People v. Prysock

127 Cal. App. 3d 972, 180 Cal. Rptr. 15, 1982 Cal. App. LEXIS 1200

• Court: California Court of Appeal
• Decided: January 18, 1982
• Docket: Crim. 4051
• Status: Published

Opinions

Opinion

FRANSON, Acting P. J.

Appellant, Randall James Prysock, aged 16 at the time of the offenses charged herein, was found guilty by jury of first degree murder of Iris Donna Erickson as charged in count one of an amended information. The jury also returned special findings that the murder was (1) wilful, deliberate and premeditated, and was personally committed by appellant during the commission of a robbery; and (2) was wilful, deliberate and premeditated and personally committed by appellant involving the infliction of torture. The jury also found the charge of using a deadly weapon in the murder was true. (Pen. Code, §§ 187, 190.2,¹ 12022, subd. (b).)

The jury also returned verdicts of guilty on the following charges: count two, robbery of Iris Donna Erickson with the use of a dangerous weapon (Pen. Code, §§ 211, 12022, subd. (b)); count three, burglary of the residence occupied by Iris Donna Erickson and accompanied with the use of a deadly weapon (Pen. Code, §§ 459, 12022, subd. (b)); count four, auto theft (Veh. Code, § 10851); count five, escape from a youth facility (Welf. & Inst. Code, § 871); and count six, destroying evidence (Pen. Code, § 135). Mark Danley, appellant’s coparticipant ztnd also a juvenile, was found guilty of the same charges in a later trial, including the special findings and an additional charge not relevant here.

The court sentenced appellant under count one to state prison for life without possibility of parole. The sentences on counts two and three, and their related enhancements, were stayed pursuant to Penal Code section 654. Additionally, the sentences for counts two through six were deemed to “merge into” and to run concurrently with the life sentence, and the execution of the sentences were stayed pursuant to then Penal Code section 669.

This is the second time this case has been before this court. On December 5, 1980, we reversed the trial court and ordered a new trial because of what we considered to be Miranda error (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) in that the warning given to appellant concerning his right to consult with a free lawyer before police interrogation if he could not afford to hire one was inadequate. After granting the respondent’s petition for certiorari, the United States Supreme Court held the Miranda warnings were adequate as a matter of federal law, reversed our decision and remanded the case to us “for further proceedings not inconsistent with this opinion.” (California v. Prysock (1981) 453 U.S. 355, 362 [69 L.Ed.2d 696, 703, 101 S.Ct. 2806, 2810].)

For the reasons to be explained, we conclude appellant’s conviction should be affirmed on all counts with the exception of count six, destroying evidence in violation of Penal Code section 135. We also modify appellant’s sentence on the conviction of first degree murder (count one) to life imprisonment as required by People v. Davis (1981) 29 Cal.3d 814 [176 Cal.Rptr. 521, 633 P.2d 186] and Penal Code section 190 as it existed at the time of the commission of the instant offense. We also strike the special circumstances findings of the jury and remand for disposition of the Penal Code section 12022, subdivision (b) finding on count one (murder).

Facts

Brad Erickson, the victim’s 16-year-old son, had reported a car theft of coparticipant Mark Danley some 4 months prior to the incidents in question. Danley subsequently made the boast that he was going to “take care of” Brad Erickson’s mother, the murder victim. Appellant overheard this statement. Appellant had been (innocently) with Danley when he was arrested for this prior car theft.

Appellant testified to the following additional facts at trial after his unsuccessful motion to suppress his taped statement to the authorities on the night of his arrest. The appellant and Danley escaped from a juvenile detention facility during the evening of Saturday, January 28, 1978. Danley stole a vehicle in which the boys rode about in Tulare County on Sunday. Danley collided with a tree and set the interior on fire. The next day, Monday, appellant stole a Datsun pickup. Danley then drove it around the Town of Porterville. He drove to his house to obtain clothing and food, but did not stop because his mother was at home.

Danley then drove past the victim’s house several times, saying that he knew where they could get food and clothes. The victim’s car was apparently known to Danley; on that date it was at a repair shop. The victim’s son, Brad Erickson, had left in his pickup earlier to take some papers to a recycling center. The appellant and Danley stopped long enough to allow Danley to look in the garage. Danley made two separate telephone calls to an unknown number from a convenience store located near the house. According to appellant, there was no conversation over the telephone.

The pair then parked on a nearby street and walked to the rear of the house. Danley attempted to force entry by breaking out a window. When confronted by the victim, who was inside the house, both boys ran to the front of the house and entered through the front door.

When the victim announced that she was going to call the police, appellant hit her two or three times with a wooden dowel which he found near where he was standing in the living room. Danley then hit her with a metal fireplace poker, stabbed her in the back eight times with an ice pick to a. consistent depth of one inch to one and one-quarter inch and eventually strangled her to death with a telephone cord.

After the murder, the boys stole a shotgun, food, money and tapes from the house. They also stole clothes which they changed into, subsequently burning the clothes which they wore at the time of the killing. Later that day, their vehicle, full of incriminating evidence, was spotted by the police resulting in a chase and their arrest.

The Miranda Warnings Were Adequate

Shortly after being taken to the police station, appellant was given a statement of his “Miranda” rights by Sergeant Byrd. Appellant declined to talk. The record does not reveal the exact content of the advisement.

Appellant’s parents were called, and they came to the station. About 20 minutes after appellant had refused to talk, his mother entered the room where her son was located. She talked with him about 20 minutes. Appellant’s mother exited and indicated appellant wished to discuss the events earlier in the day.² A few minutes after this Sergeant Byrd reentered the room where appellant was located; appellant’s parents followed. Byrd took a taped statement from appellant which was admitted into evidence. The tape reflects the following warnings were given to appellant prior to any questioning: “Sgt. Byrd: Okay. Mr. Randall James Prysock, earlier today I advised you of your legal rights and at that time you advised me you did not wish to talk to me, is that correct?

“Randall P.: Yeh.

“Sgt. Byrd: And, uh, since then you have asked to talk to me, is that correct?

“Sgt. Byrd: And, uh, during, at the first interview your folks were not present, they are now present. I want to go through your legal rights again with you and after each legal right I would like for you to answer whether you understand it or not.. .. Your legal rights, Mr. Prysock, is follows:

“Number One, you have the right to remain silent. This means you don’t have to talk to me at all unless you so desire. Do you understand this?

“Sgt. Byrd: If you give up your right to remain silent, anything you say can and will be used as evidence against you in a court of law. Do you understand this?

“Randall P.: Yes.

“Sgt. Byrd: You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning. Do you understand this?

“Sgt. Byrd: You also, being a juvenile, you have the right to have your parents present, which they are. Do you understand this?

“Sgt. Byrd: Even if they weren’t here, you’d have this right. Do you understand this?

“Sgt. Byrd: You all, uh—if,—you have the right to have a lawyer appointed to represent you at no cost to yourself. Do you understand thisl

“Sgt. Byrd: Now, having all these legal rights in mind, do you wish to talk to me at this time?

“Randall P.: Yes.” (Italics added.)

At this point, at the request of Mrs. Prysock, a conversation took place with the tape recorder turned off. According to Sergeant Byrd, Mrs. Prysock asked if appellant could still have an attorney at a later time if he gave a statement at that time without one. Sergeant Byrd assured Mrs. Prysock that appellant would have an attorney when he went to court and “he could have one at this time if he wished one.”³

The United States Supreme Court ruled in California v. Prysock, supra, 453 U.S. 355, 361 [69 L.Ed.2d 696, 702, 101 S.Ct. 2806, 2810], that Sergeant Byrd “fully conveyed to [appellant] his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one. These warnings conveyed to [appellant] his right to have a lawyer appointed if he could, not afford one prior to and during interrogation. The Court of Appeal erred in holding that the warnings were inadequate simply because of the order in which they were given.” (Italics added, fn. omitted.)

The Supreme Court noted it had never suggested “any desirable rigidity in the form of the required [Miranda] warnings. [¶] Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures....” (California v. Prysock, supra, 453 U.S. at p. 359 [69 L.Ed.2d at p. 701, 101 S.Ct. at p. 2809].) The Pry-sock warnings were then deemed to be “a fully effective equivalent” to the precise warnings required by Miranda. (Ibid.)

The high court distinguished People v. Bolinski (1968) 260 Cal.App.2d 705 [67 Cal.Rptr. 347], which was relied on by this court in our prior unpublished Prysock opinion. It was emphasized that Sergeant Byrd’s warnings concerning appointed counsel were not linked to a future point in time after police interrogation such as “if he [were] charged” as in Bolinski or at arraignment or trial as in United States v. Garcia (9th Cir. 1970) 431 F.2d 134. “Here ... nothing in the warnings given [appellant] suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right ‘to a lawyer before you are questioned ... while you are being questioned, and all during the questioning.’” (California v. Prysock, supra, 453 U.S. at pp. 360-361 [69 L.Ed.2d at p. 702, 101 S.Ct. at p. 2810].)

This court in its first opinion also relied on People v. Stewart (1968) 267 Cal.App.2d 366 [73 Cal.Rptr. 484] in holding Sergeant Byrd’s warnings to appellant were inadequate under Miranda. In retrospect, we believe the reliance was misplaced for two reasons: First, Stewart is distinguishable in that there the officer told the defendant “‘... that he had a right to an attorney, and he could have his attorney here-, .. . [that] he had a right to have the Public Defender appointed in case he couldn’t afford an attorney; ...’” (Id., at p. 378, fn. 16.) The reviewing court in Stewart invalidated the warnings on the ground that informing the defendant he had a right to an attorney “here” did not make clear his right to an attorney during interrogation. “... the warning could well have been interpreted to mean no more than that the court appointed attorney would, at some future time, visit defendant in jail. This is not the equivalent of telling him that the interrogation would suspend until the attorney arrived.” (Id., at p. 378, italics added.) As emphasized by the United States Supreme Court, in the instant case appellant was explicitly told of his right to have an attorney present “‘before you are questioned, . .. while you are being questioned, and all during the questioning.’” (California v. Prysock, supra, 453 U.S. at p. 361 [69 L.Ed.2d at p. 702, 101 S.Ct. at p. 2810].)

Second, if the Stewart warnings are not truly distinguishable from the warnings given in the present case, i.e., the right to an attorney “here” carries the same impact as the right to an attorney before and during interrogation, then Stewart was wrongly decided. The Stewart warnings adequately conveyed to the defendant his right to a free lawyer during interrogation as explained in California v. Prysock.

Both Bolinski and Stewart were decided by the California Court of Appeal on federal grounds.

Appellant now urges this court to hold that Sergeant Byrd’s warnings to him were inadequate as a matter of state law, i.e., that the warnings do not comply with the prohibition against self-incrimination guaranteed to the people of California under article I, section 15 of our state Constitution. (People v. Pettingill, supra, 21 Cal.3d 231, 237; People v. Disbrow (1976) 16 Cal.3d 101, 114-115 [127 Cal.Rptr. 360, 545 P.2d 272]; People v. Norman (1975) 14 Cal.3d 929, 939, fn. 10 [123 Cal.Rptr. 109, 538 P.2d 237].) Appellant argues that unless such a holding is made “the [United States] Supreme Court decision in this case encourages [police officers] to throw away their Miranda cards and ad lib the warnings, with severe adverse results.” (Italics original.) Appellant’s argument is unduly pessimistic—it is reasonable to assume law enforcement will continue to use the standard Miranda warning cards in order to be sure the language used to advise suspects of their rights will be able to withstand later court scrutiny. If officers begin to vary from the standard language, their burden of establishing that defendants have been adequately advised before waiving their rights will increase substantially as evidenced by the present case. If Sergeant Byrd had read appellant his rights from the Miranda card, we would not be faced with the question of the adequacy of the warnings.

Appellant directs this court’s attention to a recent law review article which showed that 55.3 percent of juveniles and 23.1 percent of adults tested did not adequately understand at least one of the four Miranda warnings and, significantly, that the most frequently misunderstood Miranda warning for both samples was the statement that a suspect has the right to consult an attorney before interrogation and to have an attorney present during interrogation. (Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis (1980) 68 Cal.L.Rev. 1134, 1153-1154 (hereinafter cited as Juveniles’ Capacities to Waive Miranda).) Appellant contends these numbers will only increase when the police start “extemporizing the warnings,” rather than stating them in the language of Miranda.

However, we note the Grisso study also concluded that most suspects adequately understood the warning that the court would appoint an attorney if the suspect cannot afford one (juveniles 85.6 percent; adults 85.4). (Juveniles’ Capacities to Waive Miranda, supra, at p. 1154.) The study further concluded that while 16 year olds’ comprehension of their rights was significantly below that of adults age 23 and over, it was not below the performance of persons age 17 to 20 years old. (Juveniles’ Capacities to Waive Miranda, supra, at p. 1157.) Finally, while the study concluded prior court experience bore no direct relationship to understanding the words and phrases in the Miranda warning (e.g., consult, interrogation, appoint, entitled, right), prior court experience was related to increased understanding of the function and significance of the right to remain silent and the right to counsel. (Juveniles’ Capacities to Waive Miranda, supra, at p. 1160.)

We should keep in mind that this was not appellant’s first brush with the law; he had previously been arrested on an armed robbery charge and an attorney had been appointed to represent him. He had been advised of his Miranda rights in connection with that charge. In the present case, he had been given his “Miranda rights” by Sergeant Byrd about 30 minutes before his parents arrived at the police station, and he refused to talk with the police.

While we fully recognize that the Miranda doctrine, as incorporated in California law, is not limited to the United States Supreme Court holdings interpreting Miranda as a matter of federal law (see People v. Pettingill, supra, 21 Cal.3d 231, 237; People v. Disbrow, supra, 16 ),⁴ we decline to nullify the warnings in the present case under the California Constitution (art. I, § 15) contrary to the holding of the United States Supreme Court.

The importance of deference by state courts to constitutional interpretations of the United States Supreme Court, particularly where the language of the federal and state constitutional provisions are virtually identical, as in the present case,⁵ is forcefully explained by Justice Richardson in his dissenting opinion in People v. Disbrow, supra, 16 Cal.3d 101, 118-121. Absent a showing of some unique or distinctive California conditions which would justify a departure from a general principle favoring uniformity, Justice Richardson states: “[W]e should defer to the leadership of the nation’s highest court in its interpretation of nearly identical constitutional language, ... The reason for the foregoing principle is that it promotes uniformity and harmony in an area of the law which peculiarly and uniquely requires them. The alternative ... must inevitably lead to the growth of á shadow tier of dual constitutional interpretations state by state which, with temporal variances, will add complexity to an already complicated body of law.

“The vagaries and uncertainties of constitutional interpretations, particularly in the Fourth and Fifth Amendment sectors of our criminal law, are the hard facts of life with which the general public, the courts, and law enforcement officials must grapple daily. This condition necessarily breeds uncertainty, confusion, and doubt. It will not be eased or allayed by a proliferation of multiple judicial interpretations of nearly identical language.” (Id., at p. 119.)

We also note that our California Supreme Court in a similar situation (reversal and remand of its own case by the United States Supreme Court) entered a minute order upholding a trial court’s ruling, which was a reversal of its own earlier opinion. In re Michael C. (1978) 21 Cal.3d 471 [146 Cal.Rptr. 358, 579 P.2d 7] reversed a trial court’s admission of a juvenile’s incriminating statements in light of the fact the juvenile asked to see his probation officer after being given his Miranda rights; the California Supreme Court found this to be a per se invocation of Fifth Amendment rights in the same way a request for an attorney was found in Miranda to be. The United States Supreme Court reversed and remanded in Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560] after noting “the judgment of the California Supreme Court rests firmly on that court’s interpretation of federal law.” (442 U.S. at pp. 716-717 [61 L.Ed.2d at p. 207, 99 S.Ct. at p. 2567], italics added.) The United States Supreme Court noted the per se aspect of Miranda was based on the unique role the lawyer plays in the adversarial system of criminal justice and did not extend to a probation officer, who was not in the same posture with regard to either the accused or the system of justice as a whole. (442 U.S. at pp. 719-720 [61 L.Ed.2d at p. 209, 99 S.Ct. at pp. 2569-2570].) On remand the California Supreme Court entered a minute order affirming the trial court’s judgment. (Minutes of the Supreme Court, Apr. 17, 1980.)

In short, the high court of our land—the very court which created the Miranda rules—has declared the sufficiency of the warnings given to appellant by Sergeant Byrd. As an intermediate state appellate court, we should abide by this holding. We therefore find appellant was adequately advised of his right to consult with a court-appointed attorney if he and his parents could not afford one before he was questioned by Sergeant Byrd.

Appellant’s Statement Was Freely and Voluntarily Given

On appeal, the question of the voluntariness of a confession is based upon a review of the totality of circumstances surrounding the statements. (Fare v. Michael C., supra, 442 U.S. 707, 724-725 [61 L.Ed.2d 197, 212, 99 S.Ct. 2560, 2571-2572]; People v. Sanchez (1969) 70 Cal.2d 562, 576 [75 Cal.Rptr. 642, 451 P.2d 74], cert. dism. (1969) 394 U.S. 1025 [23 L.Ed.2d 743, 89 S.Ct. 1646]; In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 633].) The record must contain evidence from which the trial judge could have found beyond a reasonable doubt that the statement at issue was the product of a knowing and intelligent waiver of defendant’s Miranda rights. (People v. Braeseke (1979) 25 Cal.3d 691, 701 [159 Cal.Rptr. 684, 602 ], judgment vacated cause remanded (1980) 446 U.S. 932 [64 L.Ed.2d 784, 100 S.Ct. 2147], reiterated (1980) 28 Cal.3d 86 [168 Cal.Rptr. 603, 618 P.2d 149], cert. den. (1981) 451 U.S. 1021 [69 L.Ed.2d 395, 101 S.Ct. 3015]; cf. People v. Jimenez (1978) 21 Cal.3d 595, 608 [147 Cal.Rptr. 172, 580 P.2d 672].) A reviewing court must examine the uncontradicted facts in the record to determine independently whether the trial court’s finding of intelligent waiver was properly made. As to conflicting testimony, the reviewing court must accept that version of events which is most favorable to the People, to the extent that it is supported by the record. (Id., at p. 609.)

Appellant was 16 years old at the time of the offense. However, a minor can effectively waive his constitutional rights. In People v. Lara (1967) 67 Cal.2d 365, 377-378 [62 Cal.Rptr. 586, 432 P.2d 202], an 18 year old, with a mental age of less than 10 1/4 years, was held to have intelligently and understandingly waived his rights. The court held that a minor does not lack the capacity as a matter of law, even in a capital offense, to waive his rights and that the voluntariness of a confession is determined by the totality of the circumstances, including education, age, experience and ability to comprehend the meaning and effect of confession. (Id., at p. 383.)

No evidence of appellant’s blood alcohol content was admitted during the hearing, although reference was made to a blood alcohol having been drawn from appellant at trial. After his mother questioned him about drinking, he stated he was “dizzy.” He further stated he had not eaten in two days.⁶

However, as respondent notes, Sergeant Byrd testified that while appellant had a red, runny nose and that his eyelids were red, like someone who had been crying, appellant was not unsteady on his feet, did not smell of alcohol and there was nothing else unusual in his speech or appearance. And while appellant may well have been tired and hungry, it does not appear appellant or his parents asked for anything for appellant to eat or for appellant to be able to rest before the interview, which was initiated by his mother. Furthermore, the boys did have food with them in the stolen van they traveled in on January 30.

Appellant appears somewhat “tired” on the tape,⁷ but there is nothing in his responses to Byrd to show that he was frightened into submission by Byrd’s, or the arresting officer’s, behavior. Indeed, appellant first refused to talk with the authorities at the time closer to the arrest, when it is logical to believe appellant would have been most intimidated as a result of any action taken at the time of his arrest.

After refusing to waive his Miranda rights initially, Byrd apparently called appellant’s parents because appellant was a juvenile (Byrd was acquainted with Mr. Prysock). Appellant was never held “incommunicado.” After speaking with her son alone for approximately 20 minutes, Mrs. Prysock indicated appellant wished to talk and this is established by appellant on the tape.

The prosecution has an especially heavy burden to show that once a defendant has invoked his rights, any subsequent questioning must be shown to be the product of a knowing and intelligent waiver. (People v. Braeseke, supra, 25 Cal.3d at p. 702.) However, the transcript of the tape shows that when Sergeant Byrd asked appellant if he had subsequently asked to talk to him after initially refusing to do so, appellant responded “yes.” At the hearing on the admissibility of appellant’s confession during trial, appellant and his mother both stated the renewed questioning was her idea and appellant had just gone along with her.

Appellant and both his parents further argued “involuntariness” as a result of not having been properly advised of their right to a free attorney prior to questioning. Although Mr. and Mrs. Prysock and appellant testified they did not understand that if appellant could not afford to hire a lawyer one would not only be appointed at no cost but prior to questioning, Mrs. Prysock admitted appellant’s armed robbery involvement the previous month was handled by an appointed private attorney.⁸ The trial court’s reasoning in finding appellant knowingly and intelligently waived his Miranda rights is set forth in the margin.⁹

As did the trial court, we find that appellant’s confession was the product of his own volition and not the result of pressure or coercion by the officers. The evidence shows that appellant was fully aware of his rights and was not frightened into submission by the officer’s behavior or questioning. (People v. Davis, supra, 29 Cal.3d 814, 825.) Viewing the disputed facts in the light most favorable to the prosecution, we agree with the trial court that the confession was voluntarily given.

Sufficient Evidence Supports Appellant’s Conviction of Premeditated First Degree Murder

Appellant charges there was no evidence of premeditation and deliberation and the first degree finding “may have involved the jury’s determination that [appellant] premeditated and deliberated Mrs. Erickson’s killing; ...” The jury was instructed on several theories of first degree murder—(1) wilful, premeditated and deliberated; (2) first degree felony murder under two theories—burglary and robbery;¹⁰ (3) murder by torture. As previously noted, the jury found appellant guilty of first degree murder with use of a deadly weapon and further found both special circumstances to be true.

The jury was instructed pursuant to CALJIC No. 8.20 regarding deliberate and premeditated murder and a special instruction on degree of reflection required by the concept.¹¹

The jury was also instructed on a theory of aiding and abetting in the commission of a crime (CALJIC Nos. 3.00, 3.01) and that mere presence at the scene of the commission of the offense and failure to take steps to prevent a crime do not establish aiding and abetting. (People v. Hill (1946) 77 Cal.App.2d 287, 294 [175 P.2d 45].)

In People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] the California Supreme Court suggested three factors which might lead an appellate court to sustain a finding of premeditated murder: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing— what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ (People v. Thomas, supra, 25 Cal.2d 880, at pp. 898, 900, 901 [156 P.2d 7]); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).

“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3) ....” (Id., at pp. 26-27.)

12

The entire record in the present case, viewed in the light most favorable to the prosecution (see Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789]; People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]), affords a sufficient basis upon which the jury could infer that appellant’s involvement in the killing of Mrs. Erickson was not a rash, impulsive act but a product of premeditation under the Anderson analysis.

As to the first type of evidence—facts showing prior planning activity—appellant himself admitted on tape and at trial that he was present with coparticipant Danley in juvenile hall when Danley told one Roy Hipp that he was going to “take care of” Brad Erickson’s mother. This was sometime in the 45 days preceding Mrs. Erickson’s death.¹³-Detective Bill Lyon also testified to an early morning conversation with appellant on January 31 in which appellant talked about Danley’s “plan.”

Appellant testified he and Danley ended up at what he only later found out was the Erickson house, two days after their escape from Meyers Youth Center, because Danley’s mother was apparently present in the Danley home when the boys drove by there in search of food and clothing. Appellant further testified neither he or Danley thought anyone was at home in the Erickson residence when they tried to break in the back window.¹⁴ However, as pointed out by respondent, the two did enter the house after ascertaining Mrs. Erickson was home. Mrs. Erickson was then killed, the house ransacked, and the boys changed and gone within an hour.

As to the second category, facts suggesting motive, appellant was with Danley in 1977 when Danley was arrested for auto theft. (There is no indication in the record that any charges were ever filed against appellant stemming from this event.) This was the car Danley had tricked Brad Erickson into leaving and that Brad had reported as being stolen to the highway patrol. However, appellant did not know Brad Erickson and Brad Erickson did not know appellant prior to his mother’s death.

The final category—facts about the manner of the killing which suggest a preconceived design—also accords with the Anderson requirements. Mrs. Erickson was attacked with a variety of objects—a wooden stick (by appellant), a fireplace poker (by Danley) and finally an ice pick (by Danley). Mrs. Erickson was beaten about the head with the fireplace poker and stabbed numerous times in the back with the ice pick (apparently in a rhythmic motion since the stab wounds were of a consistent depth). The cause of death was strangulation by a telephone cord that had been “cut” in two places with a knife from a nearby telephone. In People v. Cruz (1980) 26 Cal.3d 233, 245 [162 Cal.Rptr. 1, 605 P.2d 830], the court concluded, that the victim’s killing, perpetrated by blows to only the head and by a shotgun blast in the victim’s face “permit[ted] the jury to infer that the manner of killing was so particular and exacting that defendant must have killed intentionally according to a preconceived design and for a reason.” (Ibid.) The instant case presents evidence of an equally deadly beating that was pursued until Danley, and perhaps appellant, was assured the victim was indeed dead, not just unconscious.

The evidence supports a finding that appellant was present for the purpose of encouraging and assisting Danley in killing Mrs. Erickson¹⁵ and that he knew of Danley’s purpose in entering Mrs. Erickson’s house, i.e., to kill Mrs. Erickson.

The Prosecution Was Not Guilty of Prejudicial Misconduct During Closing Argument

Appellant first argues the prosecutor improperly argued his personal beliefs and cites the excerpts noted in the margin.¹⁶

Appellant argues not so much that the statements were improper expressions of personal opinion, but that “the prosecutor certainly should not have made these many expressions of personal opinion.” (Italics added.)

It is “within the domain of legitimate argument for a prosecutor to state his deductions or conclusions drawn from the evidence adduced at trial, and, more particularly, to relate to the jury that, in his opinion, the evidence shows that the defendant is guilty of the crime charged.” (People v. Dillinger (1968) 268 Cal.App.2d 140, 144 [73 Cal.Rptr. 720].) He may also comment on the credibility of a witness in light of all the evidence presented. (People v. Roberts (1966) 65 Cal.2d 514, 520 [55 Cal.Rptr. 412, 421 P.2d 420], mod. on another point in In re Roberts (1970) 2 Cal.3d 892, 893 [87 Cal.Rptr. 833, 471 P.2d 481].)

Most of the statements made, when taken in context, relate to the evidence, or inferences reasonably arguable from the evidence. While statements relating to the brutal and nauseating nature of the crime were overstated and unnecessary, they are not susceptible to an inference that the prosecutor’s opinion was based on information other than evidence adduced at trial.¹⁷ Language even more inflammatory has been held permissible (e.g., People v. Thornton (1974) 11 Cal.3d 738, 762-763 [114 Cal.Rptr. 467, 523 P.2d 267], disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1]).

Importantly, none of the cited statements elicited an objection below. (No. 5 in fn. 16, ante, was not an objection but a request for clarification.) Therefore People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468], precludes raising this issufe for the first time on appeal, since a timely admonition would have “cured” any harm from the statements if they were even deemed to constitute misconduct.

One additional incident remains to be discussed. The prosecutor stated as follows: “Now, as defense counsel points out, Mr. Danley’s not here. He hasn’t testified in this trial. I’ll have my turn with Mr. Danley on the 31st of July. Mr. Danley has a Fifth Amendment privilege not to come in here and testify. Okay. If Danley would have made any statement to the police admitting striking Mrs. Erickson, you’d heard about it in court.” Defense counsel objected and counsel then approached the bench with the reporter. The prosecutor maintained that such a statement, if made, would have been a declaration against penal interest and admissible if Danley had been called to testify and then testified. Defense counsel maintained it would have been unethical for him to call Danley in light of the previous trial severance and relied on Evidence. Code section 930. After a few minutes discussion, the court sustained the defense objection and admonished the jury as follows: “The defense objection is well taken and the jury should disregard it in regard to calling Danley. [¶] Remember what I told you at the outset, this is argument and it is not evidence. Keep that in mind, jurors. Again, I’d also advise you that if you don’t agree with any [of] the attorney’s versions of the fact or recollection, why, that’s your purview, because you are the triers of facts, not us.”

Respondent contends and we agree that if the remark constituted misconduct, the prompt admonishment cured any harm. Even if we should find the statement to have been misconduct, the test of prejudice is whether it is “reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citations.]” (People v. Beivelman (1968) 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913]; People v. Bolton (1979) 23 Cal.3d 208, 214 [152 Cal.Rptr. 141, 589 P.2d 396].)

We find that any reasonable jury would have reached the same verdict even in the absence of the prosecutor’s remarks.

Appellant’s Conviction Under Penal Code Section 135 (Destruction of Evidence) Was Improper

Penal Code section 135 provides: “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.” (Italics added.)

Appellant contends that the evidence is insufficient to establish that the clothing and shoes burned by himself and Danley after the crime, were “about to be produced” in evidence and/or that he so knew.

Respondent asserts that the evidence sufficed because the clothing was burned after crimes as to which the clothing would be evidence and because appellant knew that an investigation was imminent or in progress.

In People v. Fields (1980) 105 Cal.App.3d 341 [164 Cal.Rptr. 336], this court affirmed a conviction for violation of section 135, where the defendant, a county jail inmate, flushed marijuana down a jail toilet after a deputy sheriff had discovered the drug and seized it during a routine search. This court held that the statute applies to evidence seized in the course of a police investigation, even though no formal legal proceedings were pending: “Again, appellant’s interpretation is contrary to the fair import of the statute; it ignores the words ‘or investigation whatever’ (italics added). The seizure and examination of the marijuana by Deputy Ray was an authorized police investigation of possible criminal activity in the jail. It must be presumed that once the deputy had satisfied himself as to the nature of the article seized, he would have reported the incident to his superiors and the articles would have been sequestered for possible use in a future criminal prosecution of the jail inmates.

“Appellant, a prisoner in the county jail, obviously knew that possession of marijuana was unlawful and that he and his fellow inmates could be prosecuted for possessing the marijuana. Thus, when appellant grabbed the contraband from Officer Ray and flushed it down the toilet, he intentionally destroyed the contraband to prevent it from being ‘produced in evidence’ at a ‘trial, inquiry or investigation .... ’ The contemplated statutory inquiry and investigation had commenced when Deputy Ray seized the evidence.” (Id., at pp. 345-346.)

Fields relied on dicta in People v. Superior Court (Reilly) (1975) 53 Cal.App.3d 40 [125 Cal.Rptr. 504], which held “where the suspect, in fear of imminent disclosure or arrest, is observed to secrete an article, which if left in plain sight would have been subject to seizure, there was no constitutionally unreasonable search or seizure in retrieving that article from the place where the suspect was observed to have placed it.” (Id., at p. 48.) A police officer, through a motel window, saw defendant’s confederate working with a camera and driver’s license. After the officers made their presence known, defendant was observed to hide a wallet and what appeared to be a traveler’s checks container. The officers entered and arrested the counterfeiters. The court remarked at page 49: “It must also be borne in mind that it is a criminal offense to destroy or conceal evidence. (Pen. Code, § 135. See People v. Mijares, supra, 6 Cal.3d 415, 422; and People v. Lee (1970) 3 Cal.App.3d 514, 526 .... Cf. People v. Edgar (1963) 60 Cal.2d 171, 174-175 . .. .) Here, unlike People v. Edgar, supra, there was an attempt to conceal the evidence witnessed by the officers. It would be incongruous to prohibit the officers from seizing evidence of the misdemeanor which was committed in their presence, while at the same time upholding their right to arrest the perpetrator.” (Fn. omitted.)

Both Fields and Reilly cited People v. Mijares (1971) 6 Cal.3d 415, 422 [99 Cal.Rptr. 139, 491 P.2d 1115], in which the Supreme Court held that handling a narcotic solely for disposal purposes does not constitute possession, but observed “certain actions relating to abandonment of narcotics may also fall within the proscription of section 135 of the Penal Code, forbidding the destruction or concealment of evidence.” As a civilian witness watched, Mijares leaned inside a parked car, removed an object therefrom, and threw it into a nearby field. In Fields, this court questioned whether section 135 would apply to the Mijares facts. “We question the applicability of Penal Code section 135 to the Mijares fact situation since it would appear that the defendant’s act of disposing of the drugs occurred prior to the commencement of any police investigation. Nor can it be said the police investigation was ‘about’ to commence when Mijares disposed of the drugs.” (105 Cal.App.3d at p. 346, fn. 4.)

Fields is, historically, the last word on point. The instant case presents a first impression point as to when evidence is about to be produced in a police or law enforcement department investigation. In other words, should section 135 apply to the destruction of articles which the defendant knows—or should know—would, if discovered in an investigation which the defendant knows—or should know—is imminent, have evidentiary value.

The Penal Code section 135 phrase “about to be produced in evidence upon any trial, inquiry or investigation whatever” connotes an immediacy or temporal closeness. In Fields, the authorities had already seized the evidence. In Reilly, they had discovered it and seizure was imminent. Presumably, the statute would apply where the defendant knows that the officers are en route with a search warrant. (Cf. People v. Edgar (1963) 60 Cal.2d 171, 173-174 [32 Cal.Rptr. 41, 383 P.2d 449] [officers sought incriminating photos from defendant’s mother, after defendant overheard asking her to hide them. Though her initial refusal to give them to officers did not violate § 135, the court implies that subsequent concealment would violate the section]; People v. Santos (1972) 26 Cal.App.3d 397, 402-403 [102 Cal.Rptr. 678] [defendant, charged with firearm murder, overheard telling wife to “Get rid of it.” The confidential marital communications privilege (Evid. Code, § 980) “does not cover communications made to enable the other to commit a crime (Evid. Code, § 981), destruction or concealment of evidence being a crime. (Pen. Code, § 135.)”].)

The statute requires that the actor know that the object is about to be produced in evidence. We conclude that whatever the statute’s exact meaning, the evidence herein falls short because the prosecution failed to show that any law enforcement investigation in fact had started and/or that law enforcement was or would be looking for the particular item. Unless this or a similar limiting interpretation is given, the statute would appear virtually open ended, at least in all but “victimless” crimes.

Admission of Evidence That Appellant Was With Danley When the Latter Was Arrested Was Proper

. Over timely objection on the ground of relevancy, the prosecution was permitted to cross-examine the appellant on the fact that the latter was (innocently) with Danley when Danley was arrested for car theft. It will be recalled that the victim’s son had reported this theft to law enforcement. There was no evidence that the appellant knew this fact at the time of the arrest, but appellant admitted that he was present when Danley told a fellow juvenile hall resident that he was going to “take care of” Mrs. Erickson.

The question and answer tend to disprove those portions of appellant’s testimony in which he alleged he did not know of any Brad Erickson or his family and tends to disprove his statement at trial that he did not know what Danley meant when he “overheard” Danley telling another juvenile hall resident that he was going to “take care of” Brad Erickson’s mother.

A trial court is vested with wide discretion in deciding relevance of evidence. (People v. Warner (1969) 270 Cal.App.2d 900, 908 [76 Cal.Rptr. 160].) It was within the trial court’s discretion to admit the testimony.

The Flight Instruction Was Warranted by the Evidence

Appellant contends the trial court prejudicially erred when it gave CALJIC No. 2.52, the standard flight instruction.¹⁸ He implicitly concedes that evidence of flight existed but argues the instruction might have been used by the jury to find appellant’s state of mind at the time the crime was committed, which it is claimed, is contrary to People v. Anderson, supra, 70 Cal.2d 15, 32-33.

Respondent asserts that Penal Code section 1127c mandated the instruction, that the instruction did not direct the jury to consider flight as bearing on appellant’s mental state, and that other instructions informed the jury as to the intent required.

Penal Code section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:

“The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.

“No further instruction on the subject of flight need be given.”

Appellant has cited no authority which suggests that the instruction was improper here. Anderson did not involve CALJIC No. 2.52 or flight evidence at all. Rather, it concerned other evidence of cognizance of guilt.

In essence, appellant’s argument appears to be that the instruction should have been modified to limit the effect of flight to issues other than appellant’s mental state.

The trial court has no sua sponte duty to modify the instruction.

Appellant’s Sentence on Count One Must Be Modified to Life Imprisonment; the Finding of Special Circumstances Should Be Stricken, and the Case Remanded for Disposition of the Weapon Use Enhancement.

Appellant, a juvenile at the time of the commission of the offense, cannot be sentenced to life imprisonment without possibility of parole. In People v. Davis, supra, 29 Cal.3d 814, 827-832, the Supreme Court examined the language and history of former Penal Code section 190 et seq. and concluded it could not be interpreted as authorizing life imprisonment without possibility of parole for persons under age 18. The court ordered that Davis’ sentence be reduced to life imprisonment, the only alternative sentence authorized by the applicable statute.

Since Davis also holds former Penal Code section 190 et seq., read as a whole, offers no basis for even charging minors with special circumstances, we conclude the jury’s determination of special circumstances in the present case was a nullity. (People v. Davis, supra, 29 Cal.3d at pp. 831-832.) Accordingly, we shall strike the special circumstance findings.

At sentencing, the trial court mentioned the jury finding of a weapon use enhancement and mentioned the fact appellant used a weapon as a factor in aggravation and as a potential reason to deny probation, in the context of discussing count one.

When the life without possibility of parole sentence was imposed on count one, no mention was made of the Penal Code section 12022, subdivision (b) finding of the jury. The separate abstract of judgment for count one reflects the Penal Code section 12022, subdivision (b) finding but apparently appellant was neither sentenced pursuant to this enhancement finding nor does the record reflect the trial court ever exercised its discretion to strike the enhancement, as provided in Penal Code section 1170.1, subdivision (g). Therefore, the case must be remanded for the limited purpose of resentencing as to use of a deadly weapon in conjunction with count one. (People v. Williams (1980) 103 Cal.App.3d 507, 518-519 [163 Cal.Rptr. 169].) In the event the trial court does not exercise its discretion to strike the additional term of punishment for the deadly weapon use enhancement, the one-year term of punishment for use of a deadly weapon must be stayed, pursuant to the reasoning of People v. Walker (1976) 18 Cal.3d 232, [133 Cal.Rptr. 520, 555 P.2d 306], pending finality of appellant’s conviction and service of sentence on count one.

Other Sentence Modifications

The trial court also imposed deadly weapon enhancements as to both counts two (robbery) and three (burglary). Appellant contends the use finding and enhancement must be stricken as to one of these counts. Appellant relies on In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23].

Respondent asserts that both enhancements were proper because appellant acted with separate intents (to commit theft and later to rob). Alternatively, respondent argues that only the enhancement, not the finding should be stricken.

Respondent’s premise appears to be mistaken. As to burglary, the intent was to commit theft, and robbery is simply an assaultive version of theft with the same underlying intent. Therefore only one deadly weapon use enhancement was proper. Even if technically different intents existed, respondent would be wrong. Culbreth holds that “if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then section 12022.5 may be invoked only once and not in accordance with the number of the victims.” (Id., at pp. 333-334.)

A fortiori, the same result should follow in a single-victim indivisible transaction, like the instant case.

The appropriate remedy is to modify the judgment to provide that appellant serve only one additional period of imprisonment pursuant to Penal Code section 12022, subdivision (b). (Id., at p. 335.) However, regardless of broad language in Culbreth, no striking of the underlying finding is required. This court need only insure that only one finding is effectuated. (People v. Walker, supra, 18 Cal.3d 232, 243-244.)

As a practical matter, this result was achieved when the trial court, pursuant to Penal Code section 654, properly stayed execution of sentence as to counts two and three, including of course, the additional enhancement terms for each. However, in the event that the Penal Code section 654 stay should be vacated, the additional term as to count three must be stayed pending finality of conviction and service of sentence on count two, the stay then to become permanent. (In re Culbreth, supra, 17 Cal.3d at pp. 333-334.) We will modify the judgment to so provide.

The trial court purported to “merge” the sentences imposed as to counts two through six into the count one life term. As to counts two and three, this was inappropriate (People v. Miller (1977) 18 Cal.3d 873, 886-887 [135 Cal.Rptr. 654, 558 P.2d 552]). The stay of execution was proper. As to counts four and five, the merger was proper. As noted above, we have reversed the judgment as to count six.

The judgment is modified to provide that appellant is sentenced to state prison as. follows: On count one (murder), to a term of life, the special circumstances findings are stricken; on count two (robbery), for the three-year middle base term plus an additional one-year term for use of a deadly weapon; execution of the sentence as to count two is stayed until finality of the conviction and sentence on count one, at which time the stay shall become permanent; on count three (burglary), for the two-year middle base term plus an additional one-year term for use of a deadly weapon; sentence on count three shall run concurrently with sentence as to count two; execution of the sentence as to count three is stayed until finality of the conviction and sentence on count one, at which time the stay shall become permanent; further, in the event that the stay of execution of sentence is vacated as to counts two and three, execution of the additional term for use of a deadly weapon as to count three is stayed until finality of the conviction and sentence as to count two, at which time the stay shall become permanent; on count four (vehicle theft), for the two-year middle base term; upon the finality of the conviction and sentence on count one, sentence as to count four is merged into the life term imposed on count one; on count five (escape), appellant is sentenced to county jail for six months; upon the finality of the conviction and sentence on count one, sentence as to count five is merged into the life term imposed on count one. Judgment as to count one is reversed and remanded for the limited purpose of re-sentencing as to the use of a deadly weapon. In the event the trial court does not exercise its discretion to strike the additional term of punishment for the deadly weapon enhancement, the one-year term for use of a deadly weapon is stayed pending finality of conviction and sentence on count one. As to count six, the judgment is reversed. The trial court is directed to prepare an amended abstract of judgment which reflects such modification and to forward a certified copy of the amended abstract to the Department of Corrections, which shall file same.

Stone (C. V.), J.,* concurred.

1 Appellant is accused of having committed the offenses on January 30, 1978, therefore, he is being tried under laws enacted by the Legislature in 1977. (Stats. 1977, ch. 316, § 9, pp. 1257-1258, eff. Aug. 11, 1977.)

2 The facts suggest possible Pettingill error but none occurred. The mother came to the station house at police behest and requested permission to talk with her son. After 20 minutes of conversation, she then advised the police that her son was ready to talk (see People v. Pettingill (1978) 21 Cal.3d 231 [145 Cal.Rptr. 861, 578 P.2d 108]).

3 The tape reflects the following concerning the off-the-record discussion:

“Sgt. Byrd: Okay, Mrs. Prysock, you asked to get off the tape, ... During that time you asked, decided you wanted some time to think about getting, whether to hire a lawyer or not.

“Mrs. P.: ’Cause I didn’t understand it.

“Sgt. Byrd: And you have decided now that you want to go ahead and you do not wish a lawyer present at this time'l

“Mrs. P.: That’s right.

“Sgt. Byrd: And 1 have not persuaded you in any way, is that correct?

“Mrs. R: No, you have not.

“Sgt. Byrd: And, Mr. Prysock, is that correct that 1 have done nothing to persuade you not to, to hire a lawyer or to go on with this?

“Mr. P.: That’s right.

“Sgt. Byrd: Okay, everything we’re doing here is strictly in accordance with Randall and yourselves, is that correct?

“Mr. P.: That is correct.

“Sgt. Byrd: Okay. Uh, all right, Randy, I can’t remember where 1 left off, 1 think I asked you, uh, with your legal rights in mind, do you wish to talk to me at this time? That is with everything I told you, all your legal rights, your right to an attorney, your right, and your right to remain silent^ and' air thése, I mean do you wish to talk to me at this time about the easel “Randall P.: Yes." (Italics added.)

4 People v. Pettingill, supra, 21 Cal.3d 231, contrary to Michigan v. Mosley (1975) 423 U.S. 96 [46 L.Ed.2d 313, 96 S.Ct. 321], held inadmissible a confession which was the product of custodial interrogation by police after defendant had twice invoked his right to remain silent. People v. Disbrow, supra, 16 Cal.3d 101 held, contrary to Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], that a statement inadmissible in the case-in-chief because it was obtained in violation of Miranda could not be used to impeach defendant’s trial testimony.

5 The federal Constitution Fifth Amendment provides: “No person ... shall be compelled in any criminal case to be a witness against himself, ...” The California Constitution, article I, section 15 provides: “Persons may not ... be compelled in a criminal cause to be a witness against themselves, ...”

6 Mrs. Prysock, appellant’s mother, testified that the following occurred after her arrival at the police station on January 30, 1978: “Q. [Defense counsel] When you went into the room where Randy was located, what was Randy doing?

“A. He was sitting in this chair that looked like a school desk type. And he had his head laying down on the desk. And he was handcuffed. And his handcuffs were on the chair and. his head was on the desk with his head laying down.

“Q. Who spoke first, you or Randy?

“A. I did.

“Q. What did you say?

“A. I said, ‘Randy, mother is here.’

“Q. What did he say?

“A. Then I said—he still didn’t raise his head up. I said, ‘Son, what is wrong?’ He said, T am sick, dizzy.’

“Q. What did he say next?

“A. I said, ‘Well, what is the matter?’ He said, ‘Well, Mom, I haven’t eaten in three days. I haven’t slept in three days.’

“Then I looked him in the face. And I said, ‘Well, something else is wrong, Randy.’ You know, ‘you are not acting right. Your eyes are red.’ And I said, ‘Son, have you been drinking or taking drugs?’

“A. He says, ‘No, we have been drinking.’”

7 The actual tape of appellant’s statement to Byrd was made part of the record on appeal.

8 The armed robbery was committed December 11, 1977, with Mark Danley. Despite appellant’s contrary contention, at the time of arrest on the robbery charge on December 11, 1977, appellant orally waived his Miranda rights and then signed a written waiver.

9 “THE COURT: All right. I have considered all of the evidence and number of points and authorities. And the main issue, of course, is ... the ability of the Prysock’s ability to reason ... and comprehend or resist were so disabled that he was incapable of free or rational choice in deciding to make a statement to Detective Byrd. And, of course, considering what disability there was, if any, would be the lack of sleep, whether he had eaten, how long since he had eaten, and the extent of any intoxication.

“I have considered these in light of some case[s], People v. Lara, 67 Cal.2d 365; In re Cameron, 68 Cal.2d 487; the Morris case cited by counsel; and People v. S[ch]wartzman (1968) 266 Cal.App.2d 870 [72 Cal.Rptr. 616],

“It is my opinion after hearing the totality of the evidence that Prysock was cognizant and aware of rights that he was being advised of by Detective Byrd. His responses to questions regarding Miranda rights appear on the tape to be rational, coherent and responsive. Appears to this Court that his decision to proceed and answer questions as asked by Detective Byrd was [the] product of his rational intellect and his free will. [¶] I feel, therefore, that his statement that he gave was voluntary and knowing.

“And [in the] S[ch]wartzman case it is pointed out that the minor’s capacity to waive his rights, for instance, the attorney, one of the basic Miranda rights, is a function of his individual intelligence, compensability [sic]. Unrelated to the desires or wishes of his parents.

“But [what] the Court was pointing out is [a] minor makes the ultimate decision as to whether or not he is going to waive his rights or not, regardless of what his parents want to do or not want to do.

“In this case, it appears to the Court that Prysock was freely advised; that he indicated that he understood; and that he would waive this right, these rights under Miranda, and proceed to make the statement.

“As I mentioned, I took into consideration what drinking he had been doing, the lack of sleep and other matters. And I cannot see from the evidence that they would have impaired, only [sic] appreciable degree or only [sic] ability to interfere with his rational intellect and his free will. And for that reason, I feel that his statement that he gave to Detective Byrd was voluntary.

“There are some other cases, but they are merely on the extent of the blood alcohol. And that apparently wasn’t gone into in this case. I don’t know what his blood alcohol was.” i

10 The jury was cautioned on the robbery theory that the specific intent to rob must have been formed prior to infliction of the fatal wounds.

11 CALJIC No. 8.20 stated at time of trial: “All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with malice aforethought is murder of the first degree. [¶] The word ‘deliberate’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word ‘premeditated’ means considered beforehand.

“If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.

“The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.”

The special instruction stated as follows: “'Special Instruction A—Degree of Reflection—Deliberation and Premeditation versus Intent to Kill [¶] In order to find a deliberate and premeditated killing you must find substantially more reflection on the part of the defendant than is involved in the mere formation of the specific intent to kill.”

12 The Anderson analysis regarding premeditation continues to be utilized by the Supreme Court as recently as People v. Murtishaw (1981) 29 Cal.3d 733, 749-750 [175 Cal.Rptr. 738, 631 P.2d 446],

13 The pertinent taped testimony is as follows:

“Sgt. Byrd: Okay. You were telling me earlier, or, uh, something about you met a guy in, in camp. And that’s just before I walked in, this was just something you blurted out to me, uh, as we was coming in here. What, what was this, I don’t recall exactly what it was. Something about somebody in camp give you an idea to do it or something. What was this?

“Randall P.: Oh, I said Mark [Danley] told Hipp that his plans, what he was going to do.

“Sgt. Byrd: Okay, now, who is Hipp?

“Randall P.: Roy Hipp.

“Sgt. Byrd: And where’d you meet him at?

“Randall P.: At Juvenile Hall.

“Sgt. Byrd: And how long ago was this?

“Randall P.: About three, two or three weeks.

“Sgt. Byrd: And what did Mark tell this guy that he was going to do?

“Randall P.: He told him what all he was going to do was rob, and what he was going to do to Brad Erickson’s mom.

“Sgt. Byrd: What’d he say he was going to do to her?

“Randall P.: Kill her.

“Sgt. Byrd: Well, why, how, why did he want to kill her?

“Randall P.: I don’t know. He never did tell me.

“Sgt. Byrd: Are these things that you’re telling me the truth?

“Randall R: Yes....”

14 The dissent’s conclusion that a reasonable trier of fact could only find appellant and his coparticipant had attempted to avoid the victim prior to the time she discovered Danley breaking the rear window is based on appellant’s self-serving testimony on this issue. The frequent drive-bys and phone calls which purportedly involved no conversation are susceptible to a dual interpretation—the other being that appellant and Danley were waiting until the victim’s son departed and they could find the victim alone at the house.

15 As noted ante, “mere presence alone at the scene of the crime is not sufficient to make the accused a participant, and while he is not necessarily guilty if he does not attempt to prevent the crime through fear, such factors may be circumstances that can be considered by the jury with the other evidence in passing on his guilt or innocence.” (People v. Durham (1969) 70 Cal.2d 171, 181 [74 Cal.Rptr. 262, 449 P.2d 198].)

16 The portions of the following excerpts which are underscored indicate the language complained of by appellant:

(1) “The People of the State of California in every single one of the counts that we’ve charged, believe the defendant to be guilty?’

(2) “In connection with that, again, Mr. Prysock’s remorse on the stand here in front of you 12 who are going to judge him doesn’t ring true to his actions after the murder. He puts 26 quarters of Mrs. Erickson’s money that she got from her job as an L. A. Times distributor and puts it in his pocket. Okay. I don’t know about you, but if I would have walked up to that scene like Mrs. Erickson’s son did, I probably would have puked my guts out, much less witnessing the event.”

(3) “Burglary is the entering of a dwelling house with the intent to commit larceny or any other felony. Once I get inside that house, it’s burglary, it’s burglary. Now, if I take something once I get inside that house—I’ve prosecuted a jillion of these—that shows some intent on the part of the person who came in the house to show that he did have that intent when he came in. The fact that he took something shows that circumstantially.”

(4) “If you come to the ridiculous conclusion that Prysock had the intent to commit burglary and that attempt to commit that burglary was frustrated and that when he ran around the house and went in that front door he didn’t have the intent to commit burglary, then you just let him walk right out of here. That to me—if you believe that,

(5) “[Defense counsel] says there’s no evidence of any intent to kill when Prysock entered that house, and I don’t believe that’s true. I don’t believe it’s true that Mr. Prysock didn’t know all about Brad Erickson, Brad Erickson’s mother, Phinnis Ralph [jfc] the guy that Danley stole that pickup from; it’s incredible. ""“[Defense counsel]: Your Honor, excuse me. It’s unclear to me whether or not counsel is stating his personal opinion or stating it based on the evidence. “[Prosecutor]: My personal opinion based on the evidence, your Honor. “[Defense counsel]: Thank you.”

(6) “Now, a person accused of murder, it’s not unusual for them to get up-and lie on the stand. Okay. But Mr. Prysock says on the stand that he didn’t hit—excuse me—he doesn’t remember where he hit Mrs. Erickson when he hit her in the chair. He doesn’t remember which part of the body. He just doesn’t remember. His memory fails him on that point. On the taped statement he says he hit her on the head. Why doesn’t he just come out and state it?”

(7) “This type of conduct in this particular case, in my opinion, is one of the most brutal and atrocious crimes that’s ever been committed in this county, and you may live a long time before you’ll hear about one more depraved than this one.”

(8) “This is a crime that certainly deserves the charges we brought, and beyond any reasonable doubt they’re true?*

17 It should further be noted that the prosecutor opened his closing argument to the jury with the following comment: “[Ajnything I say is only my opinion of what I feel the evidence shows. The evidence shows certain things; from these things you can infer that other things have happened. Throughout the course of my argument I will be giving you my opinions from what I feel the evidence shows. I’ve already formed my opinion in this case; you have not.”

18 CALJIC No. 2.52 stated as follows at time of trial: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”

Assigned by the Chairperson of the Judicial Council.