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People v. Wiley10/4/1976
lso, People v. Zurica (1964) 225 Cal. App. 2d 25 [37 Cal. Rptr. 118]; People v. Masters (1963) 219 Cal. App. 2d 672 [33 Cal. Rptr. 383].)
In the instant case the instructions were unnecessary because the People did not "substantially rely" on circumstantial evidence, and, unlike the situation in Yrigoyen, the evidence as to the mental elements of murder was either direct evidence, or if circumstantial was not equally consistent with a rational conclusion that appellant was innocent of murder under either of the theories pursued by the People.
Whether appellant personally struck the blow or blows that caused the death of William was not relevant to her guilt since she admitted acts which established that she aided and abetted Henry. (§ 31; People v. Gonzales (1970) 4 Cal. App. 3d 593, 599 [84 Cal. Rptr. 863].) Thus her argument that there was no direct evidence that she struck the fatal blow is not a basis for an instruction on circumstantial evidence. Direct evidence of malice was offered in her statement to Officer Hendrix that
she would kill William if he did not return her money. Her testimony regarding the commission of acts highly dangerous to human life by Henry, with her assistance, was evidence of implied malice. (§ 188.) The statement to Officer Hendrix is also evidence of premeditation. The purpose that is an element of murder by torture, here revenge or extortion, was also established by her own testimony, and that of Officer Hendrix.
Appellant denied that she intended to cause William cruel pain and suffering, although she admitted that she realized that Henry's acts would cause pain. Her intent in this regard therefore was necessarily based on inferences drawn from the circumstances in which the homicidal attack on William occurred and the means by which the beating was administered. However, the purpose and manner of the beating having been established, the evidence was not reasonably susceptible of an interpretation that there was no intent to cause cruel pain and suffering. Thus, it cannot be said that the People substantially relied on circumstantial evidence, or that the nature of the circumstantial evidence relied on was such that it was equally consistent with a reasonable conclusion that appellant was innocent of first degree murder on a murder by torture theory.
Appellant's additional claims, that the trial court should have given a limiting instruction regarding the tape-recorded statement by Henry in which there was a reference to prior offense or bad conduct of appellant, and regarding the bat and hammer admitted into evidence lack merit. Since she herself introduced the tape-recorded statement she cannot now be heard to complain that its content was inadmissible for some purposes. (People v. Sirhan (1972) 7 Cal. 3d 710, 746 [102 Cal. Rptr. 385, 497 P.2d 1121]; People v. Moran (1970) 1 Cal. 3d 755, 762 [83 Cal. Rptr. 411, 462 P.2d 763].) The court properly advised the jury at the time the bat and hammer were admitted that they were being admitted for illustrative purposes only. Appellant contends that this advice should have been given when the exhibits were initially identified and displayed to a witness who testified that they resembled the implements taken from beneath appellant's bed. Even if we assume that the prosecutor had some duty to advise the court, or that the court then had some basis for divining that the items were not to be later identified as the actual murder weapons, we find no prejud
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