Justices Agree Judge Erred but Decide Not to Void Conviction

In a ruling that could signal its stance on a crucial death penalty issue, the California Supreme Court on Thursday upheld an attempted murder conviction, even though the jury was improperly instructed on its need to find that the defendant intended to kill.

The unanimous decision was hailed by a state prosecutor as a “good sign” that the newly constituted court intends to abandon a 1984 ruling under then-Chief Justice Rose Elizabeth Bird requiring, in almost all cases, the reversal of a death sentence when the jury was not told it must find intent. Dozens of pending capital cases are likely to be affected when the court decides that issue.

“Today’s decision looks to me like a harbinger--a strong suggestion--of what the court’s going to do,” said Deputy Atty. Gen. Pete Wilkinson, the state’s coordinator of capital cases. “It appears the (1984) ruling is gone, even though the court doesn’t flatly say so.”

Attorney General’s Contention

While there were differences in circumstances, the court agreed Thursday that an instructional error on intent does not mandate reversal, just as the attorney general has contended in the capital cases before the court, Wilkinson noted.

But defense attorneys who specialize in death penalty cases cautioned against reading too much into Thursday’s decision.

“I don’t think this ruling is going to have a direct impact on capital cases,” said Deputy Public Defender Monica S. Knox.

Thursday’s case involved conflicting instructions, while in the capital cases no intent instruction was given, she said.

“There’s a very real difference where the jury never hears the issue at all,” Knox said. “That deprives the defendant of his right to a jury determination on the question of intent.”

Similarly, Gail Weinheimer, senior staff attorney for the California Appellate Project, said, “There’s a far more serious error when a jury is simply never told it must find intent.”

In their ruling Thursday, the justices upheld the attempted murder conviction of Charles Joseph Lee, a fleeing robber who fired a shot at two pursuing Los Angeles police officers.

The court found that, while the trial jury had been improperly instructed on the need to find the defendant specifically intended to kill, the error was “harmless”--and the verdict of guilt should stand.

” . . . The defendant was being pursued by armed police officers in an apparent ‘kill or be killed’ situation,” Chief Justice Malcolm M. Lucas wrote for the court. “His very act of firing at the officers from 15 to 20 feet away could only be seen as disclosing an intent to kill them.”

In the capital cases before the court, defense attorneys have argued that failure to instruct and subsequent lack of a finding of intent mandates that a death penalty be overturned.

State prosecutors have contended that no such instruction is required--but that if the court finds it is, a death verdict should stand when the evidence shows failure to instruct was “harmless error.”

Error Deemed ‘Harmless’

The court, in deciding the non-capital case Thursday, concluded that conflicting jury instructions on the intent-to-kill requirement could have misled jurors. But the error did not require automatic reversal of the defendant’s conviction because it was shown harmless “beyond reasonable doubt,” the justices said.

Applying that standard and then reviewing the evidence and statements made to jurors by the prosecution and defense, the court found that “there was no reasonable possibility” the verdict would have been different had there been no error.

In the case before the court, Lee had been spotted one night in June, 1983, by two police officers in a patrol car as he was running with a woman’s purse in hand and another officer in foot pursuit.

According to testimony, the two officers stopped their car, ran after Lee and ordered him to halt. Lee stopped 15 to 20 feet away and fired his weapon once, missing them, before the gun jammed. He was apprehended and charged with attempted murder of the officers and robbery of the woman.

At trial, Los Angeles Superior Judge Robert R. Devich properly told the jurors that they must find Lee specifically intended to commit murder when he fired at the officers. But the judge also gave a conflicting instruction, indicating that if the act was commited with malice--with a “wanton disregard for human life”--it was not necessary to find Lee specifically intended to kill.

The jury convicted Lee of attempted murder and robbery and the state Court of Appeal upheld the conviction.

In reviewing Lee’s case, the state Supreme Court found that the judge erred in giving the conflicting instruction on malice. But while the conflicting instructions were “indeed constitutionally deficient,” the deficiency “was not so grave as to invoke a reversal per se standard,” Lucas wrote.

U.S. Ruling Cited

In such circumstances, he said, rulings by the U.S. Supreme Court allowed the error to be deemed “harmless” when it was shown “beyond reasonable doubt” the mistake could not have affected the outcome of the trial.

Lucas noted that the evidence of Lee’s intent to kill was “quite strong.” The defendant was close to the officers and testimony indicated that, after firing the first shot and missing, Lee had attempted to fire a second shot but the gun had jammed, the chief justice said.

In other action Thursday, the court:

- Let stand an appellate ruling that police need not tell a minor they are questioning that his mother wants to see him and that he has a right to consult with her before interrogation. But the court, limiting the ruling to the defendant in the case, also ordered that the appellate opinion could not be used as precedent in other cases.

- Ordered the disbarment of Bernard Sabbath Strick of Century City, who had been placed on interim suspension by the court following his conviction for voluntary manslaughter in February, 1980. The court said that while Strick had made “commendable efforts” at rehabilitation, the circumstances of the crime reflected “moral turpitude” and that disbarment was the proper punishment.

Strick served three years and nine months in state prison following his conviction in the shooting death of Peter Verge in 1978. The court noted that after the shooting occurred during an altercation at his residence, Strick had pulled the bleeding body of the 18-year old victim into a hallway and left without administering any aid.

Under disciplinary procedures of the State Bar, Strick will be eligible to apply for reinstatement as a lawyer in November, 1988, five years after he was placed on interim suspension.

- Found that Michael Bernard Rosenthal of Beverly Hills must be disbarred following his admission that he misappropriated several thousand dollars from five clients he represented in personal injury cases between 1981 and 1983.

A review department of the State Bar Court had found that Rosenthal had used client funds to finance his addiction to cocaine and alcohol. The justices rejected Rosenthal’s contention that he should receive a lesser punishment because of recent efforts toward rehabilitation.