Appendix — Calderon v. Caswell

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FILED

IN THE SUPREME COURT OP PE UNFTERSTATES

OCTOBER TERM, 1996

ARTHUR CALDERON, WARDEN, Petitioner,

Vv.

STEVEN H. CASWELL, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

MARGARET VENTURI

Supervising Deputy Attorney General

ARNOLD O. OVEROYE

Senior Assistant Attorney General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5282

Counsel for Petitioner

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TABLE OF APPENDICES

Document

Ninth Circuit Memorandum,

unpublished, granting

rehearing and reversing

denial of petition

Ninth Circuit Memorandum,

unpublished, affirming district

court

District Court Order granting

respondent’s motion for summary

judgment

District Court Order following

further de novo review of

Findings and Recommendations

Findings and Recommendations

of magistrate judge

Order directing judgment and

issuing certificate of probable

cause

California Supreme Court denial

of writ of habeas corpus

State Court of Appeal opinion

on direct appeal

Relevant United States

Constitutional Amendments

Relevant California Penal Code

sections J

Relevant California Jury

Instructions - Criminal (CALJIC) K

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APPENDIX A

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FILED

AUG 14 1996

CATHY CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN H. CASWELL, ) NO. 93-16146

)

Petitioner-Appellant, ) D.C. No. CV 91-1079-WBS

)

v. ) MEMORANDUM*

ART CALDERON,

Warden,

CALIFORNIA

REHABILITATION

CENTER,

Respondent-Appellee.

i ee ee

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted May 12, 1994

San Francisco, California

“ This disposition is not appropriate for publication

and may not be cited to or by the courts of this circuit

except as provided by Ninth Circuit Rule 36-3.

Before: GOODWIN, POOLE, REINHARDT Circuit

Judges.

Petitioner Steven H. Caswell appeals the district

court’s denial of his habeas petition under 28 U.S.C.

§ 2254. The majority affirmed the denial on June 14,

1995 in a memorandum disposition, with one judge

dissenting. Petitioner filed a timely petition for

rehearing. We subsequently entered an order deferring

action on the petition pending the disposition of Roy v.

Gomez, 81 F.3d 863 (9th Cir. 1996) (en banc), which

considered an issue very similar to that raised here. In

light of our decision in Roy, we grant the petition for

rehearing, vacate our previous disposition and reverse the

- district court’s denial of Caswell’s habeas petition.

Caswell was convicted on four counts each of

robbery, kidnapping, assault with a deadly weapon, and

attempted murder. The trial court erred in instructing

the jury on aiding and abetting because he failed to

inform the jury that the specific intent to aid the

principal’s crimes is an element of the offense. See

People v. Beeman, 674 P.2d 1318, 1325 (Cal. 1984); Roy,

81 F.3d at 866; see also In re Winship, 397 U.S. 358, 364

eae |

(1970) (due process requires proof beyond a reasonable

doubt of all elements of the offense).

The issue here is whether the error was harmless.

We conclude that it was not. The petitioner did not

testify, and there is some conflicting evidence in the

record as to his intent. We are precluded from engaging

in our own evaluation of the weight of the evidence,

Martinez v. Borg, 937 F.2d 422, 425 (9th Cir. 1991),and

cannot conclude that the jury necessarily found the

omitted element of the offense. Roy, 81 F.3d at 868.

Because we cannot evaluate the effect of the omission on

° the jury’s verdict, we are necessarily "in grave doubt as

to the harmlessness of the error." Id. (citing O’Neal v.

McAninch, 115 S.Ct. at 992, 994-95 (1995)), and must

grant the relief requested.

Conclusion

For the reasons stated above, we GRANT the

petition for rehearing, VACATE our previous disposition,

and REVERSE and REMAND for further proceedings

consistent with this disposition.

| RRR Po ene eres ere ee a ere NO

FILED

AUG 14 1996

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

Caswell v. Calderon, 93-16146

Goodwin, Circuit Judge, dissenting:

I continue to believe the court made a serious

departure from both established criminal law and

common sense when it constitutionalized one of

California’s curious instructional rules in order to set

aside convictions of obviously guilty felons who had

received fair trials and had been correctly convicted. See

Roy v. Gomez, 81 F.3d 863 (9th Cir. 1996) (en banc).

In this current example of a misapplied rule, the

majority concludes that the newly revealed error was not

harmless. Reasonable minds can differ on _ that

essentially subjective question. Whether reasonable or

not, my mind is satisfied that the error was harmless by

any standard of evaluation. This kind of nit-picking of

state convictions is another self-inflicted wound which the

vulnerable relations between the state and federal courts

do not need, and which serves no useful purpose. |

respectfully dissent.

APPENDI2z B

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FILED

JUN 14 1995

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN H. CASWELL )

)

Petitioner-Appellant, ) No. 93-16146

)

v. ) D.C. No. CV-01079-

) WBS

ART CALDERON, )

Warden, CALIFORNIA ) MEMORANDUM*

REHABILITATION )

CENTER, )

)

Respondent-Appellee. )

)

)

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted May 12, 1994

San Francisco, California

. This disposition is not appropriate for publication

and may not be cited to or by the courts of this circuit

except as provided by 9th Cir. R. 36-3.

Before: GOODWIN, POOLE, and REINHARDT,

Circuit Judges.

Steven H. Caswell, a California state prisoner,

appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. Caswell was convicted of four

counts each of robbery, kidnapping, assault with a

deadly weapon and attempted murder. Caswell argues,

and the State concedes, that the trial court’s aiding and

abetting instruction was erroneous because the jury was

not properly instructed that an aider and abettor must

have specific intent to aid the principal’s crimes. See

.People v. Beeman, 674 P.2d 1318, 1325 (Cal. 1984)

(aiding and abetting instruction to the jury must

include specific intent to aid the principal’s crime); see

also Martinez v. Borg, 937 F.2d 422, 423 (9th Cir.

1991) (instruction is constitutionally deficient if the jury

is deprived of its duty "to find each element of the

crime beyond a reasonable doubt"). Therefore, we

need only determine whether the denial of Caswell’s

+; Viemniailiiaeaiiiuaiiata adit

due process rights was harmless error. We review

de novo, Christian v. Rhode, 41 F.3d 461, 464

(9th Cir. 1994), and we affirm.”

To obtain relief on collateral review, a habeas

petitioner must show that the error “had substantial

and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 113 S. Ct.

1710, 1722 (1993) (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)). "[I]f the harmlessness of

the error is in grave doubt, relief must be granted."

O’Neal v. McAninch, 115 S. Ct. 992, 996 (1995).

Here, the State introduced the following

evidence: Caswell was present, had knowledge of

codefendant David Englund’s criminal intent, and

actively assisted Englund in the crimes by helping pull

1. Relying on Teague v. Lane, 489 U.S. 288, 310

(1989) (holding that generally new constitutional rules

of criminal procedure should not be applied

retroactively to cases on collateral review), the State

argues that the Beeman error constitutes a new rule

which should not be retroactively applied to Caswell.

We reject this argument. Beeman merely clarified

existing California law, rather than stating a new rule.

See id., 674 P.2d at 1323, 1325.

the four victims from a vehicle, instructing them to

follow Englund’s instructions because "he (Englund)

had a hole in his leg," demanding the victims’ money,

disrobing the victims and tying up three victims with a

rope, watching as Englund struck one victim and

pushed him over a cliff, attempting to push the

remaining victims over a cliff, telling Englund to shoot

the remaining victims, and watching as Englund shot

the remaining victims.”

Based upon the overwhelming evidence, no

rational jury could have found the elements of the

crimes without also finding that Caswell had the intent

of committing, encouraging, or facilitating the crimes.

Therefore, the failure to instruct on the need for

2.. We note that Caswell earlier favored not

shooting the victims, while Englund favored such

action. This fact, however, is insignificant in light of

Caswell’s later unequivocal statement to shoot the

victims.

iii

specific intent did not have a substantial or injurious

impact on the jury’s verdict.” See Brecht, 113 S. Ct.

at 1722; see, e.g., Watts v. Bonneville, 879 F.2d 685,

688-89 (9th Cir. 1989) (Beeman error harznless where

defendant had knowledge of two cohorts rape of victim

and immediately raped her when they finished);

Willard v. People of State of Cal., 812 F.2d 461, 464

(9th Cir. 1987) (Beeman error harmless where jury’s

rejection of duress and mistaken identity defenses

entailed that the jury also found specific intent to aid

and abet); cf. Martinez, 937 F.2d at 425 (Beeman

error not harmless where jury could have reached a

verdict ofaiding and abetting without finding specific

intent based upon the perpetrator’s sudden, point-

3. Caswell appears to argue that the erroneous

jury instruction prejudiced him because he was unable

to present either a diminished capacity defense based

upon his consumption of alcohol and drugs, or a

duress defense. We reject this argument on both

grounds. Although Caswell failed to raise a diminished

capacity defense, the jury was instructed to consider his

mental state and rejected such a defense. Additionally,

the evidence adduced at trial] did not necessarily

support a duress theory.

| renee ner aren rn Tee

blank range shooting of officers). Accordingly, the

error was harmless.

AFFIRMED.

Cc

APPENDIX

wa Om ag

FILED

MARCH 31, 1993

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT CALIFORNIA

BY

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVEN H. CASWELL No.

CIV. S-91-1079

Petitioner, WBS PAN P

v. ORDER

ARTHUR CALDERON et al.,

Respondents.

/

Petitioner, a state prisoner proceeding pro

se, has filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The matter was referred

to a United States Magistrate Judge pursuant to

28 U.S.C. § 636(b)(1)(B) and Local General Order

No. 262.

On March 12, 1992, che magistrate judge

filed findings and recommendations herein which were

served on all parties and which contained notice to all

parties that any objections to the findings and

recommendations were to be filed within fifteen days.

Neither party has filed objections to the findings and

recommendations.

The court has reviewed the file and finds

the findings and recommendations to be supported by

the record and by the magistrate judge’s analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations

filed March 12, 1993, are adopted in full; and

2. Petitioner’s motion for summary

judgment on the jury instruction claim is denied,

respondents’ cross motion is granted; the claim

concerning the trial court’s failure properly to instruct the

_

jury is dismissed.

DATED: 3/30/93

S/

UNITED STATES

DISTRICT JUDGE

APPENDIX

D

FILED

APRIL 8, 1993

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

BY.

Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----00Q000----

STEVEN H. CASWELL No.

CIV. S-91-1079

Petitioner, WBS\PAN P

v. ORDER

ARTHUR CALDERON et al.,

Respondents.

----00000----

At the time of signing its Order on

March 30, 1993, the court had not seen petitioner’s

objections, filed March 29, 1993. The court has reviewed

the file de novo, including the opposition to the

magistrate judge’s findings and recommendations, and

reaffirms its original decision. The court finds the

findings and recommendations to be supported by the

record and by the magistrate judge’s analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations

filed March 12, 1993, are adopted in full; and

2. Petitioner’s motion for summary

judgment on the jury instruction claim is denied,

respondents’ cross motion is granted; the claim

concerning the trial court’s failure properly to instruct the

jury is dismissed.

DATED: April 7, 1993

[S/

UNITED STATES

DISTRICT JUDGE

E

APPENODI X

COR OA oe Ty eR ERE

FILED

MAR 12 1993

Clerk, U.S. District Court

Eastern District of California

By

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVEN H. CASWELL,

Petitioner, No. CIV S-91-1079 WBS PAN

vs.

ARTHUR CALDERON,

et al., FINDINGS AND

RECOMMENDATIONS

/

Respondents.

Petitioner’s application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 presents two

grounds for relief: (1) that an erroneous jury instruction

deprived him of due process; and (2) that he was denied

due process by the ex post fact application of parole

release rules more severe than those in effect at the time

of the offense. The first claim is the subject of the

parties’ cross motions for summary judgment.”

Petitioner was convicted in 1976 of four

counts of kidnapping, four counts of robbery, four counts

of assault with a deadly weapon, and four counts of

attempted murder and sentenced to life imprisonment.

Petitioner argues that one of the theories under which he

was prosecuted, that he aided and abetted his

codefendant in the commission of the crimes, contains a

specific intent element and that the erroneous jury

instruction relieved the state from its burden of proving

this element.

Respondent’s answer to this claim

precipitated the instant summary judgment motion.

Respondents argue that the California Supreme Court

ruling, that the jury instruction at issue was erroneous,

1. Petitioner moved for summary judgment.

Respondent opposed, but in the opposition stated that

summary judgment should be granted in its favor.

Petitioner replied to the opposition, stating that both

parties agreed that this claim was ripe for summary

judgment, and fully opposing respondent’s position.

There are clearly no disputes of material fact.

:

H

AA CeO OD RDA! tee ae

stated a "new rule of constitutional law" not applicable to

cases, like petitioner’s, that were not pending on appeal

at the time the new rule was announced. See Teague v.

Lane, 489 U.S. 288 (1989).

Petitioner correctly asserts that the Teague

retroactivity issue is a “red herring." Beeman does not

purport to aanounce a new federal constitutional rule of

criminal procedure, the first requirement for invoking

[Teague analysis, but rather held that the jury instruction

at issue improperly stated California criminal law.”

Teague analysis is therefore inapposite to this case. The

real issue presented by petitioner’s claim is whether the

erroneous jury instruction deprived petitioner of any

federal constitutional right. 28 U.S.C. 4(a).

2. Even if the California Supreme Court had

undertaken this task, it’s[sic] holding would not have

been binding upon this or any other federal court and

Teague analysis would still not apply. See Wright v.

West, 112 S.Ct. 2482, 2488 (plurality) (state court

determination of federal law not binding on federal

courts); 2494-98 (O’Conner, Blackmun & Stevens, JJ,

concurring in the judgment) ("federal courts, even on

habeas, have an independent obligation to say what the

law is"; state courts’ determinations of issues of federal

law not binding on federal courts).

Due Process protects the accused against :

conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which

he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct.

1068, 1073 (1970). Failure to properly instruct a jury

regarding an element” of a charged crime is a

WB RE ae et ee SL

constitutional error that deprives the defendant of due

process unless the error is harmless. Hennessy _v.

eer eS TN ne co

Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991).

Aili

The jury was instructed that:

All persons concerned in the

commission of a crime who either directly

and actively commit the act constituting the

offense or who with knowledge of the

unlawful purpose of the perpetrator of the

crime aid and abet in its commission or,

whether present or not, who advise and :

encourage its commission are regarded by

the law as principals in the crime thus

committed and are equally guilty thereof.

One who aids and abets is not only

guilty as a principal of the particular that

to his knowledge his confederates are ;

contemplating committing, but he is also

liable as a principal for the natural and is

3. The substantive elements of a criminal offense

are defined by state law. See Jackson v. Virginia, 443

U.S. 307, 324 1.16, 99 S.Ct. 2781, 2792 n.16 (1979).

also liable as a principal for the natural

and reasonable or probable consequences

of any act that he knowingly aided or

encouraged.

A person aids and abets the

commission of a crime if, with knowledge

of the unlaw purpose of the perpetrator of

the crime he aids, promotes, encourages or

instigates by act or advice the commission

of the crime. RT at 599.

In 1984, the California Supreme Court held

that when the defendant’s intent is ambiguous, an aiding

or abetting conviction requires “proof that an aider and

abettor rendered aid with an intent or purpose of either

committing, or of encouraging or facilitating commission

of, the target offense." People v. Beeman 35 Cal.3d at

551.

In Beeman, the defendant was convicted of

aiding and abetting robbery upon the testimony of others

that he was extensively involved in planning the crime,

drew a floor plan of the scene, and possessed part of the

loot. Beeman testified that two days before the robbery,

he told the others that he wanted nothing to do with it

and that he furnished the floor plan for an innocent

purpose. The jury was instructed that a person aids and

abets the commission of a crime if, with knowledge of

the unlawful purpose of the perpetrzior of the crime, he

aid, promotes, encourages or instigates by act or advice

the commission of such crime. The California Supreme

Court held that an aider and abettor must act with

knowledge of the perpetrator’s criminal purpose and

intent; otherwise conviction is allowed if the defendant,

knowing of the perpetrator’s unlawful purpose,

negligently or accidentally aided the crime.

The United States Court of Appeals for the

Ninth Circuit has held that "Beeman" error is

constitutional error when it precludes the jury from

finding each element of the crime beyond a reasonable

doubt. Martinez v. Borg, 937 F.2d 422, 423 (9th Cir.

1991)* In that case, the defendant was convicted of

4. The error is harmless, however, if no rational

jury would have made its finding without also finding that

the defendant had the specific intent to aid the crimes

committed by the perpetrator. Martinez, 937 F.2d at

423, 424. Yates v. Evatt, 111 S.Ct. 1884 (1991), involved

a mandatory rebuttable presumption that shifted the

burden to the defendant. Yates requires weighing the

probative force of the evidence considered by the jury,

in accordance with the instructions, as against the

‘ ee ae ee Ieee ee Ot en ee eee 2 a eee Ts

2 PA EAN Cah Alten Bs ell.

aiding and abetting the second degree murder of one

peace officer and of the attempted murder of another.

The evidence was that the murder weapon was usually

carried by defendant but that the perpetrator suddenly

shot the officers from a car window at point-blank

range. The court found that the jury could have found

that defendant aided the murder by supplying the murder

weapon without necessarily finding that appellant

intended the gun to be used to kill the officers. Because

the court could not determine that the jury necessarily

found specific intent in order to reach its verdict, the

instruction omission was not harmless. Id. at 425-26.

Absence of a Beeman instruction, however,

does not necessarily remove the issue of intent from the

jury’s consideration. Only when the defendant’s act is

not intended, e.g., it is involuntary, or if the defendant,

probative force of the presumption standing alone. 111

S.Ct. at 1893. Yates has no application to a case

involving Beeman error, where an element of the offense

is omitted. See Martinez, 937 F.2d at 424. If an

instruction omits an element, a court cannot weigh the

evidence considered by the jury in accordance with the

omitted element.

a

intending the act, did not know that it would aid the

perpetrator’s criminal venture, is the Beeman instruction

required.» That was the case in Martinez but it is by

no means this case.

Around 9 p.m. on May 20, 1976, four

students from the University of California, Santa Cruz,

drove into the Antlers Campground in Shasta County

and stopped at campsite 14. [Earlier in the day,

ett «

petitioner and David Englund were dropped off at

a. > eee

campsite 16 by a man who picked them up hitchhiking.

The students, Eanswythe Leicester, Jim McCabe, Jeremy

_Grainger, and Laura Goldman, decided to go swimming

and walked toward some cliffs to look for a way down to

the lake. On the way, they met petitioner who told them

it was not a good idea to go the{sic] lake at night, and

asked the students for a cigarette. Petitioner and the

5. See Hart v. Stagner, 935 F.2d at 1012-13

(Beeman error harmless when defense was not lack of

intent, but that Hart was not present during crimes); Cf.

Martinez, 937 F.2d at 425 n.2; Willard v. California 812

F.2d 461, 464 (9th Cir. 1987) (Beeman error harmless

where intent is not a live issue at trial).

tliat tea he ge Oe eee ge TS eee Rees

students conversed for about 5 minutes, then the students

continued toward the lake. There, they arrived at a

steep cliff, could not find a way down, and decided to

return to their campsite.

On the way back, they crossed into

campsite 16, where petitioner and Englund were beside

a large campfire. The students asked petitioner and

Englund if they knew how the students could get to the

lake; petitioner and Englund recommended several places

including Whiskeytown. The students decided to drive to

another area, packed their car, and began to drive off.

Petitioner and Englund flagged them down and one of

them asked the students to give them a ride to

Whiskeytown. While the students were rearranging their

gear to make room for the two men, Englund pulled a

gun, stuck it in Jeremy Grainger’s face, and ordered the

students out of the car. Both defendants roughly pulled

the students from the car over to campsite 16, and

forced them to sit down. Petitioner told Laura Goldman

pe rn nn Ene Nene Aeneas nt ote ne

that Englund "had a hole in his leg" and that she had

better do as Englund said.

Petitioner and Englund demanded money

from the -tudents. Grainger and Goldman gave them

their money; McCabe said his money was in the car;

Leicester denied that she had any money. Petitioner

took McCabe over the car while Englund remained with

the others, still holding them at gunpoint. McCabe gave

his money to petitioner. Petitioner then took McCabe’s

car keys and drove the car into an open space.

Petitioner and Englund marched the

students about 20 or 30 feet into the brush, where

ee ee

petitioner attempted to tie them up, but could not

4

complete the task because he did not have enough rope.

. i

Petitioner and Englund then forced the students to walk

toward the cliff; when they arrived at the cliff edge,

petitioner and Englund forced the students to disrobe

and lie down. Leicester was tied by the ankles with

Grainger’s t-shirt; Grainger and Goldman were tied

together with rope, and then Leicester’s ankles bound to

them with the same rope. Petitioner indicated that he

onan to take sexual advantage of one of the women,

but Englund was in a hurry and the matter was dropped.

Petitioner and Englund then debated over whether to

shoot the students, Englund favoring this course of action

and petitioner against it.

Because they did not have any more rope,

petitioner and Englund tied up McCabe with clothing.

Englund then struck McCabe with his gun and petitioner

pushed McCabe over the cliff. Englund and petitioner

then pushed rocks over the cliff until they believed that

McCabe was dead. Petitioner then tried to push the

others over the cliff but failed because of the manner in

which they were bound. The following discussion

ensued: Englund: "Let’s just gag them.” Petitioner:

"Shoot them.” Englund: "Okay." Englund dein sheet

Goldman in the stomach and Grainger in the chest; he

then turned to Leicester, struck her with the gun several

times, then shot her twice. Petitioner and Englund then

drove away. McCabe, who had managed to survive the

fall, free himself from his bonds, and dodge the rocks

rolled down at him, heard the others’ cries for help,

climbed back up the cliff, and ran for help. Fortuitously,

a volunteer rescue team was camping nearby, and

rescued the victims. Leicester lost three pints of blood

from her wounds; the bullet fired into Grainger was

deflected by the sac surrounding Grainger’s heart but

caused numerous severe internal injuries during its course

through his body; the shot to Goldman’s abdomen

severed an artery, causing massive bleeding; McCabe

suffered lacerations requiring stitches.

Petitioner and Englund fled the scene in

McCabe’s car, were pursued by police, and, after a high-

speed chase, abandoned the car and fled on foot; the

following morning, an officer called out to the suspects,

telling them to come down from the mountain.

Petitioner and Englund complied and surrendered

without further incident.

Upon this record, it cannot be said that

there was any ambiguity concerning whether petitioner

intended to commit, encourage or facilitate the

commission of the crimes of robbery, kidnapping and

intended murder as to each of the four victims. The

tria! court’s failure to give any different instruction

concerning aiding and abetting was not federal

constitutional error.

For the foregoing reasons, and good cause

appearing therefor, it is RECOMMENDED that

petitioner's motion for summary judgment on the jury

instruction claim be denied, that respondents’ cross

motion be granted, and that the claim concerning the

trial court’s failure to properly instruct the jury be

dismissed.

These findings and recommendations are

submitted to the Honorable William B. Shubb pursuant

to 28 U.S.C. § 636(b)(1)(C). Any party may file written

objections to these findings and recommendations

pursuant to L.R. 305(b) within fifteen (15) days after

service.

DATED: March 12, 1993.

ls/

UNITED STATES MAGISTRATE JUDGE

PAN:ca

(44

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ADP eg Fue “Ce

f)

APPENDIX F

ase

hack te eee

Viet)

FILED

JUN 14 1993

Clerk, U.S. District Court

Eastern District of California

By

Deputy Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

STEVEN H. CASWELL,

Petitioner, No. CTV S-91-1079 WBS PAN

vs.

ARTHUR CALDERON,

WARDEN

CALIFORNIA

REHABILITATION

CENTER ORDER

Respondents.

Petitioner, a state prisoner proceeding

pro se, has timely filed a notice of appeal of this court’s

denial of one of the claims in his application for a writ

of habeas corpus. Before petitioner can appeal this

decision, this court must issue a certificate of probable

cause.

A certificate of probable cause should be

granted only if petitioner seeks to present a "substantial

question on appeal." See Gardner v. Pogue, 558 F.2d

548 (9th Cir. 1977). The court finds that petitioner seeks

to raise a substantial question on appeal and will,

therefore, issue a certificate of probable cause.

In accordance with the above, IT IS

HEREBY ORDERED that a certificate of probable

cause to appeal is issued in the present action.

DATED: June 1], 1993.

[s/

UNITED STATES MAGISTRATE JUDGE

/eg:th

APPENDIX G

SUPREME COURT

FILED

AUG 15 1990

Robert Wandruff Clerk

Clerk

ORDER DENYING WRIT OF HABEAS CORPUS

No. 8015004

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

IN RE STEVEN H. CASWELL

ON

HABEAS CORPUS

Petition for writ of habeas corpus DENIED.

Acting Chief Justice

APPENDI2& H

FILED JANUARY 23, 1978

COURT OF APPEAL-3RD DISTRICT

WILFRIED J. KRAMER, Clerk

BY , Deputy

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA IN AND FOR THE THIRD

APPELLATE DISTRICT

[Shasta]

THE PEOPLE OF THE ) 3 Crim 8988

STATE OF CALIFORNIA, ) (Sup. Ct. No.

) 54796)

Plaintiff and )

Respondent, )

)

v. )

)

DAVID ALAN ENGLUND and )

STEVEN HAYNES CASWELL, )

)

Defendants and )

Appellants. xe

After a series of events occurring on

May 20, 1976, in Shasta County, defendants Englund and

Caswell were charged and convicted by a jury verdict of

the following offenses:

Count I - First degree robbery of

Eanswythe Lsicester during which defendants

intentionally inflicted great bodily injury upon the victim.

(Pen. Code, §§ 211, 213.) The jury made the additional

finding that in the commission of the offense defendants

used a firearm. (Pen. Code, § 12022.5.)

Count II -- The kidnapping for purposes of

robbery of Eanswythe Leicester. (Pen. Code, § 209.)

The information alleged and the jury found that the

victim suffered bodily harm while being subjected to the

kidnapping and that defendants used a firearm in the

.commission of the offense. (Pen. Code, §§ 209; 12022.5.)

Count III -- Assault with a deadly weapon

or with force likely to produce great bodily injury upon

Eanswythe Leicester. (Pen. Code, § 245, subd. (a).)

The jury found that defendants used a firearm in the

commission of the offense. (Pen. Code, § 12022.5.)

Count IV -- Attempted murder of

Eanswythe Leicester. (Pen. Code, §§ 187, 664.) The jury

found that defendants used a firearm in the commission

of the offense. (Pen. Code, § 12022.5.)

Counts V-VIII repeat the allegations and

verdicts of Counts I through IV with the victim being

James McCabe.

Counts IX through XII repeat the

allegations and verdicts of Counts I through IV with the

victim being Jeremy Grainger.

Counts XIII through XVI repeat the

allegations and verdicts of Counts I through IV with the

victim being Laura Goldman.

In total each defendant was convicted of

16 offenses together with special findings of the use of a

firearm.

The trial court entered judgment on each

of the offenses for which the defendants were convicted

and on each offense the court entered the finding that

defendants used a firearm. Defendants were sentenced

to state prison on each of the offenses, the sentences to

be concurrent with one another and with any prior

incomplete sentence. The trial court did not make a

finding regarding the time defendants were held in jail as

a result of the same criminal acts for which they were

convicted,

In this appeal defendants urge that (1) the

trial court erred in denying defendants’ motion for a

substitution of attorneys; (2) the trial court erred in

denying defendants’ motions for a change of venue;

(3) defendants cannot be convicted of kidnapping to

commit robbery since the asportation of the victims was

only incidental to the robbery; (4) defendants’ conviction

of robbery of Eanswythe Leicester was contrary to the

evidence; (5) the trial court failed properly to instruct

the jury on assault with a deadly weapon; (6) defendants’

sentences cannot be enhanced by a finding of use of a

firearm; (7) the trial court erred in imposing multiple

punishment; (8) a sentence of life imprisonment without

possibility of parole violates the constitution; and (9) the

amendment of Penal Code section 209 entitles

a

FOL he ae de ME A NSE ah Nie BoC ey HPA aR Ae

Cael eat taki ae deem

at FOE ee

a

defendants to consideration for parole We discuss each

contention in turn after recitation of the facts.

We find that the trial court erred in

denying the defendants’ motions for a substitution of

counsel without making an inquiry into their reasons, but

we hold that the error was not prejudicial to defendants.

We reject defendants’ contentions that the court erred in

denying the motion for a change of venue, that they

cannot be convicted of kidnapping for the purposes of

robbery, that the evidence does not support the

convictions for robbery of Eanswythe Leicester, and that

the trial court committed prejudicial error in its jury

instructions On assault with a deadly weapon. We agree

that the judgments must be modified due to the

imposition of multiple punishment and that there must

be a limited reversal of the multiple findings of the use

of a_ firearm. Defendants will be entitled to

consideration for parole due to the amendment of Penal

Code section 209. Finally, we note that defendants are

entitled to credit for time spent in jail pending conviction

for these offenses. The abstracts of judgment must be

modified to reflect this time.

seen

The contentions on appeal necessitate a

detailed review of the incidents leading to the crimes.

On the evening of May 20, 1976, at

approximately 9:00 p.m., college students Eanswythe

Leicester, Jeremy Grainger, James McCabe and Laura

Goldman were in the vicinity of Redding, California, on

a camping trip. The students stopped at campsite 14 of

the Antlers Campground to eat and go swimming. On

_ their way to the lake the students met defendant Caswell

and spoke with him briefly. After finding that they could

not reach the lake from their campsite, the students

crossed campsite 16 on their way back to the car, and

there talked with both defendants who were occupying

that campsite.

The students then returned to their car and

left the campsite, and as they passed campsite 16

defendants came out to the road and waved for them to

stop. Defendants asked for a ride out of the

campground, then defendant Englund pointed a gun at

the students and ordered them out of the car. The

students were ordered to the campsite 16 picnic benches

as Englund pointed the gun at them and Caswell pushed

them along, saying that Englund had "a hole in his leg."

Caswell drove the car into the campsite.

Defendants demanded money from the

students; Jeremy and Laura gave their money to

defendants and James went to the car with Caswell and

gave his money to him. Eanswythe had left her money

in her backpack in the car and she told defendants she

did not have money. When defendants wanted more

money Jeremy told them they were students and did not

have much. Englund struck him with the gun.

Defendants indicated that they were going to take the

car, and again stated that Englund was wounded.

Defendants attempted to tie the students at

the picnic bench, but then took them through the bushes

to a meadow where they were forced to lie on the

ground. Defendants decided that the students were too

close to the road and might be able to shout for help, so

they ordered them to get up and took them farther from

the road. One of the defendants stated that Jeremy’s

political T-shirt would make a good target. The gun was

fired, but no one was shot at that time.

The victims were taken to a cliff and

ordered to undress. Eanswythe was then tied by the

ankles with Jeremy’s T-shirt, and Laura and Jeremy were

tied together with rope defendants had brought along.

Defendants tied Eanswythe’s ankles to Laura and Jeremy

using the same rope that Laura and Jeremy were tied

with. While tying the victims, Caswell indicated that he

wanted to take sexual advantage of one of the girls, but

Englund was in a hurry and the matter was dropped.

When the victims were tied the defendants debated

whether to shoot them, Englund arguing that they should

and Caswell saying they should not.

After tying three of the victims defendants

ran out of rope, and so they tied James’ legs with some

a Seas

clothing. Englund struck James with the gun and

Caswell pushed him off the cliff. Defendants shot at

James and rolled rocks down at him until they believed

he was dead. Caswell attempted to push the others off

the cliff but failed, due to the manner in which they had

been bound. The following discussion then took place:

Englund: "Okay, let’s ju"t gag them." Caswell: "Shoot

them." Englund: "Okay." Englund then shot Laura in

the stomach and Jeremy in the chest. Eanswythe

realized that it was her turn, and she held her hand in

front of her face to prevent her glass lens from

shattering into her eyes. She was struck with the gun

four or six times, and two shots were fired at her, one

passing by her ear and the other striking her finger. She

then fell backwards.

Defendants ran back to the car and drove

off. Jeremy and Eanswythe were conscious at the time

and they called for help. James heard their calls,

climbed back up the cliff and ran for help. James met

i ii

a volunteer rescue team that was meeting in the area

and the victims were rescued.

Eanswythe suffered three lacerations to her

scalp and bled extensively, losing about three pints of

blood. She also suffered a gunshot wound on her left

hand. Jeremy suffered lacerations about the head and

he had a gunshot would near the left nipple on his chest.

The bullet had struck the pericardium (the sac about the

heart), was deflected and struck the breast bone breaking

the inner surface, traveled through the liver, turned and

passed through the liver again, and finally lodged in the

‘abdominal wall. Laura suffered rope burns on her neck,

bruises on her shoulder, chest and abdomen. She also

had a gunshot would in the abdomen which caused

massive bleeding when it severed an artery. James

suffered lacerations which required stitches.

The victims where shown two photographic

line-ups with six pictures each. Eanswythe easily

identified Englund as the gunman, and identified Caswell

with less assurance. Jeremy positively identified Englund,

—

and identified Caswell but was less sure of that

identification. Laura had no doubt in her identification of

Englund as the gunman, and only a slight doubt as to

her identification of Caswell. At a physical line-up

Jeremy identified both defendants.

Defendants had changed their appearance

drastically by the time of trial. Nevertheless, Jeremy

identified them as the assailants, and stated that Englund

was the gunman. Laura also identified Englund as the

gunman, and identified Caswell. Eanswythe had no

doubt that defendants were the assailants. James could

not identify defendants at trial, but indicated that

Englund appeared similar to one of the assailants. At

the preliminary hearing James had identified defendants,

but stated that they no longer looked the same.

Two of the victims testified that they had

heard the gunman refer to the other assailant as

"Steven", which is Caswell’s first name. The victims also

testified that they had observed a bottle of Black and

White scotch at the assailant’s campsite during the

incident.

On May 20, 1976, Ron Ball and a friend

were in the Redding area. They picked up two

hitchhickers named Dave and Steve, whom Ron

identified as the defendants, and went to campsite 16 of

the Antlers Campground where the hitchhikers were

camped. The group brought two six-packs of Mickey’s

Big Mouth beer and then went swimming. While

swimming Caswell wore a pair of maroon cutoffs, and

Ron noticed that Englund had a tatoo on his shoulder

that said "Dave." After swimming the group had a drink

from a bottle of Black and White scotch which

defendants had in their camp. Ron and his friend left

about 7:30 p.m., stating that they might return later.

They returned about 9:45 p.m., and observed the rescue

efforts.

In the late evening hours of May 20, 1976,

Chester Sharp, who owns a ranch two miles south of

Grenada and just east of Highway 99, was irrigating his

|

crops. At that time he observed three police vehicles

with lights flashing and sounding sirens pursuing another

vehicle. The first car paused near his property but did

not stop, then drove on. On May 28, 1976, Chester was

again irrigating his crops near the area where he had

observed the car pause, when he stepped on a hard

object which proved to be a pistol.

Guido Mei, a resident of Dunsmuir,

testified that on May 19, 1976, his home had been

burglarized. A .22 caliber pistol, a turquoise ring and

necklace, and some Black and White scotch had been

taken. He identified the pistol found by Chester Sharp

as his pistol, and noted that the serial number matched

his pistol. He further identified a necklace Englund was

wearing when arrested as the necklace that had been

taken from his home. Joan Dungan, who had made the

necklace, identified Englund’s necklace as the one she

had sold to Guido. Ron Ball testified that while

swimming with defendants, Englund had lost a ring.

On May 20, 1976, at about 10:45 p.m.,

Officer Riley of the Weed police force observed James

McCabe’s Pinto with two occupants driving northbound

on Interstate 5. He had been previously alerted to be

on the lookout for that particular vehicle, so he followed

the car down the offramp to old Highway 99. When

the backup units he had called arrived he flashed his

lights for the Pinto to Stop and a high speed chase

ensued. A roadblock was set up ahead of the chase, and

when the driver observed this he drove the Pinto off the

road and the suspects fled. Deputy Schaffer of the

Shasta County sheriff's Office recovered several items

from the Pinto, including a pair of damp maroon cutoffs.

On May 21, 1976, Deputy Francis Cena, of

the Siskiyou County Sheriff's Office,joined other law

enforcement personnel near Yreka in a search for the

suspects. One of the Yreka officers called out on @

public address system for "a Steve and a Dave" to come

down from the mountain. The suspects then gave

themselves up to Deputy Cena. Cena identified the

defendants as the suspects but noted that their

appearance had changed since the incident.

When defendants were booked Englund

was observed to have "Dave" tatooed on his shoulder.

The booking officer testified that defendants had greatly

changed their appearance since the time of the booking.

When Englund was being booked he was observed to

have two puncture wounds on his thigh and a wounded

toe on the same leg. Dr. Edward Macomber treated the

wounds and testified that they were consistent with a

gunshot wound. Metal fragments consistent with lead

were found in the toe wound.

Hair fragments and blood were found to be

embedded on the pistol recovered by Chester Sharp.

Human blood was found on Caswell’s jacket as well as

other clothing belonging to him. Defendants were placed

at the campsite by fingerprints found on bottles left

there. One of Caswell’s fingerprints was found on the

driver’s side of McCabe’s Pinto.

Te ey

I

The trial court’s denial of defense motions

for a substitution of counsel without a hearing is

reversible error, argue the defendants.” In considering

this contention a brief chronological outline is necessary:

On June 14, 1976, when defendants appeared for

arraignment, Public Defender Joseph Redmon was

appointed to defend Englund, and due to a possible

ee er renee pe ge eee ate

conflict of interest Terence Pierson was appointed as

1. The Attorney General notes that the defense

[Fn. 1. con’t. on p. 16]

motions sought the replacement of the public defender

and substitution of a “state bought street attorney."

Since defendant Caswell was represented by an

appointed private attorney due to the possible conflict of

interest of the public defender, respondent asserts that

the motion did not apply to Caswell and that Caswell’s

contention should be rejected for this reason. We reject

this contention. Caswell submitted and signed the

motions for substitution of attorneys and asserted that his

counsel was not representing him due to his failure to

visit defendant in the jail. We note further that

Caswell’s attorney was listed as "sub. public defender" on

the official documents. Caswell’s motions can only be

construed as a motion to replace the attorney that was

representing him, and thus we consider his contention

that the court erred in refusing the relief without a

hearing.

Pre ere

substitute public defender to represent Caswell. On

August 13, 1976, after the denial of defendant’s motion

for a change of venue, defendants filed separate petitions

for writs of habeas corpus on the grounds that the

motion for a change of venue was improperly denied.

On the standard form used by the defendants, where the

defendant is to state whether he is represented by an

attorney, each defendant stated: "Yes court appointed

Public Defendant, want state bought street atty.". The

petitions were denied.

Defendants jointly prepared a motion to

dismiss the public defender and to have new counsel

appointed, dated August 6, 1976. Defendant’s reasons

for their motion were the failure of the public defender

to investigate or talk with defendants, the "inactive, silent,

careless and reckless abandon" of the public defender to

visit defendants at the jail, and the inability of defendants

to find “solace and assuredness" in confiding or

depending on the public defender. The motion was

denied by Judge Abbe in a minute order dated

August 16, 1976. The motion and the minute order were

filed on August 17, 1976.

On August 18, 1976, Caswell filed a

declaration for the peremptory disqualification of Judge

Richard B. Eaton under Code of Civil Procedure

section 170.6.

On August 23, 1976, Englund filed a

"request for a copy of proceedings" dated August 19,

1976. Englund’s stated reasons for this request was that

Public Defender Redmon lacked time and interest to

make a proper defense. Judge Eaton denied this

request in a minute order dated August 20, 1976,

Englund submitted a petition for the dismissal of the

Public Defender’s Office. He stated that Public

Defender Redmon was too busy and had not "made a

case" in defense of Englund. Judge Eaton again denied

this request in a minute order on September 1, 1976,

and the petition and the order was filed on September 7,

1976.

te Reni Se betis

A review of the above proceedings disposes

of Englund’s contention that Judge Eaton’s orders were

null and void because he had been disqualified under

Code of Civil Procedure section 170.6. Englund did not

file a declaration to disqualify Judge Eaton, only Caswell

did so. Caswell did not join in the motions after he filed

his declaration. Judge Eaton was not disqualified to act

on the motions.

It is a matter of judicial discretion whether

to substitute court-appointed counsel in the absence of

a sufficient showing that a defendant’s right to counsel

would otherwise be substantially impaired. (People v.

Walker (1976) 18 Cal.3d 232, 238.) Defendants alleged

that the public defender did not visit them, investigate or

prepare an adequate defense. Although defendants’

disagreement as to tactics and strategy is not sufficient

reason to require a substitution of counsel (jbid.;

People v. Stewart (1970) 6 Cal.App.3d 457, 464-465), the

failure to investigate or prepare a defense on the part of

the appointed counsel would be caus for a substitution.

(People v. Groce (9171) 18 Cal.App.3d 292, 296-297.)

The appointed counsel made at least six appearances

before the court on behalf of defendants, and prepared

and argued a motion for change of venue. The court

was also aware that the public defender had hired a

private investigator to work on the case. In addition, the

court may have been aware of the appointed counsels’

competence through prior appearances before the court.

No reasons, however, were given by the trial court for

the denial of the motions. Defendants were not allowed

the opportunity to point to specific facts in support of

their motion or to make argument to the court. The

record does not show that the trial court made a further

inquiry into the matter after defendants made their

motion. When defendants have raised an issue that

would support the substitution of counsel if the claims of

defendants are true, it is error for the trial court to deny

the motion without further inquiry. (People v. Marsden

(1970) 2 Cal.3d 118, 124, People v. Munoz (1974)

41 Cal.App.3d 62, 66.)

We must consider whether the trial court’s

error in this case was prejudicial to the defendants. We

find beyond a reasonable doubt that the error did not

contribute to defendants’ convictions. (People v.

Marsden, supra, 2 Cal.3d at p. 126; see also Chapman v.

California (1967) 386 U.S. 18 [17 L.Ed.2d 705].) Trial

counsel appeared several! times before the trial court

prior to trial. They prepared, filed and argued a motion

for the change of venue with numerous supporting

papers. Counsel employed a private investigator to assist

in preparation of the defense. Counsel participated

actively at the trial and the record is replete with

evidence of counsels’ preparation and knowledge of both

the legal and factual issues involved. Many of the issues

on appeal discussed below are the result of counsels’

care in making a record to support the consideration of

the issues. Defendants were competently represented at

trial. The evidence was overwhelming against them.

They were identified by the victims. They were placed

at the site of the crime shortly before the crime by an

eyewitness. Circumstantial evidence linked defendants to

the crime. The trial court’s error was not prejudicial and

does not require reversal of the convictions.

I]

Did the trial court err in denying

defendants’ motion for change of venue? In reviewing

the trial court’s determination to deny a change of venue,

in a petition for a writ to mandate, it is the duty of the

reviewing court to make an independent evaluation of

the circumstances and to satisfy itself de novo that

defendant obtains a fair and impartial trial. (Maine v.

Superior Court (1968) 68 Cal.2d 375, 382; Corona v.

Superior Court (1972) 24 Cal.App.3d 872, 875.) The

same standard applies on appeal after a conviction.

(People v. Manson (1976) 61 Cal.App.3d 102, 184.) A

motion for a change of venue should be granted where

there is a reasonable likelihood that, in the absence of

such relief, defendants cannot have a fair trial. (Frazier

v. Superior Court (1971) 5 Cal.3d 287, 294-295; Maine v.

Superior court, supra, 68 Cal.2d at 383-384.) Among the

es at ci

factors to be considered are the size of the community,

the nature of the crime, the extent and effect of pretrial

publicity, and political factors involved in trying the case.

(Maine v. Superior Court, supra, at 385-388.)

The crimes involved were committed on

May 20, 1976. There was front page newspaper

coverage and radio coverage of the event following the

incident, and following the arrest of the defendants on

May 22, 1976. Defendants’ first appearance in court was

also covered on the front page. Defendants only

submitted three other articles covering the incident, the

latest an article of June 15, 1976, none of which were

front page articles. The accounts of the incident

reported a brief summary of the facts of the crimes, the

condition of the victims, and identified the defendants as

suspects. The articles did not report the evidence

against defendants and were not inflammatory towards

defendants.

The trial began on October 5, 1976, more

than four months after the commission of the crime and

the arrest of defendants, and nearly four months since

the last publicity on the incident. During the selection

of the jury the prospective jurors were questioned

whether they recalled hearing about a shooting incident

at the Antlers Campground. Of the 68 questioned, 46

recalled hearing about the incident but only 6 had more

than a vague recollection of reading about a shooting

incident. One prospective juror paid particular attention

because he was familiar with the campground, one had

a daughter who attended school with one of the victims

and had learned of the incident in that way, and one

worked in the probation office and had heard of the

incident from police officers. Only 3 of 68 prospective

jurors questioned had any specific recollection for the

publicity. Of the 12 jurors selected to be on the jury, 7

recalled hearing about an incident at Antlers

Campground, but none had any specific recollection.

Shasta County is a moderately small county,

and the crime was a heinous one, factors which indicate

that a change of venue may be appropriate. However,

2

we ded vn ateleiedl canal aa

both the defendants and the victims were nonresidents,

and there was no showing of an outpouring of sympathy

for the victims or abhorrence towards the defendants.

The publicity surrounding the incident was neither

voluminous nor inflammatory, and occurred substantially

prior to the trial. Defendants also point to the fact that

District Attorney Baker had campaigned for the superior

court judgeship, and Public Defender Redmon had

campaigned for a position as justice court judge. The

primary election was held on June 8, 1976, however, and

there is no showing that either party was campaigning

after that date. District Attorney Baker did not take a

personal part in the trial. These factors taken together,

do not establish that there was a reasonable likelihood

that defendants could not have a fair and impartial trial

absent a change of venue. We hold that the court did

not err in denying the motion.

Ill

Defendants contend as a matter of law they

are not guilty of kidnapping for the purposes of

robbery. (Pen. Code § 209.) They argue that the

victims were not moved a substantial distance, and that

the movement did not substantially increase the victims’

risk of harm.

Insubstantial movement which is merely

incidental to the crime of robbery and which does not

substantially increase the risk of harm to the victims

otherwise present is insufficient to constitute a violation

of Penal Code section 209. ( People v. Daniels (1969)

71 Cal.2d 1119, 1140.) However, the fact that in each

case a defendant chooses to consummate the robbery at

a location remote from the place of initial contact does

not render the subsequent asportation "merely incidental"

to the crime. It is the very fact that defendant utilized

substantial asportation in the commission of the crime

which renders him liable to the increased penalty of

Penal Code section 209, if that asportation was such that

the victim’s risk of harm was substantially increased

thereby. (People v. Thornton 91975) 11 Cal.3d 738, 768.)

The distance of the asportation is not subject to any hard

and fast rule, but must be such as is considered

substantial. (People v. Daniels, supra, 71 Cal.2d. at

1128.) The movement must increase the risk of harm

over and above that necessarily present in the robbery

itself. (Id., at 1139-1140.) A careful reading of the

Supreme Cuurt’s opinion in Daniels discloses that the

underlying purpose of its holding was to distinguish

between true kidnapping situations and crimes which are

essentially robbery, rape or assault and in which some

confinement or asportation occurs as a_ subsidiary

incident. (Id., at 1130-1139.)

During the perpetration of the offenses the

victims were taken from the road to the defendants’

campsite, from there to a meadow, and finally to a cliff.

The movement was through a wilderness area. There

was conflicting evidence as to the distance the victims

traveled. Jeremy estimated the distance from the

meadow to the cliff to be 200 yards. Defendants

presented evidence that the shortest distance from the

cliff to the road was 265 feet. In their briefs defendants

use 355 feet as the distance from the campground to the

cliff. The issue is not one of specific aeeiia but is

whether that distance can be considered substantial. The

fact that the asportation was in an unpopulated area

through wilderness terrain supports the finding that the

asportation was substantial. Further, the movement was

over and above any that could be considered necessary

or "merely incidental" to the crime of robbery.

Importantly, there can 10 doubt that the

asportation substantially increased the risk of harm of the

victims. The specific purpose in the movement was so

the victims could no call out for help. There was

medical testimony that Eanswythe had lost 3 pints of

blood, Jeremy was severely wounded, and Laura had

2 quarts of blood in her abdomen trom her wound and

would have died had she not received immediate medical

attention. While merely moving the victim to a place

obscured from public view does not in itself substantially

increase the risk of harm (People v. Crumpton (1973)

9 Cal.3d 463, 467), the movement at gunpoint of the

victims to a spot of isolation where they were not likely

to be discovered and where they were left tied and

wounded without clothing, did substantially increase the

risk of harm to the victims. Defendants cannot avoid the

consequences of their act merely because they failed

sufficiently to incapacitate one of their victims so that he

was able to get help for the other victims.

Defendants urge us to reconsider the

Supreme Court’s opinions to People v. Thornton, supra,

11 Cal.3d 738, and In re Earley (1975) 14 Cal.3d 122.

As an intermediate appellate court we are bound by the

opinions of the Supreme Court. (Auto Equity Sales, Inc.

v. Superior Court (1962) 57 Cal.2d 450, 455.)

Furthermore, we are satisfied that the facts established

at trial support the verdict under the Daniels criteria.

The movement was substantial and substantially increased

the risk of harm to the victims. It was not merely

incidental to the robbery. The evidence supports the

verdicts.

IV

As to Eanswythe Leicester, the defendants

contend that the evidence is insufficient to establish the

crime of robbery. They reason that Eanswythe testified

that when defendant demanded money from the victims,

she had left her money in the car and thus did not give

anything to the defendants.

Robbery is the felonious taking of personal

property in the possession of another, from his person or

immediate presence, against his will, accomplished with

force or fear. (Pen. Code, § 211.) An intent to steal,

i.c., an intent to deprive an owner permanently of his

property, is an essentially element of robbery. (People

v. Butler (1967) 65 Cal.2d 569, 573; People v. Ford

(1964) 60 Cal.2d 772, 793.) An intent to steal may

ordinarily be inferred when one person takes the

property of another, particularly if he takes it by force.

(People v. Butler, supra, 65 Cal.2d at 573.)

Defendants forced Eanswythe from the car

at gunpoint and announced that they were taking the car.

Defendants were aware that Eanswythe’s possessions

were in the car, and the jury could have determined that

defendants intended to take the possessions in the car as

well as the car. There was substantial evidence by which

the jury could have found defendants guilty of robbery of

Eanswythe Leicester.

Vv

The convictions for felonious assault,

defendants insist, must be reversed for failure to instruct

the jury on general criminal intent. (See CALJIC

No. 3.30.)

Felonious assault requires the general intent

willfully to commit an act the direct, natural and

probable consequences of which, if successfully completed

would be injury to another. (People v. Rocha (1971)

3 Cal.3d 893, 899. See also, People v. Hood (1969)

1 Cal.3d 444, 457-458.) The California Supreme Court

in Rocha, supra, specifically approved instructions which

were given in this case (CALJIC Nos. 9.03, 604

(2d rev.ed. 1958) which specify "with criminal intent” as

an element of the crime. (3 Cal.3d at 899.)

We are cited to no case and we find none

which requires the trial court to instruct on general

criminal intent, sua sponte, in the circumstances of this

case. The jury was instructed that assault requires

criminal intent, and it is inconceivable on the evidence

presented against defendants that a different result would

have been reached by the jury if-CALJIC No. 3.30 had

been given. We find no reversible error.

VI

Defendants contend that their sentences

may not be enhanced due to the use of a firearm under

Penal Code section 12022.5. Respondent so concedes.

We agree.

Trial took place in October 1976. On

November 1, 1976, when defendants appeared for

sentencing, the Supreme Court’s opinion in People v.

Walker, supra, 18 Cal.3d 232, had been issued but had

not yet appeared in the advance sheets of the reporters.

The trial court rejected Caswell’s motion to strike the

allegations, and imposed 16 findings of firearm use

against each defendant.

The trial court instructed the jury that a

person may be guilty of the use of a firearm if he

willfully participates in a crime knowing that a firearm is

being used by another and if he benefits from that use,

even if he does not personally hold or possess the

firearm. The California Supreme Court rejected that

theory in People v. Walker, supra; only a person who

personally uses a firearm is subject to the enhanced

penalties. It was thus error for the trial Court to give

the above instructions.

The evidence at the trial was overwhelming

in establishing that Englund personally used the pistol.

The victims identified Englund as the gunman, and he

had the “hole in his leg" that the gunman was said to

have had. The evidence failed to indicate that Caswell

at any time personally used the firearm. Nonetheless,

Englund, as well as Caswell, was denied the right to a

jury trial on the question of whether he had personally

used the firearm. The jury was not required by the

instructions to determine whether either defendant or

both actually used the firearm.

We note that the sentence for conviction

under Penal Code section 209 is life imprisonment. The

enhancement provisions of Pena! Code section 12022.5

can be given no effect in the case of a defendant

sentenced to life imprisonment upon conviction of the

basic crime in the perpetration of which he uses a

firearm. (People v. Walker, supra, 18 Cal.3d at 244.)

That part of the judgment which enhances

the sentences due to the use of a firearm is reversed.

The cause must be remanded to the trial court with a

direction to re-sentence defendants after a limited new

trial on the issue of firearm use. (See People v. Fisk

(1975) 50 Cal.App.3d 364.)

Vil

Defendants contend and _ respondent

concedes that Penal Code section 654 bars the imposition

of sentence for ali of the convictions and permits only

punishment for the greatest offense as to each victim.

We agree.

When a defendant commits multipie

violations incident to a single objective, conviction is

proper for each violation but defendant may not be

punished for more than one violation. (People v. Miller

(1977) 18 Cal.3d 873, 885.) Defendants may be punished

for multiple violations when during the course of conduct

they commit crimes of violence against multiple victims

(Ibid.) The evidence herein reveals a single course of

conduct with one objective and four victims. Defendants

may be punished for the most serious offence against

each victim, that being the violation of Penal Code

section 209. Conviction for the other offenses is

appropriate, but the execution of sentence must be

Stayed pending the service of sentence for the violations

of Penal Code section 209, such stay to become

permanent upon the completion of service of sentence

for the violations of Penal Code section 209. (Id., at

886.)

Vill

Defendants contend that a sentence of life

imprisonment without possibility of parole (see Pen.

Code, § 209), is cruel and unusual punishment in

violation of the United States and California

Constitutions. Defendants note this court’s previous

rejection of similar contentions (People v. Isitt (1976)

55 Cal.App.3d 23, 31; In re Maston (1973)

33 Cal.App.3d 559, 565), but urge reconsideration in light

of the recent amendment to Penal code section 209.

The Uniform Determinate Sentencing Act

of 1976, effective July 1, 1977, has amended Penal Code

section 209 to provide for the possibility of parole for

persons convicted of kidnapping to commit robbery

regardless of whether bodily harm has been suffered by

the victim. (See Stats. 1976, ch. 1139.) The act further

provides for the retroactive application of the provisions

of the Act by the Community Release Board. (Pen.

Code, § 1170.2, amended by Stats. 1977, ch. 165.) The

Legislature clearly has the power to provide for

application of Penal Code amendments decreasing

punishment to judgments not yet final at the effective

date of the amendment. (See In re Estrada (1965)

63 Cal.2d 740, 744.) As defendants will be eligible for

parole in accordance with legislative directive to the

Community Release Board, we need not again consider

the contention that life without possibility of parole is

crue] and unusual punishment.

IX

We finally note that the trial court did not

make a finding as to time in custody attributable to the

offenses involved. Defendants are entitled to have such

time applied to their sentences (Pen. Code, § 2900.5;

In re Kapperman (1974) 11 Cal.3d 542, 550), and the

trial court must modify the abstracts of judgment to

specify such time.

CONCLUSION

We have found error in the trial court’s

denial of the defendants’ motions for a substitution of

counsel, without inquiry, but we hold that the error was

not prejudicial to the defendants. We have found no

error in the denial of defendants’ motion for a change of

venue. We reject defendants’ contentions that the

evidence does not support the verdicts of kidnapping for

the purposes of robbery, or of robbery of Eanswythe

Leicester. We find no prejudicial error in the jury

instructions on assault with a deadly weapon.

We hold that the findings of the use of a

firearm must be reversed and the cause remanded for

limited new trial upon that issue.

The execution of sentence for convictions

of robbery, attempted murder and felonious assault

against each victim must be stayed for each defendant,

pending service of sentence for the convictions of

violation of Penal Code section 209 against each victim,

such stays to become permanent upon completion for

sentence for the violations of Penal Code section 209.

Defendants will be entitled to parole under

the amendments to Penal Code section 209. We do not

consider whether the sentence of life without possibility

of parole under former Penal Code section 209 violates

the Constitutions of the United States or California.

Finally, we hold that the abstracts of judgment must be

modified to reflect the time defendants spent in custody

attributable to the above offenses prior to their delivery

to the Department of Corrections.

The judgments of conviction are modified

to stay the services of sentence of each of the convictions

for first degree robbery, felonious assault, and attempted

murder, such stays to become permanent upon

completion of service of sentence of the convictions for

kidnapping for the purpose of robbery. That part of the

judgment which enhances the sentence due to the use of

firearm is reversed. The cause is remanded to the trial

court with a direction to re-sentence defendants after a

limited new trial on the issue of firearm use. The

superior court is directed to prepare and furnish the

Director of Corrections with a certified copy of amended

abstracts of judgment reflecting the above modifications

and reflecting custodial time for which the defendants

are to receive credit upon their prison sentences.

The judgments as modified are reversed as

to the enhancement of sentence due to the use of a

firearm. Otherwise, they are affirmed.

S/

We concur:

/

[S/

I

ATrFrEeRaiedis

UNITED STATES CONSTITUTION

FIFTH AMENDMENT

"No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use

without just compensation."

SIXTH AMENDMENT

"In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assistance

of counsel for his defense.”

FOURTEENTH AMENDMENT

"Section 1. All persons born or naturalized in

the United States and subject to the jurisdiction thereof,

are citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person w‘thin its jurisdiction the equal

protection of the laws."

APPENDIX J

CALIFORNIA PENAL CODE

SECTION 31

"Who are principals. All persons concerned in the

commission of a crime, whether it be felony or misdemeanor,

and whether they directly commit the act constituting the

offense, or aid and abet in its commission, or, not being

present, have advised and encouraged its commission, and all

persons counseling, advising, or encouraging children under the

age of fourteen years, lunatics or idiots, to commit any crime,

or who, by fraud, contrivance, or force, occasion the

drunkenness of another for the purpose of causing him to

commit any crime, or who, by threats, menaces, command, or

coercion, compel another to commit any crime, are principals

in any crime so committed." [Enacted 1872.]

SECTION 187

“Murder defined. (a) Murder is the unlawful killing

of a human being, or a fetus, with malice aforethought.

"(b) This section shall not apply to any person who

commits an act which results in the death of a fetus if any of

the following apply:

"(1) The act compiled with the Therapeutic Abortion

Act, Chapter 11 (commencing with Section 25950) of

Division 20 of the Health and Safety Code.

"(2) The act was committed by a holder of a

physician’s and surgeon’s certificate, as defined in the

Business and Professions Code, in a case where, to a

medical certainty, the result of childbirth would be

death of the mother of the fetus or where her death

from childbirth, although not medically certain, would

be substantially certain or more likely than not.

"(3) The act was solicited, aided, abetted, or consented

to by the mother of the fetus.

“(c) Subdivision (b) shall not be construed to prohibit

the prosecution of any person under any other provision of

law." [As amended by Stats. 1970, ch. 1311, § 1.]

SECTION 207

"(a) Every person who forcibly, or by

any other means of instilling fear, steals or

takes, or holds, detains, or arrests any person in

this state, and carries the person into another

country, state, or county, or into another part of

the same county, is guilty of kidnapping.

"(b) Every person, who for the purpose

of committing any act defined in Section 288,

hires, persuades, entices, decoys, or seduces by

false promises, misrepresentations, or the like,

any child under the age of 14 years to go out of

this country, state, or county, or into another

part of the same county, is guilty of kidnapping.

"(c) Every person who forcibly, or by

any other means of instilling fear, takes or

holds, detains, or arrests any person, with a

design to take the person out of this state,

without having established a claim, according to

the laws of the United States, or of this state, or

who hires, persuades, entices, decoys, or

seduces by false promises, misrepresentations,

or the like, any person to go out of this state, or

to be taken or removed therefrom, for the

purpose and with the intent to sell that person

into slavery or involuntary servitude, or

otherwise to employ that person for his or her

own use, or to the use of another, without the

free will and consent of that persuaded person,

is guilty of kidnapping.

"(d) Every person who, being out of

this state, abducts or takes by force or fraud any

person contrary to the law of the place where

that act is committed, and brings, sends, or

conveys that person within the limits of this

state, and is afterwards found within the limits

thereof, is guilty of kidnapping.

"(e) Subdivisions (a) to (d). inclusive,

do not apply to any of the following:

(1) To any person who steals, takes,

entices away, details, conceals, or harbors any

child under the age of 14 years, if that act is

taken to protect the child from danger of

imminent harm.

(2) To any person acting under Section

834 or 837." [Amended by Stats. 1990, c. 55,

(S.B. 1564), § 1.)

SECTION 209

"(a) Any person who seizes, confines,

inveigies, entices, decoys, abducts, conceals,

kidnaps or carries away another person by any

means whatsoever with intent to hold or detain,

or who holds or detains, that person for

ransom, reward or to commit extortion or to

exact from another person any money or

valuable thing, or any person who aids or abets

any such act, is guilty of a felony, and upon

conviction thereof, shall be punished by

imprisonment in the state prison for life without

possibility of parole in cases in which any

person subjected to any such act suffers death

or bodily harm, or is intentionally confined in a

manner which exposes such person to a

substantial likelihood of death, or shall be

punished by imprisonment in the state prison for

life with the possibility of parole in cases where

no such person suffers death or bodily harm.

"(b) Any person who kidnaps or carries

away any individual to commit robbery shall be

punished by imprisonment in the state prison for

life with possibility of parole.

"(c) In all cases in which probation is

granted, the court shall, except in unusual cases

where the interests of justice would best be

served by a lesser penalty, require as a

condition of the probation that the person be

confined in the county jail for 12 months. If

the court grants probation without requiring the

defendant to be confined in the county jail for

12 months, it shall specify its reason or reasons

for imposing a lesser penalty." [Amended by

Stats. 1990, c. 55 (S.B. 1564), § 3.]

SECTION 211

“Robbery defined. Robbery is the felonious taking of

personal property in the possession of another, from his person

or immediate presence, and against his will, accomplished by

means of force or fear."

[Enacted 1872]

SECTION 245

"(a) (1) Any person who commits an

assault upon the person of another with a deadly

weapon or instrument other than a firearm or by

any means of force likely to produce great

bodily injury shall be punished by imprisonment

in the state prison for two, three, or four years,

or in a county jail for not exceeding one year,

or by a fine not exceeding ten thousand dollars

($10,000), or by both the fine and

imprisonment.

(2) Any person who commits an assault

upon the person of another with a firearm shall

be punished by imprisonment in the state prison

for two, three, or four years, or in a county jail

for not less than six months and not exceeding

one year, or by both a fine not exceeding ten

thousand dollars ($10,000) and imprisonment.

(3) Any person who commits an assault

upon the person of another with a machinegun,

as defined in Section 12200, or an assauli

weapon, as defined in Section 12276, shall be

punished by imprisonment in the state prison for

4, 8, or 12 years.

"(b) Any person who commits an

assault upon the person of another with a

semiautomatic firearm shall be punished by

imprisonment in the state prison for three, six,

or nine years.

"(c) Any person who commits an

assault with a deadly weapon or instrument,

other than a firearm, or by any means likely to

produce great bodily injury upon the person of

a peace officer or firefighter, and who knows or

reasonably should know that the victim is a

peace officer or firefighter engaged in the

performance of his or her duties, when the

peace officer or firefighter is engaged in the

performance of his or her duties, shall be

punished by imprisonment in the state prison for

three, four, or five years.

"(d) (1) Any person who commits an

assault with a firearm upon the person of a

peace officer or firefighter, and who knows or

reasonably should know that the victim is a

peace officer or firefighter engaged in the

performance of his or her duties, when the

peace officer or firefighter is engaged in the

performance of his or her duties, shall be

punished by imprisonment in the state prison for

four, six, or eight years.

(2) Any person who commits an assault

upon the person of a peace officer or firefighter

with a semiautomatic firearm and who knows or

reasonably should know that the victim is a

peace officer or firefighter engaged in the

performance of his or her duties, when the

peace officer or firefighter is engaged in the

performance of his or her duties, shall be

punished by imprisonment in the state prison for

five, seven, or nine years.

(3) Any person who commits an assault

with a machinegun, as defined in

Section 12200, or an assault weapon, as defined

in Section 12276, upon the person of a peace

officer or firefighter, and who knows or

reasonably should know that the victim is a

peace officer or firefighter engaged in the

performance of his or her duties, shall be

punished by imprisonment in the state prison for

6, 9, or 12 years.

"(e) When a person is convicted of a

violation of this section in a case involving use

of a deadly weapon or instrument or firearm,

and the weapon or instrument or firearm is

owned by that person, the court shall order that

the weapon or instrument or firearm be deemed

a nuisance, and it shall be confiscated and

disposed of in the manner provided by

Section 12028.

"(f) As used in this section, ‘peace

officer’ refers to any person designated as a

pace officer in Chapter 4.5 (commencing with

Section 830) of Title 3 of Part 2." [Amended

by Stats. 1989, c. 18, § 1; Stats. 1989, c. 1167,

§ 1; Stats. 1993, c. 369 (A.B. 1344), § 1.]

SECTION 666

“Every person who, having been

convicted of petit theft, grand theft, auto theft

under Section 10851 of the Vehicle Code,

burglary, carjacking, robbery, or a felony

violation of Section 496 and having served a

term therefor in any penal institution or having

been imprisoned therein as a condition of

probation for that offense, is subsequently

convicted of petit theft, then the person

convicted of that subsequent offense is

punishable by imprisonment in the county jail

not exceeding one year, or in the state prison."

[Amended by Stats. 1988, c. 831, § 1:

Stats. 1993, c. 610 (A.B. 6), § 9.5, eff. Oct. 1,

1993; Stats. 1993, c. 611 (S.B. 60), § 10, eff.

Oct. 1, 1993.]

K

APPENDIX

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PLAINTIFF’S PROPOSED INSTRUCTION NO. 31

All persons concerned in the commission of

a crime who either directly and actively commit the act

constituting the offense or who with knowledge of the

unlawful purpose of the perpetrator of the crime aid and

abet in its commission or, whether present or not, who

advise and encourage its commission, are regarded by the

law as principals in the crime thus committed and are

equally guilty thereof.

One who aids and abets is not only guilty

as a principal of the particu‘ar crime that to his

knowledge his confederates are contemplating

committing, but he is also liable as a principal for the

natural and reasonable or probable consequences of any

act that he knowingly aided or encouraged.

AUTHORITY: CALJIC 3.00 (1976 Revision)

GIVEN:

REFUSED:

MODIFIED:

/s/

PRESIDING JUDGE

PLAINTIFF’S PROPOSED INSTRUCTION NO. 32

A person aids and abets the commission of a

crime if, with knowledge of the unlawful purpose of the

perpetrator of the crime, he aids, promotes, encourages or

instigates by act or advice the commission of the crime.

AUTHORITY: CALJIC 3.01 (1974 Revision)

GIVEN:

REFUSED:

MODIFIED:

/s/

PRESIDING JUDGE

PLAINTIFF’S PROPOSED INSTRUCTION NO. 25

In the crimes of Robbery, Kidnaping to Commit

Robbery and Attempted Murder of which the defendant is

charged in the information, a necessary element is the existence

in the mind of the defendant of the specific intent as to each of

said offenses as I have heretofore instructed you.

If the evidence shows that a defendant was

intoxicated at the time of the alleged offense, the jury should

consider his state of intoxication in determining if defendant

had such specific intent.

If from all the evidence you have a reasonable

doubt whether defendant was capable of forming such specific

intent, you must give the defendant the benefit of that doubt and

find that he did not have such specific intent.

AUTHORITY: CALJIC 4.21

GIVEN:

REFUSED:

MODIFIED:

/s/

PRESIDING JUDGE

PLAINTIFF’S PROPOSED INSTRUCTION NO. 12

Any person who, with the specific intent to

commit robbery, kidnaps any individual, is guilty of the crime

of kidnaping to commit robbery.

The specific intent to commit robbery must be

Robbery is the taking of personal property of

any value in the possession of another, from his person or

means of force or fear and with the specific intent permanently

to deprive the owner of his property.

Kidnaping is the unlawful movement by physical

force of a person against his will and without his consent for a

substantial distance where such movement is not merely

incidental to the commission of the robbery and where such

movement substantially increases the risk of significant physical

injuries to such person over and above those to which such

person is normally exposed in the commission of the crime of

robbery itself.

Kidnaping is the unlawful compulsion of another

person a,ainst his will and without his consent and because of

a reasonable apprehension of harm, to move for a substantial

distance where such movement is not merely incidental to the

commission of the robbery and where such movement

substantially increases the risk of significant physical injuries to

such person over and above those to which such person is

normally exposed in the commission of the crime of robbery

itself.

If you should find a defendant guilty of the

charge against him under Counts II, VI, X, and XIV, you must

also find whether or not the person kidnaped suffered bodily

harm in connection with or as a result of the commission of the

crime and state your decision in that respect in your verdict.

The person kidnaped may be found to have

suffered bodily harm only if the proof shows beyond a

reasonable doubt that he did suffer bodily harm.

"Bodily harm," as that term is used in this

instruction, means substantial injury to the body of a person

who was kidnaped by the application of physical force above

and in addition to the force which is necessarily involved in the

commission of such kidnaping.

AUTHORITY: CALJIC 9.23, (1973 Revision)

GIVEN:

REFUSED:

MODIFIED:

/s/

PRESIDING JUDGE