*1 Dist., Div. Four. Mar. Second 1963.] 7765. No. [Crim. Respondent, v. RAYMOND Plaintiff and PEOPLE, THE Appellants. al., Defendants and et FINCH BERNARD *4 Cooper Nelson, Keith, & Maxwell S. Harold J. Ackerman, Jerry Bringgold and Donald R Giesler for Defendants Appellants. Stanley Mosk, Attorney General, William James, E. Assist- Attorney General, Ringer, ant Deputy Attorney and Gordon General, for Respondent. Plaintiff and
JEFFERSON, Angeles County The Los Jury Grand an charging returned indictment defendants murder, *5 of 187 of Penal Code, violation section in I, count and conspiracy murder, to commit in violation of section 182 of Code, in count II. the Penal Several overt acts al- conspiracy leged count. The first and jury in second being in mistrials declared resulted because of in- trials agree jurors upon ability of verdict. In a third guilty both defendants were found of jury trial, conspiracy murder; Finch was guilty defendant to commit found of mur- degree, Tregoff and the first defendant guilty der in of degree. in the second On issue of penalty murder jury imprisonment defendant Finch’s sentence at fixed life Tregoff’s penalty counts and both defendant the con- imprisonment. at life for a spiracy count Motions new trial Defendant Finch was sentenced to life were denied. im- Tregoff Defendant prisonment on both counts. was sentenced prison prescribed by for term to state law on count I imprisonment on count II. life Sentences were and ordered concurrently. appeals Each defendant to be served from the from the judgment denying of conviction and order the mo- for new trial. tion jury Before the commencement the third trial defend- acquittal pleas prior ant entered of conspiracy, Finch for- degree murder, once jeopardy mer conviction of second in alleged. Tregoff as to both counts Defendant plea entered a prior acquittal conspiracy in jeopardy and once for the special pleas same offense. were submitted to the pleas. found on each of
and the such only necessary present It be an will outline of the evi- challenge sufficiency Finch dence since defendant does Tregoff challenges only respect thereof defendant it sustaining against conspiracy her of the verdict to com- mit murder California. State Mrs. Finch were married in Doctor and December 1951. previously Both had been married divorced. She had daughter by previous marriage. April In son, 1953 a Raymond, was born to Doctor and Mrs. Finch. Dr. Finch operating a a brother-in-law were medical and city clinic family hilltop of West Covina. The lived in a home overlooking city. Tregoff employed reception- In 1955 defendant became August ist at the medical of 1956 she center. became secretary. Dr. veloped An relationship Finch’s medical illicit de- becoming between the which culminated in her two interlocutory his mistress. She obtained an decree of divorce January of 1959. from husband In 1958 Mrs. Pinch relationship learned of the meretricious and on March complaint Pinch was served with a Dr. divorce an sought to show cause which Pinch temporary order Mrs. support. alimony and child May During living and June through Vegas, there, Nevada. While an Las intermedi- Cody. Cody she met one Jack testified ary, substance that him hired to murder Pinch the defendants Mrs. and that he $1,000 in paid accomplish the sum of cash to was Cody this act. *6 nothing money paid nor, for the him according did testimony, anything. did he ever intend to his do Both defend- Cody meeting they ants admitted and admitted hired him. purpose However, they asserted their to obtain was evidence against might pending be Mrs. Pinch in the used divorce to kill action and not her. frequent Vegas a in Pinch was visitor Las for Defendant seeing purpose paramour. evening In the his late July plane Vegas. a 17, 1959, Pinch took Las He car- large an him a suitcase and attaché case.
ried with Carole airport they met Pinch at the and talked until the July evening early morning day hours of 18. In the of that driving in Treg- the two started West Covina defendant They carrying them an off’s car. with attaché case con- taining revolver, a .38 a cartridges, knife, live butcher two hypodermic needles, syringes, two two 10-foot coils of laun- liquid dry rope, flashlight, pill form, a in seconal and Upon they in West other items. arrival Covina various Country parking parked in Hills Club lot at about the South p.m. position directly in a almost below the Pinch 10:30 p.m. approximately 11:40 the West At Covina residence. maid, Department a from the Pinch received call Police police Two cars arrived at the Pinch Ann Lidholm. Marie midnight one of the officers home about discovered body lying Pinch on the back Mrs. lawn of the home of adjoining Pinch’s father defendant Pinch’s home. defendant gunshot as a of a Mrs. Pinch met her death result wound approximately 2 from to 4 in the back fired a distance feet. supported prosecution’s contention that de- The evidence preconceived plan came to West Covina with the fendants they property murdering on the Pinch Mrs. Pinch. Once ar- lay for her. When she concealed themselves and wait seeing garage into without defend- home she drove rived ' ants, getting of her car Pinch out As she causing a skull fracture which gun a butt her with struck tempo- bleeding her left ear. was stunned from She produced struggle a between and Mrs. recovered, rarily but Dr. Tregoff withdrew garage. Defendant Pinch ensued the house. herself bushes near and hid from the scene During help. Her call struggle Pinch called for Mrs. The latter entered the by Marie Ann Lidholm. answered lights. garage She saw and turned on the side door standing lying the floor and defendant Pinch Mrs. Pinch up Lidholm, off the to Miss switched Pinch rushed near her. against grabbed her and knocked it the wall three lights, head get into car. At first she He told her to more times. holding gun. Pinch was Then she noticed not do so. did got into back seat of the car. and she He fired shot get get car Pinch to into the car and Mrs. Pinch told passenger side. Pinch entered on keys. got She you get said, “If don’t them side and then he the driver’s ran you.” Pinch left the car and toward the I’ll kill garage Mrs. Ann Pinch also rushed out of the ear. Marie door. help heard shout and heard second Lidholm shot. parties struggle culminated with Mrs. Pinch The between the running garage from her father-in-law’s house toward behind Miss Lidholm went back into with Dr. Pinch the house her. police. called the gun that Dr. a deliberately prosecution claimed Pinch had pursuit him when his wife and he seeking refuge at her father-in-law’s; shot her while she *7 pursued in range he her and shot her the back at that close gun her skull with then fractured the butt and while she ground. lay her back on the fiat on Pinch claimed the second was accidental; Defendant shot garage struggle in the when that the started Mrs. Pinch her- upon produced gun being approached from the car by self seeking to talk her; to that when the two defendants Mrs. garage gun left the she had the and Pinch that Dr. Pinch purpose taking of it her; her the from chased that he during gun struggle another brief driveway on the seized accidentally attempting while he was and it fired to throw it away. Tregoff shrubbery Defendant remained hidden in the eventually driving fled the scene her own car back to Las Ve- appropriated Finch gas. Defendant someone else’s automo- Vegas. Tregoff to Las and fled Defendant him bile found in day He apartment. was arrested the next in Vegas. Las Both defendants prejudicial contend court committed jury error in its failure to submit to the certain instructions special pleas on their of once in jeopardy, former convic- acquittal. tion, former Defendant Finch contended that already acquitted he had been conspiracy the offense of jury to commit in murder the second trial which voted unanimously acquit him to of the Likewise, offense. he con- already he tended that had been convicted the offense of degree murder in the second because aof verdict of that jury. same He asserted this verdict failed to determine the degree of the crime of therefore, pursuant murder and to provisions of section the Penal Code, the de- gree must be construed be that to of the lesser crime, murder degree. this case in the second He contended no judgment was rendered these judge verdicts because the presiding failed, neglected, at that trial and refused to re- prevented them therefore judgment ceive being from thereon. rendered pleas
Defendant Finch’s of once in jeopardy for the conspiracy offenses murder and upon were based the ac- judge tion declaring second trial a mistrial discharging jury having without received these ver- entering judgment dicts and without thereon. similarly Defendant contended that she had been acquitted conspiracy of the offense to commit murder be- jury unanimously cause at the second trial voted acquit her of that offense. She also contended she been jeopardy conspiracy once in for the offense of because this jury guilty found her same not of such offense.
Eight jurors of the from the second trial were testify called Although third trial as to their at deliberations. wholly agreement appears on all details it testimony from their that on October the foreman jury of the at second trial summoned the bailiff and agreement him indicated to had reached disagreement three counts but were on one if and asked judge accept would such a verdict. bailiff said he judge say later would ask the and returned that the keep deliberating. said to judge inquired open On November 7 the they court as to whether had arrived at a verdict and they jurors thought hope- told the foreman that 11 lessly deadlocked, not; they did one had taken 59 bal- *8 lots. The court declared mistrial. requested trial
At the third each defendant of the special interrogatories be that certain submitted to the court jury, interrogatories These which the court refused. would jury jury the to determine whether the in the have asked 27, 1960, upon the trial on did decide follow second October guilty ing Finch, as to defendant of murder in verdicts: degree guilty conspiracy and not to the second murder; commit guilty Tregoff, conspiracy as to defendant murder, guilt to commit “undecided” to her or inno charge murder; judge presiding cence on the whether the jury the bailiff at second trial informed that the were reached three verdicts but as to one undecided specifying one; of the counts without which and whether judge upon receiving the information did forthwith jury brought open be cause the prosecuting attorneys, to into court and there in presence defendants, both their counsel and the they jury any ask if had reached verdicts. jury special pleas
In connection verdicts on these court of defendants the at the third trial availed itself of privilege commenting its constitutional on the evidence. jury questions The court instructed that the of whether or not the facts established jeopardy, former former convic- acquittal questions tion or former of law. The court part that, my opinion, stated in “it is both as a matter of fact, no any law and that verdict or final determination of preceding and, issue was ever reached obviously, trial rendered, verdict was declared, no ever or recorded in you I court. therefore advise find to for the against required the defendants on I am these issues. you, so, you accept inform and do that need not this advice disregard you wish, are free to it if because the final judgment yours.” in the matter must be Defendants assert since there was a conflict testimony eight juror witnesses as to whether ver- agreed upon been dicts had it was incumbent on jury. at the third trial submit factual issue to the special pleas jury court The did submit deter- True, mination. he on the commented evidence as was his privilege jury but he left the decision ultimate to the they them were not told bound to follow his advice. The case was submitted to the March 1961.
following signed day, March 23, verdicts favor
762 People special pleas. of on the the These were returned together with their other on verdicts March 27. judge’s We find no error in the jury comments to the or procedure by respect the pleas. him with special followed to these Assuming judge that jury in the the second trial had been unanimity informed the had reached as to fourth, three counts and was undecided to he was un legal jurors duty der no to instruct the return to to court in order permits render to verdicts. Section 1160 of the Penal Code jury separate the to make a return of its verdict on charged. each when more than (People count one count is Rigney, v. 55 236, Cal.Rptr. Cal.2d 246 625, 359 P.2d [10 23].) requirement in law, however, There no requiring judge the part trial verdicts on receive the counts and jurors return for the further deliberation as to the other Clearly, a matter judge’s counts. this was for the discre lengthy tion. The second trial been even more nearly more than the first; arduous it had lasted four produced daily transcript months and had 12,593 pages. prosecution It was to the interest the and the every defense that effort be made to reach a final deter mination actuality, jurors as to all counts. some testified that which had been ballots taken had been merely jurors reserving with the right tentative to re rereading after consider their votes mony. of certain testi by upon out
This is borne the fact that their final jurors acknowledged they return hopelessly court the agreeing any deadlocked without to a verdict count. Superior Court, As stated in Paulson v. 58 Cal.2d 649, Cal.Rptr. "Ordinarily 372 641], 7 P.2d the trial [22 judge discharge ground jury not should that there probability jury agree is questioning reasonable that the can no without jurors individually probability. as to such ‘The provide just statute does not what [Citations.]
proceeding shall probability be taken to determine the anof agreement, but no better method occurs to us than to obtain jurors expression from an judgment, their court, it, may in the exercise of the discretion committed to weight opinion give surrounding such to this as the circum ” procedure seem to demand.’ This stances [Citations.] here. followed It unreasonable jurors in the second trial could assume that agree reach or on a verdict to direct them to continue discharge jury by deliberating. The ultimate an abuse of discretion. be said to be cannot the court “ length kept of time the should be delib discretionary judge.” with the matter trial erating ais Cal.App.2d 223, 228 P.2d Casserio, 16 (People v. [60 505].) Sullivan, Cal.App.2d As stated applicable is sec : “The statute P.2d 645] except as Code, which declares that the Penal 1140 of tion discharged provided law the cannot be otherwise they agreed them until have submitted to cause is after the open court, it in unless upon and rendered their verdict expiration parties ‘unless, at the of such consent of both *10 satisfactorily appears may proper, it deem the court time as probability that the can reasonable there is no ’ clearly judge, trial commits to the not to agree. This question or of the whether not jury, the determination the ” probability agree.’ that the can ‘there no reasonable the trial court defendants contend committed Both testimony admitting relating to in the error reversible Five witnesses were called of mind” of the deceased. “state by A testify Mrs. Finch. brief made to as to statements is as follows: The summary state of mind evidence represented Finch in action attorney the divorce who Mrs. May 16, 1959, him that on defend that she told testified her; her house and beaten on ant Finch had broken into May 18, with her 1959, him of an altercation hus she told May place 15, on Finch had that defendant band which took in gun, with a choked her and that she was fear hit her her someone Las life; that Finch told he had in of her pay to kill her. he a thousand dollars Vegas to whom could May morning in the maid testified that one middle Her “My said, night;” to kill me last Finch husband tried Mrs. that bandage on her head and said showed maid she get her in her clothes on and take out the car he to tried push going going the car over a cliff and he was and was to in something; in do her off the desert and to take edge the bedside table and de- struggle fell over the she put and hospital, had taken her down to fendant Finch on in testified she saw blood himself. The maid stitches quarrel pillow bed; that she overheard Finch’s Mrs. hall and ran down the bedroom; that the deceased in the police; Finch told defend- her call the that Mrs. asked to you push going to let me around am not Finch “I ant floor.” throw me from the action affidavits divorce were offered into Certain May
evidence. One such affidavit the deceased dated part “Many cruelty read follows: acts inflicted plaintiff on her . defendant . . is under severe [deceased] upon due nervous strain by to the inhuman acts inflicted her impossible and that it be would for her to work any capacity many evening months ... Raymond May 15, 1959 defendant Bernard Finch threatened your plaintiff take life did in fact [deceased] attempt strangle damage her did in fact her to the ex- that numerous stitches were in her tent head.” Another affidavit from divorce action was read into part stating 25, 1959, evidence that “on June defend- plaintiff’s home, ant broke into struck [Finch] [deceased’s] her her and called vile abusive names.” Another af- July 7,1959, part, specifically dated fidavit stated “that 25, 1959, your defendant entered the home of plaintiff; June her and struck her to ground; attacked locked the door housekeeper that the so could render assistance ... presence of your plaintiff’s the minor child . . . took auto- mobile force as a result of plaintiff ... this attack has injuries been under a care for doctor’s serious sustained to brutally her back when she was beaten to the floor.” Helrich, witness, A Mrs. testified she observed deceased on one bandage when occasion she had a over eye; her de- pushed ceased told her defendant Finch had “hit her and her and held her down and threatened her with life in sev- ways got up eral . again . . she somehow and he hit her very *11 hard.” Deceased further told her she did not know “wheth- er his blow or whether what she hit when she went down the but cut, up caused when she woke there was all blood over ’’ lying; where she was on that another occasion he had thrown her across the room and that she hit the wall floor in- and jured her back. Deceased further her people told that were trying get carry gun to to her a if that and she ever saw the gun a run; defendant with she would that she even didn’t hope to live until Christmas; hiding far that as as con- was use, cerned it no he her; would follow that defendant obey Finch not restraining would order. gave Minette testimony Haber similar and related con- versation with Mrs. on day Finch the before she was killed. Mrs. Finch said that Finch had told her that if she didn’t something he contempt of court back would that do take 24 hours. within including the from hearsay testimony, the Such affidavits superior action, by court files divorce was offered the theory chief on part their ease in as that were to Mrs. Finch admissible show declarations these state of mind. her People Hamilton, Cal.Rptr. In 55 Cal.2d 893 [13 473], Supreme Court to 362 P.2d referred the ad- missibility of mind as of state evidence follows: “Undoubt- case, edly, proper proper testimony in a and manner, as declarant, of mind’ where there is an ‘state is- (p. The 889) in the case is admissible. ...” court noted sue rested it was after the defense had that the prosecution, that objections, introduced evidence of defense the declara- over “. . only the effect that of decedent .to tions she but he had afraid of defendant that her threatened with many occasions, beaten her had and death had forced his against . on her her . . But attentions all of these will. hear- say declarations were admitted to show ‘state of mind’ of purpose not for [decedent], of proving and the truth of charges. trial ruled that ‘state of mind’ was put in issue because the defendant had mony it in issue his testi- he friendly, that and and that she [decedent] had night him her home invited that she was killed. These admitted, ostensibly declarations were to show that [dece- friendly defendant, was not with and dent] that her ‘state of mind’ was such cast testimony.” as doubt on defendant’s Likewise, case at bench the state of mind evidence was offered to show the deceased inwas mortal fear of gone husband and for that reason would never have home July night suspected 18 had she known or defend- there; ants away would be that she would have driven being seen them; guns, she afraid of she did not have her husband’s .38 her in car, gun the Tregoff she did not draw point it at defendant that defendant Finch would not her skull gun fracture strike her with the happened. self-defense as he Clearly, contended had in this ease, Hamilton, as in (her state of mind of the deceased Finch) properly fear issue. pointed Hamilton the (pp. court out that 898- 894) rigid : “. . . are there be should limitations on the testimony. admission of such . . When the . declarations are obviously of such a nature to be prejudicial, and where *12 any possible proper prosecution benefit to the is far out- weighed by prejudicial its effect to the accused, such evi- (p. 895) dence should be excluded.’’ The court noted further : “. . some of the otherwise admissible declarations . of the de- (as to her fear of cedent as defendant because threats well great declarations) as the mass inadmissible were not they prob- made under ably trustworthy. They that indicated circumstances by were made to ex- [decedent] carrying gun, plain why trying a when she she was escape jail going doing so.” The decedent in carrying gun many Hamilton had been arrested for a by her the declarations which were received evidence had following police made to officers her been arrest and were suspect perhaps having falsely merely been made therefore justify carrying weapon. her to testimony fact that police in the main of consisted statements of of- (p. 893) ficers had cumulative effect which court stated jury repeatedly, mainly through . was to tell the “. . officers, of law enforcement that on mouths innumerable oc- sexually beaten casions defendant had assaulted his former to kill wife and had threatened her.” by In the case at Finch, hand the declarations Mrs. evidence, which were received were not made under cir reliability; cumstances which east doubt as to their she was compulsion any charge under no to free herself of criminal aá Furthermore, was the deceased Hamilton. unlike Hamil parade ton, pre there was no of law enforcement officers senting testimony. Here, testimony the state of mind personal friends, her maid, lawyer, her two doctor injury who had treated her for her June addition to superior her affidavits taken from the divorce files of the court. argued It is engaged that the fact that Finch was in a Mrs. proceeding husband, divorce with her which divorce ac sought community property
tion she all parties, casting suspicion did have the effect of as to the truthfulness friends, statements made her her doctor, lawyer Finch, about the conduct of her husband. Mrs. how compulsion ever, tifying testimony jus under no to manufacture position in the divorce case since she had known of the adulterous conduct between her husband and defend early ant at as December 1958. least as Further more, expressed the record that Mrs. indicates Finch will ingness proceedings to enter into brought by reconciliation dispel any This would tend to inference that her husband.1 if one could be avoided or that her divorce wanted she *13 a case which would to build result her be main concern was community Also, assets. there was ing other sub awarded the supporting the declarations she made to evidence stantial house; installed chains the doors of the others; she had jack kept bumper bed; beside her she left home twice death, staying away she preceding her during the last two months returning only long intervals, when her husband was ab for very, very nervous, extremely she testified was ; sent witnesses weight losing Thus, could not eat. the fact upset, was living apprehension was in a Mrs. Finch state of fear and amply by borne out circumstantial evidence. The cir under which cumstances the statements were made Mrs. such, the witnesses who to them Finch to opinion, testified our testimony “reasonably render the trustworthy.” as to p. 893.) (Hamilton, at past Certain of the evidence referred conduct Finch,
of defendant as did the mass of the evidence in ruled admissible in In Supreme Hamilton. Hamilton the Court “ (pp. 893-894), stated . . . there rigid are and should be on the testimony. limitations admission of such One of testimony is these limitations that such is not admissible if solely alleged past it refers part conduct on the of the try separate accused. This is so because to state of from charges mind the truth of the impossible is an almost prejudice task. The serious from such evidence is obvious. When the declarations are of such a nature as to be obvi ously prejudicial, any possible proper and where benefit to prosecution outweighed prejudicial is far its effect to the accused, (Italics such evidence should be excluded.” added.) portions
In Hamilton of the state of mind evidence were prejudicial: held “By prose- to be these declarations the through jury, mainly cutor was able to tell the the mouths officials, law enforcement that on innumerable occasions brutally ex-wife, beaten had his and otherwise very way jury assaulted her. a not subtle it told the what kind of man it was that was before them . . . trial. inevitably t must follow that if the believed that [I] only in fear it life, of her because de- [decedent] fendant had in fact beaten assaulted her. and otherwise proceedings 1 Defendant Finch testified he had not filed the conciliation delay. good purposes faith but for impossible prejudicial to limit the in- Logically, it type hearsay
flammatory effect of this evidence.” (P. 896.) brutality
Here, himself testified to his own Pinch fight evening fatal with his wife on the shoot his hearsay ing. did not have to resort to testi Thus concerning past mony actions of the defendant to arrive at type of man it was that was before conclusion as to the during fight he Pinch testified that them on trial. jerking her down, and fell tripped, flipped his wife around began calling wall; him her head struck the she so that her; he heard help; her feet out from under he kicked gun away back, from steps, pulled her head wrenched the cement; her with it and she fell back on the her and hit entered, fearing rifle which he maid that she had a when the up against use, taught he shoved her how to began banging against and she plaster, wall, her head position; in a half-seated saw Mrs. Pinch sag; he saw *14 had a basal coming ear, her and realized she out of blood to get car; in the he intended fracture; her to skull he told seat; he de hospital and her on the ear her the sat take to give them keys her if she did not and told manded the car got of out “slug her”; Pinch going to Mrs. him he was keys. purse He searching for the her while he was the ear driveway but not point gun up her the he saw the testified gun from her and knocked the him; he her wrist at seized it to throw picked up gun “went about the he hand; when he away; 2 feet away off”; Pinch was it went Mrs. and He crumpled bottom. steps at the the moved down she during the head the struck his wife over that he had stated gun; wrestling the more fighting there would be no so un have why he couldn’t was reason he admitted there no garage. gun out of the the or walked loaded in under the circumstances this Thus, it cannot be said testimony as to Mrs. Pinch’s dec- of witnesses ease that the her, prior toward inter- Pinch’s conduct larations about of his threats and with her statements as it was woven prejudicial and inflam- him, had the fear of could have Here, the in Hamilton case. matory which it had effect had full reason to Mrs. Pinch jury believe that could well testimony his own her husband from mortal fear of be in shooting. night of the her on the his conduct toward 899) (p. that Supreme Court noted Hamilton In he had asserted that again prosecutor] “Again [the proved the truth of the matters asserted in the declarations deceased, he knew only when ‘evidence’ of them was the declarations themselves.” example, Por he accusatory read the declarations in contained the deceased’s diary argued they correctly depicted hap- what had pened days. on those defendants, in us, While both the case before contend that argument prosecutor in his repeated to the made portions of references to certain without, the state of mind testimony particular instances, in explaining the limited purposes testimony such received, for which such isolated instances must be read in their context and it cannot be upon said a review of the record this case that the repeatedly admonished as purposes limited for which such evidence was received. Unlike Hamilton prosecutor wherein the court criticized the for failure to which the evidence was to explain purposes for limited opening statement, received, be his in the case at hand quite prosecutor circumspect in his reference to testimony opening such his statement. It is noteworthy defendant Pinch that counsel for their opening state brief ‘‘ gave that the trial admissibility . . . thought considerable to the the ‘state of mind’ evidence thoroughly subject searched the cases California with the aid of People counsel both the and defendants. He came to the conclusion that the state of mind evidence was admis- authority primarily sible under the v. Atchley, 53 160, 171, 764], provided, Cal.2d P.2d . . . of course, prove that none of the declarations were offered to the truth fact, assertions contained therein.” counsel con- “ in admonishing cedes . . the court was assiduous . jury throughout purpose the trial as to the limited repeat- formal state mind evidence and his instructions jury were to consider this ed how the evidence consistent prior with his admonitions.” *15 Atchley, 160, People 764], 172 P.2d In v. Cal.2d [346 objectionable type of evidence was not
it hearsay. held this as was prove ‘‘It tended to her fear court declared The claim defendant, which was relevant to defendant’s that of par- struggle gun.” in The aggressor for she was the Atchley of consisted which was received ticular evidence just days judge two to a the decedent a letter written made alleged that the defendant had It before death. of addition told his license and certain car sales without (without limit- The letter of her fears him. and threats of mind the state instruction) was admitted to show ing actually threats were not to show that the and the decedent hearsay us, admitted evi- before As in the case made. past Nev- allegations of conduct. interwoven was dence of the evidence that the admission court ruled ertheless particular of that under the circumstances proper and prejudicial. not case was 776, Brust, 47 Cal.2d 784-785 People 480], v. P.2d [306 In theory important long of the defense was that a an contin- of conduct of the course decedent provocatory culmi- ued nated point bringing to capacity defendant where his impaired. theory Under this deliberation for cool hostility expressions of to defendant tended to victim’s hostility. of the existence actual “Evidence of cir- show would tend to excite anger which defendant’s cumstances may be admitted on victim defendant’s behalf against his provocation passion, tending to show and therefore degree excusability a lesser or lower class of crime. . . . on the afternoon before she was killed the Declaration [that get going to touch with she defendant stated victim money out of relevant, more ... is also get some him] pro- of the victim’s intent to a declaration behave is for it [Citing vocatively defendant. . . . death toward cases.] necessity hearsay creates resort to declarant being present declarations, existing of a those state manner in a natural and not under mind, made circum- carry probability suspicion, of trustworthi- stances ness.” the circumstances each case which must It responsibility weigh the trial has
govern and determining whether the ing circumstances such particular accused of the declara effect to the prejudicial prosecution. any possible outweighs benefit tions Hamilton, supra, 894.) at v. 55 Cal.2d (People Merkouris, 1], 52 Cal.2d P.2d threatened the vic that declarations certain prove of that fact admitted, the truth di tims were of the victims. prove fear in the minds rectly, but to certain circumstances that ‘under declared court has “This par- at a prove a state of mind are admissible declarations ap- time, before or after although uttered time ticular particular circum- theory under these parently “ continuity enough has he of consciousness stream stances [t]
771 expect may to find the same characteristic for that we so up [Citing or down current.” authori- distance some (People Hamilton, supra, v. 55 Cal.2d ties.]’ [Citations.]” 881, 894.) Tregoff asserts Defendant that none of the state of testimony her related to and therefore it mind should not against as admitted evidence her. been The trial have objection theory conspir such on the that a overruled court charged having the state of mind of acy been the deceased as conspirators testimony made the one of admissible Furthermore, disregarding against charge, conspiracy both. evidence warranted in concluding since Tregoff aided and that abetted defendant Finch in killing of Mrs. Finch against actual it was admissible her against him. ruling well as We hold that this was correct repeated under the that admonitions court and its respect to the final instructions to such state of there was error in mind evidence no the admission of it for purposes limited for which it was offered. Tregoff contends Defendant the court committed error in receiving testimony given by in evidence certain her at de preliminary hearing fendant Finch’s at a time when she was privilege against The defendant. not self-incrimina I, article section 13 of the tion under California Constitution is be claimed it It must waived. is settled that a witness required privilege, to claim this is it a purely per solely privilege, sonal the benefit of the witness and that (Rogers is deemed waived it unless invoked. v. United States, 367, 438, 340 370-371 U.S. S.Ct. 95 344, L.Ed. 19 People White, v. 378]; Cal.App. A.L.R.2d 557 [12 ; Eiseman, Cal.App. P.2d 1078] 250 [248 716].) P. Tregoff The record reflects that defendant did not claim privilege against the preliminary hearing. self-incrimination at defendant Finch’s testimony freely Her and volun tarily given. The appeared fact she as a witness response subpoena imply to a compulsion does give testimony against During herself. her examination the dis attorney prior her if trict asked to the death of Mrs. Finch she had sexual Finch, intercourse with Dr. to which she replied, “No, cheap this relationship.” was not a ques repeated tion was replied, prefer then “I and she not to an judge swer it other than I presiding did.” When the at the hearing her told her nonresponsive answer was that he said, sorry, she “I am I waiting for her answer am
was sorry” crying, whereupon judge commenced de- bailiff to take the witness and a recess directed clared chambers. stepmother into his While defendant her composure recovering in chambers the told was her *17 particu- whether she the he did not care answered that up the was to her and that not; that decision question lar contempt. regard it as a He a refusal to answer he would according trial, her, testimony to his at the say to that did curiosity among spectators a lot of and tension the was there you, hearing stated, think, “I if I were I re- at would the by answering question, up but the that is that tension lieve your part. you. voluntary You can answer it purely is It please.” it, you just as or not answer proceedings, recess, resumption the after the Upon the ready ques- answer the her whether she was judge asked question repeated she answered it in the the was ; tion affirmative. concerning questions presence at followed other Several prosecutor crime, point at which the an- the
the scene
suspicion
her on
of murder. The
to arrest
his intention
nounced
trial that he
his
at the third
first formed
prosecutor testified
complicity and determined to have her ar-
of her
suspicion
charged during this recess and not before. Prior
rested and
preliminary hearing it
commencement
to the
prosecutor
police
knew of the
and the
that both
clear
But it is
attachment between
two defendants.
amorous
developed up
had
to that
apparent
that no evidence
been
directly involving
plan-
point
defendant
either
in the
murder of Mrs. Pinch or
execution of
ning
murder.
prosecution
formed a firm
time which the
first
sus
at
deeply
more
Tregoff was
involved
picion that defendant
quite important for
killing
becomes
of Mrs. Pinch
the actual
Finch,
cases as
71 Kan.
such
State
793
reasons outlined
v.
People
Nachowicz,
v.
liminary hearing, in which questioned by concerning officers Finch, the murder of Mrs. she was ad officers, signed vised statement as follows: say “Anything may I be used as evidence in a court law.” She advised the officers she had told the truth and 774 testify. willing go to giving to court and Prior to this Vegas the Las officers cautioned her statement that she was compelled give say to the statement if rot and that she did might anything against it Thus, be used evidence her. forewarned, although
in fact, she was
the officers were un
duty
legal
rights.
no
whatever to advise her of her
der
Hoyt,
People
(People
306,
29];
v.
20
314
Cal.2d
P.2d
[125
Cal.App. 204,
Ramirez,
60].)
113
207
P.
v.
[298
Tregoff also contends
trial
Defendant
court erred in
refusing
to instruct the
lesser included crime
Jury
manslaughter.
respon
instructions must be
issues and are
sive to the
determined
the evidence.
(People Carmen,
768,
281].)
v.
36 Cal.2d
772-773
P.2d
[228
agree that it is reversible error to refuse a man
We
slaughter
charged
instruction in a
where murder
case
manslaugh
and the evidence would warrant
conviction of
support
If, however,
ter.
there is no evidence that
would
manslaughter,
part
conviction of
it is not error on the
manslaughter
(People
the trial court to refuse
instructions.
People
43,
Zilbauer,
534];
44 Cal.2d
50
P.2d
v.
v.
Sutic,
[279
People
;
Alcalde, 24
turning requested verdicts, its the trial court to answer the following question; degree “Does a 2nd verdict on I Count guilty contradict the verdict on Count II of defendant, one guilty degree while other is found of 1st guilty conspiracy I II?” Count Count The trial jury’s question “My court answered the as follows: an ‘no,’ there no swer is conflict.” considering jury’s question the trial in the may have
case before us considered it the broad nontech- proposed nical to whether sense as forms of verdicts beyond legal powers be would void and negative sense, return. Considered in that his answer in the *20 776 jury if in proper. could, The its wisdom it was fit to saw rendering so, proceed- do return such verdicts without the Quite ings judge properly, the have void. could reread to jury conspiracy, the the degrees instructions as the of responsibility one
murder and the of who aids and abets assuming an But another to commit offense. he had done so jury the would have remained in doubt still as to the query judge apparently, quite its which the answer to and beyond jury’s it logically, considered to be: Would be the jury in legal power to such verdicts? That fact the return actually verdicts, if to return such there was no intended legal impediment doing so, by was borne the toward its out actually minutes returned 20 later. verdicts Ditson, Cal.Rptr. 165, v. In 57 Cal.2d by jury: 714], the trial court asked the 369 P.2d “ conspiracy ‘Assuming exists, criminal commit murder conspir necessarily follow all members of that that would it ” degree?' The acy guilty murder in the same Su of be preme of case the Court that the circumstances that held by proper given could affirmative answer and jury. were that case defendants not have misled conspiracy of murder charged with both the crimes and not Ditson, Thus, in the case before us. as was done who and correctly advised the that those aided answer necessarily would in the of the murder abetted commission Here, there degree. in the guilty of murder same be in crimes. chain of events separate and distinct two Cody culminating in the hiring defendants volving the of jury, was Covina, if believed sufficient trip to West Thus, murder. conspiracy to commit crime of to constitute guilty been found Tregoff could have Finch defendants killing actual entirely independently of of offense this Finch. of Mrs. conspiracy separately count, from the under Considered have found both could defendants
the evidence of murder of Finch guilty the crime Mrs. the second the two degree. They have decided that had aban could Mrs. Finch killed or kill to have their intention doned they awaited her their asserted her peaceful and that themselves over; purpose talking matters the actual by lying by any in wait or was not killing Dr. Finch part premeditated killing the defend other kind have could circumstances defendants ants. Under these degree. second It guilty murder been found jury’s finding with the would not have conflicted of them conspiracy Thus, a guilty guilty on the count. verdict of Tregoff conspiracy on count of defendant II and of murder degree necessarily on count I second in conflict case; under the circumstances this and the Ditson case (People Ditson, supra, 415) clearly Cal.2d distin guishable.
The evidence showed that defendant Pinch did the shooting, actual aided abetted *21 of commission the act. 31 of Under section the Penal Code equally thus, eyes both were in of guilty; the law what Tregoff crime Pinch ever committed defeendant committed. degree In that sense the verdicts of first as to Pinch and degree Tregoff conflict, as to second defendant do neither but complains appeal of defendant conflict. this if Even complaint lodged, however, finding by a jury such guilty Tregoff of offense, defendant the lesser murder in degree, would not the second vitiate such verdicts nor be Tregoff. prejudicial to It defendant would have no adverse on defendant Pinch. effect Since the evidence warranted Tregoff jury holding guilty the gree of murder in the first de complain finding she cannot of a more to her than law and favorable the evidence warranted. (People Thompson, Cal.App.2d 620, v. 193 627-628 Cal. [14 Rptr. citations.) 512], Powell, As stated v. Cal.2d that 205-206 [208 “It cannot be doubted a 974], trier of P.2d fact has power, often extralegal exercises because of obvious apparent reason, or for no factors to a guilty find degree or of a lesser class crime than that shown Furthermore, evidence. even if it be assumed that the trier erred when he guilty only fact here found defendant manslaughter, defendant cannot invoke reversal on an is appellant error which favorable to him. An [Citations.] precluded complaining from that he was convicted of a guilty lesser offense than the one of which he is according undisputed evidence, according or to that view of the which, indisputably appears, the evidence cepted. it trier fact ac-
[Citations.]” Even if we giv assume that the court erred in not explanation ing query by a full of its answer to the jury, question there remains the of whether character and require of that error were effect such as reversal under circumstances, having regard due to the terms of section of article VI of the Constitution. We are of the 4½ opinion reasonably probable it is not that a result more favorable to defendants or either of them would have been reached in the absence of complained the error If anything, error finding by of. resulted in a more favorable to one defendant than the law and the evi dence warranted. It no effect whatever on the other defendant, consequently under no consideration would (People warrant a Watson, reversal. 46 Cal.2d 243].) P.2d Tregoff Defendant also contends the in evidence is sufficient as matter of law to sustain the verdict of con spiracy since, conspiracy if shown, there was place it took outside the of California. Tregoff State Defendant urges punish the law California does not for an act committed only partly California, unless the act amounts to an attempt. part Section 27 of the Penal Code reads as follows: persons following punishment “The are liable to under the persons
laws of commit, this state: 1. All who whole any part, crime within this state . . original object conspiracy was to have Mrs. by Cody Pinch murdered whom defendant con tacted in Defendant Pinch Nevada. traveled Nevada and *22 participated arrangements Cody. in Whether or not Cody actually intended to murder Mrs. the witness Pinch consequence. Cody paid by no is of hired and defend purpose killing ants for the Pinch. He Mrs. came to Angeles July express purpose killing on 3 for the Los July by Tregoff. on Mrs. Pinch the date set defendant Vegas July He returned to Las on the 5th of and told her jewelry Pinch, taken her he had killed Mrs. as instructed Tregoff by burglary, to simulate and left defendant body parked in the trunk of his car behind a He school. photographs of Mrs. in he taken Pinch death which said Tregoff get asked to He told her he defendant see. would time, according Cody, paid him It was at this she them. Later defendants both more. talked with $800 $900 very Cody, informed him his wife was much and Pinch Cody Angeles July back to Los Pinch sent alive. saying Cody Vegas job be done. returned to Las had to day someone to the next told defendants he had hired telephone job Pinch when the kill Pinch and would Mrs. Again gave him to “take care of it $100 Finch was done. personally. ’’ Cody nothing did further. Finch and Tre disclosed defendants Thus the evidence par Nevada, goff conspired partially County, in Clark tially Angeles County, Mrs. Finch and to kill in Los conspiracy they in fact drive from this did furtherance of Las apparent Vegas Covina, It is West California. evidence drew the inference from the partly conspiracy the defendants crime of committed evidence partly Direct Nevada and California. conspiracy. required Circumstantial to establish may upon. Experience has demonstrated evidence be relied only conspiracy can be estab general proposition a that as a significant It is most lished circumstantial evidence. Cody had not that when defendant kept Jack discovered bargain Tregoff told Finch, his to kill Mrs. defendant him, Jack, you it, do “Well, if don’t it doctor will do it, and if I’ll it.” All the elements the doctor doesn’t do do conspiracy proved. were The voluminous record reveals the defendants fairly guilt tried. The evidence of their is clear and convincing. Judgments denying of convictions orders the motions are new trial affirmed. J.,
Burke, P. concurred. FORD, J.* I concurin the determination judg that each ment of conviction be must affirmed. However, my judgment an given by erroneous answer was the court to response jury’s question to as to whether “a degree 1,” second verdict on count the murder charge, guilty would “contradict verdict on count 2 con [the spiracy charge] of one while the other defend guilty degree ant is found first on count 1 guilty (See conspiracy People count 2.” Ditson, v. 57 Cal.2d Cal.Rptr. 415, 449 165, 369 714]; P.2d State Ochoa, [20 v. N. 614-615].) M. 589 P.2d 609, Error of [72 that nature necessary makes a careful consideration of the record for the purpose determining prejudicial. whether it was In this appear reasonably ease it does not probable to be that a result more favorable to either of the defendants would have been reached in the absence of such error. Conse quently, it cannot be said that has miscarriage there been a justice. (See Watson, 46 Cal.2d 818, 836 *23 243].) P.2d
*Assigned by Chairman of Judicial Council. petition appellant rehearing appellants’ petitions hearing April 1963, for a denied Supreme May 8, denied
by the Court were 1963. 89. Fifth Mar. No. Dist. 1963.] [Civ. BURGE, Appellant, Plaintiff and v. CHARLES EDWARD Respondent. MICHAEL, Defendant and E. MICHAEL, Respondent, Plaintiff E. CHARLES BURGE, Appellant. EDWARD Defendant Cases.)
(Consolidated