People v. Whitt8/27/1984
SUPREME COURT OF CALIFORNIA
Crim. No. 22049
1984.CA.40406 ; 685 P.2d 1161; 36 Cal. 3d 724; 205 Cal. Rptr. 810
August 27, 1984
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 J. O'Neill, under appointment by the Supreme Court, Myrna K. Greenberg, Shinaan S. Krakowsky and Manatt, Phelps, Rothenberg & Tunney for Defendant and Appellant.
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Jay M. Bloom and Steven V. Adler, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Bird, C. J., with Mosk, Kaus, Broussard, Reynoso and Grodin, JJ., concurring. Separate concurring and dissenting opinion by Lucas, J.
Bird
This is an automatic appeal from a judgment imposing a penalty of death under the 1978 death penalty law. (Pen. Code, § 190.1 et seq.; see Pen. Code, § 1239, subd. (b).)
Two guilt phase issues require review. The first is whether the trial court correctly denied appellant's motion to suppress the statements he made to a jailhouse informant. The second is whether the trial court erred in failing to fully instruct, sua sponte, on the risks involved in juror note-taking. The court concludes that neither issue merits reversal of the guilt verdicts. However, the special circumstance finding contains Carlos (Carlos v. Superior Court (1983) 35 Cal. 3d 131 [197 Cal. Rptr. 79, 672 P.2d 862]) error, requiring a reversal of this finding.
I.
A. Procedural History
By information, appellant Charles Edward Whitt was charged with the murder of William McCafferty. A special circumstance was alleged in connection with this count in that the murder was committed while Whitt was engaged in the commission of a robbery in violation of section 211. (§ 190.2, subd. (a)(17)(i).)
Whitt was also charged with robbery, assault with a deadly weapon (§ 245, subd. (a)), and being an ex-felon in possession of a firearm (§ 12021).
Before trial, Whitt entered a guilty plea to the ex-felon charge. A jury convicted him of the remaining offenses and found the special circumstance allegation to be true. Following a penalty phase trial, the jury fixed the sentence at death. Thereafter, Whitt's motions for a new trial (§ 1181) and for modification of the verdict (§ 190.4, subd. (e)) were denied. This automatic appeal followed. (§ 1239, subd. (b).)
B. The Guilt Phase Evidence
On the evening of July 6, 1980, Whitt drove his pickup truck to Clella Goforth's house in Yucaipa. Ms. Goforth was acquainted with Whitt, but had not seen him in two years. Whitt told Ms. Goforth that he was looking for her business partner, Harold Williams. Whitt explained that he wanted to sell Williams some livestock because Whitt and his wife were separating, and he needed the money to move.
During this conversation, Ms. Goforth was standing inside a pool area enclosed by a masonry wall. Whitt was standing in the driveway outside the wall. They could see each other through the open grillwork along th
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