*1 In Bank. Dec. No. 13743. [Crim. 1969.] on Habeas
In re MONTOYA LARA Corpus. TONY *2 Counsel Bomse, Balabanian, M. F. Johnson and Jerome V. David William
Stephen Falk, Jr., B. for Petitioner. General, James, William E. Assistant Attorney
Thomas C. Lynch, Attorney General, Kline, General, and James Attorney H. Deputy Respondent.
Opinion Lara,
MOSK, Montoya for habeas by Tony J. This is petition corpus murder, degree conviction first confined under death after judgment Cal. Cal.2d 365 (People v. affirmed this court. Lara *3 586, 202].) 432 P.2d Rptr. are to directed contentions. Two three petition presents principal merit; third, the rule of which invokes and are without the
the guilt phase, 776, 88 S.Ct. (1968) 391 v. Illinois U.S. [20 a trial the of new on issue requires 369- (67 Cal.2d at are stated in in pp. The facts detail our opinion prior friend 373), and his and summarized here. Petitioner briefly be may Alvarez, teens, Mitchell giving both in their late into inveigled Raymond car, him the vehicle for the them a in then to obtain ride his kidnaped retrieving shotgun of armed After committing robbery. purpose drive the had in forced Mitchell to they secreted a lumberyard, petitioner shirt, him, coat and removed his car to deserted There beat they dump. him, the his him of excavation. edge tied hands behind and threw .over back, Mitchell’s Petitioner and Alvarez each fired the into shotgun killing rob, Mitchell’s to find a abandoned him. to satisfactory they Failing place car in a field. that he
Later called his friend and confessed night girl petitioner shirt, and had and his coat some others had forced a to take off youth back, in tied his his and left him the hands behind and had shot him dump. Meza, On the to one afternoon Alvarez confessed following shooting before had in Mitchell shortly who seen him of petitioner company that was “in trouble” Petitioner confessed to his he also sister kidnaping. had been body because and others had tied and shot the whose boy up found the dump. murder, and two
Petitioner Alvarez were arrested after days make of After were advised their constitutional repeatedly rights. failing When Alvarez a “deal” with the a full confession. petitioner gave police, into to confer station he brought permission police granted with “tell them the advised him to privately petitioner, petitioner confessed, as in crime. truth.” Alvarez then his naming petitioner partner Both confessions were reduced to introduced tape-recorded, writing, at the trial.
I (67 392-393) we In our Cal.2d at recognized opinion pp. admission of those of Alvarez’ confession which portions implicated pe r v. People case then-controlling error unde titioner constituted 353, P.2d 518, Cal.Rptr. 63 Cal.2d 528-531 Aranda this the effect 527), we (id. at judged Aranda Again following 265]. VI, Const., art. § (Cal. standard. the California harmless-error error by 243].) Ob P.2d 13; (1956) 46 Cal.2d People v. Watson event by impact was shattered any that “each defendant’s serving was also confession, implicated that each and the fact detailed of his own have contributed cannot realistically confession his codefendant’s People (Accord, conviction,” the error we held nonprejudicial. either fn. 10 Charles
545].) case, United States our in this to the filing
Subsequent
opinion
Aranda rule as constitutionally compelled
*4
Court
Supreme
adopted
v. United States
(Bruton
confrontation clause of the Sixth Amendment
476,
1620]), and declared
(1968)
Petitioner first
that when we
under
contends
reweigh
confession,
find
we must
in
of Alvarez’
admitting
implicating portions
taken,
of
The
not well
as
from consideration
prejudice.
point
appears
P.2d
In re Sears (1969)
Harrington
defendant took all the stand so that defendant could At .cross-examine. denied his his times defendant at the scene and presence participation here.” Cal.2d (71 at does fn. crime. 1.) apply Harrington bar, Harrington, In the case at confession the codefendant’s as crime; rather, not the evidence at the scene of the only placing petitioner his own confession Petitioner seeks to that fact supplied very convincingly. Harrington on no issue was there raised as to distinguish that ground confession, resisted the voluntariness of while here Harrington’s petitioner the admission his confession on the ground alleged physical the trial court coercion. Petitioner that found psychological argues although on this issue after a not have against might him lengthy hearing, jury (or even done so in the room and hence have totally jury “might partially) ignored” his confession in on his guilt. deliberating is, course,
This mere far going beyond hypothetical speculation, event, case of we in our In the fact envisaged prejudice any opinion.1 remains was not the con- confession to the only petitioner’s police fession of his admitted at trial: both his- friend and his sister also girl testified to to them unsolicited confessions he made shortly spontaneous, crimes, after the can coercion as to there be no claim of those possible Harrington, statements. It follows that the case is controlled *5 no Chapman is shown under the rule as it is there perjudice applied.
II The leads in the of these crimes developed police investigation took the officers to the house of sister. As we recited arresting petitioner’s door, (67 371), in our Cal.2d at “She answered the identified opinion p. sister, herself as Lara’s and let the officer into the room. He asked living there, if Lara was and to search the Per requested permission premises. denied, mission was but the officer a noise heard from an adjacent thumping said, bathroom. Lara then from the and ‘Are hallway you looking appeared me?’ for After Lara identified himself he was under arrest on the placed imply to a the Aranda 1“We do not mean that violation of rules will be [or Bruton] automatically any who has a nonprejudicial as defendant made confession of his every any case the remains whether the effect of own. In which such issue circumstances might mitigated impact otherwise have the of the defendant’s confession was defendant; implicating portions the of a codefendant’s statement the overcome event, implication prejudicial despite would be the defendant’s own confes occur, might example, confessing sion. Such a situation when the defendant presented given, freely and evidence to show his statement was also denied its us, however, denial; on the witness stand. In the case before truth Lara made no such contrary, police story he told the whole of what happened on admitted had added.) (67 night (Italics 393.) killing.” at p. of the Cal.2d on the and found a the bathroom of murder. The officer then looked in charge was the murder Ballistics tests established it 12-gauge shotgun.” weapon. a search In contention that the obtained rejecting gun by illegal seizure, incident we held the arrest was lawful “The search clearly Lara, and within the mean- to the arrest of hence was not ‘unreasonable’ (67 373). Cal.2d at Fourth Amendment” ing to our Court decided decision the States
Subsequent Supreme United Chimel v. 685, 694, 395 U.S. L.Ed.2d (1969) California 2034], 89 S.Ct. warrantless searches incident to an arrest restricting “the area into which an arrestee reach in order to a might grab weapon or items. . . .” In Edwards (1969) evidentiary People however, 1106-1110 we 713], declared the Chimel rule to be to cases in which only prospective operation, applying 23, 1969). the search took (June after the date of Chimel In the place bar, case at the search now occurred more than four challenged years prior to Chimel.
Nevertheless should be carved petitioner urges special exception cases, i.e., out in capital that Chimel should be when- retroactively applied ever the judgment decrees the death In stresses penalty. support, petitioner the limited number of defendants who could take of such advantage and the ruling, of the finality But the number of gravity defendants involved is relevant to the effect on the administration of only other justice; criteria on the bearing retroactivity—i.e., question rule, integrity of the new fact-finding process, purpose reliance by law-enforcement authorities on the old rule—are unaffected by either the number of the defendants nature of their punishment. does Nor Court to believe such an is con- Supreme appear exception both U.S. 719 Johnson v. New stitutionally compelled: Jersey S.Ct. and Stovall v. Denno 388 U.S. *6 87 S.Ct. were cases example, capital in which a new constitutional doctrine was denied retroactive effect. there is Finally, no merit to that refusal to petitioner’s argument apply the Chimel rule to him and other condemned men will result in “cruel and unusual in violation of the punishment” Amendment. Eighth
Ill the voir dire of During veniremen prospective jurors were excused reason for cause of their views on the subject capital punishment. these, Of at least seven were in stricken violation of the Witherspoon rule of trial, supra,
v. Illinois was held 391 U.S. The we recognize, 510. Witherspoon. more than two before years counsel, M. Shirley examined veniremen
Upon Remy, defense being Morrison each Maxwell, and Brown,2 Cruz, expressed Burgess, Majors, When the attorney general opposition capital punishment. prosecuting will took over the announced that “We he somewhat briskly questioning, [i.e., each down the line and clear take each go venireman] one word, air so we don’t have to waste time.”3 As as his briefly good of each venireman whether- he she could the death inquired impose was, “in a in a Remy, case.” A “Mrs. proper typical question case, where all the essential elements are and where the proper present it, facts do could in a death or would feel- you justify bring your penalty, ings death against the from so?” Mrs. you doing Remy replied penalty prohibit that she “believed” she could not return such a verdict “in a case.” proper veniremen, The moved on to her prosecutor fellow quickly dispatched five more with the same of this “examina- At conclusion question.4 tion,” the each of the above named venire- prosecutor successfully challenged men “because the an in a of death in juror expressed inability bring Brown), panel (May Shirley 2The included two Mrs. A. Browns Brown and M. questioned given who were occasionally without mention names. In each instance, however, reading a fair of the context which Mrs. indicates Brown speaking at the time. Supreme remark unfortunately 3This is reminiscent of Court’s observation in judge present early that “In the case the tone was set when the trial said dire, get objectors way, wasting voir these out of the without in the ‘Let’s conscientious ’’ (391 780].) p. L.Ed.2d at any time on them.’ U.S. at asking question, you each could proper the course of venireman the “In 4In following bring responses: elicited the penalty?” prosecutor in the death No, Brown, [Shirley you your “Mr. have said I assumed Feldman: Mrs. so M.] A. answer is still the same. I could not. life, “Q. you bring guilty would them if it meant their so could not You not find if that it. penalty? penalty, A. Not for the death death Cruz, Judge “Q. right, you? about After the All I understand. Mrs. what A. it, explained penalty. I be able to turn in the would not “Q. Burgess? A. The same answer. Mrs. No, “Q. I could bring penalty? could the death A. not. You “Q. could. Majors? A. I don’t believe I And Mrs. case, you you could A. I could life im- “Q. not in a not? And would take his life. prisonment, but never finding They just “Q. jury the death make does not invoke does the rest. . . . the Court Court, but pronouncing of sentence is left to the “The Court: The mechanical within the discretion of the imposed of which shall be the determination sentence *7 finding guilty the two crimes. Do I make jury, of either of in the event myself clear? A. Yes. record, you Feldman: For the could not? A. That is correct. you “Mr. Maxwell, “Q. bring a your proper answer is that could not in the case Mr. verdict of the A. That is correct.” death penalty? challenge subsequent the basis for the to Mrs. Morrison. questioning was Similar
493 case, a consid- she has to make such should the occasion arise that eration.” of such the ambit within this record
The
brings
foregoing
clearly
Cal.
Cal.2d 614
v.
71
as
(1969)
recent decisions
Williams
[79
People
635
v.
71 Cal.2d
65, 456
Ketchel (1969)
P.2d 633],
[79
Rptr.
People
Cal.2d 857
92,
71
In re
(1969)
456 P.2d
660],
Hillery
Cal.Rptr.
case”
733,
565],
the use of the
457
in which
“proper
P.2d
Cal.Rptr.
[79
more,
Witherspoon.
by
As required
held to violate
without
question,
480,
161,
v. Varnum
Cal.2d
492-493
(1969)
People
Cal.Rptr.
[75
words in the context
the
553],
we have considered
offending
P.2d
dire;
Varnum,
the record shows
in distinction to
of the entire
but
voir
an
(1)
by
case”
here were neither
explana
questions
“proper
preceded
of each
judgment
tion that the issue
to be determined by
subjective
as “under no circum
(2)
individual
nor
such
by
juror,
qualified
language
is
event,”
new
trial
stances”
“in no
etc.
required
Accordingly,
penalty
to the
mandate of
above cited cases. (See
pursuant
Witherspoon
v.
172,
also
Teale
70 Cal.2d
512-519
(1969)
People
Cal.Rptr.
[75
Other
by petitioner
re
117],
In Anderson
In re Arguello 921]. People The writ as to the The remittitur issued granted trial. penalty Lara, v. Crim. is recalled and the imposing judgment all other is reversed insofar as it to In respects relates penalty is affirmed. judgment Sullivan, J., J., Peters, J., Tobriner, J., C. concurred.
Traynor,
to
BURKE,
I dissent
J.
from
reversal of
with respect
judgment
in all
and concur in the affirmance of the
other
judgment
respects.
hold that a new
trial is
majority
required pursuant
Illinois,
776, 88
I cannot with the tor on agree foregoing Varnum, (People voir dire in the context of the entire jurors’ responses 161, it is 553]), apparent 492-493 [75 the extent of to me that the were instructed regarding jurors adequately their discretion and that each juror death or life imprisonment, impose circumstances, would, it clear that he she under no made or unmistakably the death impose examination, dire before the commenced its voir
Shortly prosecution (which Remy, court instructed the first of included jurors panel jurors Brown, Cruz, Maxwell) M. that matter Majors Shirley Burgess, the law not of within the discretion of the does solely penalty jury; another; to find one or and that instructions would no require jury way life be them to the death given jury requiring impose penalty, if certain facts are found to be true. imprisonment, Thereafter, the his of individual prosecutor preceded questioning jurors that the state was the death that the matter by explaining seeking penalty; is left in the discretion” “unfettered of the that no law punishment jury; discretion; personal that “It is own as what governs your feeling added.) (Italics should be done.” commenced to ask various members of the
Thereupon, prosecutor if, discretion,” “unfettered jury he or she could the death having impose “in a case” or “where the facts it.” Mrs. proper justify Remy answered that believed she she could not case. impose proper Mrs. M. Brown “I not. . . . Shirley could Not the death replied, for. if that penalty, was it.” Mrs. Cruz “After the Judge responded, explained it., stated, I would be able to turn in the death Mrs. penalty.” Burgess Cruz], No, ‘The same answer . . . I could Mrs. not.” juror Majors [as “I could life but never take his Ufe.” Mr. Maxwell replied, imprisonment, stated, correct,” “That is if when asked he could not death in a impose Morrison, case. Mrs. from second after told jurors, panel being choice was left to her own stated “personal discretion” that she could not death. impose
All were made foregoing responses immediately following court’s instructions and the statements to the effect that prosecutor’s had jurors death, sole and .unfettered discretion whether to and that impose law, their own and not the must personal feelings, decision. govern *9 been misled I fail to could have see how these Consequently, jurors possibly used on voir dire. By affirming they case” terminology “proper felt, sole, their be if would unable to death even they impose discretion,1 for that a unfettered pre- personal sented, clear under no circumstances these made it jurors unmistakably so, satisfied would vote death. That clearly they being responses test. McComb, J., concurred. jurors Williams, Hillary, majority, relied'upon the excluded Ketchel and 1In to their choice of left own unfettered informed were never discretion.
personal