*1 May 7, 7070. In Bank. 1963.] No. [Crim. Respondent, v. DONALD PEOPLE, Plaintiff THE and THOMAS SEARS, KETCHEL, H. B. FLOYD Appellants. SEARS, Defendants EDWARD *9 Markey, Jr., Christian E. McGurrin, Thomas R. and Ben- jamin Dreyfus, appointment by under the Supreme Court, ¿tender Dreyfus Garry, Fay &McTernan and for Defendants Appellants. Stanley Mosk, Attorney General, William James, E. Assist- Attorney General, Gregory ant and N. Taylor, Deputy Attor- ney General, Respondent. for Plaintiff and TOBRINER, J. Ketchel, aged 24, Donald Thomas Edward aged Sears, 19, and his brother Sears, aged 26, B.H. were guilty robbery degree found in the first and murder in degree. jury imposed the first penalty death Sears; Ketchel and Thomas H. B. Sears sentenced to life imprisonment. appeals of Ketchel and Thomas Sears (Pen. are automatic Code, (b)); subd. H. B. Sears § appeals judgment, from denying the order his motion for denying new trial and the order his motion for dismissal under Penal Code, appeal may section 995. The latter’s properly be appeals considered with the joint automatic defendants. v. Turville explain We shall ruling the reasons for judg- our that the guilt ment on the issue of of all defendants be affirmed; should to H. B. Sears should be judgment of conviction as that the penalty affirmed, judgment the death as to but that the as to and Thomas should be reversed because of Ketchel Sears prosecution urging prejudicial the deter- error of the penalty. rent effect of such by appellants under the
We consider the issues tendered points urged of, first, to the reversal as basic divisions guilt; second, points urged for on the main trial issue third, penalty; the trial on the issue of the con- reversal as to grant improperly a contin- that the court refused tention appellants’ hearing motions for new trial. uance prejudicial error occurred in we have concluded Since imposed penalty upon the death the trial on the issue of Sears, Thomas we see no reason to discuss the Ketchel and *10 penalty reduce that and arguments that this court should punishment penalty constitutes cruel and unusual that such California and in violation of the United States Constitutions. 9, 1961, 8:45 Friday, p.m., about Ketchel and June On Monterey in entered the Star Market Park. Thomas Sears respective up a at her checkstand near the held cashier Each gun Each with his in hand as he market’s entrance. stood money take from the cash drawer the cashier to the waited for paper put bag. a The two robbers left the it in brown and market, money. bag They put guns carrying his their each rapidly apparently through or ran the belts, walked their public alley leading a market down into parking lot slacks, hip-length sports coats, Both wore Alhambra Street. Meanwhile, glasses and as soon as the robbers left hats. dark pressed emergency hidden cheekstands, the cashiers alarm buttons. policeman Monterey
George Elder, a Park who was off T-shirt, parking duty drove into the dressed levis and and ap- and the time Ketchel Thomas Sears were lot at about parking facing Alham- proaching a shed at the end lot apparently parked ear, his saw two Elder bra Street. suspicious circumstances, under and at some distance robbers began pursued fleeing chasing robbers, As he he them. “Halt,” then, and when the two out “Hold it” called parked shed, ears and behind the he ran between the robbers firing. started darting separated, melee Ketchel and Thomas Sears In the trying car Both were to reach the the cars. between 75 feet distant parked Alhambra Street some left on had alley. shot, Ketchel fired one with the from the intersection and him to fall to which struck Elder caused the street. As lay gun, directing fire his there, he Elder continued to his waiting shot car and two who toward the robbers were general running in that direction. Ketchel turned into the alley, escaped street, ultimately, own, and his down took a town of cab to the Whittier. Thomas Sears reached waiting car, Elder, turned and fired several shots at and “getaway” then made the car. by bullets, gun
Elder was two one from struck Ketchel’s gun; either and one from Thomas Sears’ shot was sufficient brought to have about his One bullet death. entered Elder’s tongue produced cheek, left cut into his a hem- massive pierced orrhage; right proceeded lung, the other toward produced heart, hemorrhage. autopsy a and also sur- geon opinion in his Elder testified that did not die immedi- ately from the bullet wounds but remained alive for short ensuing precluded hemorrhages time until the the continu- body During ance of vital functions. the interval Elder re- ability see, speak. tained the hear and persons shooting Several witnessed surrounding stopped events. help One testified as he Elder who lying street, said, in the middle of the Elder “Star hold-up. Market I suspects have been shot. Three in a ’49 police, police, Ford. police, Call the call the call the call the police.” approached Another witness that when said Elder time, mumbled, okay. about the same Elder “I’m Tell ’’ them it was ... blue and white Ford. witnesses, driving Other from market, heard the ex- change gunshot, speed turned around saw car through approaching any them lights. darkness without head- *11 police robbery Meanwhile the received had the alarm began checking answering description general and given cars the p.m. in call. evening the radio About 9:30 the police stopped sedan, a maroon-colored 1949 Ford which was being occupied by driven H. B. Sears and Thomas Sears. interception place This took 2 miles from the Star Market apartment. police and a half from mile Sears’ searched interrogated possession the car and the men as to their finding money neither, police, concealed weapons; the after a check, 10-minute released them both. who, The record some as to time reveals conflict at the 9, crime,
the 1961, June owned this Ford ear. Accord- ing pink slip, the owner, ear to transferred the Ketchel, the 8, subsequent 1961, B. on but in talks with
H. Sears June buy police B. he the H. maintained that did not the Sears 11, Monday, from 12, car Ketchel until June On June 1961. to Department slip the 1961, took B. Sears the Motor H. Vehicles for transfer. apparently damaged at
This 1949 car was the scene of the pierced shooting; bullet the windshield and another one struck police the rear officers on who, and dented left door. night stopped ear, crime, of the did not notice the damage did see the rear windshield but dented door. Saturday, 10, B. admitted that on June he H. and Sears changed days that, later, and Ketchel the windshield few painted primer. the car a white he with and H. in Whittier on Ketchel B. Sears were arrested June voluntarily part 15, Ketchel confessed in 1961. involvement, maintaining B. all crimes but H. Sears denied during evening the entire of June 9 he had been with his girl Tommy, spent good and or with his brother had friend bowling alley. deal the time at a apprehended Phoenix, Arizona, in and Thomas Sears was police 17, three California officers visited him on June voluntarily jail a confession in there. At that time he made setting robbery forth some detail the circumstances Sears, that H. Ketchel and murder. He stated B. and rob a on small had decided the afternoon June They apartment near their and “cased” the area market. finally drove the car Market. B. Sears selected the Star H. parked near p.m. on Alhambra Street about 8:30 and carrying guns, Ketchel, both left Thomas market. Sears walking the market. While and robbed ear, entered alley leading into Al- through parking lot toward the direction; Street, they shots fired their hambra heard the they running. In fracas Thomas Sears saw Ketchel started thought been shot. Mean- against a that he had lean tree car, waiting 1949 bullet strike while Thomas Sears saw firing trying to shoot his and, thinking that the man Sears, car, returned H. B. Thomas Sears brother, gun. then entered emptying his Thomas Sears gunfire, from the Sears, drove with his brother H. B. car Later the leaving in the street. scene, his own Ketchel $954). money (some divided the three met and with Thomas Sears Angeles police returned officers The Los Ketchel, Thomas Sears 18, 1961, Angeles. June to Los On Los together brought in a room and H. Sears were B. *12 Angeles police Sheriff’s substation. Three officersinterviewed for them about minutes and then left them alone in the crime; tape room. The three men discussed the a recording police conversation; was made of their one of the officers through speaker part heard their talk a loud which was of recording equipment. conversation, In the said, Ketchel copped my part. copped “I out to I nothing out to else. They got said, me cold.” H. B. Sears then been “I’ve hold- ing I out ... didn’t know what the all hell this was about. holding you guys. I been out on account of I don’t know what this is all about.” Ketchel “I’m retorted, dead . . . Somebody’s going get gassed.” replied, H. B. Sears “All right. guys go Sign your gas. You on. statement. Get But holding going I’ve been out I because don’t know what’s on. They you said Well, killed a man. I nobody.” didn’t kill progressed, As the conversation Thomas said, Sears “I know you I didn’t. told them the truth. I did it man.” At the trial H. B. Sears testified his own defense. He evening 9, 1961, stated that in the arranged of June couple girls alley. meet a ing a bowling at heWhile was driv- they brother, stopped by there with his police were p.m., searched, about 9:30 the ear was and after some min- checking they utes were Both then released. returned to apartment, proceeded by their left car, taxi to the bowling girls alley; they since the did come returned midnight apartment. about to their analysis points urged by appellants We turn to an for guilt. reversal as to the main trial the issue of alleged improper 1. The admission into evidence the tran- script tape recording. alleged a. The lack admission the tran- foundation for script. Appellants that the trial contend court erred ad mitting transcript tape into of a recording evidence appellants conversation of the three which occurred when were left alone a room at the sheriff’s substation. They prosecution lay proper claim that the did not founda transcript, tion admission of the its content was unintelligible that its introduction violated the best evi explain why preju dence rule. We shall we have found no any respects. dicial error in of these appellants’
Officer Brown listened to conversation over a tape simultaneously loudspeaker; the conversation was re- corded. About week later a Brown, Officer OfficerLawton and reporter spent *13 approximately days playing three and re- playing recording attempt the in an decipher tape, the identify distinguish the voices and they the conversation; findings reporter. then dictated their to the The recorded 45 minutes or an conversation lasted hour. trial all requested At the counsel judge that the trial hear tape authenticity the compared and determine transcript the of the tape recording. with judge The trial refused, saying, rulings tape “I recordings. can’t make on many I have lis- tape recordings tened to these times . . . of most them many unintelligible, are of them.” Instead, judge the trial copy portions took a of transcript, marked that were ad- purported confessions, missible as admissions or and deleted portions vulgar expressions other that of pro- consisted
fanity. verify Officer Brown took witness stand to the tran- script. transcript He stated that the correctly represented the conversation that he had heard over loudspeaker; that sufficiently he was familiar with the voices of appel- the three distinguish lants to be able to transcript them. He then read from the portions
the marked judge that the trial had ruled admissible. Concededly, aas foundation for its admission, the
accuracy transcript tape of the of a recording must first be (People Wojahn (1959) established. Cal.App.2d 169 ordinarily While judge a trial tape recording will listen to a accuracy determine the of transcription (ibid,.), procedure this does not constitute establishing the exclusive method for authenticity. its In Cal.App.2d v. Wootan Cal.Rptr. 833], officer who listened to the conversation at the time recording transcript testified that recording accurately reflected the discussion. In the instant case, reading before the of the Officer transcript, Brown tes accuracy. tified to its Appellant points out that the force of Wootan is weakened by the fact that transcrip- defendant there testified that the accurate; tion was we that note the case nevertheless illus- purpose. trates the use of the Appellants officer also point out that court Wootan said: “Inasmuch as the point urged appeal is not on the that the record the con- incomplete versation was evidentiary so as to be without value, pass question (P. we 485.) without discussion.” appellants believe, however, We do not could success- fully incomplete demonstrate that the record here is so as to evidentiary short, be without value. In we cannot find that prejudicial error from the derives fact that the court did not compare transcript recording with the in a situation in actually which officer who heard the conversation when accuracy transcript. to the of the recorded, it was testified prior appellants’ to trial all Moreover, counsel listened to recording; opportunity were accorded a full an- alyze discrepancies it for and to cross-examine officer Brown any points. questionable completed After Officer Brown appellants’ testimony, recording counsel heard the a sec- sought ond time. None to recall Brown for further cross- examination. Dabb Appellants’ objection reading second to the transcript ground rests on the unintelligibility the admitted parts recording. fact, however, that “a record *14 ing may entirety not be clear in require its not of itself does evidence, may testify its exclusion from ‘since witness ato part of a conversation if appears that is all he and heard it ’ ” intelligible. (People Dupree (1957) to be v. Cal.App.2d 156 60, 39].) Appellants complain 68 P.2d further that the [319 days decipher fact that “it took almost three to ... an hour tape certainly tape is an indication that the was not clear.” very appellants’ Yet that effort insuring served interest in verity recording the isolating in and material that on might hearing (People first be inaudible or unclear. v. Al Cal.App.2d bert 182 729, Cal.Rptr. 473].) 742 [6 Finally, appellants’ as to third contention that the transcript could not be admitted because it was not the best evidence, recordings we have concluded that since or the writ transcript ten satisfactory of them are “more reliable and testimony given evidence than memory from conversations by Stephens (1953) those who them” overheard v. Cal.App.2d 653, People 177 ; 660 v. Wojahn, [256 1033] p. 146) transcript supra, the in was admissible evidence. alleged trickery obtaining tape b. The the and in fraud recording. appellants talking for 20 After with some minutes police appellants charged, about the crimes the officers left supposedly in room the room so could talk alone. The Appellants argue to their conversation. had been wired record 520 production police in
that the officers the deceit resulted appellants fraudulently statements that were induced rendered, involuntarily and that as such statements prosecution If should have been excluded. properly could not by appel- introduce confession obtained coercion, prosecution permitted contend, the should not be to ad- lants trickery. procured by duce admissions fraud to this As appellant proposition recognizes Thomas Sears with commend- previously court other- able frankness that “this has indicated proceed explain why we cannot hold the trial We wise.” admitting in prejudicial court committed error evidence. ‘ recently Only in a in ease which defendant contended recording obtained that its such fraud use as evi Atchley process” (People with due v. was inconsistent dence 160, 764]) said “The de we (1959) 53 Cal.2d [346 render inadmis ception itself not defendant's statements does reasonably likely type not of a sible, procure it was (People Connelly, v. 195 Cal. untrue statement. 595, 602 P. People Castello, 194 Cal. 374]; v. P. [229 855].)”
Appellants drawn criticize the distinction cited state- deception “likely procure an un- that is ment between statement,” (cf. converse Castello true contending 855]), P. Cal. possibility upon upon the of falsehood but issue turns Supreme process, and that the United States principles due adopt approach. latter eases Court Atchley, its however, that besides reference to note, We deception upon confession, the truth of the the effect of the of mental coercion upon the absence facts be- relies Leyra distinguishing Denno, fore Thus U.S. it. Atchley says court in “Al- 948], 98 L.Ed. S.Ct. deception in present ease, though a similar there there was (P. 171.) mental comparable coercion.” was no *15 coercion, however, a mental defendant’s presence of In the irrespective not be admissible admission should or confession deception procured an that the untrue probabilities of the Rogers (1960) v. Richmond in Thus U.S. statement. 760], Supreme the United States 5 L.Ed.2d S.Ct. in which the dealing situation assistant chief in with Court, bring in the would defendant’s pretended that he police of in order to induce defendant’s confes- questioning for wife under that Amendment have decisions “Our sion stated: following the admission into evi- that convictions made clear product involuntary, are i.e., which of confessions denee physical psychological, or coercion, either cannot stand. unlikely not because such confessions are This is so to be an true but used to extract them because methods offend principle underlying in enforcement of our criminal law: inquisitorial system—(cid:127) an that ours is accusatorial and not system guilt by in which the State must establish evidence may independently freely secured and not coercion and prove charge against an accused out own mouth.” its his 540-541.) (Pp. admissibility “on must, then,
We test the statements question whether the behavior the State’s law enforce- petitioner’s will to resist ment officials was such as to overbear freely bring confessions not self-determined—a and about complete disregard question with of whether to be answered spoke (Rogers v. the truth.” Rich- petitioner or fact not why p. 544.) point no mond, supra, We shall out we find showing appellants’ will to resist was so overcome here Appellants urge that a coerced confession resulted. police were “free”
the false statement
that defendants
relationship of Thomas
talk, (2)
psychological
Sears
counsel,
separately
brother,
the absence of
served
involuntarily
cumulatively,
appellants to confess
to induce
cannot, however, strain
We
to invalidate the confessions.
projected postulates.
these
the facts to fit
prior police
free use of the room
statements as to the
[appellants’] will
such
to overbear
could not
been
“as
have
freely
bring
not
self-deter-
about confessions
resist and
p. 544)
appel-
Richmond, supra,
because
(Rogers
mined”
suspected
were overheard.
their conversations
themselves
lants
B.
said “.
. .
Sears
In
of their conversations H.
the course
going”
Thomas Sears
tape
.
recorder
they’ve got the . .
bug
.
.
at.”
got that
“where
.
wondered
said he
argument
appellants’
basis
a realistic
We cannot find
sibling
brother
younger
the older
of the
the emotions
deep
need
and that
of the father
the role
assumed
to force
forgiveness served
parent for
appeal to the
child to
appel-
accept
we to
Even were
here.
appellant’s confession
with
premises,
are confronted
we
psychological
lant’s
a confederate
participated
brother
older
fact that
and as
conse-
confession
subject
very
matter
father-image to whom
very
become
well
quence could
appeal for “absolution.”
could
the errant child
*16
anything
Nor did
in the circumstances of the conversations
any
police
denote
conduct of the
to overcome the will or voli
any
appellants.
tion of
of
At the time of
trial
Officer
Brown, one of the officerswho had interviewed and then left
appellants
room,
in
alone
testified
their statements
freely
voluntarily
prom
were
made without the use of
ises, threats,
Apparently appellants’
force or violence.
coun
sel,
copies
transcript
who had been furnished with
surrounding
circumstances,
knew
were satisfied with
Brown’s testimony;
did not
him on the
cross-examine
point.
police
ap
Nor did
attempt
officers
to induce
pellants
any
statements,
make
admissions or confessions.
(See
v. Ditson
57 Cal.2d
Cal.
Rptr. 165,
369 P.2d
Finally,
appellants
the fact that
lacked the benefit of the
presence of counsel when their conversations occurred did
“not of itself”
confessory
render such
statements “inadmis-
sible and in
process
violation of the due
clause of the federal
Constitution.”
149
v. Garner
(1961)
The court instructed as follows: “Murder which is
perpetration
attempt
perpetrate
committed
or
rob
bery
degree,
is murder of the
killing
first
whether the
was in
tentional,
(Pen. Code,
unintentional or accidental.”
189.)
§
to-wit,
degrees murder,
murder in the first
“There are two
degree. Ordinarily a de-
murder in the second
degree and
guilty
degree, may
either
may be found
be found
fendant
guilty.
ease
such that
However,
not
evidence
this
is
guilty
separately, he
considering each
defendant
*17
guilty
he
charge
murder or
is
of murder in the first
of
robbery
during
in
the
degree.” “A
is still
commission
con-
successfully
integrated attempt
to
leave with
tinuous
the
loot.”
robbery
by
Appellants argue
terminated
that the
had
the
exchange
transpired. Ap
of
with Elder
time that the
shots
they
assailant,
pellants
at an unknown
did
contend that
shot
police
was not in
a
since he
uni
know that was
officer
They
only in
maintain that
form, and
self-defense.
the
acted
killing
in
question
was committed
“one
of whether or not the
robbery (People
the
Chavez
with
v.
continuous transaction”
632])
656, 670
framed
issue
(1951) 37
P.2d
Cal.2d
[234
jury,
that
have been
to the
and
which should
submitted
jury
felony-
judge
to the
trial
in his instructions
improperly
issue from
murder
removed
it.
doctrine
might
jury
have
They
suggest
found that
further
firing
probable
in
at
cause
Elder
fleeing robbers,
in haste or without
acted
judge
submitting
in not
the trial
erred
degree
to
issue of second
the alternative
murder.
121,
497].)
127
(People
(1955)
v.
45 Cal.2d
P.2d
Hudson
[287
matter
Finally they
“no
how weak” their
contend that
been, they
might
entitled to instructions on
evidence
have
were
(People
(1951) 36
theory
v. Carmen
Cal.2d
their
of
case.
People
(1948) 88
281];
v. Burns
768, 773
Cal.
P.2d
[228
134].)
App.2d 867,
P.2d
871 [200
however,
recognize
fact
Appellants,
do not
“
burglary
locus,
is not
to
fixed
[rjobbery, unlike
confined
vary
frequently spread
but is
over considerable distance
escape
loot,
ing periods
by
of the robbers with
of time.
important
necessarily
to the execu
arms,
means of
is as
possession
property.
plan
gaining
of
tion of the
as
People v.
(People Boss,
881];
251
v.
210 Cal.
P.
[290
”
Rye
(1949)
Dowell,
807].)
v.
868-869 [236 Cal.Rptr. 13, 363 P.2d 71, 90 apparently Appellants Ketchel and Thomas Sears bring following language attempt themselves within the pages 881], Boss P. at 250- Cal. principle of law which in 251: “It is a sound inheres com persons engage or more in a mon reason that where two robbery conspiracy an officer to commit or citizen is pursuit in immediate of one of their number murdered while fleeing from the scene of the crime with the fruits who is possession possession, in or in the his co- thereof complete purview is not conspirator, the crime conspirators way have not won their law, inasmuch as said momentarily temporary place safety pos to a and the even plunder nothing scrambling more is than session possession.
In case the of the use such a continuation necessary reducing felon which was to aid the arms property possession necessary protect pos him in its escape.” making good (Italics added.) session and appellants these had not reached a But under the evidence temporary safety when, crossing place were parking robbery, after the “Halt” market’s lot Elder called *18 they sought firing gun; in turn started cover and then among gunfire they parked cars and returned his des waiting adjoining perately reach their car tried to own street. they the two robbers run Two witnesses testified saw shed, of the towards the which was in the corner out store Street; alley in the rear of the market and Alhambra of the that he the robbers “kind of witness testified saw another rapidly “halfway parking about walking” across the lot and they running through were “in a state.” Ketchel the lot” police officersthat “I reached the end admitted to the yell running man it.’ He alley I heard some ‘Hold was and a Thomas I car at that time.” Sears and ducked behind police alley that “when reached the stated to the officers running for the car. he heard a shot and he started . . . ... shooting car”; a man in the street towards the There was “began shooting back....” and said he Sears robbery continuing Manifestly when Elder was still “ required never The law of this state has was killed. felony relationship proof of a between the strict causal Code, was The statute 189] the homicide. [Pen. § community its resi- adopted protection of the for the lawbreaker, and benefit of the this court dents, not for the obviating necessity for, rather than re- it as has viewed inquiry concerning any whether there technical has quiring, completion, abandonment, felony or desistence a been completed.” (People Chavez, the homicide before supra, pp. 669-670.) permit argument that, evidence since Nor does the and Thomas Sears did not know that Elder was a Ketchel police officer,they to fire at him as assailant. were entitled an apprehended party in is the commission of “Where upon pursuit afterward, offense, fresh notice of the person” attempting of the “the arrest is not officialcharacter why appre necessary, must know the reason he is because he ” ‘the circumstances are notice.’ . . . sufficient hended. (People (1865) 572, 576-577.) v. Pool 27 Cal. robbery immediately from the To insulate events following it, thereby appellants maintain that the two place safety, severing subsequent their had reached con artificially bifurcate, disregard robbery, duct from appellants. jury evidence, the conduct of the The could reasonably support judgment find the which would not facts degree murder. second “giving justified of instructions not the facts of jurors.” the case” tends “to overburden and confuse the (People (1959) 322, Cal.Rptr. 683, v. Wade 348 P.2d Here the evidence established as a matter of robbery progress law that the was still when Elder was any shot; the evidence would not sustain other construction facts; Code, under Penal section the trial court properly appellants instructed the were either guilty degree guilty of first murder or not of murder at all. ; 33 Cal.2d 534] Sanford v. Waller 14 Cal.2d alleged rulings 4. The error on the status decedent validity arresting Elder and his action as an officer. clearly evince
The evidence did whether duty apprehended Elder was or was not on at the time he parking judge in the Ketchel and Thomas Sears lot. *19 finally status, duty, ruled that Elder’s off not ma on or did terially question a affect the of “whether there was homicide.” judge also ruled Elder as a matter of law had the right carry weapon, gun. (Pen. a at all times to a concealed Code, 12027.) § Appellants argue firing that when Elder started at the rob crossing
bers parking possibly lot he could not have robbery known that a had been committed. The court in requirements structed the on the peace code a for officer’s arrest without a warrant: “(1) Whenever he has reason able person cause to believe that the to be arrested has com public a mitted (2) person offense in his presence; when a felony, although arrested has a committed his presence; (3) whenever he per has reasonable cause to believe that the son to be felony, arrested has committed whether or not a felony has in (Pen. Code, fact been committed.” 836.) § arrest validly will not be held to have been “[A]n made though person guilty even having the arrested felony committed a arresting unless the officer had reason grounds able making (People as basis for the arrest.” v. Dupee (1957) Cal.App.2d 364, 366 568]; [311 People v. Brown pointed In the instant case we have out that two rapidly that the robbers either walked or witnesses testified through parking market with ran lot sacks con from They glasses night they at taining the loot. had on dark sports coats. Elder hip-length must have surmised that wore to “Halt” fir for he called to them before were robbers eyewitnesses dying gasped of the shoot ing; he was as holdup. I been ing fray, Market have shot. Three “Star course, suspects Elder, in a ’49 Ford.” was not alive to part testify fleeing on the to what action robbers “ suspicion. depends upon But case its own aroused [e]ach Ingle . . Justice White . circumstances. seq. Cal.Rptr. 412 et 348 P. 53 Cal.2d probable test: ‘Reasonable or 577], has set forth the cause 2d subject judicial scrutiny of much an arrest has been the no formula for the There is exact determina and decision. must be Each case decided its own tion of reasonableness. on the total atmos and circumstances facts phere [citations]—and Reasonable cause the case. has [Citations.] of facts generally to be such state as would 'been defined prudence ordinary a man of care and believe and lead strong suspicion conscientiously entertain honest and ’ ” guilty of a person crime. [Citations.] Cal.App.2d Cal.Rptr. Crowley (1961) 313-314 autopsy surgeon’s alleged error in the admission 5. testimony.
527 autopsy Appellants argue surgeon that the lacked testify ability qualifications to either as to Elder’s powers respecting perceptive being his after In talk or shot. upon respect they rely surgeon the fact this had person for a a live bullet wound. never treated occupied present posi testified that he had his doctor County Angeles 1955; tion in Los since he recounted his training experience. years spe and medical When asked immediacy cifically death, responded of Elder’s he about opinion period Elder for a that in his lived of time until he hemorrhages that, despite bled to death from the and the bul injury tongue part lingual nerve, let to his and of the speak. testimony would have been able to This involved the autopsy surgeon of the observations death, as to the cause of Elder’s reflecting surgeon’s training pathology in rather ability living person than to treat for a his bullet wound.
Generally court, it is for the trial in the exercise of its competency qualification “to discretion, determine the opinion.” (People an of witness to state v. Haeussler 252, 8].) 41 261 Cal.2d P.2d The fact [260 surgeon persons living that the had not treated would reach only weight testimony. to the of his The members of the by” opinion but were “not bound were “free to de weight termine the to which it was entitled and to disre gard they unreasonable,” it if found it to be were (People 99, v. 47 so instructed. Cole Cal.2d 104-105 P.2d 56 A.L.R.2d [301 alleged diagram 6. error in cumulative use market area. beginning trial, court,
At the of the in the exer discretion, granted cise its defense motions for exclusion of (Code People Proc., 2043; Lariscy (1939) Civ. v. witnesses. § 638].) During the trial Cal.2d P.2d several [92 prosecution diagram witnesses used the same parking previous area and the which market lot witnesses had testimony. Appellants argue marked the course of their permission successively trial that the court’s use the dia gram exclusionary circumvented order since the chalk ‘ help marks one witness could not but have influential suggestive” upon subsequent effect witnesses their marking spots diagram of relevant on the to illustrate their testimony. (Cf. People Kynette (1940) 755-756 discretionary power excluding exercising its wit- In may practicalities trial court consider
nesses, the Cal.App.2d 134, Persky (1959) (see situation 219]) “may grant a motion to exclude wit- to remain” permit of them v. Car- nesses but certain Cal.Rptr. 446]). Cal.App.2d 115, 142 (1961) 191 ella exclusionary relaxation of its order The trial court’s limited diagram permission to use the same rested in its to witnesses 2043.) (Code Proc., Civ. within its sound discretion. § flagrant misuse of the *21 exhibits no Moreover, the record diagram portraying the various marks of the successive in designation upon the placed own witnesses. Each witness particular person, of diagram location to indicate nothing thing testified; in most cases about which he event following representations in- witnesses the exhibited to the identity particular mark by marks; of a was tended only permanent telephone pole; a each items as noted for such obviate coloring device in order to witness used a different appellants’ any in event markings; confusion to the a provided with fresh requested, counsel so the witness purposes. Finally, diagram unmarked to use for illustrative through any of witnesses violation of the order of exclusion diagram not af- purported improper would use of the such competency credibility of the witness, nor the fect the testimony. (People admissibility the witness’ witness or the of ; People v. P.2d (1942) 71, 21 80 v. Duane Cal.2d [130 123] 26].) Cal.App.2d P.2d (1947) 181, 77 187 Tanner [175 alleged unbiased, impartial denial an jury. 7. of Appellants argue improperly that the trial court excused prospective jurors instances, that other prosecuting attorney improperly interrogated jurors on voir dire. Al “ though recognize right we unbiased and un [t] prejudiced jurors inseparable part is an and inalienable ’ ’’ by by right jury guaranteed a trial the constitution. (People (1960) 498, 54 Cal.Rptr. v. Elliot Cal.2d 504 753, [6 225], quoting from Ry. 354 P.2d Lombardi v. St. California 311, (1899) 124 66]; Hughes Cal. 317 P. Co. v. [54 89, Cal.Rptr. (1961) 57 Cal.2d 97 367 33]), P.2d we [17 right procedure no violation of that in the find of the trial in the us. court ease before beginning At the of the voir dire examination the prospective jurors: “Now, trial court asked the first is anybody box that there has certain beliefs or dis- any way opinionation an or fixation or in scruples beliefs or you voting penalty for the prevent from death that would penalty?” it fact that the death simply because reply. jurors their hands in court raised Four they stipulation excused; a be coun- counsel that asked jurors these own refused; court excused four its sel initiative. important affecting statutory factor scheme, our Under jurors “the qualification the charged in eases in which offense (Pen. punishable Code, 1074, be with death” subd. § guilt 8) would af- lies in their determination of be whether punishment. capital Such views their views of fected meaningful the alternative choice between should obviate penalties imprisonment. Riser and life death v. (1956) respect In this 566, 573-576 Cal.2d may juror (Pen. Code, the court on its own motion. excuse 1089; People Green 215-216 § juror has The determination whether shown scruples against that he entertains “conscientious conviction penalty where the tion to refuse further examina- is death” and point (People on the Goldensen Cal. 161]) reposes P. the discretion within of the court. directing The court did not abuse its questions here discretion its prospective jurors determining or in to the four disqualified. were argue prosecuting further Appellants at *22 prospective jurors interrogation the torney of to in his by referring to them “the penalty confused Chessman death hostility any by intimating that at all the to and situation” disqualification. ground for The penalty established death misleading interrogation only however, no but record, reflects right of “in a case the exercise his where prosecutor’s the may imposed to ascertain the views of penalty be ... death intelligently he jurors so that can potential the [citations] challenges against would his those whose consciences exercise penalty.” (People imposing v. Wein from this preclude them only 383, 457].) 50 394 instance (1958) Cal.2d [326 pros appellants refer to which involves a alleged of confusion questioned by a juror pective whose state of mind was defense upon properly queried juror this her trial court counsel. The be penalty; we find no connection the death attitude toward attorney’s prosecuting the reference incident and tween this ’’ ‘ to Chessman situation. appellants Finally, allege do not partiality unfairness or jurors part impaneled. who were “When appears impartial it jury that a fair obtained, it is general rule of error the court in allowing challenge permitting juror be to excused subject is not (People to (1897) review.” v. Durrant 179, Cal. P. [48 alleged 8. prejudicial misconduct in prosecuting attor- ney’s argument. closing argument In jury, his prose to the one of the cuting attorneys testimony referred to Officer Brown’s re garding tape recording and commented that some “in flammatory” portions only were por “removed” and those having “probative tions ap value” were introduced. When pellants’ objected descriptive counsel to the term “inflamma ’’ tory, prosecuting attorney apologized having so used joined appellants’ asking the word and counsel in that the “inflammatory comment about statements” stricken; be jury trial court so Moreover, disregard ordered told the to it. clarify situation, order to prosecuting attorney explained “probative” the use the word convey only parts tape he meant to those recording bearing on the case were used. such Under circumstances no prejudicial (People Bradbury (1907) error occurred. 675, Cal. 678-679 P. specific argxment: 9. prosecuting attorney’s Ketchel’s comment on Ketchel’s take the witness stand. failure argument closing
In prosecuting attorney if guilty stated that Ketchel were “not murder, and if guilty robbery,” he is not take “should the stand and ” say, it, ‘I didn’t I do it.’ do didn’t permits Penal Code section 1323 the defendant in a crim appear inal whether or not case choose he shall as a witness may at his trial. Counsel comment on the failure aof defend “explain deny any ant to take the witness stand and . . . against (Cal. Const., evidence facts in the ease him.” I, Perry 13; art. 394-395 § 1123].) Moreover, appellant 124 A.L.R. did object attorney’s to the remark when expressed, it was disregard nor did he ask the trial court to instruct it. v. Robillard 55 Cal.2d Cal. *23 Rptr. 167, 358P.2d
531 specific arguments. Sears’ 10. H. B. insufficiency support ver- alleged the evidence The a. of robbery degree murder. dict first argument H. B. Sears’ record not sustain doees robbery degree murder does not and first
that the verdict in the find substantiation evidence. him true, states, that no one saw it is as H. B. Sears While himself, shooting, he, that the rec admits
at the scene of the dying two dif that the Elder made statements ord shows concerning a automo persons different times Ford ferent at holdup. I have Market statement w Star bile. One such other was suspects in a 1949 Ford.” The shot. Three been white Ford blue and “Be tell them it was 1958 sure and Many placed at scene of the Ford Victoria.” witnesses pur robbery. slip H. B. Sears pink stated indeed, on the the date 1961; on chased Ford June handwriting. H. B. stated slip B. Sears was H. Sears’ my “Nobody me.” a half hour of the car but Within drives stopped B. policemen H. Sears shooting, two driv Montebello 2 Market. His ing 1949 from the Star Ford about miles passenger brother, in the car. Sears, Thomas through shooting passed At the time bullets damaged windshield of the both the windshield Ford helped replace the 10, 1961, H. B. the door. On June Sears repainted. during car windshield; had the the next week he implicate transcript B. other in the H. While references They suf Sears, we instances as illustrative. cite above only for sub appellate search meet the test that we fice to support of the trier stantial evidence to the conclusion 885 (People Daugherty (1953) 40 Cal.2d fact v. [256 every reasonably from 911]) dedueible P.2d and that fact judgment. in favor of the the evidence must be assumed Cal.App.2d 272, 276 Cal. (1959) [1 Caruso People Cal.App.2d Rptr. ; (1959) 171 v. Dills 428] alleged motion to b. The erroneous denial dismiss. The trial court B. denied H. Sears’ motion to dis probable (Pen. Code,
miss the indictment for lack of cause appealable (see 995) ; Code, 1237; this order Pen. § § Cal.App.2d 468, People Alcala may 558]) propriety but the of the dismissal be considered judgment (Pen. appeal Code, from of conviction 844]). 1259; v. Simmons P. Cal. § *24 532 Appellant ground based the motion on the that no competent evidence demonstrated he that had rob committed
bery and murder. “Probable cause is shown if a man ordinary prudence of caution or be would led to believe and conscientiously a strong suspicion entertain guilt the the Nagle, accused. v. 216, 25 Cal.2d 222 P.2d [153 344].) An prosecution indictment will not be set or a aside prohibited thereon if ground is some rational there for assuming possibility the an that has been offense committed guilty (Bompensiero and the Superior accused is of it.” v. (1955) 178, 250], Court 44 Cal.2d 183-184 P.2d em [281 phasis added; Superior (1950) see also Weber v. Court 35 Cal. 69 68, 2d “If there evi- is some [216 support dence to indictment, inquire the courts will not sufficiency. (Lorenson Superior into its (1950) ...” Court v. 49, Superior 35 859]; Greenberg 55 Court v. 319, 19 Cal.2d 322 P.2d 713].) grand transcript jury The eye shows that an shooting to the testified that witness he dying heard the Elder suspects in a ’49 state, Ford.” “Three About half an hour stopped police Ford car later the that H. B. Sears was driving brother with his Thomas passenger Sears some Market; from 2 miles the Star the car was searched and the interrogated police two men. testifying The officer stated deep maroon, was any that the car that did notice damage duty to the car but his bullet holes that was to suspects.” and . . . movements of the watch “the hands The Angeles for Los Deputy County, investigating Sheriff Department ease, testified that the records of officer showed that Motor Vehicles Ford here involved registered 1961, on June the date of robbery, in an Ketchel but that interview with B. Donald H. Sears following arrest, his in a voluntary Sears free and June bought that he had from statement said Ford Ketchel on possession it had time been his since that June testimony driven it no one had but himself. From this conscientiously suspect grand could H. B. ‘‘ ’’ getaway car Market Sears was the driver Star robbery charged. connected thus was with the crimes alleged improper separate denial motion trial.
e. for joint appellant Prior to commencement of trial separately that he be because H. B. Sears moved tried state codefendants, particularly his brother Thomas ments implicated charged; him in the crimes statements Sears, joint trial as to the admissible at codefendants be would highly prejudicial B. be H. making them; and would Sears. separate of a trial granting motion lies 1098.) (Pen. Code, the trial court’s discretion. § within may properly where there is “A severance be denied importance in the commis element of substantial a common granted damaging because It will not be sion crimes. might be admitted.” testimony a codefendant or confession (P Cal.App.2d Cohen eople Cal.App.2d 185, People King (1938) ; see also P.2d 301] *25 of sub 928].) “common element The 206 P.2d [85 defendants were importance” here is all three that stantial committing alleged the indict charged with crimes two Spates 33, 36 (Cf. People (1959) 53 v. Cal.2d [346 ment. 95, People Chapman 97 (1959) 52 5]; Cal.2d P.2d [338 v. (People v. 428].) no We find of discretion. P.2d abuse 41, P.2d Eudy (1938) 12 Cal.2d 45-46 [82 alleged, con-
d. The erroneous admission of codefendant’s fession. police officer testified to
A as the confession of presence Thomas that was rendered out of the Sears of H. B. In this Sears Sears. confession Thomas stated that his brother “joined they he and H. B. Sears Ketchel” after told H. B. robbery plans; their that all Sears three left “in a car by purchased the defendant H. B. had been Sears from which Ketchel.” Thomas further the defendant Sears stated to officer that fired at because Sears Elder Sears “saw bullet car, Ford, thought and he the man strike the “got trying brother”; to shoot his that into the car and ’’ H. B. drove from the that he the defendant Sears scene. “ by or of confession admission one of [E]vidence proper under co-defendants admissible instructions several though declarant, limiting its to the even such consideration which tend to incriminate the includes statements evidence (1961) 190 Cal.App.2d v. Pickens codefendants.” People Turville, Cal.Rptr. v. ; see also 138, 148 [11 795] 620, 636; v. Rhinehart supra (1959) 51 Cal.2d Cal.Rptr. 391].) Cal.App.2d 241-242 Here jury court instructed different occasions the four in deter Thomas confession not consider Sears’ it could that When “the guilt innocence. mining H. B. Sears’ statements are relevant to the defendant structed the evidence is admitted jury and the is in- only him, it will ordi- narily presumed be followed the instruction ’’ prejudice and that there was no as to the codefendant. (People v. (1958) supra, Chavez 778, 790.) alleged improper
e. The payroll consideration records. prosecution manager called the office appel place employment by lant’s payroll to establish rec appellant ords that B.H. Sears did not work on June day robbery, any 1961, the nor time Ap thereafter. pellant’s objected prosecution counsel lay failed to proper foundation for introduction (Code of the records. Proc., 19531) objection. The court Civ. overruled the § On cross-examination, appellant’s supplied counsel the omission proper records; in the pres identification and then on defense, entation of the pres he used the same records. The objection payroll admission of ent to the such records cannot People Gorgol (See Cal.App.2d stand. 281, 294 permitted manager court testify trial the office to the contents of the records as shown the documents them- requiring rather than their admission selves under the best (Code Proc., 1855.) rule. evidence Civ. But the § “records cross-examination, were in court for use on or otherwise” (Margolis Teplin Cal.App.2d (1958) 163 any purported 535]) testimony so error her could appellant might or corrected as be clarified desire. appellant The court not allow did show as ex tensively wished the work as he schedule of his fellow- *26 employees 1961, 9, June or the week on thereafter. The of by manager appellant’s who was called counsel, fice estab date, appellant’s work that, lished as of such was slow at place employment payroll of and that the records reflected generally that on 9 or days no one worked June the next few appellant’s began inquiry Then counsel a line of thereafter. as particular specific worked days ; to whether individuals objections testimony trial court sustained to this kind of the ground opened up “many it on the that too collateral Prop (Code 1868; Decter v. Stevenson Proc., issues.” Civ. § (1951) 11].) erties, 407, 39 420 It Inc. Cal.2d P.2d [247 appellant prosecution’s theory work that did not was the in 9 nor because of his involvement the on June thereafter arrest, plans for robbery the and bis avoidance The. 535 inference show- to rebut that permitted H. B. Sears court be from work could due his absence ing defense that on his it does not the circumstances Under work season. a slow pay- rulings regard to the trial appear the court’s appellant. prejudiced roll records accusatory alleged statements erroneous admission f. appellant denied. which police his At trial officer testified con appellant H. on June soon after versation with B. Sears freely Appellant gave volun his tarily. his statements and arrest. any knowledge appellant After as to the denied police him arrest, for officer told reasons his robbery investigating homicide were the June market and Monterey they had and been informed that Park appellant at the time. the 1949 car owned used Ford my car.” replied, “Well, it me and it wasn’t Appellant wasn’t objected testimony Appellant's upon counsel to the hearsay appellant ground that, since that it consisted accusation, denied the the statements were admissions justification there introduction evi was “no [their] Cal.App.2d (1961) dence.” Bracamonte v. Cal.Rptr. People (1946) 62]; Simmons 385, 388 see [17 People ; v. Davis 712-721 P.2d Cal.2d 43 Cal.2d 18] court overruled 669-672 testimony, objection; his relat officer continued with appellant ing queries further as to whereabouts appellant’s what this is all about. response, “I don't know any attorney.” talk I I don’t want to more until see objection Again appellant’s objected; counsel was over testimony as to his ruled; officer continued with further interrogation appellant regarding the condition of car. appellant he he had asked whether The officer testified that appellant repaired damage car and that had to the had query his final doing; the officer further attested denied so anyone driving car “whether else could have been appel he someone.” The officer stated that loaned it to had my responded Nobody car but me.” “No. drives lant not want to he does discuss If defendant indicates right legally en a claim of to which he the matter under admission of counsel, until has the advice of titled (Cf. error. into evidence constitutes statements Abbott *27 People appellant’s argue The first that statement no his car himself that one drove but was admissible as guilt pink slip admission of because the on the car indicated appellant purchased ear from Ketchel on had June robbery car and the was driven from the scene of the prosecution 9. The if homicide on June part then contends that a reported, be conversation entire conversation long parts admissible as all are comes so of it relevant each other. Rosenberg Cal.App.2d
In v. Wittenborn Cal.Rptr. 459], page the court said at 852: “In part event admitted in statement evidence constitutes correspondence, opponent conversation or is entitled placed by or have all that written evidence was said or or to the declarant in the such corres course of conversation pondence, provided bearing the other statements have some upon, with, evi connection the admission or declaration dence are not excluded a rule of law other than the hearsay Here, rule.” if the brought had not out the conversation, appellant entire H. B. Sears on cross-examin (Code ation would have been to do entitled so. Proc., Civ. 1854; People Cal.App.2d v. Whitehead § We turn to the consideration of the issues at the trial penalty. arguments We consider each of the seriatim. argument prosecuting attorney 1. on the deterrent penalty. the death effect of prosecutor’s argument We believe to the penalty that the death awas deterrent crime consti prejudicial penalty phase tuted error in the of the case. placement argument deterrent in the structure opening deputy attorney statement of the district gave special impact. preliminary portion it In the argument of his explained Authority “the power Adult has the degree after years releasing calendar seven first murderer on parole.” He thereafter to this with returned theme the state- “ you proper punishment ment decide that the here is [I]f is, your effect, life this imprisonment, say, endorsement to rehabilitated,’ you’re men can telling ‘These be the Adult Authority, you you fit, agree ‘When see when think and with rehabilitated, us that he has been release him.’ This is what your you endorsement will if say, mean. And impris- ‘Life ’ again onment, these men will once walk the streets.” *28 “ respon- jury they argued the that had to prosecution The of crime” that “we must deterrents sibility towards the luxury to these cannot allow the example,” that “we show jurors saying that our are soft and potential killers other prosecutor asserted that the defend- are our laws soft.” County upstairs”; kept in that it “has “the Jail ants were the . that have broken law. . . . 3,000 inmates . . about ’’ murderers of the future. potential our robbers and are These deterrence, prosecuting at- Developing his theme of the matters, following: torney among other similar the stated, you and killers of the fu- to that the robbers . . I submit “. people defendants; those were the classmates of these ture County Jail, people Authority, those the Youth those the Authority. Adult people in Prison under the These State example people that we deter. We must show an are the must luxury the proper We cannot allow circumstances. under saying jurors potential killers of that our other are to these our laws are soft. soft and put How much of a can “. . deterrent we on robbers not . guns? put much of a can bullets into their How deterrent put maybe commit on them not to even the crime at all? we this a terrible Can we deter Because is and violent crime. per- only not these defendants from future crimes but other pulling trigger they cap- are when about to be sons from ? tured many many, potential people, are killers “And there and robbers, going you that are watch see what do. Pro- society, crime, factors, tection of deterrents of are ladies and you gentlemen, that must consider.... you here, considering big . have “. . two issues that individuals, considering as the deterrents of the defendants figure juries that are crime, deterrents of a robber who will only not the deterrents from the soft. You must consider but from other standpoint of individual defendants these persons.” Cal.Rptr. 777, People (1961) 56 In Cal.2d 720 v. Love judgment Cal.Rptr. 481, 809], 366 P.2d we reversed prosecutor’s penalty reli-
imposing
because
the death
punishment
argument
capital
was a
upon
that
more
ance
imprisonment. In that
the sub-
case
deterrent than
effective
prosecution’s argument
“callous,
was that
stance
says
law
they
say
.
know that
hardened criminals
.
.
they
robbery, or that
they kill
are in that
while
if
someone
and therefore
they
get
penalty,
burglary, will
death
thinking
reflecting
that,
they
even while
commit their
crimes,
guns
their
against
unload
as
insurance
getting
penalty.
In
death
...
other
if
words
there were
penalty,
jurors
no death
if
did not exercise their
dis-
sound
proper
in a
cretion
ease such
this and
inflict it and have
courage
it,
burglar
inflict
it would be better for a
or
committing
murderer
someone
a crime to take a chance and
kill
(Pp. 729-730.)
someone....”
argument
held
prejudicial
We
constituted
error, say
,‘
ing
Legislature
has left to the absolute discretion
fixing
punishment
degree
for first
murder.
(People Green,
307];
Cal.2d
Friend, supra, pp.
(306
767-768
463)].)
legislative finding,
There
thus no
is
and it is not a
knowledge,
capital punishment
matter of common
or is
imprisonment.
not a more effective deterrent than
Since evi
*29
question
inadmissible, argument
dence on this
is
thereon
prosecution or
purpose,
apt
defense could serve no useful
is
improper.”
misleading,
to be
supra, p. 731.)
(People Love,
and is therefore
gist
appeal
jury
upon
of
The
Love is that
to the
based
alleged superiority
capital punishment
imprison-
the
of
over
improbable
ment reaches into the
and unknown. Evidence
sought
prove
hypothesis
which
to
such an
would not be admis-
argument
upon
and,
sible. The
founded
it
erroneous,
must be
circumstances,
in
prejudicial.
certain
part
argument
parallels
The
in
instant
in
the
case
the
prejudicially
supplication
prosecutor
erroneous
of the
in
argument
Love. It echoes the
that
of Love
“criminals” will
guns”
get
their
in
penalty
“unload
order not to
the death
jurors
plea
penalty
light
with the
that the
must fix their
in
of
put
“how much of a
put
deterrent can we
robbers not to
guns?”
into
bullets
their
prosecutor’s argument
part actually
in
proceeds
The
here
argument
beyond that of Love. The
addresses the minds of
jury
“potential
designated
to the
deterrence of
killers”
penalty
adjudged
than
rather
to
to be
to the defendants.
specifies
persons who
to
It
terred”;
and describes the
are
be “de-
personalizes
“potential
it
these
killers” in the ficti-
tious identities of “the
of
classmates
these defendants: those
County
people
in
Jail,
people
in the
those
the Youth Au-
thority,
people
those
Prison under
the State
the Adult
Authority.
people
These are the
that we
deter.”
must
The
sought imposition
penalty
upon
thus
of the death
rests
assumption
it
as deter-
illegitimate
that
acts
unproven and
prosecution,
“potential killers."
described
to the
rent
cannot allow
emphasizes
“We
indeed,
the contention:
twice
saying
our
potential
of
that
killers
luxury to these other
warning of the
are
and our laws
soft."
jurors are soft
foreign
in the
weight
scale
injected a
false
prosecution
delicate,
of a
crucial decision.
rendition
“poten-
to the effect
the record
find no evidence
We
“going
wait
see
to
murderers" were
tial robbers and
any
is there
evidence
jury
in this case. Nor
did
what"
“persons
pulling the
penalty
from
deters
death
show
Surely
captured."
no evi-
they
be
trigger
are about to
when
County
“3,000 people in
Jail that
prove
dence could
being
are
sentenced there
law that
either
broken the
have
awaiting
potential
and murderers
trial
. are our
robbers
. .
supports
added.) Indeed, no
(Italics
evidence
the future."
implication
of the deterrence
of insinuation
plethora
argument.
prosecution’s
implicit in
penalty
death
stated,
evidence,
offered,
if
Moreover, as
such
even
we have
not have been admissible.
would
emphatic
subsequent
it, permit
Love,
no such
and cases
unproven
contention of the
presentation to the
penalty.
superiority
of the death
of the deterrence
Thus
Cal.Rptr. 801, 366
(1961)
tor’s discussion that offered to the as ‘another ’ you consider, temperate can factor was and restrained and only part argument. was a brief and minor of his The error prejudicial. (People was therefore not v. Garner, pp. ante, 135, Cal.Rptr. 40, 680].)” 367 P.2d [18 In the instant ease the reference did not find its sole em- jury; bodiment in an instruction to the it was not minor part temperate appeal; it not was and restrained. In expression substance, it of a prose- basic thrust of the capital punishment to cutor obtain a verdict for because of alleged According prosecutor, its to the deterrent effect. “the big two issues” before the were consideration the de- fendants individuals and deterrence of as future robbers ‘‘ ’’ figure juries who will are soft. points true, respondent out, It is as the contention every appear page transcript not does and that its quantitative limited, but it volume is runs as a thread deeply impact woven in argument. of the whole As to prejudicial quote effect, its language we of Love: “. . are ‘reasonably probable we that it is . convinced a result more favorable’ to defendant ‘would have been reached in the accordingly absence error’ and that prejudicial. (People Watson, error is Cal.2d ” 243].) (P.733.) P.2d [296 accept legality prosecution’s In sum, argument principle be this case would to erase the of Love. alleged improper appellants “cop- 2. The as reference ’’ killers. argument prosecuting attorney In his referred to policeman appellants “cop- as a deceased as ’’ although killers, prosecution appellants did not show that police appellants At knew the victim to be a officer. the time objection impropriety. no (People made to this claimed Cal.App.2d 58, (1958) 163 Johnson It P.2d disputed police is that at time of his death Elder was Monterey City challenged man for Park; hence, occupation factually statement to his correct. upon v. Linden Cal.2d Nor “cop-killers” the record can it be said that use of the term error; description, constituted the evidence sustains such despite flamboyant (See, instance, its character. 424], v. Hardenbrook 48 “sneaky” mother-killer.) references to “mother-killer” and
541 argument any in jury, reasonable “In the before the a may evidence, from it'is matter be drawn ference of court to determine whether discretion the trial within range permissible of discussion.” stays within the counsel (1954) 570 Simpson Cal.2d (People [275 v. Eggers (1947) v. 30 Cal.2d 31]; specific improprieties to arguments Ketchel as The 3. af- of penalty trial. fecting him at a instructions Impropriety trial court’s a. of prison sentence. prisoner’s release after from your making “In determina court instructed: jury penalty imposed, may, exer tion as to be punishments, cising different its discretion choose between this possible consequence the law of State a consider as life or provides a sentenced to either death defendant pardoned reduced imprisonment may or his sentence be have serving prisoner life sentence by a and that Governor eligible parole has at least may but not until he served be for ” years. calendar seven jury that the should Appellant contends have been further grant pardon cannot instructed the Governor “where the felony, upon been convict has twice convicted of unless majority judges written of recommendation “ Supreme (Cal. §1.) VII, Const., Court.” art. But [t]he significant jury if was that penalty matter fixed the of by imprisonment were life there nevertheless means which prison; precise opera could be released from defendant particular importance.” tion of those means was no 25.) (1959) supra, v. Linden instructing discharged duty “gen on the its court principles governing phase law” this eral the case. Cal.App.2d 189, (People Rivers Cal. Rptr. 309].) Appellant requested specific a more have should point necessary. thought if it instruction on the desirable 611, 613 P. (People Wallace 109 Cal. preferable and should an instruction would have been Such upon given be retrial. testimony alleged wit- erroneous
b. The admission of he committed. prior robberies to two nesses armed robberies committed Two testified to two witnesses police officers testified to Ketchel’s in 1959. Two Ketchel confession to these two 1959 robberies as well as to two other alleged robberies, argues which Ketchel prosecuted. was never *32 Ketchel that these earlier bore crimes no relation to the present criminal charges, “closely were not in related time and method” to them, testimony and as to them was there- improperly fore admitted; fact, in such evidence was “ho more cumulative, than copy since a judgment certified of the previous of the crimes was also introduced, showing plea the disposition.” Section 190.1 of the provides Penal Code “per that where a son has been guilty punishable found of offense life imprisonment or death . thereupon . . there shall be further proceedings on penalty,” of “[ejvidence issue at which may presented be ... of the circumstances surrounding the of crime, background history, defendant's any and of aggravation mitigation facts in jury penalty.” or of The penalty proceedings “performs at such a function similar performed by to that Authority fixing the Adult in terms granting paroles cases,” in other a function which involves an “evaluation” of properly all the evidence before it as prescribed by (People section v. (1959) Purvis 190.1. P.2d prior within three Ketchel committed robberies years robbery in here each involved and one armed gun. similarity with a The of himself number and execution jury of the robberies rested in the as a consideration of “recurrent matter behavior” relevant “on the issue might for punishment, it conclude that the behavior would possibly given a probably again or were life recur defendant paroled.” (People Purvis, supra, ultimately v. sentence and p. 881.) evidence is not cumulative because intro Such copies judgments of conviction of the certified duction robberies, exposed not have prior alone, would on these background of the convictions. testimony permit it as Ketchel’s
Nor was error to inves guilt in to officers letters and statements admissions prosecuted. robbery charges which tigating properly considered were specific of misconduct These acts scope sanctioned relevant evidence under the broadened by 50 Cal.2d (Cf. People Ward 190.1. v. section 52 Cal.2d ; Jones 777] 647 [343 erred court trial argues further Ketchel portions probation admitting- certain record into evidence consisting pro- judgments, of two letters of his after the hearsay and so He claims these letters were officer. bation p. 883.) The letters Purvis, supra, incompetent. “straighten expressed remorse and his intention Ketchel’s objection in- appellant’s to their overruled out.” The court opinion in his “letters troduction, the comment that with trial court’s greatly Ketchel.” record sustains favor reasonably preju- admission could not have observation; their diced Ketchel. parole. alleged error the instruction on
4. The prisoner serving a life “a court instructed that eligible parole until he has served may be but not term give years.” appellants’ at calendar It refused least seven jury could not inter alia that instruction which included not be person to life would or sentenced would assume that granted parole life. custody for his entire held in be fixing that to assist the “It settled person may term a be of the minimum penalty, it informed *33 degree given for murder must serve a life sentence first being actually terms average, the and maximum minimum, v. degree (People murder in served for first California.” would p. instruction supra, 884.) refused Purvis, not the jury consider in told that it could effect have the life for a sentence as to minimum term information is to it. which Purvis holds available murder appellants’ also refused The court instruction con specific procedure cerning by to the be followed Adult the granting terminating paroles. Authority in The court explained appellants subject parole would be that in the a life The refusal of event sentence. instructions on the precise procedure granting mechanics or to be followed in paroles prejudicial appellants. did not effectuate error as to supra, 1, 25; People v. Linden Cal.2d see (1956) 47 Cal.2d 116-117 v. Reese alleged impropriety prosecutor’s arguments 5. The con- Authority. cerning parole and the Adult argue
Appellants prosecuting attorney that prejudicial describing in committed misconduct amount of might appellants prison time in if serve sentenced to life imprisonment; disparaged that he work of the Adult Authority granting paroles; in in and its wisdom that he parole granted might rehabilitation; that be without ferred imprisonment” if “life is penalty, “these men will ’’ again once walk the streets.
Argument with possibility reference to the parole must be with used caution so as jury’s not influence the penalty by determination of matters scope outside both the jury’s evidence and the prose function. Here the cuting attorney began parole by his discussion of stating that degree very first parole murderer seldom obtained after serv ing years prison. seven He then mentioned that the Adult Authority might make a mistake, itas did when it allowed parole H. B. Sears out on March before the June robbery 1961, a hand, and homicide. On the other he said that person rarely kept in prison for his entire life. Since no Authority evidence might disclosed what course Adult granting parole, portion follow prosecuting this at torney’s argument record, was stricken as without the and the jury disregard instructed to it. being court, After so corrected trial prosecuting attorney proceeded jury to tell the what the maximum and prisoner minimum time a (Of. under life sentence would serve People Purvis, supra, p. 884.) He then if the noted that proper punishment decide that should “the here is life expression “in imprisonment,” then effect” that is an of be lief “endorsement” men can “these be rehabili Authority agrees tated” and when the Adult had there rehabilitation, only been then “release” them. This comment point up allowing person the law im served under life prisonment paroled years prison to be after seven if Authority (Pen. Code, 3046) ; should allow it while Adult § prosecutor argued imprisonment that a sentence of life again streets,” will mean “these men will once walk the with, to, statement occurred in context and related Adult Authority’s finding prosecutor did not rehabilitation. suggest than parole result from other causes re would argument ; habilitation we with are confronted such as that of Caetano *34 prosecutor 1], improperly P.2d prisoners where the contended that prison paroled congested be from would due to the prisons. condition of possibility raising appellants’ parole prison
In from term, People error; a under life sentence did not commit composed such a one of facts in consideration involved punishment. (People the determination of issue Lin- 1, quickly supra, 25.) The trial court (1959) den Cal.2d speculation argument to based on how stopped the Authority might appellants in the treat event of sen- Adult imprisonment; the court admonished the of life tence prosecuting attorney the commenting disregard made no mis- it. Since leading in on the work of the Adult statements paroles findings of Authority granting commensurate with in argument in the of the rehabilitation, and, context appellants hold that prosecution totality, in its we cannot prejudicial error. suffered appel last basic tenet of We turn third and grant failed to a continuance argument: lants’ court hearing appellants’ for new trial. motions for 30, 1961, appellants The was received and verdict October hearing trial. a new The court set the for No- moved for appellant for November counsel vember 16. On Thomas for a He stated that he had been Sears moved continuance. Long public office, defender’s Beach where transferred to heavy daily “including appearances calendar, court he had a substantially day”; probation report each on Thomas “only just him minutes before been delivered to Sears had ’ hearing voluminous, that the case ’; record this required, would like a extensive research be and would con- time December. court denied the tinuance to some motion for continuance. heard, promptly denied, the motion for court then proba-
new The court further advised counsel that the trial. reports any way. going tion “were not to influence him” wholly argued In it that the trial these circumstances is court independent neglected duty to as- its to review the evidence degree penalty certain either of the offense or the whether imposed reduced; have been that the court’s failure to should might grant adequate so that counsel have continuance argument prepare for time to of the motion demonstrated recognize duty.” this that the “did even court penalty or for reduction of motions new trial On nondelegable duty discharge a make an the independent must trial court and to determine whether review evidence penalty degree imposed be re of the offense or the should supra, 728; (1961) v. Love duced. Cal.2d 584]; People v. Moore Cal.2d 101, 49 v. Sheran trial disposition motion for new Hearing of a trial. The failure to allow integral part of the criminal *35 546 prepare adequate part
counsel time to this in effect de prives right (People a defendant of his to counsel. v. Saraz 7, (1945) 934].) zawski 27 Cal.2d 17-18 short, P.2d In [161 a defendant evidence, is entitled to two decisions on the judge in of a second the trial his consideration motion for a important particularly here, according new trial which was to appellants, alleged inadequate because instructions on parole improper argument and prosecutor on the subject penalty. On it such motion is the trial duty to review the and court’s evidence to determine whether judgment weight supports in its of the evidence jury’s (People v. (1958) 50 321, verdict. Borchers Cal.2d performing duty In 328, 97].) 330 P.2d that trial “ judge credibility must . . witnesses, court de- probative weigh testimony, termine the force of the evi- ” (1957) supra, p. 109.) . Sheran (People .’ dence. . granting within continuance is the discre tion of the trial court. v. Buckowski 37 Cal. daily transcripts 629, 631 Here 2d trial proceedings were available for so that all counsel no by waiting preparation delay for the of the tran was effected Ashley (See People script. 269 Cal.2d reports probation it became clear that the Once ready by orig time, agreed would be all counsel to given days inal November pare date. Counsel pre were to (October 30 16) for the motions to ; yet November coun any without sel for Thomas Sears advance notice to the trial 1050) (see Code, after court Pen. more than § two weeks’ preparation, moved for a time for continuance on Novem plea ber on the needed more time. The record argument on that once the motions for a indicates new trial scheduled, counsel for was conducted petently Thomas com Sears grounds. covered argument appellants’ on the motions par- At the counsel ticularly duty attention to called court’s its make independent of the evidence accord review with the case of (1961) supra, People v. Cal.2d 728; Love the record ’ ignored Thomas Sears contention does not substantiate that it duty. grant refusal to The court’s continuance here com parable with the Sarazzawski case. There the trial court argument compelled on a motion days oral for new trial three jury’s promising days. after after the verdict counsel 13 supra, Sarazzawski, 7, 11-12.) (People v. Here would he heard clearly the motions told when were counsel (17 days). In prepare these time a reasonable allowed appear be no abuse discre- would there circumstances a continuance. motion for denying the tion denying a new the order conviction, and judgment of *36 affirmed with modification are Sears to H. B. trial as with the other. be concurrent each count that the sentence Floyd Thomas Ed- Ketchel and Donald as to judgment robbery the order for and imposing sentences ward Sears judgment affirmed; the are trial thereon denying a new impos- Thomas Edward Sears Floyd and Ketchel to Donald ing denying a new trial on penalty and the order death reversed, and the cause is re- penalty are question of question of on the and redetermination for retrial manded pronouncement of a new sentence only and for penalty with such determination and in accordance judgment and law. applicable J., White, J.,* J., Peters, and J., Traynor, Gibson, C. concurred. Dissenting. Concurring I wouldaffirm
McCOMB, J., denying the motions a new judgments the orders opinions entirety. dissenting of Mr. Justice in their See trial myself People Love, 56 734-756 Schauer Cal.Rptr. Cal.Rptr. 777, 481, 366 P.2d 809]. Schauer, J., concurred. appellants and Thomas petitions of Ketchel Edward rehearing 4, 1963. were denied June for a
Sears sitting pro Supreme tempore Court Justice of the *Retired under Council, assignment by Chairman of Judicial