*1 379 No. 12539. In Bank. June 19, 1969.] [Crim.
In re H. B. Corpus. SEARS on Habeas H. B. Sears, pro. per., McGurrin, and Thomas M. under appointment by Supreme Court, for Petitioner. Lynch, Attorney
Thomas C. General, Harris, Jr., Albert W. Attorney General, Granberg Assistant Deraid E. and Eric W. Deputy Attorneys Collins, General, Respondent. for TOBRINER, jury 1961 a (here J. In found B. Sears designated defendant) inafter eodefendants, Donald Sears, degree guilty Ketchel and Thomas first murder degree robbery. first impris reached a verdict of life penalty onment for defendant and rendered death verdict (1963) for his codefendants. In v. Ketchel 59 Cal.2d Cal.Rptr. 538, 394], 503 381 P.2d judg we affirmed the judgment defendant; ment became final. Defend corpus brought petition ant this for a writ alleging of habeas Bruton v. United States and Roberts Russell S.Ct. 392 U.S. 1921], require 88 S.Ct. that the remit People Ketchel, supra, titur in 59 Cal.2d recalled as be him. We have should be issued, concluded writ thе re- judgment mittitur of conviction reversed, recalled] court, The trial proceedings. further for cause remanded trial, per- separate for a motion denying codefendant. of,a of the mitted the introduction instruction, introduc- limiting Despite rendition of *2 federal con- his to denied that confession tion of holding. the Bruton under confrontation right of stitutional Furthermore, such evi- possibility that find a reasоnable we defendant; the error the verdicts dence contributed (Chapman reasonable doubt. a harmless was not 705, 87 S.Ct. 386 U.S. California 824].) in this case in involved summarized the circumstances We 538, 381 Cal.Rptr. 59 Cal.2d parts quote we this action purposes of 394], For the P.2d opinion. p.m., Ketchel and about 8:45 Friday, June “On Monterey Park. Star Market Thomas entered the Sears respective near the up at her checkstand Each held cashier gun his in hand as he stood with market’s entrance. Each money from the cash drawer to take the waited for the cashier paper bag. The two robbers left the put it in a and brown guns money. They put market, carrying bag his their each through rapidly or ran apparently walked belts, public alley leading into parking of the market down a lot sports coats, slacks, hip-length Strеet. wore Alhambra Both Meanwhile, soon as the robbers left glasses dark and hats. emergency alarm eheckstands, pressed the cashiers hidden buttons. ‘‘ Elder, policeman Monterey off George Park who was parking T-shirt, dressed in and drove into the duty and levis time Ketchel and Thomas Sears lot at about parking facing the end of the lot approaching a shed at parked car, appаrently his saw the Alhambra Street. Elder suspicious circumstances, at some distance under two robbers fleeing began pursued robbers, them. As he chasing and ‘Halt,’ then, or and when the two robbers called out ‘Hold it’ shed, he parked cars and started ran between the behind firing. ‘ ‘ separated, and Sears darting In the melee Ketchel Thomas trying to reach the ears. Both were the car between parked left Alhambra Street feet distant from on some. alley. shot, one with the Ketchel fired which intersection street. As lay Elder and caused him to fall to the struck gun, directing there, Elder fire his his shot continued to toward running waiting car the two who were in that and robbers alley, escaped turned into the direction. Ketchel down general street, own, took cab to the ultimately, and town waiting car, turned Sears reached of Whittier. Thomas ‘geta- and made his Elder, fired several shots at then way’ in the car. bullets, gun from was struck two Ketchel’s
“Elder either shot was gun; and one Thomas Sears’ sufficient to from brought surgeon autopsy have . about his death. . . testi- immediately fied opinion Elder did not die from the bullet wounds but remained alive for short time until hemorrhages precluded ensuing continuance vital body During ability functions. interval Elder retained spеak. see, hear persons surrounding shooting
“Several witnessed the help events. One testified that as he Elder who was in the lying street, said, middle of Elder ‘Star Market suspects Three in a ’49 have'been shot. Ford. Call police, police, police, police.’ call the call the call the approached Another witness said that when he Elder about time, mumbled, okay. the same Elder ‘I’m Tell it them was ’ . . *3 . blue white Ford. witnesses, driving market, from
“Other the heard the ex- change gunshot, speed turned around and saw car through them approaching the any darkness head- without lights. police robbery Meanwhile the the had received alarm began checking answering and general cars the description given in the p.m. radio call. evening About 9:30 the police stopped a sedan, maroon-colored 1949 Ford which was being driven H. occupied by B. Sears and Thomas Sears. interception took'place This from miles the Star Market and mile the apartment. police half from Sears’ The searched interrogated the car and possession men as to their money finding concealed weapons; neither, or police, cheek, a 10-minute them released both.
“The record reveals who, some conflict as to at the time of crime, 9, 1961, June owned this 1949 According Ford car. pink slip, Ketchel, owner, transferred ear 8, 1961, H. B. subsequent Sears on June but talks with the police H. B. Sears buy maintained that he did not the car 11, from Ketchel until June Monday, 12, 1961, 1961. On June slip H. B. took Department Sears to the of Motor Vehicles for transfer. ‘‘ apparently This 1949 car damaged was pierced shooting; bullet the windshield and another who, policе officers rear door. dented the left struck and notice car, stopped the crime, night of on the door. rear did see the dented but damage to windshield 10, Saturday, June he and on admitted that H. B. Sears days that, later, he few and changed windshield Ketchel primer. ear with a white painted the arrested in Whittier on and H. B. Sears were “Ketchel part voluntarily in the confessed his 15, June 1961. Ketchel maintaining involvement, denied all B. Sears H. crimes but with his evening 9'he had been of June during the entire spent good Tommy, and or with his brother girl friend bowling*alley. of the time at a deal ‘‘ Phoenix, Arizona, and apprehended in Sears was Thomas him in police officersvisited on three California June set- voluntarily made a confession jail time he there. At that robbery of the detail the circumstances ting forth in some Sears, and he had dе- B. He that H. murder. stated to rob a small market. cided on the afternoon of June finally se- apartment and near their They ‘cased’ the area about the car and Seats drove lected the Star Market. B. the market. p.m. Street near parked Alhambra 8:30 on guns, car, Ketchel, carrying left the both Thomas Sears walking through the market. entered robbed the While Street, leading Alhambra parking alley into lot toward the direction; started they heard the shots fired lean running. In the fracas Thomas Sears saw Ketchel thought shot. Meanwhile Thomas Sears a tree and he had been car, waiting and, thinking that saw bullet strike Sears, in firing brother, H. B. trying the man was to shoot his gun. gunfire, emptying returned the car, Thomas Sears B; his brother H. Thomas Sears then entered the car with Sears, scene, leaving Ketchel they drove from the money mеt Later the three and divided own the street. $954). (some police Thomas Angeles Los officers returned with
“The 18, 1961, Ketchel, Thomas- Angeles. On Sears to Los June brought together in *4 and H. B. were a room of Sears Sears police Angeles Los substation. Three officers inter- Sheriff’s then them them for about 20 minutes and left alone in viewed tape crime; recording men the room. The three discussed police conversation; of their one of the officers was made speaker part through talk which was heard their loud recording equipment. conversation, said, In the Ketchel ‘I my nothing part. copped They got out else. copped out to I to holding ‘I’ve out said, me B. Sears then been ... cold.’ H.
383 holding the hell all didn’t know what this was about. I been you guys. this is out account of I don’t know what all retorted, Somebоdy’s . going about.’ ‘I’m dead . . to get gassed.’ go replied, right. guys Sears ‘All You B. on. Sign gas. your holding But I’ve out statement. Get been be- going They you cause I don’t know what’s on. said killed a Well, nobody.’ man. kill pro- I didn’t As the conversation gressed, said, you Thomas ‘I know I told Sears didn’t. them ’ the truth. I did it man.
“At the trial H. B. Sears in his testified own defense. He 9, arranged evening 1961, stated that to June 'couple alley. meet a girls bowling aat While he was driv- ing they poliсe there with brother, p.m., searched, about 9:30 the car was and after some 10 checking they minutes were released. Both then returned to apartment, car, proceeded by their left the taxi to the bowling girls since the alley; come returned midnight apartment.” (59 pp. their about to Cal.2d at 514- 517.) jury trial instructed the coúrt it could not con- determining
sider the of Thomas guilt Sears B. or innocence of H. Seаrs. The returned a verdict finding guilty degree defendant and his codefendants of first degree robbery. judg- murder and first This court affirmed against ment defendant. light
The Attorney
“in
Bruton
General concedes that
v.
States,
476,
87 S.Ct. sét standard which we must judge whether the admission of Thomas Sears’ confe'ssion consti- Chapman tuted reversible In error. thе court considered California, whether a violation of the rule Griffin *5 1229], forbidding com 106, 85 L.Ed.2d S.Ct. U.S. 609 [14 error, defendant, could be harmless silence of a ments on the in harmless that case. The and, so, the error was if whether adopt stating “all federal con a rule that declined to court circumstances, errors, regardless of the facts stitutional (386 p. 21 harmful” at always deemed U.S. must be adopted approach court the p. 709]). Instead the at L.Ed.2d Fahy Connecticut, expressed in previously U.S. it had “ question is ‘The 171, 84 S.Ct. : whether 229] complained possibility that the evidence is reasonable a there . . . There is might to the conviction.’ have contributed of Fahy in our statement little, any, if difference between pos is a reasonable ‘whether there about State Connecticut of complained might have contrib sibility thе evidence that a requiring beneficiary the to the conviction’ uted beyond a reasonable that prove doubt error constitutional complained did not contribute to the verdict ob the error meaning than to the "We,therefore, do no more adhere tained. hold, do, we a Fahy when we now that before of our case harmless, can held error be the court federal constitutional it was harmless to declare a belief that must be able (386 23-24 710- doubt” reasonable 824]). 711, S.Ct. following that evidence Attorney contends the
The General third conclusively defendant as the member of pointed to so “beyond guilt defendant’s a rea- trio it established that consequence doubt,” that as the introduction sonable of, “did into evidence brother’s ’’ against defendant. contribute to the verdicts persons had three crime 1. Evidence that committed police robbery in dying officer, describing The a wit- ness, Eyewitnesses ’49 suspects said: Ford.” “Three as Thomas Sears Donald identified two of the robbers Attorney Ketchel, person. the third The no identified but argues “persuasively” established General participation persons Yet the offi- of three present persons tha.t three at cer’s statement The possibly link defendant the crime. state’s itself cannot proof point any contention fails at this because of lack person. that defendant was the .third holdup Evidence vehicle 2. drove the after defendant robbery-murder testimony police contends General he been driv- officers and the admission defendant that holdup holdup p.m. 9:35 after the when ing vehicle about intercepted the officers them, constitutes evidence that defendant served as third member of trio. Defendant testified at the trial that he saw his driving brother Ketchel’s just p.m., making phone car little after 9 finished pay call from a girl booth to his His friend. brother the car; entered, taking driver’s because seat younger not trust his driving. brother’s *6 testimony
We hold placing cannot in defendant the holdup than robbery- vehicle more one-half hour after the murder established a reasonable doubt defendant’s presence participation at, in, and the contrary, crimes. To the opportunity had ample brother within that period discharge person up to another the car, pick from the defendant, place and cover the short distance to the where the officers them. concerning holdup
3. Evidence ownershiр the vehicle of to According pink the on slip, information the defendant purchased holdup vehicle from on 8, Ketchel June 1961. Defendant, however, on all owning occasions denied car on date, purchased that but rather stated Sunday, he on June 11, 1961, changed registration Department with of Motor Monday, Vehicles on 1961. Í2, June He stated that he placed pink slip the date June 8 on as рur- the date of chase because Ketchel, seller, that was the date that had inserted. theAt time of defendant’s arrest the officers failed purchase. ask him the date of When the officers informed robbery him they investigating that and murder that 9, on 1961, had occurred that men in- June three had been volved, and that used, Ford he owned had been “ retorted, defendant ‘Well, my it wasn’t me wasn’t it ” response car.’ He question la.ter stated to a whether he “ anyone, Nobody my had lent car ‘No. drives car but ” ownership me.’ At all times he denied Ford on the date of the ‘‘ Attorney argues persuasive independent The General that petitioner acquired ownership established that had holdup day vehicle the the crime.” evidence, before Such robbery-mur- accurate, even if does not link defendant to the owning der. a.t all times denied the car Defendant before June 1961, belonged and stated when 11, that car Ketchel he 9, Furthermore, rode in on 1961. it with brother June even date, if had defendant the car that fact .owned would npt presence holdup establish his scene. Defendant driving he him stated that the car when met his brother .was p.m. night. after Repair holdup
4. vehicle 10, 1961, Defendant admitted at the trial that on June purchased helped replace by Ketchel the windshield old not, however, for Ketchel’s he did remove the car,- did not who Defendant also admitted know had done so. prior replacing repainting the vehicle left rear door 1961, purchased to. arrest but after the- on June 11,1961. vehicle on June Attorney contrary,
Despite the assertions to the General’s repair after the crimе fails to establish the vehicle person. most, as defend- the unidentified third At knowledge part on his ant’s actions can be construed damaged commission of that the vehicle been the crimes during some sort of fracas. Taped among on June
5. conversation three defendants the three defendants were cus- On June while among them tody, conversation sheriff’s officers recorded alone in а room. The when were left which occurred prosecution into parts of conversation evi- introduced objection all defendants. dence over the *7 portions following of conversation General cites the “ holding implicating ‘H. B. Sears: “I’ve been defendant: I hell was all about. been out. I didn’t know what the this this you guys. I don’t know what is holding out on account right. guys go said: “All You all about.” Later defendant hоlding out your gas. But I’ve been Sign on. statement. Get They you a going I said killed because don’t know what’s on. nobody.” I Thomas Sears answered: Well, man. didn’t kill you it, the truth. I “I know didn’t. I told them ’ ” man.” “ in ‘Are Ketchel asked: Later the same conversation ” paper?’ us to make statements to the going to allow “ ” Defendant ‘You sure made few.’ Ketchel: answered: ” Defendant: They’re making “‘Yeah. a few theirselves.’ “ you ‘Tommy works, confеssed And, confessed? to the whole They something. gen- don’t know. works, to the whole or Don, Tommy erally say you confession and or that made the something. Somebody’s papers, or made a confession ’ ” doing talking. been lot of any knowledge of or what Defendant denied involvement statement that throughout the conversation. His going was “holding “holding out on been out” account 387 you guys,” protestations whеn taken with his continued knowledge going on, innocence and lack was do of what negate his are with an innocence. Such statements consistent intention not to confess to crime he did not commit or not to give any- his regarding information as to brother and Ketchel thing he might have known of their involvement. When objected portions defendant’s counsel to the introduction of evidénee, the cоnversation into trial court indicated it that did not think defendant’s statements constituted an admission or confession. Defendant’s statements fail to fur- any independent nish substantial was evidence that he man in third testimony
After reviewing cited General, we have concluded evidence submitted against conclusively guilt did not defendant so establish his into introduction evidence of his brother’s confession did not Applying contribute to the verdicts him. Chapman,
standard of we must conclude that the this error case was not harmless to certainly defendant.1 We cannot “Upon conclude an record, of the we examination entire possibility might can conceive of no reasonable that the error materially any juror have arriving influenced at the verdict (People in this case.” v. Modesto Cal.2d Cal.Rptr. only 427 P.2d which 788].) placed holdup confes at scene of the was the sion of his brother. Without that confession the record reasonably remains could have believed inconclusive; testimony. None of evidence cited Harrington distinguish it from Cali 1The facts of clearlv tliis case 89 S.Ct. a recent 395 U.S. fornia Chapman. expression Supreme applying of the States Court United robbery-murder There, through implicаted- Harrington in three codefendants eodefendant, extrajudicial took the confessions. One who subjected cross-examination, Harrington’s stand was testified to presence gun. Harrington pres with a himself scene admitted at, flight from, defendants, hut ence with the other having gun. prosecution placed him denied at Several other witnesses also scene. against Harrington The Court so concluded “the case was over- whelming that we conclude that this violation of Bruton was harmless doubt, (Harrington California, supra, a reasonable . . 284, 287, 1726].) 89 S.Ct. *8 only placing confessions the instant In case the defendant at the scene of extrajudicial was the crime Neither eodefendant ine. the two the codefendants. took stand so that defendant could cross-exam- presence At all times defendant denied his Harrington participation apply in the crime. does not here. beyond a Attorney discussed, proves General, heretofore not,con- did reasonable Thomas Sears’s confession doubt that finding guilty of first tribute to the verdict degree robbery. degree murder and first not the burden General has sustained supra, 18, to imposed Chapman California, U.S. prove beyond the introduction of a reasonable doubt of Bruton v. United Thomas Sears’s in violation the verdicts States, supra, contribute against defendant. recall the remittitur grant corpus,
We the writ habeas Cal.2d v. Ketchel B. Sears issued judgment of Cal.Rptr. 381 P.2d reverse the pro- and remand the cause for further him, conviction as to ceedings in accordance with this decision. Sullivan, J., and Moli-
Traynor, J., Peters, J., Burke, J., C.. pro tern.,* nari, J., concurred. application for deny dissent. I would
McCOMB, J. corpus. habeas 19, 1969.] Bank. June No. 12718. In
[Crim. Corpus. GREY ALLEN on Habeas In re JENNIFER * Assigned Judicial Council. the Chairman