THE PEOPLE, Respondent, v. CARYL CHESSMAN, Appellant.
Crim. No. 5006
In Bank
Dec. 18, 1951
Respondents’ petition for a rehearing was denied January 15, 1952.
37 Cal. 2d 166
Respondents’ petition for a rehearing was denied January 15, 1952. Edmonds, J., and Carter, J., were of the opinion that the petition should be granted.
Edmund G. Brown, Attorney General, Frank Richards, Deputy Attorney General, S. Ernest Roll, District Attorney (Los Angeles), Jere J. Sullivan, Robert Wheeler and J. Miller Leavy, Deputy District Attorneys, for Respondent.
SCHAUER, J.----Defendant appeals from judgments of conviction of 17 felonies, rendered pursuant to jury verdicts, and from an order denying his motion for new trial. For convenience of discussion the crimes are listed in chronological order and numbered. Each paragraph indicates a separate general criminal enterprise, in each of which one or more offenses were committed.
January 3, 1948: (1) First degree robbery of McCullough.
January 13, 1948: (2) Grand theft of an automobile, which was used in perpetrating subsequent crimes and in
January 18, 1948: (3) First degree robbery of Bartle.
January 18, 1948: (4) First degree robbery of Ballew.
January 19, 1948: (5) First degree robbery of Lea. (6) First degree robbery of Regina. (7) Kidnaping Regina for the purpose of robbery, with infliction of bodily harm; punishment fixed at death. (8) Violation of
January 20, 1948: (9) First degree robbery of Stone.
January 22, 1948: (10) Attempted robbery of Hurlburt. (11) Kidnaping Mary for the purpose of robbery, with infliction of bodily harm; punishment fixed at death. (12) Attempted rape of Mary. (13) Violation of
January 23, 1948: (14) First degree robbery of Waisler. (15) First degree robbery of Lesher. (16) Kidnaping Waisler for the purpose of robbery, with infliction of bodily harm; punishment fixed at life imprisonment without possibility of parole. (17) Kidnaping Lesher for the purpose of robbery.
The jury further found that defendant was armed at the time of the commission of each of the crimes except that of grand theft, numbered (2) above; that he was armed at the time of his arrest; and that he had suffered two previous convictions of robbery and one of assault with a deadly weapon. Defendant was acquitted of one count of burglary. We have concluded that no prejudicial error is shown and that the judgments and order should be affirmed.
Sufficiency of Transcript
Defendant argues questions as to the correctness and validity of the reporter‘s transcript which were finally decided against him by this court in People v. Chessman (1950), 35 Cal.2d 455 [218 P.2d 769, 19 A.L.R.2d 1084]. Reexamination of these arguments and of the transcript leaves us convinced that the transcript permits a fair consideration and disposition of the appeal.
Denial of Continuance to Enable Defendant to Obtain Counsel, or to Interview and Subpena Witnesses and Prepare His Case in Propria Persona
Defendant complains that he was forced to go to trial unprepared. The situation on which this claim is based resulted from the fact that he insisted upon representing himself. The informations against defendant (numbered 117963 and
On March 12, 1948, defendant appeared without counsel. The public defender was present and announced, “We have been relieved, your Honor.” Defendant stated that he wished to represent himself. After a colloquy with the court during which defendant repeated his insistence on representing himself, the court said, “What will probably happen, if we set this case down for trial, you will want a lawyer and then ask for a continuance. If you want to try your own case, there is no way we can tell you not to. You will have to try it or have somebody hired to represent you in plenty of time to try the case at the time it is set. THE DEFENDANT CHESSMAN: I understand that. THE COURT: Because many times men with past experiences such as you have had you know the tricks of the trade, and they get a lawyer at the very last minute. You really want to try your own case? THE DEFENDANT CHESSMAN: That is correct.” Defendant pleaded not guilty; the court set April 26 and 29 as the dates for trial on the respective informations and again explained to defendant that no continuance based on his decision to represent himself would be granted. “Some time during the middle of March” Mr. Al Matthews, deputy public defender, called on defendant at the county jail and offered his services; defendant refused them. On April 26 all charges against defendant were continued to April 29 for trial. On April 29 defendant appeared without counsel, moved for another continuance, and complained that because of his confinement in the county jail he had been unable to obtain lawbooks and interview witnesses. The trial court explained to him that his decision to represent himself did not entitle him to greater privileges than other prisoners; defendant again re-
Defendant summarizes the trial court‘s position as follows: “That the calendar judge in assigning the case for trial had warned the defendant that he must be ready and that he would be allowed no continuance. That the trial court offered to appoint counsel who could have prepared a defense for the defendant. That because the defendant refused the appointment of counsel it was the defendant‘s own fault that he was not prepared, that he could not consequently complain of his lack of preparation, that the sheriff‘s regulations [of the privileges accorded prisoners in the county jail] could not be interfered with by the court, and that, therefore, the defendant must go to trial, prepared or not.” This is a fair summary of the court‘s position; that position appears correct; and defendant cites no authority to the contrary.
Defendant argues that the denial of a continuance deprived him of the right to select counsel of his choice and deprived such counsel of the opportunity to prepare. The answer to this contention is factual and appears from the above summarized history of the proceedings prior to trial. Defendant was entitled to waive assistance of counsel, and it is clear that he did so of his own volition and with full knowledge of what he was doing (Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279 [63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435]; cf. People v. Chesser (1947), 29 Cal.2d 815, 822 [178 P.2d 761]).
Furthermore, defendant did not go to trial without the services of an attorney at law. Immediately before the jury were impaneled, defendant announced to the court that he intended to accept the services of Mr. Matthews as legal adviser (not counsel) and throughout the trial Mr. Matthews was present and his legal ability and experience were available to defendant. These circumstances will be material to our disposition of certain contentions of defendant hereinafter discussed, and it will be necessary for us to refer again to the following proposition: A defendant who intelligently refuses counsel and insists upon personally conducting and controlling his defense does not lose the status of prisoner and become entitled to extraordinary privileges not accorded defendants who are represented by counsel, nor does he become entitled to proceed in a manner different from that permitted to attorneys.
Defendant contends that the trial court erred to his prejudice by consolidating for trial the crimes charged in Information 117963 with the crimes charged in Information 117964. This type of objection cannot be urged for the first time on appeal. (People v. Pearson (1940), 41 Cal.App.2d 614, 619 [107 P.2d 463]; People v. Johns (1945), 69 Cal.App.2d 737, 740 [160 P.2d 102]; People v. Beck (1945), 71 Cal.App.2d 637, 641 [163 P.2d 41].)
Defendant asserts that he objected to the consolidation in the trial court but the record1 shows that he did not. Originally the case of Information 117963, by which defendant and David Knowles were jointly charged with crimes described in People v. Knowles (1950), 35 Cal.2d 175 [217 P.2d 1] (grand theft of an automobile, above numbered (2), and two robberies and two kidnapings, above numbered (14) through (17)), was set for trial on April 26, 1948; the case of Information 117964, which charged defendant alone with the remaining crimes of which he has been convicted, was set for trial on April 29. When the first group of charges came on for trial defendant‘s motions for a trial separate from that of Knowles and a continuance were granted. All charges against defendant came on for trial on April 29. At this time the court ordered the cases against defendant consolidated for trial. Defendant asked “that these cases be returned to the Master Calendar court for reassignment” and stated at length his reasons for this request, but he did not suggest that the cases should not have been consolidated.
Motion for Change of Venue
Immediately before the jury were impaneled, Mr. Matthews stated to the court that defendant wished to move for change of venue, on grounds unknown to Matthews, and that he could have the application prepared later in the day. The trial court told defendant to state orally the grounds on which he sought change of venue. Defendant stated that he could not obtain a fair trial in the county because a prejudicial article about him had appeared in a local publication, and because the district attorney planned to prosecute another person for crimes which were similar to some of those charged
Defendant complains that he was not given opportunity to present a written, verified application as required by
Requirement That Defendant Remain at Counsel Table
During voir dire examination of the prospective jurors defendant was not allowed to approach the jury box and during the trial he was not allowed to approach witnesses on the stand. Defendant urges that he was hampered in the presentation of his case and unfairly discriminated against, since the prosecuting attorney moved about the courtroom and dramatically approached witnesses and jury, whereas defendant, in violation of
Denial of Defendant‘s Motion for Daily Transcript
Although the trial judge knew that the trial would be long, the factual issues numerous, and the death penalty would be sought, he denied defendant‘s motion for a daily
Misconduct of Prosecuting Attorney Not Controlled by the Trial Court
Regrettably, the prosecuting attorney presented his case in an overzealous manner, both in addressing the jury2 and in improperly bringing in evidence of misconduct of defendant for which he was not on trial.3 But the improprieties of the prosecuting attorney could have been corrected had there been objection thereto in the trial court. Defendant now complains that the trial court of its own motion should have interposed objections and, in effect, undertaken defend-
Admissibility of Confessions
Defendant urges that the admission in evidence of assertedly coerced confessions was not merely error but deprived him of due process. The evidence as to the circumstances under which the confessions were obtained was in conflict as to whether defendant was beaten by the police but, defendant urges, there is sufficient uncontradicted evidence to overcome, as a matter of law, the People‘s prima facie showing that the confessions were voluntary. The evidence in this respect is as follows:
On Friday evening, January 23, 1948, police officers in a patrol car observed an automobile which corresponded to the description of the one which had been used in certain of the crimes here charged. When the officers turned on their red spotlight the car, which was driven by defendant, fled. There was a lengthy chase, first in the automobiles, then on foot. Defendant was captured and handcuffed after a struggle. He was taken to the Hollywood police station and held there until Monday evening, January 26, 1948, when he was taken to the Los Angeles county jail.
On the night of January 23 defendant was questioned by police officers from about 8:30 to 10:30. On the morning of January 24 Officer Forbes commenced to question defendant at about 8 o‘clock. Defendant first denied participation in any of the crimes here concerned. Forbes told defend-
On January 24 defendant was taken to the home of a victim of some of the crimes. She identified him. Defendant testified that during this trip the officers’ conduct made it clear to him that they hoped he would attempt to escape. That this conduct was for the purpose of putting defendant in fear, he argues, is shown by the testimony of one of the officers who accompanied defendant that he had another officer “tail us in case anything happened in our car.”
The asserted confessions of the sex crimes were made on the afternoon of January 24, after defendant had talked to a police psychiatrist with whom he refused to discuss such crimes. Defendant argues that it is inherently improbable that he would refuse to discuss the matter with the psychiatrist and would shortly thereafter voluntarily confess the crimes to the police.
Officer Forbes, one of the officers who questioned defendant, testified that a bulletin to the effect that defendant had confessed to the sex crimes was sent on the police teletype at 9:15 a. m. on January 24, although defendant did not confess until after 3 o‘clock of that afternoon. This premature release of the bulletin (assuming Officer Forbes’ statement of the time of release to be correct), says defendant, shows that the officer anticipated that, although a voluntary confession was not forthcoming, a confession would in some manner be obtained.
Officer Forbes testified that it was usual police practice to have a defendant who admitted his guilt sign a written confession but that he did not request defendant to do so because “I thought it would be useless” and that he made no written notes while talking with defendant because “Some suspects will relate it and let you write it down as you take it; other suspects wouldn‘t tell you anything if they know you are taking notes.” Yet another police officer who, with Forbes, questioned defendant testified that he made a list of crimes
Further showing that his mentality was not free when he confessed, says defendant, is Forbes’ testimony that “[W]hen we were thumbing through the crime sheets, anything that we thought might fit the description of Chessman, he would say, ‘... If you want to clear your books just mark them off. I‘ll take credit for them.‘”
The above recited arguments of defendant as to the asserted involuntariness of his confessions relate to conflicting inferences of fact which could be drawn from the testimony. Those inferences were tentatively drawn against defendant by the trial judge when he admitted the confessions in evidence and, presumptively, were finally drawn against defendant by the jury in the light of all the evidence. This is not a case where the confessions are shown, on the face of the record, to have been given in circumstances inherently coercive.
Instructions as to False Confession
The jury were instructed that “If under my instructions you find that a voluntary confession was made, you are the exclusive judges as to whether or not the confession was true; and in deciding that question you should consider all the circumstances connected with the making of the statement, as shown by the evidence. But even if you should find that a confession was false, either entirely or in part, it remains, nevertheless evidence for your consideration, to be given such significance as your judgment may determine under instructions that I shortly shall give concerning false statements made by a person accused of crime.” (Italics added.) The italicized portion of this instruction was held ground for reversal in People v. Ford (1948), 89 Cal.App.2d 467, 473 [200 P.2d 867], on the ground that “If the jury had believed that defendant lied to the officers when he admitted the theft, he should have been acquitted. How they could have started with the premise that he was innocent and ended with a conclusion that he was guilty because he had lied to the officers is something we are unable to comprehend. But if this could not have been done the instruction was confusing and impossible of rational application to the evidence.” In the Ford case, however, there was only slight circumstantial
Contention that the Instructions Took From the Jury the Question Whether a Confession Was in Fact Made
Defendant contends that the instructions assume that defendant in fact confessed. The instruction quoted supra, p. 180, commences, “If under my instructions you find that a voluntary confession was made ...,” and the jury elsewhere were told that they “must disregard the asserted confession entirely unless you conclude that the alleged confession not only was made, but was voluntary.” Thus it was made clear to the jury that the question whether a confession was made, as well as its character as voluntary or involuntary, if made at all, was for them to determine.
Defendant contends that the trial court should have instructed the jury that, in determining the weight and effect of any confessions, they should consider the question of defendant‘s mental condition at the time of such confessions. In the light of the entire record the subject was adequately covered by the instructions, which include the specific direction that the jury, in deciding whether the confessions were true, “should consider all the circumstances connected with the making of the statement, as shown by the evidence.”
Omission to Instruct that if the Jury Had a Reasonable Doubt as to Whether any Confession Was Voluntary, They Should Resolve Such Doubt In Favor of Defendant
The trial court rejected defendant‘s requested instruction to the above effect. The refusal of the instruction, says defendant, improperly placed on him the burden of proving that the confessions were involuntary and was contrary to the general statement, quoted in People v. Ralph (1944), 24 Cal.2d 575, 581 [150 P.2d 401], that “the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” The requested instruction correctly states the law and might well have been given but, on the other hand, the jury were fully and correctly instructed as to the burden of proof and the doctrine of “reasonable doubt” as governing all issues of fact, and it cannot be reasonably concluded that the failure to give this particular instruction, specifically applying the general principles which were explained, resulted in a verdict different from that which would have been reached if the instruction had been given.
Contention that the Instructions Assume that Defendant Committed Kidnaping for the Purpose of Robbery
As to the counts which charge kidnaping for the purpose of robbery the court instructed the jury that “it will be your duty to determine whether the person or persons subjected to such kidnaping suffered bodily harm.” These instructions, defendant urges, improperly assume and inform the jury that kidnaping for the purpose of robbery was established as a matter of law. If we were to consider the isolated portions of the instructions just quoted, they would be subject to this criticism. But, considering the instructions
Claimed Inadequacy of Instructions as to Specific Intent
Defendant urges that the trial court, of its own motion, should have given more detailed instructions as to the specific intent to commit robbery which is an essential element of the crime of kidnaping for the purpose of robbery. The following adequate instructions were given: “In the case of certain crimes it is necessary that in addition to the intended act which characterizes the offense, the act must be accompanied by a specific or particular intent without which such a crime may not be committed ...
“[I]n the crime of Kidnapping for the Purpose of Robbery, a necessary element is the existence in the mind of the perpetrator of the specific intent to commit robbery and unless such intent so exists that crime is not committed, but
“No actual robbery need be committed, as the Kidnapping is complete once the individual is seized for the purpose of robbery.”
Defendant, relying upon People v. Snyder (1940), 15 Cal.2d 706, 708 [104 P.2d 639], urges that the instructions were insufficient because the jury were also instructed generally that “To constitute criminal intent it is merely necessary that a person intend to do an act which, if committed, will constitute a crime,” and that “The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act.” It is not reasonably probable that the latter instructions caused the jury to misunderstand the instruction as to the specific intent to rob. The Snyder case, which concerned materially different instructions and a materially different crime, does not apply here.
The trial judge instructed the jury that in prosecution for the various crimes here charged corroboration of the prosecuting witnesses was not required. This instruction was correct. The undisputed evidence shows that the female victims were not accomplices, but were acting in fear of their lives, in the violations of
Instruction as to Flight
Instruction that Jury Disregard Instructions which Apply to Facts which They Find Do not Exist
The court told the jury that “The applicability of some of these instructions will depend upon the conclusions you reach as to what the facts are. As to any such instruction, the fact that it has been given must not be taken as indicating an opinion of the court that the instruction will be necessary or as to what the facts are. If an instruction applies only to a state of facts which you find does not exist, you will disregard the instruction.”
Defendant relies upon People v. Bodey (1928), 94 Cal.App. 420, 423 [271 P. 203], where it is said that a similar instruction should not have been given; that it was confusing but not reversible error. It is defendant‘s position that under this instruction the jury could disregard any of the other instructions if they concluded that such instructions did not apply to the facts, whether such facts were legally proven or were the mere opinion of the jurors.
It does not appear that the instruction complained of is susceptible to an interpretation which would make it prejudicially erroneous. In People v. Casey (1926), 79 Cal.App. 295, 302 [249 P. 525], it was said of a similar instruction that “Although more apt language might well have been used, it appears that the meaning intended to be conveyed was merely this: That while certain rules of law had been stated,
Attempted Rape and Forcing Victim to Violate Section 288a of the Penal Code as Infliction of Bodily Harm
Bodily harm under
Statements in People v. McIlvain (1942), 55 Cal.App.2d 322, 332 [130 P.2d 131], which tend to support defendant‘s argument that the commission of the sex crimes by threat of force did not amount to the infliction of bodily harm were disapproved in People v. Brown (1947), 29 Cal.2d 555, 560 [176 P.2d 929]. In the Brown case we reiterated the definition of bodily harm as quoted above from the Tanner case and declared that “The forcible rape itself was bodily harm.” We note that the facts of the Brown case differ from those of defendant‘s case in that Brown actually struck his victim as well as raping her, but we hold that the rule of the Brown case is equally applicable here. It would belie sensibility and defame the mores of our age to hold that such treatment as the female victims received here is not the infliction of “bodily harm” within the meaning of
Defendant‘s Contention that the Evidence Does Not Support the Determination that Crimes (8) and (11), Kidnapings, Were for the Purpose of Robbery
On January 19, 1948, defendant stopped a car driven by him near a parked car occupied by Lea and Regina. He displayed a .45 automatic pistol and during the ensuing events repeatedly threatened to kill his victims if they did not obey his commands. Defendant took Lea‘s wallet, the keys to Lea‘s car, and Regina‘s purse. He then forced Re-
On January 22, 1948, defendant approached a parked car occupied by Hurlburt and Mary, pushed a .45 automatic pistol through the door, and said, “This is a stick-up.” Both victims replied that they had no money. Defendant then forced Mary to enter his car, drove to an isolated place, and compelled her to submit to sex crimes.
Defendant argues that the above summarized evidence at the most shows that he first robbed Regina and attempted to rob Mary, then abandoned his intent to rob and abducted the women with the sole intention of committing sex crimes against them. This argument is without merit. A defendant who engages in a course of conduct toward a female victim which includes robbery or attempted robbery, asportation of the victim, and the commission of sex crimes may present such argument to the trier of fact. But we cannot say as a matter of law that at some point of time during the abductions of his female victims defendant ceased to be a robber and became a kidnaper whose sole purpose was to inflict bodily harm by forcibly committing sex crimes. (See the following cases in which the described series of related criminal transactions were held to support a conviction of violation of
Defendant urges that the words “This is a stick-up” do not show an intent to rob. This is their normal implication. Defendant‘s contention that in their context in the crimes against Hurlburt and Mary they show an intent to commit sex crimes is one of fact which should not be addressed to this court. In this connection defendant presents an elaborate discussion of the question whether it is permissible to base an inference on an inference. As stated in Vaccarezza v. Sanguinetti (1945), 71 Cal.App.2d 687, 698 [163 P.2d 470], “The statement appearing in some cases that an inference cannot be based upon an inference, usually without citation and certainly without adequate discussion, does not and cannot mean that an inference cannot be based upon a fact which is itself based upon circumstantial evidence. ... The true rule is and should be that an inference cannot be based on an inference that is too remote or conjectural.”
Sufficiency of Evidence of Crimes (1), (9), and (10)
Defendant‘s arguments in this connection can be answered by briefly stating the evidence which he says is insufficient. As to crime (1), robbery, the victim testified that defendant, displaying a .45 automatic, ordered him to surrender money and he, against his will, did so. The victim of crime (9), robbery, was unable to identify defendant positively; however, the crime was committed in a manner strikingly similar to that of other crimes where defendant was positively identified; furthermore, defendant confessed to this robbery. That the evidence of crime (10), attempted robbery, was sufficient appears from our summary thereof in connection with the kidnaping of Mary.
Omission to Instruct as to Section 503 of the Vehicle Code (Taking an Automobile Without Owner‘s Consent)
As to crime (2), grand theft of an automobile, there is ample evidence (the length of time and manner in which defendant used the car) to show that he intended to steal it. But, defendant says, the evidence would also permit the inference that he took the car with intent merely to deprive the owner of possession temporarily; i.e., the lesser offense of violation of
Asserted Violation of Section 1095 of the Penal Code
Defendant contends that the ruling was prejudicial error because he wished to argue the facts to the jury but he wished Mr. Matthews, an attorney who could do so more effectively, to argue the law. It is for the court to decide questions of law and although it may permit counsel in argument to state correct law, and to discuss the application of the law to the facts, it may also refuse him permission to argue law. (See
Furthermore, even if we assume that Mr. Matthews might have argued certain aspects of the facts as related to the law more skillfully than defendant, it appears that defendant by his insistence upon conducting his own case and refusing to appear by counsel has put himself in a position where he cannot complain of the trial court‘s ruling. He made no objection thereto in the trial court; also, as stated, he was not represented by “counsel” at all. Unless a party authorizes an attorney to represent him he is not entitled to have the attorney speak for him. There was no error in refusing to
Argument of Prosecuting Attorney and Instructions to Jury as to Meaning of Life Imprisonment Without Possibility of Parole
The prosecuting attorney argued that “punishment for life imprisonment without possibility of parole does not mean what it says. Those are the words that are used in the statute defining the punishment, but that is not what it means,” because of the possibility of pardon, commutation or the Legislature‘s changing the penalty. Furthermore, he repeatedly commented that defendant “hasn‘t much to lose if you just convict him of robbery. Robbery doesn‘t mean a thing to him. No. To convict him of robbery is just like you going home. Time means nothing to him.”
The jury were apparently impressed by this argument, for after they had deliberated for a time they returned into court and requested instruction as to the meaning of life imprisonment without possibility of parole. The trial court said, “that primarily means that the person committed to prison under such a sentence will be required to serve life imprisonment in prison, and can not be paroled,” and explained that a person sentenced to life imprisonment for murder, for example, could be paroled. It went on to say further, however, as the prosecuting attorney had in his argument, that there was always a possibility of commutation, pardon, or a legislative change in punishment.4 A juror asked whether, if the punishment of life imprisonment without possibility of parole were imposed, “would there be any assurance that that party would never be free again?” and the court again pointed out the possibility of action by the governor or the Legislature.
This insistence of the trial court in emphasizing such possibilities operated to his prejudice, defendant says, and resulted in the imposition of the death penalty. He relies upon such cases as People v. Ramos (1935), 3 Cal.2d 269, 272 [44 P.2d 301], and People v. LeTourneau (1949), 34 Cal.2d 478, 494 [211 P.2d 865], in support of his contention that the trial court should not have discussed the matter with the jury and should not have permitted the prosecuting attorney to argue it.
The statements of which defendant complains relate solely to the question of punishment for the crime of kidnap-
The Holding of People v. Knowles (1950), supra, 35 Cal.2d 175, 179, that Detention During Armed Robbery Is Kidnaping for the Purpose of Robbery as Defined by Section 209 of the Penal Code, and the 1951 Amendment of Section 209
Defendant asks that this court reexamine its holding in People v. Knowles and overrule that case. His arguments are those advanced in the dissenting opinions of the Knowles case, and those rejected in People v. Tanner (1935), supra, 3 Cal.2d 279, 293-298. They were ably presented in those cases, we considered them with care, and we view the question as resolved insofar as concerns the statute as it was cast prior to the 1951 amendment.
As stated in the Knowles case (pp. 180, 183, of 35 Cal.2d), if
“Any person serving a sentence of imprisonment for life without possibility of parole following a conviction under this section as it read prior to the effective date of this act shall be eligible for a release on parole as if he had been sentenced to imprisonment for life with possibility of parole.”
The detention of the victim during the commission of armed robbery, if committed since the 1951 amendment, is not punishable under
Double Punishment and Double Jeopardy
Defendant has not been put twice in jeopardy for any offense. The doctrine of double jeopardy has no application to a defendant who is tried but once on several counts. (People v. Amick (1942), 20 Cal.2d 247, 251 [125 P.2d 25].) Defendant is correct in his contention that punishing him separately for the violations of
For the reasons above stated, the judgments and order appealed from are affirmed.
Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.
CARTER, J.----I dissent.
Because, as was pointed out in the dissenting opinions of Mr. Justice Edmonds and myself in People v. Chessman, 35 Cal.2d 455, 468, 469 [218 P.2d 769, 19 A.L.R.2d 1084], there is no adequate record upon which this court may review the judgments of conviction against the defendant, I would reverse said judgments and order denying defendant a new trial on that ground alone. A reading of the majority opinion, however, convinces me that many flagrant errors were committed during the trial which would ordinarily be held to be prejudicial and require the reversal of a judgment of conviction. In fact, the only way I can rationalize the majority opinion is that those concurring therein feel that a person charged with 17 felonies of the character of those charged
EDMONDS, J.----The judgments of conviction, including two which carry a sentence of death, are affirmed upon a record which, admittedly, is not a complete transcript of the proceedings before the trial court. As I pointed out in People v. Chessman, 35 Cal.2d 455, 470 [218 P.2d 769, 19 A.L.R.2d 1084], the transcript omits certain pertinent testimony and was made up in a manner which does not comply with the Rules on Appeal. It was certified by the trial judge as a substitute for a correct record and was considered by him “... as the basis of establishing a transcript on appeal.”
Manifestly, this court could not make “an examination of the entire cause, including the evidence” as required by the Constitution (
For these reasons, and without considering other points presented by the appellant, I would reverse the judgments of conviction and remand the cause for a new trial.
A petition for a stay of remittitur and appellant‘s petition for a rehearing were denied January 15, 1952. Edmonds, J., and Carter, J., were of the opinion that the petition for a rehearing should be granted.
Notes
The prosecuting attorney in argument was summarizing evidence of one of the robberies when a juror asked, “Isn‘t that grand theft when it is over $500?” He replied, “It is true, Mrs. Vamos, that I could from the penal code give you at least a half dozen particular crimes that I know he has committed that he is not charged with here. ... You are correct. It is grand theft, because the amount taken was over $500. But robbery is a different character of crime than grand theft, although we could charge him, we just didn‘t do it. ... It is a violation of the deadly weapons act for ... a man who has been previously convicted of a felony, to ... have in their possession this gun. He is not charged with it. It is just one of the other things. I can think of some other crimes which he has committed such as assault with a deadly weapon. We did not charge it. I would have to stop some place or we would be talking here all day. I do not want to do that. Don‘t let those things bother you too much.”