People v. Whitt10/25/1990
SUPREME COURT OF CALIFORNIA
No. S004689, Crim. No. 24585
1990.CA.40255 ; 798 P.2d 849; 274 Cal. Rptr. 252; 51 Cal. 3d 620
October 25, 1990
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARLES EDWARD WHITT, DEFENDANT AND APPELLANT
Superior Court of San Bernardino County, No. SCR 37449, Ben T. Kayashima, Judge.
Brian O'Neill, under appointment by the Supreme Court, Brian C. Lysaght, Frederick D. Friedman, Carol K. Lysaght and O'Neill & Lysaght for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White and Richard B. Iglehart, Chief Assistant Attorneys General, Harley D. Mayfield, Assistant Attorney General, Michael D. Wellington, Louis R. Hanoian and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Eagleson, J., with Lucas, C. J., Panelli and Arabian, JJ., concurring. Separate concurring and dissenting opinions by Mosk, Broussard and Kennard, JJ.
Eagleson
A jury convicted defendant Charles Edward Whitt of one count of first degree murder (Pen. Code, § 187), 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 trial, the jury sentenced defendant to death under the 1978 law.
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).)
The appellate record discloses no prejudicial error. The judgment will be affirmed in its entirety.
I. Facts
A. Special Circumstance Retrial
As in the original guilt trial (see Whitt I, supra, 36 Cal. 3d at pp. 729-732), 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-foot high cement
wall, but could see each other through large holes in the decorative blocks that lined
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