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People v. Whitt8/27/1984
d 1256] and People v. Thornton (1974) 11 Cal. 3d 738, 768-769, footnote 20 [114 Cal. Rptr. 467, 523 P.2d 267]. Thus, "there may . . . be cases where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration." (People v. Garcia, supra, ante, at p. 556, fn. omitted.)
None of these exceptions is applicable here. The Connecticut v. Johnson exceptions are inapplicable because appellant was not "acquitted" of the special circumstance allegation. Neither did he concede the issue of intent at this stage. The record indicates that he simply did not realize intent was in issue at that point.
Nor does the Cantrell-Thornton exception apply. The parties did recognize that Whitt's intent to kill was in issue at the penalty phase. However, defense evidence on that issue -- the testimony of Dr. Lawrence -- cannot be dismissed as "not worthy of consideration." (People v. Garcia, supra, ante, p. 556.)
Even the guilt phase evidence on this issue cannot be so dismissed. The shooting occurred within minutes after Whitt had told the store clerk that he didn't want to hurt anyone. It occurred within seconds after Whitt backed out the front door of the store. Apparently, McCafferty was standing on or near the store's front porch within a few feet of Whitt. Defense evidence suggested that the shooting was a reflexive action which occurred when McCafferty startled Whitt as he was leaving the store.
In addition, the evidence suggested that Whitt was intoxicated at the time of the shooting. Also, Whitt heard and responded to imaginary voices, and the shooting may have been a reaction to these voices. Thus, the existing record fails to establish an intent to kill as a matter of law.
Finally, the Sedeno exception (People v. Sedeno, supra, 10 Cal. 3d 703) does not apply. No instruction squarely posed the question of an intent to kill. The murder count was submitted to the jury on a felony-murder theory. Thus, the jury was not required to find an intentional killing in order to return the first degree murder verdict.
It is true that the special circumstance instruction required the jury to find that Whitt shot McCafferty in order to carry out the robbery or to facilitate the escape. However, even this instruction did not necessarily require the jury to resolve that Whitt intended to kill. There was evidence that he intended to rob but lacked the intent to kill. Thus, the finding that Whitt killed in order to rob or to escape from the robbery may indicate only that the jury believed the shooting was a reaction to Whitt's sudden discovery that McCafferty was obstructing his path as he left the store.
Since there is no basis for concluding that the omission of the intent-to-kill element from the special circumstance instruction was harmless, that finding must be set aside. Accordingly, the judgment of death must also be reversed.
III.
The first guilt phase issue involves Whitt's statements to Jimmy deLoach, his cellmate in the San Bernardino County jail, and whether these should have been suppressed under the Fifth or Sixth Amendments.
Prior to trial, Whitt moved unsuccessfully to suppress deLoach's testimony on the ground that deLoach was acting as a police agent when he talked with Whitt in the jail. Whitt argued that, as an agent, deLoach was required to give Miranda warnings before taking any statement. On appeal, Whitt re
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