People v. Weidert

Page 57

218 Cal.Rptr. 57

39 Cal.3d 836, 705 P.2d 380

The PEOPLE, Plaintiff and Respondent, v. David D. WEIDERT, Defendant and Appellant.

Crim. 23649.

Supreme Court of California.

Sept. 19, 1985.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by the Court of Appeal, Eric J. Coffill and Steven W. Parnes, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Linda A. Cabatic, Deputy Attys. Gen., for plaintiff and respondent.

Christopher N. Heard, San Jose, as amicus curiae on behalf of plaintiff and respondent.

BIRD, Chief Justice.

The principal issue presented by this case is whether an individual who intentionally kills a witness for the purpose of preventing his or her testimony in a juvenile proceeding is subject to the death penalty or life imprisonment without the possibility of parole under the 1978 Briggs Initiative.

I.

On June 18, 1980, the office of Dr. David Joseph Edwards was burglarized. Dr. Edwards undertook his own investigation and focused upon the employees of the janitorial service he had engaged around the time of the burglary. The investigation prompted Michael Morganti to confess his involvement in the burglary. According to Morganti, he had acted as a lookout for appellant, then 17 1/2 years old, who had been employed by the same janitorial service. Morganti subsequently pleaded guilty to petty theft based upon his involvement in the burglary.

Dr. Edwards' investigation led to several discussions about the burglary with appellant. On three separate occasions, Edwards informed appellant of his suspicions about appellant's involvement. On the last such occasion, Edwards told appellant that he knew that Morganti was an eyewitness to the crime. According to Edwards, when appellant heard this, "the whole tenure [sic] of [the conversation] changed. [Appellant] became very angry; a stern voice, and he belted out--he says, 'listen,' he says, 'nobody is going to believe that idiot in Court. Nobody's going to believe him. I'll see to it that they don't.' "

In October of 1980, shortly after his 18th birthday, appellant told 17-year-old John A. that he had hired someone to kill Morganti but had not paid him. John responded that he knew someone who would commit the murder for appellant. Appellant also told another juvenile, Rodney G., of his intention to "get somebody" connected with the burglary.

About noon on November 21, 1980, John A. finished classes at his school in Fresno and headed for work. He had recently obtained a job through appellant in construction and in performing janitorial services. When his employer failed to meet him as agreed, John telephoned appellant, who told him that he had something very important to do that day and that it "would be worth more" to him if he waited to be picked up rather than going to work. John agreed to wait, and appellant soon arrived as arranged.

As they drove off in appellant's truck, appellant told John that he wanted to kill Morganti so that Morganti could not testify against him in connection with the burglary of Edwards' office. The pair drove to Morganti's neighborhood where they waited for several hours for Morganti. During the wait, appellant described to him the circumstances of the Edwards burglary and the extent of his and Morganti's participation.

Soon after this conversation, Morganti arrived on the scene and entered his apartment. Acting upon a ruse suggested by his girlfriend, John went to the apartment, introduced himself, told Morganti that his sister wanted to meet him, and convinced him to leave the apartment. They went to a parking lot where appellant was waiting. John and appellant then forced Morganti into the truck, drove about a mile, and then stopped to tie Morganti's hands behind his back. The trio then drove to an isolated location in the mountains where appellant, aided by John, beat Morganti and left him for dead in a shallow grave. Morganti died of suffocation.

Appellant was charged with kidnaping (Pen.Code, § 207) ¹ and murder ( § 187). Two special circumstances were also alleged: (1) that the murder had occurred while defendant had been engaged in a kidnaping ( § 190.2, subd. (a)(17)(ii)), and (2) that the murder was committed to prevent Morganti from testifying in a criminal proceeding ( § 190.2, subd. (a)(10)).

Appellant moved to strike the second special circumstance allegation on the ground that no criminal proceeding had been pending in which the victim could have been a witness. He argued that there was not sufficient evidence "to indicate that the matter had developed to the point of [a] legal proceeding," and that in any event, since the burglary had been committed when appellant was a juvenile, Morganti could not have been a witness in a criminal proceeding. Appellant also demurred to the kidnaping-murder special circumstance on constitutional grounds. The trial court denied the motion to strike and overruled the demurrer.

A jury found appellant guilty of the charged offenses and found both special circumstance allegations true. Prior to sentencing, appellant unsuccessfully moved to strike the special circumstance findings. Thereafter, the court sentenced him to life imprisonment without the possibility of parole. ²

II.

The first issue this court must address is whether the kidnaping-murder special circumstance finding must be reversed.

This court recently held that where an accused's primary goal was not to kidnap but to kill, and where a kidnaping was merely incidental to a murder but not committed to advance an independent felonious purpose, a kidnaping-felony-murder special circumstance finding cannot be sustained. (People v. Green (1980) 27 Cal.3d 1, 47-62, 164 Cal.Rptr. 1, 609 P.2d 468 see People v. Thompson (1980) 27 Cal.3d 303, 321-322, 165 Cal.Rptr. 289, 611 P.2d 883.)

The Attorney General concedes that the evidence was insufficient to establish that appellant committed the kidnaping to advance any felonious purpose independent of the killing. Appellant's avowed purpose was to kill Morganti in order to prevent him from testifying, not to kidnap him. Therefore, this special circumstance finding must be set aside and further proceedings on this allegation are barred by the double jeopardy clause. (People v. Green, supra, 27 Cal.3d at p. 62, 164 Cal.Rptr. 1, 609 P.2d 468 and cases cited.)

III.

The next issue is whether the jury's finding on the killing-of-a-witness special circumstance finding can be sustained. The resolution of this issue hinges in part on whether the voters, in enacting the 1978 Briggs Initiative, intended to subject an accused to the death penalty or a life-without-parole term for intentionally killing a witness to prevent his testimony in a juvenile proceeding.

From a policy point of view, perhaps the killing of any witness--whether that witness' testimony was to be elicited in a proceeding denominated criminal, juvenile, traffic, "quasi-criminal," probate, civil, legislative, or administrative--should be a capital offense. However, our role is limited by the language of subdivision (a)(10) and any legislative history which elucidates its meaning. ³ Both unequivocally indicate that only witnesses in criminal proceedings are covered by this provision.

The language of Penal Code section 190.2, subdivision (a)(10) ⁴ is clear and unambiguous. It subjects an individual to a sentence of death or life imprisonment without the possibility of parole if the victim "was a witness to a crime who was intentionally killed for the purpose of preventing his testimony in any criminal proceeding...." (Italics added.)

"It is a settled principle in California law that 'When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.' (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, [137 Cal.Rptr. 460, 561 P.2d 1148].)" (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 599 P.2d 656.) This principle is but a recognition that courts " 'must follow the language used and give to it its plain meaning, whatever may be thought of the wisdom, expediency, or policy of the act, even if it appears probable that a different object was in the mind of the legislature.' " (Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652, 334 P.2d 991.) Since the language of subdivision (a)(10) is clear, "its plain meaning should be followed." (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.)

Even if one looks beyond the plain words of the statute, there is no evidence that subdivision (a)(10) was intended to apply to witnesses in juvenile proceedings. If anything, the evolution of that provision in the years preceding its enactment supports the contrary conclusion.

The witness special circumstance provision was first enacted in the 1973 death penalty law. That provision required that "the murder [have been] willful, deliberate and premeditated and [that] the victim [have been] a witness to a crime who was intentionally killed for the purpose of preventing his testimony in any criminal proceeding." (Former § 190.2, subd. (b)(2); Stats. 1973, ch. 719, § 5, p. 1299, italics added.) The 1977 version reenacted this language without change, but excluded from the statute's purview any killing that was "committed during the commission or attempted commission of the crime to which [the victim] was a witness." (Former § 190.2, subd. (c)(2); Stats. 1977, ch. 316, § 9, p. 1258.)

The 1978 Briggs Initiative expanded the circumstances under which an accused would be eligible for a sentence of death or life without the possibility of parole. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 139-140, 197 Cal.Rptr. 79, 672 P.2d 862.) The initiative added several special...