People v. Green4/24/1980
SUPREME COURT OF CALIFORNIA
Crim. Nos. 20555, 21068
1980.CA.40827 ; 164 Cal. Rptr. 1; 609 P.2d 468; 27 Cal. 3d 1
April 24, 1980
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARLES ALAN GREEN, DEFENDANT AND APPELLANT. IN RE CHARLES ALAN GREEN ON HABEAS CORPUS
Superior Court of Sutter County, No. 23490, James G. Changaris, Judge.
Quin Denvir, State Public Defender, under appointment by the Supreme Court, Ezra Hendon, Chief Assistant State Public Defender, and Richard E. Shapiro, Deputy State Public Defender, for Defendant and Appellant and Petitioner.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones, Arthur G. Scotland, Roger E. Venturi and Edmund D. McMurray, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Mosk, J., with Bird, C. J., Tobriner and Newman, JJ. concurring. Separate concurring and dissenting opinion by Richardson, J., with Clark and Manuel, JJ., concurring.
Mosk
Defendant appeals from a judgment sentencing him to death on his conviction of murder in the first degree, robbery, and kidnaping. In a proceeding consolidated herewith he also petitions for a writ of habeas corpus, alleging principally that he was denied effective assistance of counsel. We have concluded that the judgment must be affirmed as to the convictions of first degree murder and robbery, but reversed as to kidnaping; that the findings of "special circumstances" elevating the murder to a capital offense must be set aside; and hence that the judgment must also be reversed insofar as it relates to penalty.
Defendant was charged by information with murder in violation of section 187 (count I), robbery in violation of section 211 (count II), and kidnaping for the purpose of robbery in violation of section 209 (count III), all committed against his wife Karen Green on October 11, 1977. Count I also charged two "special circumstances," i.e., that the murder was willful, deliberate and premeditated and was personally committed by defendant (1) during the commission of a robbery in violation of section 211 (former § 190.2, subd. (c)(3)(i)) and (2) during the
commission of a kidnaping in violation of section 207 or section 209 (id., subd. (c)(3)(ii)). For enhancement purposes it was further charged that defendant used a firearm in all counts (§ 12022.5), and in counts II and III that defendant intentionally inflicted great bodily harm on the victim (§ 12022.7). No prior convictions were alleged.
Defendant entered pleas of not guilty to the offenses charged, and denied the special circumstances and enhancement allegations. The jury found defendant guilty of first degree murder and robbery as charged in counts I and II; on count III the jury found defendant guilty of the lesser included offense of simple kidnaping in violation of section 207. The jury further found the special circumstances allegations true, except that the second of such circumstances was found to be murder committed during the commission of a simple kidnaping rather than a kidnaping in violation of section 209. The enhancement allegations were found true.
The jury subsequently fixed the penalty for the murder at death. The court denied motions for modification of the verdict (former § 190.4, subd. (e)) and for new trial, and on count I sentenced de
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