*1 Sept. Nos. Bank. 12146. [Crim. 1969] In re HILL on Corpus. N. Habeas JOSHUA No. 12125. In Bank. Sept.
[Crim. 1969.] In re Corpus. JAMES on Habeas SAUNDERS W. *2 per., Saunders, pro.
James William Michael E. Ballachey, appointment Supreme under Court, Halvonik, Paul N.
Gary Berger, Falk, Jr., D. Stephen Jerome B. Ral- Charles ston, Bartko, Anthony Amsterdam, John G. Richard Ban- croft, Roy Eisenhardt, Greenberg, Leroy Clark, Jack D. Mar- Krause, Harry shall Kreamer, J. Garfield and Stewart Na- Colley thaniel for Petitioners. Lynch, Thomas Attorney General, Philip C. and Griffin, C.
Deputy Attorney General,
Respondent.
for
SULLIVAN,
separate petitions
J. These
for writs of
corpus present
habeas
questions
common
as to the lawfulness
petitioners’
confinement
the California State Prison at
Quentin.
San
proceed
We therefore
to treat
together.
them
Joshua N. Hill
Saunders,
and James
petitioners,
W.
along
with
third
codefendant,
Madorid,
Ben
joint
after a
were convicted murder,
assault with intent
to commit mur
der and
jury
found
robbery.
robbery
and murder to
be of the
degree
first
Hill
penalty
fixed the
petitioners
and Saunders at death on the murder count.1 We affirmed the
judgments against
both
on their
appeals
automatic
under Penal Code
section
(b),
(People
subdivision
imprisonment.
1Madorid was sentenced to
appeal
life
He did not
and is
petitioner
proceedings.
not a
in the instant
908]);
Cal.Rptr. 340, 426 P.2d
(1967)
Hill
66 Cal.2d
death sen
of their
awaiting execution
presently
are
tences.
petitioner
petition
an amended
Saunders
In Crim.
corpus upon
persona seeks a writ of habeas
propria
filed in
imposed
in violation
grounds:
his conviction
1)
that
process
the Fourteenth Amendment to the
of the due
clause of.
part upon
it was based
United States Constitution because
uncharged similar
an
identification
a witness to an
in-eourt
petitioner
prior
identification, had viewed
who,
such
offense
to.
police
2) that his convic
unfairly
showup;
at an
conducted
and Four
in violation of the Sixth
tion was also obtained
extrajudicial
teenth Amendments in
the admission of the
that
implicated peti
eodefendants which
confessions of his two
guar
deprived
right to
tioner
him of the’
cross-examination
Amendment
anteed
clause of
Sixth
the confrontation
through the Fourteenth
applicable
as
the states
made
lawfully
death cannot
be
3)
the sentence of
Amendment;
him
were excused
carried out
because veniremen
in II
standards set forth
jury
from
in violation of the
cause
Witherspoon
Illinois
In Crim. indigent, has petitioner, as an pus 1) that grounds: on the by the failure of the protection the laws equal been denied provide State of California to counsel after the termination of lis 2) petitioner automatic deprived that appeal; was of a ¡ury representing valid community a cross section of the on guilt and persons since with conscien- penalty issues objections tious to penalty the death were excluded from his jury for cause;- 3) and in that the death penalty California unconstitutional alleged petition the same reasons in the Bled on behalf of 12146, in addition, Saunders. Crim. Hill propria has 'persona petition filed in for writ of habeas corpus in language which he in contends, identical to that' of petitioner Saunders, imposed that his conviction in was viola- process tion of the due clause of the Fourteenth Amendment unfairly pretrial because of an police conducted show-up.
We issued orders to in petitioner show cause favor of Saun- ders in Crim. 12125 petitioner and in favor Hill in Crim.
12007 and Crim. 12146, appointed and represent counsel to Saunders.2 robbery were
Petitioners convicted the Laurbank in Liquor September 16, North Store on Hollywood store, murder of the clerk of that and the assault with intent person to commit murder of another who in the store. The was perpetrators actual crimes of the were Hill Madorid; getaway drove car. All defendants Saunders three were Nevada, Las Yegas, arrested in where had forced Mad- friend, Niehoff, orid’s John to drive them the follow- da.y ing Vegas, the murder. While in Las Hill and Madorid made implicated full other defend- confessions which each ants. made written in which he indi- Saunders statement store, robbed cated that Hill and Madorid when he knowledge of the crime he had drove them to the scene no did learn of robbery contemplated, that he However, way it had on the crime until after been committed. arraignment Angeles, admitted in Los to a Saunders police robbery contemplated that he knew a when officer he drove Hill Madorid the store and that he had proceeds robbery. peti- held shared in We properly tioners’ their trial confessions were admitted involuntary claims that such were confessions were the rules Escobedo v. obtained violation of set forth Illinois 378 U.S. 478 [12 1758] 84.S.Ct. Ballaehey, appointed represent petitioner Esq., E. been 2Miehael attorneys Esq., Halvonik, N. who Saunders. Paul one filed the .represent petition him on behalf Hill Crim. volunteered in Crim. 12146. *5 Cal.Rptr. 169, (1965) 62 People Dorado Cal.2d trial on the issué the stand 361], Madorid took
398 P.2d extrajudi- with his substantially in accord guilt testified although testified Hill nor Saunders Neither cial confessions. disregard his urged the through his counsel Saunders th Hill and Madorid drove when he and find that confession knowledge rob- had no Liquor Store he the Laurbank contemplated. bery testimony was also introduced at-the
There People. Spero was a Spero, Thomas called as a witness Valley. Liquor the San Fernando clerk the Sands Store nights prior September 13, three testified that on. He charged, men petitioners were two with which the crimes him Liquor Store, hit over the Sands head robbed identification of leg. an in-court him in the He made shot petitioners held perpetrators tha,t crime. We being the as being relevant testimony as Spero’s was admissible part petitioners] plan or scheme “a show common [oh part as to the thereby knowledge on the of Saunders case at probable consequences operandi and modus (People Mill, supra, 66 Cal.2d at 'bench. [Citation.]” 557.) Spero’s identifica- courtroom contend that Petitioners now pretrial show-up conducted by a
tion of them was tainted Spero that it unduly suggestive to police so which was process law. deprived petitioners of due evening September’ he was Spero testified that on 11 or 11:30 Liquor Store. About working alone at the Sands together a.t the and stood p.m. petitioners entered the store Schweppes Tonic pack Spero for a six They asked counter. long side of a down one Spero turned and walked Mix; Hill Petitioner went in middle of the store. freezer located walked a direction freezer and side of the around the other sight Spero’s it, passing out of end of parallel to the to Spero Spero. stayed When behind just Saunders seconds; pick up bent over to freezer and of the latter the end reached holding a Hill was up and saw that beverage he looked is a fooling around. This “We aren’t gun him. Hill said: on Spero and when around Spero to turn holdup.” He ordered pistol with the butt complied the head Hill hit him over Spero his head. back of bleeding on the causing wound did not lose he him but that dazed testified that blow head he was shot on the' being after hit Seconds consciousness. compliance Hill’s with floor. leg and fell to the in the left orders, he crawled to a store. He sat there and corner of the money register. watched Saunders take the cash out of When asked had how much time he had to observe Saunders before being Spero than head, answered, enough struck on the “More recognize" again time to be able to him if I saw . . . him Perhaps thirty sitting While seconds.” the floor hy around, Spero was told Hill to turn he- several times but refused Finally, to do so. left the store after hav- ing been minutes.” police there “under five When the *6 Spero gave description petitioners’ arrived a of them hair color, approximate height approximate clothing, ages. and He police morning. also described them to next On cross-examination defense brought counsel it was out 2, that on 1964, petitioners’ October of day preliminary hearing, Spero requested police officer to come courthouse identify Spero someone. reached the When police courthouse the informed they him that wanted him to if see identify parties he could who robbed Sands Liquor Store and assaulted him. He then taken to a hold- ing cell behind petitioners the courtroom of which were the occupants. sole police When asked if identify he could Spero them they indicated were men who robbed and assaulted him. petitioners
Both contend that the pretrial above-described suggestive confrontation was so unnecessarily deprived that it process them of Spero’s due of law. assert that court They room pretrial identification was tainted by the viewing and that it therefore was pretrial inadmissible. Since the identifi prior cation 12, 1967, to June the effective occurred date of Gilbert (1967) 1178, 388 263 U.S. L.Ed.2d [18 California 1951], 87 S.Ct. States (1967) United v. Wade 388 U.S.
218
1149,
1926], petitioners
L.Ed.2d
87 S.Ct.
do not
[18
attempt to avail themselves of the nonretroactive rule of those
guaranteeing
cases
show-up. (See
to counsel at the
293,
Stovall v. Denno
388
300
L.Ed.2d
(1967)
1199,
U.S.
[18
1205,
1967]; People Feggans (1967)
444,
87 S.Ct.
67 Cal.2d
448
Cal.Rptr. 419,
Stovall, corpus proceeding, habeas held that al federal petitioner not avail though the therein could himself of th< right to counsel rules of Wade Gilbert since rules those t( retroactive, were not. he would nevertheless be entitled if demonstrate (con relief that “the confrontation could unnecessarily suggestive so anc ducted this case was irreparable mistaken conducive to identification he was process recognized ground denied due of law. This is a oi independent any right upon a to counsel attack conviction (388 pp. U.S. at 301-302 claim. [Citation.]” appeals prior decided to the petitioners’ were Since raise this in the decision in Stovall are entitled to issue question proceedings.- is no instant collateral retroactivity “There Stovall, process . for the II of . . due Part integral part concept is an of our criminal there enunciated Stovall, therefore, mani jurisprudence. impact of has The law, but rather itself in the creation of new fested concepts due with a view process reevaluation of traditional (United practices.” contemporary toward law enforcement ) (D.D.C. 1968) 282F.Supp. 963, v. O’Connor States 964. fair process law is fundamental watchword due that in the matter identification ness it been said degree suggestion from “the gross unfairness often results presents the prosecution in which the inherent the manner (United pretrial suspect identification.” to witnesses *7 p. 228 L.Ed.2d at Wade, supra, p. at 388 U.S. States v. [18 p. 188.) Caruso, supra, at Orle People 68 Cal.2d ; v. see 1158] procedures is pretrial identification of most condemned the was a crime as showing witnesses to suspect alone to that of a done, a situation more imagine in is hard to Stovall. “It suggestion the--witness that' the one to clearly conveying presented (United by police.” States believed guilty p. 1161].) Wade, supra, p. 234 L.Ed.2d at We 388 U.S. [18 by initially the method used thus determine whether must police unduly suggestive present petitioners Spero to was to in mind the caveat that “a keeping within the rule Stovall of in the .of a process law conduct claimed violation of due of the circumstances depends confrontation on the totality supra, Denno, 388 surrounding it, (Stovall U.S. . . .” at p. 1206].) 302 L.Ed.2d petitioners pretrial by Spero The identification of was “at variance with universally the time honored method recognized by persons, permits law enforcement complainant a which to whom-, select, persons several among one about is cer- from tain.” (United (7th added.) States v. (Italics Gilmore Cir. 1968) 398 F.2d 682-683.) Under the cir totality procedure
cumstances we think that the identification was so unnecessarily suggestive Spero deprived petitioners to that it process Spero due robbed, of law. was a witness who. was battered and shot Two and assailants. one-half weeks police requested later the him to to come the courthouse to see if identify he could men who robbed and assaulted him.
He was a holding taken to cell behind the courtroom which only petitioners contained and he was there asked police identify if he could his assailants. This isolation method of was identification is the which criticized type any the above-cited does not in authorities and differ material respect Spero bringing from while handcuffed police. procedure in suggestion The element inherent this by showing petitioners Spero even The police, is not subtle. “ cell, jail witness, while alone effect . . . said to the [i]n ” (Foster italics.) ‘This (Original is the man.’ v. California 402, 407, U.S. S.Ct. Contrary to the situation in Stovall appear there do not any be circumstances the instant case which necessitated prejudicial police suspect In Stovall conduct. was brought hospital to the witness’ while room handcuffed to police. The determined, however, court because of the physical witness’ condition it was the most reasonable method however, Spero Here, identification. was asked to see if he identify petitioners perpetrators could as the of a other crime than charged. Attorney that with which were Gen- they eral Spero asserts that identification because not for purpose identifying petitioners perpetrators as the they crimes for being tried, which were “it not rea- police arrange sonable line-up for the officers to elaborate Spero.” for On think that under these- cir- contrary, police cumstances the had reason not to no whatsoever estab- lish a viewing petitioners method of which would have been fair to compelling peti- them. There was no reason to exhibit Spero petition- tioners to while were Since alone cell.
ers already custody Spero were crime other than the robbery there necessity- hasty prejudicial was no for a *8 procedure identification such as there was in Stovall. It would have been hardship police no for the to have assembled a prisoners number of lineup and to a in the have held usual manner, petitioners being since then in were held especially
1006 petitioners Angeles County jail. By exhibiting tbe Los compelling Spero jail reason alone while cell with no the which were doing police so used methods unnecessarily under the circumstances. suggestive provide that holdings Wade and Gilbert However, of the pro- pretrial identification unduly suggestive finding an of automatically inadmissible the in-court render not cedure does “"We think it follows identification. court said Wade: The applied is that in these situations proper to be that the test States, Wong 371 U.S. v. quoted [9 United Sun ‘ 407], [Wjhether granting estab- 441, 455, L.Ed.2d S.Ct. illegality, the to which primary evidence lishment of exploitation at has been come objection instant is made by distinguishable by means or instead illegality sufficiently ” (United primary States taint.’ purged to be Wade, p. 1165].) In p. 241 L.Ed.2d at supra, 388 U.S. at [18 if before it the court stated to the case applying this test ‘‘ convincing evi- and prosecution establish clear could upon obser- were based identifications the in-court dence that lineup identification,” suspect than vations other p. 1164]) courtroom at then the (id., p. at L.Ed.2d improperly despite the admissible would be identifications supra, California, (See U.S. show-up. Gilbert conducted question for our p. 272 appears from the record whether it determination therefore peti- Spero’s courtroom identification us that now before show-up pretrial independent origin had tioners thereby. was thus untainted Liquor petitioners entered the Sands Store were
When period appeared to be normal customers. A not masked elapsed Spero seconds before was struck on at least 30 leg time head and shot in the Hill. At that he fell He watch did consciousness. continued to his floor but lose and three assailants from a corner of the store times refused ordered to do so Hill. He testified to turn around when enough than time that he Saunders for “more to be observed again.” him if him He recognize able to saw described I again police after assailants to robbery shortly description morning. the next furnished them with any of the defendants were courtroom when asked if night robbery petitioners. he indicated store the Under these circumstances we believe that the evidence clearly convincingly Spero shows that had more than an adequate to observe at the time opportunity *9 Farley robbery. (See People (1968) Cal.App.2d 214, v. People Cal.Rptr. ; Cal.App. v. Lasiter
218[72 855] Cal.Rptr. spent 2d 366-367 Petitioners store, tppreciáble unmasked, in the amount time under ¡resumably lighting Spero opportunity ’s adequate conditions. good and he lost
o observe never conscious- despite being Presumably hit head and shot. íess over the might opportunity iware that sometime have the de- he to identify them, or he to observe his assailants rribe continued position his on His irom the floor. statement that he saw enough recognize than him if Saunders for more ¡ver time to Spero signifies saw him that undertook a again conscious ¡ffort acquaint himself think this with robbers. We ¡estimony ¡ourt in- convincing furnishes clear and evidence that the (See illegal lineup.
identification tainted was not (D.C. generally 1968) v. United 408 F.2d Clemons States Cir.
1230.) Spero’s thus the admission of There was no error ¡ourtroom petitioners. identification of
Petitioner prejudiced Saunders nest asserts that he was extrajudicial admission courts confessions of Hill eodefendants, Mádorid, insofar as impli: jated him. He contends that the introduction such confes- joint sions at the trial without effective deletion of references deprived right to him him of the to cross-examine his confess- ing codefendants violation of the confrontation clause of the Sixth Amendment to the United States Constitution.3 Although Hill does not make the samé contention as to the extrajudicial admission of the confessions of Saunders and implicating him, Madorid nevertheless, reasons for which will. proceed
Later appear, any we own consider our motion such error as to him. . extrajudicial
All three defendants made confessions to robbery and September petitioners’ murder of 16. On auto- appeals matic held we that these confessions were properly admitted against confessing petitioner each at trial. The con- implicated of each the others fessions. and the trial fully court jury instructed the only each confession was to be con- sidered the confessing defendant and was be considered against any as evidence of the other defendants.
Despite such instructions, however, we held that it was error People under Aranda (1965) 63 Cal.2d 530-531 pertinent part provides: 3The Sixth Amendment “In all criminal prosecutions, enjoy the accused shall ... to be confronted against him; with the witnesses ...” Cal.Rptr. 353, 265], the court have admitte< 407 P.2d implicated which portions each confession code those presented th< under the circumstances fendant try th proper procedure would have been to sever supra, (People Hill, separately. Cal.2d defendants “ compe other However, found that view-of the 557.) [i]n Hill against both and Sa.un overwhelming evidence tent and (66 light vitiating p. 558) and ders,” Cal.2d instructions, no reasonable trial court’s “there effect of the a more favor would have returned that the probability Hill, if, required as or Saunders bj able verdict for eitheb *10 (66 separately. Aranda, they had tried been [Citations.]” that the error was p. sum, we concluded Cal.2d at 559.) law. harmless under state prior appeals, our
Since decision the United States Supreme Bruton has decided the case of v. United Court 391 123 L.Ed.2d 88 (1968) States U.S. S.Ct. [20 1620]. principles held that the announced therein are to be (Roberts given operation. retroactive v. Russell 392 1100, 1102, 293, 294 L.Ed.2d U.S. S.Ct. Bruton [20 right holds that is a denial of to cross-examination, it guaranteed to a defendant á criminal case the confron- joint tation Amendment, clause of the Sixth to admit at a extrajudicial trial an confession of codefendiant which implicates despite jury defendant, instructions to the disregard noneonfessing confession as evidence “Despite eoncededly that, defendant. The court reasoned disregard clear instructions to the codefend- jury [the hearsay petitioner, inculpating inadmissible evidence ant’s] in the joint accept limiting of a trial we cannot context a'dequate petitioner’s instructions as an substitute consti- right tutional of cross-examination. The effect is the same as if (391 .there been no instruction at all.” U.S. had p. 485].) L.Ed.2d at peti-
Clearly, light finding Aranda of our error on appeals, Hill’s tioners’ automatic the admission of confession implicated Saunders, which and the admission of seriously seriously implicated Hill, Saunders’ confession which con- type by Bruton. Neither stituted error of the condemned Hill the stand and Bruton indicates that nor Saunders took despite limiting jury as to its use of each instructions to the right deprivation Amendment confession, is a of the Sixth it joint at a trial. to admit such confessions to confrontation extrajudicial confession, admission Madorid’s how- ;ver, presents problem Attorney as different inasmuch General Madorid took the stand at trial contends since testimony gave md which was consistent with out-of-court “very ionfession, complain have little to about.” extrajudicial Bruton involved admission confession if codefendant, Evans, did not take the who stand at the joint regard that, trial. with The court stated to.that fact Evans’ introduction of confession added sub “Plainly, stantial, perhaps critical, weight
even to the Government’s subject ease a form not cross-examination, since Evans did not take the stand. Petitioner thus was denied his consti only tutional Not confrontation. are the [Par.] incriminations the defendant confession the co- [of devastating to credibility but their defendant defendant] is recognized accomplices suspect, a fact when do inevitably take the stand and the is their weigh instructed to testi carefully given recognized motivation to shift blame mony onto others. The unreliability such evidence is intolerably compounded here, as alleged accomplice, when the does not testify (391 and cannot tested cross-examination.” be pp. 127-128, 136 U.S. at pp. 480-481,485].) position
Some courts have taken the above-quoted that the language indicates that Bruton is apply not intended to to the situation where the extrajudicially confessing codefendant takes subject the stand and (Rios- to cross-examination. (9th
Ramirez v. United States 1968) Cir. F.2d *11 1017; Santoro (9th 1968) United States 402 920, 922; Cir. F.2d Lipscomb Maryland v. State 5 (1968) Md.App. 500, 506 [248 491, A.2d pretation We do not 494].) proper believe that such is a inter light of Bruton in the right-to-confronfa of recent Supreme tion cases decided the Court this court.
Rather, think joint that the admission aat trial of extrajudicial confession of a seriously codefendant which implicates deprives the defendant right the latter of. if confessing confrontation even the codefendant takes the gives testimony stand and prior in accordance with his con However, testimony given fession. the so confessing a significantly mitigating any prejudice effect as to party might which be from to result the admission of the claimed extrajudicial I confession. helpful problem
We it find examine “confronta- tion” in other dealing contexts with both the former testi- prior and the inconsistent mony statements of a non-party 1010 begin We our
witness. discussion with Pointer v. Texas (1965) 380 400 L.Ed.2d 85 U.S. S.Ct. Ther [13 1065]. hearinj the defendant did not have counsel at his preliminary .although opportunity had the a he conduct cross pro- se witness, examination of the chief he did d< state’s juris so. At trial the state’s was absent from the die witness prosecution permitted tion to read into evidenc given preliminary that witness’ hearing at the ove testimony objection the defendant’s that to do so would abe denial o: th( right the defendant’s Declaring confrontation. right Sixth Amendment of a criminal defendant to eonfron state; upon him witnesses obligatory through (380 Fourteenth p. Amendment at U.S. 403 [15 p. 925]), L.Ed.2d at the court held that had Pointer beer “ right denied his constitutional of confrontation [b]ecaus< transcript againsi statement offered [the witness’] petitioner at his trial had not been taken at time and undei affording petitioner through circumstances counsel an ade opportunity quate (Italics to cross-examine” the witness.. (380 p. added.) 407 at 928].) U.S. at L.Ed.2d Pointer [13 testimony againsi thus held that former could not be admitted defendant when did opportunity the’ not have an effective hearsay to. cross-examine the judicial at declarant the time the extra (See Douglas statement was made. also v. Alabama 415 85 U.S. L.Ed.2d S.Ct. [13 Page (1968) Three later in Barber v. U.S. years 1318], Supreme L.Ed.2d held that S.Ct. Court even if the defendant’s counsel had cross-examined a witness hearing, transcript at the nevertheless the of such preliminary testimony witness was inadmissible at trial on the guilt showing issue of in the absence of a witness was actually give unavailable to at trial. The' court testimony “ there basically stated that to confrontation is [t]he right. opportunity It both includes to cross-examine weigh the occasion for the the demeanor of the may justification witness. . . . While there be some for hold- ing opportunity that the for cross-examination of testimony hearing satisfies the demands of the confronta- preliminary actually tion clause where the witness shown to be unavail- out, able, pointed not, (390 this is as we have such a case.” pp. p. 260].) requirement U.S. at 725-726 preclude of confrontation thus extended to w.as admission prior testimony despite the fact that the defendant cross- *12 , examined time declarant at the statement was made, the the showing a he absence of the witness was actually bring as unavailable so former thé within a testimony n ecognized exception hearsay to the rule.
Following
precedents
People
the above
we held in
v. Johns
Cal.Rptr.
Recently
People
v. Green
Amendment of were since intro they duced a trier of different from before fact the one before whom were made. We there said: “We reiterate that the ‘contemporaneous’ alone, cross-examination which the legal showing necessity, absence of of can be considered adequate effective and is cross-examina fully tion constitutionally testimony given, the same time as the direct is before ultimately pass credibility the same trier as must of the the weight testimony. short, witness and the of that cross- pro may neither be nunc tunc examination tunc nor it be may pro italics.) (70 (Original p. 661.) nunc.” Cal.2d at summarize,
To the Amendment Sixth to con right give frontation is intended to to defendants criminal cases right the as to cross-examine to statements made the wit by statements, ness at the time the makes witness those the before guilt same trier provid which sits on the issue of fact of ing showing a legal justify that there is no necessity such admission of applied statements cross-examination. without As case, error, to the facts the instant it under our interpretation Bruton, to have admitted Madorid’s confes though even sion he took the stand and testified consistently extrajudicial prior right with his statements. The of cross- guaranteed Hill examination and Saunders was the cross-examine Madorid at time he made his confession, opportunity to cross-examine him at the time those prior hearsay statements were admitted at the trial.simply adequate was not under constitutionally above-cited authorities. -language quoted we have from Bruton does not dictate
a result different from that which we Rather, have reached. interpret language we believe that to such any to remove con resulting stitutional from the lack of cross- infirmity examination at the time Madorid made his statements would do principles violence to the constitutional enunciated Supreme us. The facts Court of Bruton did not re quire question court to reach of what would result if e Evans took th stand at trial. Its statements regarding testify may Evans’ failure be viewed as statements of the to. interpreted facts of the case before it and need not be to mean Bruton’s conviction would have been free of constitu tional error had Evans testified. The court did not indicate subject if Evans took the stand to cross- examination such would have been cross-examination constitutionally adequate. The most that can be drawn from language be court’s that it felt that cross-examination of requirement admissibility a minimum for the Evans was language lis confession. We do read that as also indicat- ng complied that such cross-examination would alone have requirements. vith constitutional persuaded contrary by are case
Nor
recent
Harrington
(1967 386 705, U.S. 18 L.Ed.2d 824, 87 S.Ct. 24 A.L.R.3d [17 However, question court did not deal with the 1065].
whether there was Bruton error in the admission of con of the testify. fession did Nothing who co-defendant jourt’s opinion indicates that it felt the admission such ionfession was not error under Bruton and its to treat failure nothing issue indicates by more than that it was not raised any iounsel. We do Harrington not draw inferences from which would to cause us hold in the instant case the ad that mission of Madorid’s confession was not error because he took Supreme stand and testified at trial. Until such as the time affirmatively
Court indicates that cross-examination the confessing adequate eodefendant at trial is under the clause, compelled confrontation we feel to hold the ad that mission of his. confession is type constitutional error of the . by condemned Bruton
Having determined that it was under error Bruton to admit extrajudicial confessions of each codefendant without deletions eodefendants, effective of references other to the proceed People proved determine whether have “beyond a complained reasonable doubt that the error of did (Chapman contribute to the- verdict obtained.” v. Cali- fornia, supra, 18, 386 24 710, U.S. L.Ed.2d 87 S.Ct. [17 prejudicial
We deal first with the effect of' the admis sion of light Madorid’s confession in of the fact he also the stand and took testified accord with the substantially him by peti statements made in his Although' confession.
tioners did not have the to cross-examine at Madorid 1014 since confession, we believe Madorid’s made his
time since he his confession was with consistent was testimony Hill and Saunders by at subject to cross-examination extrajudicial statements clearly admitting his error If we doubt. beyond reasonable petitioners harmless jury could not must, that us we assume, Bruton tells as confes- disregard Madorid’s instructions obey the court’s nevertheless, Saunders, against Hill and as evidence sion testimony as evidence Madorid’s free to consider of that convict them on the basis and to petitioners Peo- Code, 1111; see (Pen. amply corroborated. testimony § if 555-556.) constitu- pp. .The Hill, supra, at 66 Cal.2d ple v. lack of cross-examination by the infirmity created tional thus rendered his confession was made time he Madorid at the him at to cross-examine petitioners’ harmless opportunity his confes- testimony with respect consistent trial with “ ‘reasonable therefore, was no' believe, that there sion.5 We might have con- complained of evidence that the possibility ” California, supra, (Chapman v. tributed to the conviction.’ p. 710].) U.S. [17 admission of the erroneous Nor do we believe confes implicating Saunders and Saunders’ Hill’s confession prejudicial of them. The I Hill was to either implicating sion I highly incriminating against both consisted evidence corroborated I testimony Madorid which was amply perpetrators Spero’s as the identification People flight Vegas (see their to Las prior crime, similar People ; (1939) 14 P.2d Waller Cal.2d 344] by the Murguia 115]), P.2d (1936) 6 Cal.2d by peti made Niehdfü as to statements of John testimony *15 However, persua- trip Vegas. most during tioners the to Las confessing opportunity to cross-examine a 5We do not intimate that an inevitably renders harmless the admission of his codefendant at trial nonconfessing implicating of the defendant. We can conceive confession confessing at trial and situation eodefendant takes stand a where as to not in confession. that instance testifies the matters contained his limiting scope of the direct examination rule eross-examination (see effectively inquiry Code, 761, 773) may prevent §§ Evid. into confessing However, in when the co- matters contained the confession. and in defendant testifies as to matters contained his confession a opportunity then him manner consistent therewith to cross-examine will, We instances, in most render the admission of his confession harmless. caution, however, approve we that do not the intentional introduc joint proscribed tion of the into evidence confessions at a party hopes confessing testimony that who codefendant’s will render may preju the error harmless. Situations dicial defendant’s be deemed harmless. arise where the confession sois. nonconfessing despite confessing to the defendant co- testimony confession, consistent with will his the error not 1015 of the harmless nature of the error was that each sive to us properly crime and each confession was confessed to the admitted, against As have confessing in evidence party. “ operates kind said confession as a in another context: [T]he shatters, evidentiary (Peo which defense.” bombshell ple Cal.Rptr. 193, (1965) 716, v. Schader 62 Cal.2d 731 [44 persuasive 665].) 401 A'“confession . . . P.2d constitute[s] (People guilt, (1963) evidence .” v. Parham 60 Cal.2d . . 497, 378, Cal.Rptr. 1001]) 384 P.2d necessarily [33 strong impact jury. there was no evidence on the Since only whatsoever favor Hill’s innocence and Saunders’ exculpatory as evidence innocence the initial statement “merely confession of each was evidence which was cumula (People tive” v. (1965) 319, Jacobson 63 Cal.2d 331 [46 Cal.Rptr. 515, 555]) 405 P.2d of evidence admitted properly against the other. “Where the has heard only jury codefendant’s confession but the defendant’s own confession ‘devastating’ no.such risk attends the lack of confrontation as thought (United to be involved Bruton.” States ex (2d rel. Catanzaro v. Mancusi 1968) 296, Cir. 404 F.2d 300; People (1969) see v. Rhodes 494, Ill.2d N.E.2d 145, 148].) Because of this unbroken chain of evidence against petitioners and the lack of even one weak link we are convinced “the likelihood of material influence [of confessions on the is not within the realm of jury] reasonable possibility.” (People Coffey v. 204, 67 Cal.2d 220 [60 Cal.Rptr. 457, 15].) 430 P.2d petitioners evidence overwhelming so prejudice. Harring that we find (See no ton California, supra, 395 U.S. 89 S.Ct. While we find no error constitutional dimension in the
guilt phase petitoner’s trial, explain infra, as we there was error in the exclusion petitioners’ of veniremen from compels which us to order jury penalty guid a new trial. For ance on retrial we here petitioners’ reiterate what we said on appeals: automatic it appears Since that deletion of those portions of each defendant’s implicating confession his co- defendants would effective, prosecution not be on retrial try either must sever and separately or elect to proceed without the confession evidence if it peti desires jointly. (See People tioners be Hill, tried supra, 66 Cal.2d pp. 557-558.) As indicated, petitioners contend that veniremen previously were excluded from violation principles set *16 1016 (1968) 391 510 Witherspoon v. Illinois U.S.
forth in [20 Although their trial occurred 88 S.Ct. L.Ed.2d 1770]. Supreme States prior of the United Court to decision jury they may challenge Witherspoon, it is clear that (See With procedures by proceeding. this collateral selection erspoon 22 supra, p. 523, fn. L.Ed. Illinois, 391 at U.S. [20 785]; (1968) 69 Cal.2d p. 2d In re Anderson and at Saterfield Cal.Rptr. 21, 117].) agree We 618 447 P.2d [73 there excused for cause and we erroneously veniremen were compelled penalty fore to a new trial. are order Witherspoon capital defendant in a case is declares jury conscience of the com expresses entitled to a which “the (391 question of death.” the ultimate life or U.S. on munity Supreme p. p. 783].) end at To that at L.Ed.2d [20 carried that “a sentence of death cannot be Court declared imposed it jury recommended was chosen olit if or they for because voiced excluding veniremen cause simply expressed objections penalty general or conscien death religious scruples against (391 its infliction.” U.S. at tious or p. only that the p. 784].) court held L.Ed.2d be excused for cause because of who could veniremen properly were those “who made opposition to the death penalty their automatically unmistakably . . that would vote clear . punishment regard imposition capital without might developed at the trial any be evidence that (391 fn. case them. ...” U.S. before at p. jurors prospective the nine prospective Of. the ten ’ for from jurors were excused cause
alternate who penalty, opposition death to. the four of their because only “did not they indicated that they were excused when did not veniremen These in the death believe penalty.”6 up gone Bak, you that has on heard all 6‘The Court: Mrs. have point? this ‘ ‘ Yes, sir, Bak : I have. Mrs. you you feel, you a fair do think can he do “The Court: And how juror impartial in this case? penalty. Sorry, sir, in the death Bak: I don’t believe “Mrs. challenge juror Attorney]: for We will “Mr. Bukuto [District your cause, Honor. your objection, Honor. Hill]: No “Mr. Littlefield for [counsel Byron your objection, No Honor. Madorid]: for [counsel “Mr. “Mr. objection, your Honor. Sherman No Saunders]: [counsel you you, Bak, may “The Court: Court: be excused.” Thank Mrs. you up Potts, gone heard all that Mrs. have “The point? this Yes, Potts: sir. “Mrs. *17 make “unmistakably clear” that they it would never under impose any circumstance vote penalty. the death As the Supreme Witherspoon in Court said respect with to venire- men upon who were indicating excused for cause they that “did not penalty”: in believe the death entirely pos- “It is juror sible, course, that even a capital who believes that punishment should never be irrevocably inflicted and who is committed to its abolition could nonetheless subordinate his personal perceived views to duty what he to be his to abide juror obey oath as a (391 and to the law of the State.” pp. 514-515, U.S. at pp. fn. 780-781].) With- erspoon require therefore would seem to us to set aside the imposition penalty death penalty and order a new petitioners. for
However, Attorney contends General that procedures petitioners’ penalty selection in trial met the stan- Witherspoon. dards of While he concedes in that some in- stances the voir dire prospective jurors examination of inadequate, he in nevertheless contends that the context of the entire voir dire all veniremen, taking into consideration you you any “Tee Court: From what have do heard know reason why you impartial juror? sit fair cannot with us as a and Yes, “Mrs. Potts: sir. ‘ ‘ The Court: What is that? penalty. “Mrs. Potts: I do not in the believe death challenge juror your cause, “Mr. Fukuto: We will for Honor. objection, your “Mr. No Littlefield: Honor. Byron: objection, your “Mr. No Honor. objection, your “Mr. No Sherman: Honor. may Maurer, excused, you.” Potts, “The Court: You be Mrs. thank you gone up “The Court: Mr. all that have heard to' point? this “Mr. Maurer: Yes. you you any “The Court: And from what have heard do know of why you juror? impartial reason sit with cannot us as fair Only penalty; “Mr. Maurer: death I don’t believe in the death penalty. challenge juror your cause, “Mr. “Mr. “The Court: You I will for Honor. Fukuto: Byron: objection, your No Honor. excused; may you, be thank sir.” Now, everything up from that I have said to this “[The Court:] you any why you point do know of reason cannot sit here as fair impartial juror? penalty. “Mr. “Mr. Fukuto: We “Mr. “Mr. Sherman: No I don’t in death McDonald: believe juror challenge cause, your for Honor. Byron: objection, your No Honor. objection. may excused, McDonald, you.” “The Court: You Although be Mr. thank prospective the last three the above four veniremen were prejudiced alternate veniremen it is clear that dismissal since were their juror participated in alternate in the deliberations one penalty phase regular jurors when one of the her was relieved of duty family. to a death in due her instance, counsel, “in each made the court and statements jio juror say articulated, meant to what words were matter counsel that by the court and was understood say, impose not it." His penalty and would opposed the death throughout the argument premise that entire on the based it clear both counsel made voir examination the court diré opposition to general more than that much the veniremen excused, be for them to penalty the death was necessary Attorney premise the General concludes that From this cause. did a venireman indicated where those instances to mean penalty he was understood not in the death believe impose under never vote penalty any that he could support this conclusion the Attorney circumstances. set out counsel, the instances defense General asserts that interrogate 6, ante, who chose not to the veniremen footnote penalty. This, death they did believe indicated *18 jurors counsel such argues defense that recognition he by impose never vote to that would indicated unmistakably defense counsel He further contends that penalty. the death venire- erroneous exclusion of power prevent to the had the voir dire of them that the by undertaking further men to such a of the raise constituted waiver failure to sodo on review. érror . explained that task in determin our
We have recently excused for properly a cause ing venireman been whether responses the venireman in the the “requires us to assess voir portion court and counsels’ of that of the full context during panel entire conducted the the dire examination of present the courtroom and until said venireman was time what the he or was excused for cause. To the time she ascertain said, he must consider not the juror what we by meant merely questions the he but also words words of his answers circumstances which additionally all of the was asked and place." (People Varnum colloquy Cal. took this, Cal.Rptr. 2d 450 P.2d To 492-493 [75 in his reliance on staté- is correct extent the General Attorney during the course of the ments the court and counsel by made However, we are not here con entire voir dire examination. interpretation particular ambiguous words cerned with the prospective juror a as we were in question asked of used a Rather, Attorney apply General seeks to Varnum. transpose that approach Varnum a venireman’s statement to into statement that he in the death does believe penalty impose the death he could vote to penalty under any never may do circumstances. We not believe that Varnum be so applied. Varnum
In we looked to the context the entire voir dire prospective juror to determine that it understood that was completely her to within discretion determine what was a' imposition “proper case” for of the death penalty. proceedings prior Reference her examination was necessary ambiguous “proper' made nature of the term by In proceedings, however, case.” the instant are dealing prospective juror’s with a unequivocal statement he does Supreme not believe in penalty the death and the Court has statement, told us more, give such without does not rise adequate may cause for which the venireman be excused. tangible by absence of some indication the venireman that he intends his answer impose to state that he could never responses death no amount given by of reference to penalty, other veniremen or to comments the court or counsel can meaning serve to make certain the venireman’s re- the. sponse. “ Witherspoon The mandate of is that a venireman [u]nless unambiguously states would voté automatically imposition capital punishment no matter what reveal, might simply it cannot be assumed that that- position.” (Italics is his (Witherspoon added.) Illinois, supra, U.S. at fn. 9 pp. L.Ed.2d at 781-782].) The determination is to be made individual being prior basis with reference made to voir dire when only necessary it is made the circumstances of the colloquy between the court or counsel and the venireman. When question put venireman is clear and when he responds with an answer free of but nevertheless ambiguity inadequate Witherspoon, under may then he not be excused *19 for cause without a further statement himby that he could impose never vote to the death Since such further penalty. statements were not elicited from the veniremen in the instant compelled case Witherspoon we are peti to order that given tioners be penalty a new trial. Attorney petitioners’ General’s assertion that
failure to voir dire undertake additional to that undertaken constituted, by the court and the district a waiver of attorney right complain their to of the exclusion of veniremen is with recently out merit. We in In re stated Anderson and Sater field, supra, 613, peti Cal.2d “At 618-619: the time of trials, tioners’ under interpreting decisions Penal Code proper to cause 8, excuse for it. was subdivision section capital in punish jurors ‘did not believe who prospective capital pun opposed to who were ‘conscientiously
ment’ or preclude consciences would as those ‘whose as well ishment’ It is penalty].’ imposing death from [Citations.] [the them in law Witherspoon change material made a that obvious Witherspoon, petitioners were tried before Since this state. in' jurors in prospective object exclusion failure to claiming from error. now question does not bar (1968) 70 (See People v. Risenhoover Cal.2d [Citations.]” as 925].) Wé cannot Cal.Rptr. 447 P.2d further refused to undertake sume that counsel would have Witherspoon decided been of veniremen had examination pre-Witherspoon failure to do so at this prior to trial. Their constitute a waiver of therefore does not jurors in col prospective this exclusion of raise error lateral attack. however,-that petitioners are say, correct
We cannot venirémen jury from the in their exclusion assertion capital punishment deprived them an unbiased opposed of the representing a valid cross-section jury community.on Witherspoon: guilt. As the Court said in Supreme issue conclude, either on the basis of the record “We cannot simply judicial notice, exclu us as a matter of that the now before or punishment in an jurors opposed capital results sion of guilt unrepresentative jury issue or substantially (391 517-518 pp. increases the risk of conviction.” U.S. There is no evidence in the record L.Ed.2d at petitioners’ there contention and we before us to substantiate Supreme present agree must Court fore with such contention lacks merit. arguments penalty the death
Petitioners’ punishment their cruel and unusual and violates constitutes rights Fourteenth Amendment of the under because governing its of standards selection absence penalties rejected us in Ander have been considered son and Saterfield. petitioners’ indigents that as under contention
Finally, post- death are entitled to counsel for sentence of has also been answered us Anderson conviction remedies pol- We there “as a matter of indicated that Saterfield. defendant, appoint upon application will icy, (69 p. 633.) Since we counsel in such instances.” Cal.2d proceedings appointed represent counsel to these Saunders *20 therefor, upon application represented bis and since Hill is private counsel, their contention been rendered moot. discharged
In Crim. 12146 the order to show cause is
petition
corpus
writ of habeas
In
denied.
Crim.
granted.
12125 and Crim. 12007 the writs are
The remittitur
9126, People
issued in Crim.
v. Hill
Traynor, curred.
Burke, J., judgments. concurred in the McComb, J., Concurring Dissenting. deny would —I the writs of corpus, deny habeas remittitur, the recall of the judgments affirm the in their entirety. No. 12782. In Sept. 15, 1969.]
[Crim. Bank. In re CARLOS HARO on Corpus. Habeas