Pizano v. Superior Court

• Decision Date: 26 April 1978
• Docket Number: S.F. 23654
• Court: California Supreme Court
• Parties: , 577 P.2d 659 Anthony Gilbert PIZANO, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Page 524

145 Cal.Rptr. 524

21 Cal.3d 128, 577 P.2d 659

Anthony Gilbert PIZANO, Petitioner, v. The SUPERIOR COURT OF TULARE COUNTY, Respondent The PEOPLE, Real Party in Interest.

S.F. 23654.

Supreme Court of California, In Bank.

April 26, 1978.

Charles B. Flood III, Public Defender, and Thomas A. Simonian, Deputy Public Defender, for petitioner.

No appearance for respondent.

Jay W. Powell, Dist. Atty., Brenton A. Bleier, Asst. Dist. Atty., David F. Rodriguez, Deputy Dist. Atty., Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Charles J. James, Deputy Attys. Gen., for real party in interest.

Cecil Hicks, Jr., Dist. Atty. (Orange), Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., as amici curiae on behalf of real party in interest.

CLARK, Justice.

The question presented is whether an armed robber using his victim as a shield to effect escape is guilty of murder under an implied malice theory when a third party unaware of the victim's presence accidentally kills the victim while trying to prevent the robber's escape.

Statements made by this court in People v. Gilbert (1965) 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365 suggest that the robber is not guilty of murder because the third party, not even realizing that the victim is present, is not responding to the robbery's malicious conduct in using the victim as a shield. He is reacting, instead, to the robbery itself, trying to foil it by preventing the escape.

We conclude that the Gilbert test whether the killing was in response to malicious conduct additional to the underlying felony is inapplicable to shield cases. As we explain below, the function of the Gilbert test is to provide the trier of fact with a guideline for determining whether the malicious conduct, rather than the underlying felony, proximately caused the victim's death. In a shield case this determination may be made without employing that test. The third party in this case did not fire the fatal shot in response to the robber's malicious conduct in using the victim as a shield. Nevertheless, there is ample evidence from which the trier of fact may conclude that the victim's death was proximately caused by that malicious conduct rather than by the robbery itself.

The factual context in which this question arises was developed at petitioner's preliminary hearing.

Two men, one carrying a pistol, forced their way into a house shared by Mr. Vaca and Miss Coverdell, robbing them of 13 cents. Coverdell identified the robber with the pistol as codefendant Esquivel and testified petitioner resembled the second robber.

Mrs. Fernandez, her children and Mr. Cuna lived next door to Vaca. The children informed Fernandez and Cuna that two masked men had entered Vaca's house. Fernandez ran next door, peered through a window, and observed a masked man; she returned home and called the police. Arming himself with a rifle, Cuna went to Vaca's house, kicked the door partially open, and saw two men, one carrying a pistol. Cuna returned home and waited on his porch.

Mistaking Cuna for a policeman, petitioner told Esquivel the police were outside. Esquivel responded by grabbing Vaca, twisting his arm behind his back, pointing the pistol at him, and stating he would shoot Vaca if the police intervened. Petitioner opened the door and ran out of the house, followed by Vaca and Esquivel.

Not realizing Vaca was present, Cuna shot at Esquivel as they came out of the house. He fired "because they were robbing" and "because the police didn't arrive." Esquivel was not pointing the pistol at Cuna when Cuna fired. When he recognized Vaca, Cuna did not fire again.

As Vaca fell mortally wounded by Cuna's shot, petitioner and Esquivel fled.

A police officer testified that petitioner stated that he had acted as a lookout while Esquivel and another man went into Vaca's house, that while waiting outside he saw someone carrying a gun come out of the Fernandez house, and that he ran to Vaca's house, told the other robbers someone was coming, and then ran away. Petitioner further stated Esquivel later told him that Esquivel had used Vaca as a shield, that Vaca was shot by the person next door, and that Esquivel did not fire a shot. Petitioner subsequently made another statement in which he said that he had gone into Vaca's house and that he and Esquivel had together taken Vaca from the house.

The magistrate ordered both petitioner and Esquivel held to answer for two counts of robbery, one count of conspiracy to commit robbery and one count of burglary. However, concluding that implied malice had not been shown, he refused to hold either to answer for murder. In the information, however, the People elected to charge petitioner with murder as well. Pe titioner's motion to dismiss the charge of murder pursuant to section 995 was denied. He petitions for writ of prohibition to restrain the superior court from further proceeding on the murder count other than to dismiss it. ¹ The petition is denied.

An information charging an offense not named in the commitment order will not be upheld unless the evidence taken by the magistrate shows that the offense was committed and that it arose out of the transaction which was the basis for commitment on a related offense. (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665, 94 Cal.Rptr. 289, 483 P.2d 1241.)

This rule is subject to the qualification that an offense not named in the commitment order may not be added to the information if the magistrate made factual findings which are fatal to the asserted conclusion that the offense was committed. A clear example of this would be when the magistrate expresses disbelief of a witness whose testimony is essential to the establishment of some element of the corpus delicti. When, however, the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause to believe the offense was committed, such conclusion is open to challenge by adding the offense to the information. Addition of the offense is, of course, subject to attack in the superior court under Penal Code section 995, to review by pretrial writ and, finally, to appellate review from the judgment of conviction. (People v. Farley (1971) 19 Cal.App.3d 215, 221, 96 Cal.Rptr. 478, explaining Jones v. Superior Court, supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241.)

In this case the magistrate's explanation of his refusal to hold petitioner and Esquivel for murder clearly reveals that his determination that implied malice was not shown was a legal conclusion, not a finding of fact as that term is used iN jones. therefore, thE people were entitled to challenge his action by recharging the murder count.

Turning to the merits, it is beyond dispute that the killing of Vaca arose out of the transaction forming the basis for petitioner's commitment on the other offenses. The question we must resolve is whether the evidence presented to the magistrate provided probable cause to believe that the killing constituted murder.

We begin by reviewing People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 and People v. Gilbert (1965) 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.

In Washington, the defendant was convicted of murder under the felony-murder doctrine for participating in a robbery in which his accomplice was killed by the victim of the robbery. This court reversed on the ground that the felony-murder doctrine is applicable only to a killing committed by the felon himself. (62 Cal.2d at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130.) However, this court further stated: "(W)hen the defendant . . . intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L.R.A., N.S. 897; see also Wilson v. State, 188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)

"Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 (concurring opinion)), and it is unnecessary to imply malice by invoking the felony-murder doctrine." (62 Cal.2d at p. 782, 44 Cal.Rptr. at p. 446, 402 P.2d at p. 134.)

In Gilbert, the defendant and a man named Weaver robbed a savings and loan association. Gilbert shot and killed a policeman. Another policeman then shot and killed Weaver. Defendant King drove the getaway car. This court held that the trial court erred in giving a felony-murder instruction. "Although the evidence in the present case would support a conviction of first degree murder on the ground that Weaver was killed in response to a shooting initiated by Gilbert, the court did not instruct the jury on that ground, but gave an erroneous instruction that defendants could be convicted of murder for that killing without proof of malice and solely on the ground that they committed a robbery that was the proximate cause of their accomplice's death. This instruction withdrew from the jury the crucial issue of whether the shooting of Weaver was in response to the shooting of (the slain policeman) or solely to prevent the robbery." (63 Cal.2d at pp. 703-704, 47 Cal.Rptr. at p. 917, 408 P.2d at p. 373.) For the guidance of the trial court on the retrial of King, this court then set forth certain principles which may be invoked to convict a defendant of first degree murder for a killing committed by another. The principles are:

"(1) Proof of malice aforethought. 'Murder is the unlawful killing of a human being, with...