charge. They shared the cell for approximately three weeks, and purportedly spoke many times about defendant's crimes.

DeLoach testified that defendant made the following statements about the Goforth assault: defendant drove his truck to a man's house to collect on a debt, but was told by a woman that the man was not there. Defendant replied, "Well, okay, tell him this." Defendant grabbed a shotgun from inside the truck and shot at the woman. Defendant "blew the wall away," and did not know "how in the world [he had] missed her."

DeLoach testified that defendant described the Elkhorn store robbery as follows: defendant held the shotgun to the clerk's face and said, "Pop the cash register. Give me nothing but big bills." Defendant took the money, backed out of the store, and heard a man behind him ask, "What [are] you doing?" Defendant turned around, and "blew him away." Defendant did so in order to eliminate a "possible witness" to the robbery. Defendant started to reenter the store to kill the clerk for the same reason, but knew that the shotgun blast had probably attracted attention and that he should leave the area "real quick." After driving in a direction away from Yucaipa for 25 to 30 minutes, defendant turned around and came back because he wanted to kill the woman he had shot at earlier (Goforth). He was stopped by a sheriff's "roadblock" en route to her house. Defendant thought about "shoot[ing] it out According to DeLoach, defendant said he was planning to present a defense that he had been drinking beer all day even though he had actually consumed only a couple of cans of beer before the crimes and was not drunk. In the alternative, defendant purportedly was considering a claim of "self-defense," i.e., that McCafferty "grabbed the barrel of the shotgun" and it "accidentally went off."

[798 P.2d 855] with them," but knew he was "outnumbered."

The defense presented no evidence at this phase of the proceedings.

B. Penalty Retrial

The prosecution introduced a certified copy of defendant's 1974 robbery conviction. At the prosecutor's request, the court instructed the jury that defendant had pled guilty in the instant case to one count of possession of a firearm by an ex-felon.

Defendant, who was 30 years old at the time of the crimes, introduced evidence describing his life from childhood through residence on "Death Row" at San Quentin.

Defendant's father Edgar, a retired battalion chief for the Los Angeles County Fire Department, testified that defendant was born with a congenital heart problem which required three hospitalizations and regular medical attention during childhood. Defendant has an older brother and younger sister. As youngsters, all three children were "close" to their mother, who did not work outside the home. Edgar described the family as having a "normal middle class" life, which included regular outdoor camping and recreation trips.

Edgar recalled that defendant graduated from high school with...

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