210 Cal. App. 4th 1042, 148 Cal. Rptr. 3d 748 (2012)
Shortly before 10 p.m. on October 2, 1962, Johnnie Carpenter prepared to close his gasoline station.1 He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault.2 Upon hearing someone yell "robbery," Carpenter opened his desk and took out a revolver.3 A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball.4 Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand.5 He shouted "Stop." When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.6
The defendant was tried before a jury on charges of first degree robbery and first degree murder.7 He testified that on the evening of the robbery he was with Ball and a man named Johnson.8 He did not know that they intended to commit robbery.9 He was "pretty drunk" at the time and fell asleep in the automobile.10 When he awoke the automobile was parked near Carpenter's gasoline station, and Ball and Johnson were absent.11 He left the automobile to look for them.12 As he approached the station, Johnson ran from the vault.13 Carpenter shot just as Johnson ducked around a corner and dropped the moneybag.14 Carpenter's bullet hit defendant who fell wounded near the bag that Johnson had dropped.15 Defendant's testimony was corroborated by the testimony of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant's trial.16 Johnson testified that he was the man who ran from the vault with the moneybag.17 Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault.18
The jury returned verdicts finding the defendant guilty of first degree robbery and first degree murder and fixing the murder penalty at life imprisonment.19 The defendant appealed from the judgment of conviction entered upon those verdicts.20
Whether a participant in a robbery may be convicted of first degree murder when the robbery victim kills the defendant's accomplice?21
No. The established facts establish that victim Carpenter fired the shot that mortally wounded accomplice Ball after Ball pointed a revolver at him during the robbery.24 Defendant Washington neither fired a weapon nor caused any death; he was unarmed and fleeing with the moneybag when Carpenter shot him.25 Because the killing was committed by the victim to thwart the felony rather than by the defendant or his accomplice in furtherance of it, the statutory requirement that the felon commit the killing is not satisfied.26 The purpose of the rule to deter negligent or accidental killings by felons is not advanced by punishing them for lethal responses by victims.27
The judgment of conviction for first degree murder is reversed.28
Related opinions on this issue
Joined by Mccomb, J.
Justice Burke dissented.29 He contended that the felony-murder rule should apply whenever armed robbers create a foreseeable risk that a victim will resist and kill.30 He maintained that malice is shown from the very nature of armed robbery.31
The robbers initiate any resulting gun battle by confronting the victim with a deadly weapon.32 Burke argued that the majority's distinction based on who fired first is untenable and would remove a meaningful deterrent to armed felonies.33 He would have affirmed the murder conviction under the rationale of People v. Harrison, holding the surviving robber responsible for the killing regardless of whose gun fired the lethal bullet.34
Whether the evidence presented at trial was sufficient to support the defendant's conviction for first degree robbery?35
A jury verdict will be upheld on appeal when the record contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.36
Yes. Carpenter positively identified defendant Washington as the unarmed man who ran from the vault carrying the moneybag.37 Although Washington and inmate Johnson offered contrary testimony claiming Johnson was the man who took the bag, the jury was entitled to credit Carpenter's identification over the defense witnesses.38 This direct eyewitness testimony constitutes substantial evidence supporting the robbery conviction.39
The judgment of conviction for first degree robbery is affirmed.40
Whether the trial court was required to instruct the jury on its own motion to view the testimony of the robbery victim with caution?41
A trial court need not give a cautionary instruction sua sponte regarding the testimony of a robbery victim.42 Such testimony does not originate from a tainted source comparable to an accomplice or a complaining witness in a sex offense prosecution.
No. Carpenter was the victim of the robbery and his testimony was subject to the general credibility instructions given by the court concerning witness interest and bias.43 Unlike accomplice testimony or uncorroborated claims in sex offense cases, there was no special danger of perjury or inability to contradict the account.44 Defendant had a full opportunity to cross-examine Carpenter and present contrary evidence through his own testimony and Johnson's.45
The trial court committed no error by failing to give a cautionary instruction on its own motion.46