1 Cal. 4th 295, 2 Cal. Rptr. 2d 197 (Cal. 1991)
Anthony Louis King was charged on February 5, 1988, with three counts of murder for the September 6, 1987, killing of Steven Patton and the September 8, 1987, killings of Raymond and Dawn Rogers, along with three corresponding robbery counts and firearm-use enhancements on the Rogers counts, plus two counts of grand theft of firearms.1 King pled not guilty to all charges. His trial was held from June 7 through July 8, 1988.2
Over Labor Day weekend in 1987, King and Kenneth Bivert spent the night at Portuguese Bend drinking beer and shooting guns, with King carrying a .12-gauge shotgun and Bivert a .22-caliber revolver.3 They encountered Steve Patton fishing in his pickup truck, spoke with him on three occasions, and after friends including David Garske left the area, Bivert shot Patton with King's shotgun in the early morning hours of September 6.4 King took Patton's wallet and truck keys, pushed the body into the river, and the pair drove the truck for about an hour before submerging it in a slough.5
On Tuesday, September 8, King and Bivert encountered Raymond and Dawn Rogers fishing.6
Both men shot the Rogerses, after which King took money from Dawn Rogers's purse and the car keys, pulled both bodies into the water, and they drove away in the Rogerses' car. Bivert testified at the preliminary hearing that he and King had jointly decided to shoot the Rogerses to obtain their car and that he intended to kill them.7
At trial Bivert refused to be sworn or testify when called by the prosecution and again when called by the defense. The court found him unavailable and allowed his preliminary hearing testimony to be read to the jury; that testimony included Bivert's denial that he had threatened King at any time during the weekend.8 Out of the jury's presence the court granted the defense request to have Bivert viewed by the jury, and the jury was informed that Bivert was approximately six feet one inch tall and weighed approximately 240 pounds.9 King testified that he had a generalized fear of Bivert based on prior violent behavior and that Bivert threatened to kill him if he did not shoot during the Rogers incident.10
King further testified that after Patton's shooting he entered an altered state of consciousness and participated in taking property and in the Rogers shootings out of fear that Bivert would kill him.11 Psychologist Dr. Podboy testified that an altered state of consciousness is not unusual after witnessing a homicide.12 The jury convicted King on all six murder and robbery counts and found the firearm enhancements true. The court sentenced him to state prison for 52 years to life.13
Whether the trial court erred by failing sua sponte to instruct the jury that an honest but unreasonable belief as to duress may negate the specific intent necessary for robbery and felony murder?14
A trial court has a sua sponte duty to instruct on general principles of law relevant to the issues raised by the evidence. An honest but unreasonable belief as to duress does not negate the specific intent necessary for robbery and felony murder because there is no inherent incompatibility between such a belief and the formation of specific intent, unlike the mental state of malice addressed in People v. Flannel.15
No. The defense theory was that defendant was in an altered state of consciousness after Bivert shot Patton. He participated in taking Patton's property that night and in shooting the Rogerses several days later due to his belief that Bivert would kill him if he did not. Defendant was clearly relying on a theory of duress.16 However, one who acts under an honest but unreasonable belief in duress faces an agonizing choice but still forms the specific intent to perform the unlawful act against an innocent third party.17 By his own testimony defendant intended to permanently deprive the Rogerses of their property by participating in the robbery in order to achieve that end.18
The jury was instructed with CALJIC Nos. 3.31 and 9.10 that there must be a concurrence of act and specific intent and that the specific intent for robbery was the specific intent unlawfully to permanently deprive the owner of his property.19 There was no error in failing to give an instruction based on the Smith rationale which this court declines to follow.20
The trial court did not err by failing sua sponte to instruct the jury that an honest but unreasonable belief as to duress may negate the specific intent necessary for robbery and felony murder.21