*1 Apr. No. 20934. [Crim. 1980.] PEOPLE,
THE Plaintiff Respondent, LANPHEAR, Appellant. RONALD EUGENE Defendant and Apr. 21167. No. [Crim. 1980.] re on Habeas Corpus.
In RONALD LANPHEAR EUGENE *6 Counsel Defender, the Su- Denvir, under appointment by Public State
Quin Schulman, Court, Deputy and Edward H. Harold E. Shabo preme and Petitioner. Defenders, and Appellant for Defendant State Public Philibosian, General, Chief Robert H. Attorney George Deukmejian, *7 Kremer, Gen- General, Attorney Assistant Daniel J. Attorney Assistant Bloom, Harley D. Meth, Wellington Michael eral, M. Jay Alan S. General, and Respondent. for Plaintiff Deputy Attorneys D. Mayfield,
821 Opinion
MANUEL, J. a Defendant Ronald from Eugene Lanphear appeals the death his conviction of first judgment imposing penalty following murder. He also seeks a writ habeas based on degree corpus allega- of tions of trial representation appointed ineffective counsel. by have been We find no reversible error affect- proceedings consolidated. the verdict of or the circumstance. Chal- ing guilt finding special actions of trial counsel to be the of informed lenged appear product tactical choices within the of reasonable and the trial range competence, court committed no error in its or prejudicial evidentiary rulings conclude, however, instructions to the We jury. part the death must be reversed. The trial court judgment imposing penalty excluded where the voir dire failed to improperly prospective jurors make it clear” that the “would vote “unmistakenly jurors automatically against imposition capital punishment without evi- regard any trial,” dence that developed be at the or that the attitudes might jurors’ toward the death “would them from an penalty prevent making impar- tial decision as to defendant’s guilt.” v. Illinois (Witherspoon 510, 522-523, 776, 785, U.S. fn. L.Ed.2d 88 S.Ct. [20 1770].)
In November 1978 defendant was information with the charged by murder in of Robert San Bernardino 1978. Unger County July (Pen. Code, 187.)1 in The information the use of a firearm the alleged § 12022.5) (§ commission of the offense and that the murder was com- willful, mitted under circumstances” in that it was deliberate “special the commission of premeditated, during committed personally (See 190.2, (c)(3)(i).)2 It also included “ag- former subd. robbery. § murders, an and two escape, prior of two other gravation allegations”3 convictions.4 robbery indicated, section references hereafter are to the all Penal Code.
1Unless otherwise legislation (Stats. 1977, penalty case arises under the 1977 death 2This ch. initiative, 1255-1266) pp. superseded by which has been the 1978 currently codified as sections 190 to 190.5. proof of the of provides pertinent part: Except 3Section for evidence 190.3 “... subject no special penalty, fense which a defendant to the death or circumstances by aggravation the evi may presented prosecution evidence be unless notice of given period reasonable dence to be introduced has been to the defendant within a ” court, time, prior determined as trial.... agreed attempt impeach defendant prosecutor 4Before trial the he would neither They part in the trial. priors prove played with the nor either of them. no *8 trial, de- finding At the returned verdicts guilt phase jury allega- circumstance and use fendant as and the guilty charged special at the party tions to be new evidence was introduced either true. No court verdict of death. The trial phase, and the returned a penalty of sen- application denied a motion for a new trial and an for reduction death; 190.4, (e)). this (§ was sentenced to tence subd. Defendant 1239). appeal (§ automatic the Case
Statement Point, in in the night Defendant from Elk South Dakota escaped jail 8-9, friend, in Sioux City, He a Diana July joined Geisinger, 1978. Iowa, in Texas and plans eventually marry and two made togo automobile, Camaro, from a Las Diana “borrowed” an Vegas. friend, $30 left Sioux and with between them defendant Diana in the which he had taken from the City. gun guard Defendant had a time, pregnant. At the Diana was seven months escape. witness. She testified to the events
Diana was the chief prosecution’s on Unger which culminated in the murder of of the five-day journey during 14. She that defendant committed other crimes related July brother, Glendale, with her two in Arizona trip, they spent days $60, that, 13. Vegas with went to Las on they July about casinos, After in the left Las toward gambling heading they Vegas California and at a rest area on the Nevada of the border. stopped side them, their find Having only a few cents between intention was “to some credit and some money.” They cards more on tables slept picnic night following stop, still at the rest morning, July continued to discuss which to obtain was told to ways money. Diana refused, ask a for a ride. When the a cou- lady woman defendant asked for a ride. man said woman ple yes, but the declined. then Unger fountain; came to a water asked ride “up defendant him for a nearby the road” for When defendant into Unger and Diana gas. agreed, got vehicle, a with Ohio sat Unger’s plates. Matador Defendant green with the the front seat revolver beside him passenger lying wrapped an Diana sat in orange towel. the back. if Diana she was all That kept right.
As defendant asking drove “I out: told him that I get cue to the vehicle so she could stop just was a killed him.” Diana announced around. .. he didn’t want to be [w]hen *9 out, ditch, went down a and that she felt sick and wanted out. She got shot, back, She heard a looked and saw defendant close illness. feigned door; side, he walked around the driver’s told her to passenger off, and that he would be Defendant drove but returned put back. stay seat, in moments later. When Diana in the back was still got Unger in where defen- car. drove down a dirt road and an area They stopped dant removed and him behind some bushes. placed from the car Unger Defendant then removed some coveralls from the trunk which he used to muzzle the and shot two or three more times. Portions of gun Unger effects were left Defendant went Unger’s personal body. through the victim’s wallet and pockets took a watch. two then drove back to the rest car. stop Unger’s
Blood from the Matador was removed and Unger’s suitcases exam- ined. Defendant transferred the license plates from the Camaro to the Matador. The couple returned to Las in the That Vegas Matador. night they at the El gambled stayed Sombrero Motel. sorted out They $200 Unger’s in cash. The then property, including couple drove back to Arizona where lived with Diana’s until they brother late or August early September. Defendant obtained as a employment roofer.
In the Arizona, weeks that followed their return to the couple’s rela- 8, 1978, tionship deteriorated and on October Diana called the local police that defendant complaining had assaulted her. No charges were filed, but defendant moved out. On October when he returned with “stuff,” Williams Carolyn to demand his Diana informed him that she had thrown it back, Defendant told away. her that he would be hole,” “I’d better a dig myself and that “I’d be number four.” After the (Diana’s incident Hall Patsy neighbor) asked Diana what “all that” meant and son, Diana told cadet, her. and her a Patsy police persuaded Diana to talk to the police.
Detectives Adler and Stodell of the San Bernardino Sheriff’s County office testified that took Diana from Arizona to California on Oc- tober 1978. Enroute she pointed out rest where she stop and, defendant met Unger south of the state line in San Bernardino County, location of his body. testified that
Carolyn Williams she first became aware that defen- dant have been involved murders when the may police contacted her 12. then defendant had left By on October town. He contacted her that he wasn’t had happened “that some things and stated evening talk about and have a long we would sit down someday of and proud be over it was all going of hours couple He stated “that it.” also I do what he asked a letter and would that he was me sending with and *10 he was to com- believed Carolyn going He was and crying in the letter.” stated he defendant called and again the following day mit suicide. On the if she received to burn letters He asked Carolyn was in Las Vegas. suicide and his mind about committing had changed them because he did not mean anything.” now “the letters which contained envelopes a letter from defendant received
Carolyn Peoria, and Linda Diana, Department Arizona Police to addressed po- turned the letters over to the Iowa. City, Carolyn of Sioux Balyeat statement that he contained defendant’s police lice. The letter to the Kansas, in one in one California and was of three murders—one guilty with participation Diana had to do nothing in New Mexico—and crimes. in Las on October 1978. At the Vegas Defendant was arrested had Robert watch and was Unger’s wearing time of his arrest defendant his shoes. pair Adler took defendant Stodell and Sergeant Sheriff Michael Deputy 17, 1978. Dur- San Bernardino on October County from Las Vegas know, “You Diana is volunteered the statement defendant ing trip, sooner, if she hadn’t been so turned me in a lot innocent. She’d have scared.” He tes- the offense. committing and denied the stand took
Defendant discussed the Diana he and on July that, Vegas to Las enroute tified Diana p.m. around 9 Camaro, sometime and trading possibility three about She returned the automobile. trade or sell left the casino car traded the she had She said money.” a bit of with “quite later hours Matador. had a 1971 trade. She the details discuss refused to but Motel. the El Sombrero at morning clothing saw Unger’s He first the name inside with the pants he found later weeks Two or three de- not into go did She happened. had what Diana from learned finally He took Unger. hitchhiker killed a girl had that she but said tails He the inside. out of the blood and washed car wash to a the Matador Diana because to Arizona returning after shortly the car painted spray car. she had stolen him told
In the homicide in to the events of the regard journey leading up California, defendant admitted the and a Kansas station rob- escape gas denied the He he had from Elk bery, escaped but murders. testified Point, stolen the and robbed a service station attendant pistol, Empo- ria, but that killed He out of the car in got Diana had the attendant. he re- Oklahoma and hitchhiked the rest of the to Arizona where way Kansas, joined Diana. He wrote the letter the murders in admitting Mexico, New and California because he “did not care anymore.” Defendant testified that after the with about dispute Diana getting clothes, he told her “to find herself a hole and hide in it” conversation, end of the that from the time he left South Dakota until he was arrested in Las he Vegas never Diana contemplated killing *11 and had not contemplated her killed having since his arrest. rebuttal, Gifford,
On the prosecution called Ann a friend of defen- dant, who testified that she with conspired defendant to find someone to “get rid” of Diana. She communicated with defendant letter and by while telephone he was incarcerated. From him she received several ad- Diana, dresses for and from Diana’s ex-husband she obtained a picture. Gifford’s first contact refused to with the and go through killing, appar- her ently second contact was an undercover agent.
I Relating Issues to Guilt Phase Defendant makes no claim that the evidence is insufficient to sustain his conviction for first murder or degree of circum- finding special stance. The only issue was the of identity the killer. The evidence establishes that the victim was killed to facilitate his either robbery by Diana or by defendant. The resolved the conflict in their testimony against defendant.
Defendant contends that trial counsel was and ineffec- incompetent (1) He the trial court erred in the admission of tive. also contends that evidence, (2) (3) in its certain rebuttal in its instructions on credibility, (4) comments to in denial of motion to voir prospective jurors, dire the trial jury regarding publicity. trial counsel.
Adequacy of trial was ineffec
Defendant asserts that counsel him inadequate representation during guilt phase tive afforded (1)
in that he failed to to the introduction of evidence of crimes object other than the offense and he failed to charged object introduc- tion of evidence prosecution rebuttal.5 While the record on appeal conduct, no provides explanation for counsel’s uncontroverted declarations of the prosecutor and trial counsel filed with the petition for habeas reveal the corpus tactical basis for the failure to object.
The most evidence damning prior crimes was Diana’s testimony two killings occurred on the first and second of their cross- days country Diana testified that journey. they exhausted their funds for gas on the 9-10, first On the day trip. defendant night July Kansas, at a stopped gas station near Emporia, intending to trade spare tires for attendant, As defendant talked gas money. with the Diana used the restroom and then returned to the car. She heard two shots. Defendant ran to the car and drove Defendant Diana away. gave $200 about and told her that he had shot the attendant in the head twice and killed him. He told Diana he would not have killed the atten- dant but “the started guy smart with him. He didn’t like his getting attitude.” Defendant also told her he did not want the attendant to be able to identify him. *12 events,
In defendant’s of the he admitted the atten- robbing version when refused to tires for cash. He exchange dant at the latter gun point however, attendant, returned to the car and related did not kill the but on the to he had done. She the console grabbed gun lying Diana what Defendant heard two shots. When Diana re- and went into the station. said, damn sure knew who did it.” nobody turned to the car she “I made challenge competence regard 5The to counsel’s to rebuttal evidence is considered thereon, rulings conjunction post, page later with discussion of trial court’s footnote 10. Only allegation petition corpus one of ineffectiveness was contained in the for habeas to counsel’s failure to make a appeal that was not also raised in the itself. That related change regard. sup- pretrial motion for of venue. Counsel cannot be faulted in that In venue, change of port pretrial of the claim that counsel should have moved for a describing the account of the crime copies newspaper defendant attaches articles ensued, Diana, given investigation which the arrest and extradition of police to hearing. Vegas, arraignment preliminary Our exami- defendant from Las and his and suggests change motion to venue would have been futile. nation of the articles that a inflammatory. primarily a factual account of Diana’s The articles are not One was pre- than defendant’s arrest and police. statement to The four others did no more relate any way adversely legal allegation the articles in liminary proceedings. There is no jurors. County has almost a million process affected the for selection of San Bernardino 89,000 91,000. residents; a of between and newspaper question has circulation Diana testified that on the second of the after a four- or day journey, Oklahoma, five-hour rest at a motel in Perry, they proceeded toward Mexico, New where about 10 at a rest a p.m. stop they agreed give ride to a rode young girl" carrying guitar case. The trio for together hours, (the several about briefly conversing guitars and hitch- money hiker about the she had on the “bragged” money spent and guitar her and trip), at a coffee and then a bar. At stopping shop point some Diana told defendant to let the hitchhiker out. she and defen- Although it, dant not had discussed Diana knew when defendant went over a viaduct off the that “he was rid of her All highway going get there.” out, three were in the front seat. Defendant got opened passenger door, and asked Diana if she wanted out. She responded affirmatively so the hitchhiker out got first. The was shot in the girl back of the head. Defendant straddled her and body searched her Diana then ob- pockets. served area; defendant take the from his belt she gun looked as away the hitchhiker was shot a second time. Defendant threw the in the gun car and Diana, rolled the girl’s down the body cliff. who was still in the car, was instructed to go through hitchhiker’s belongings. Drugs were papers thrown kept sold, which was away; they guitar, later $1.50. a coin purse containing Defendant denied involvement in the killing hitchhiker. He tes- tified that after Oklahoma, the motel in leaving he decided Perry, to get out of the car and hitchhike to Arizona. He arranged meet Diana at Glendale, Arizona, a bus station in and did meet her two later on days evening 12. Defendant testified July that he did not notice the Camaro, guitar in the saw it for the first time in the trunk of the Mata- dor, Diana’s, assumed it was it on her pawned instructions.
Additional other-crimes evidence of which defendant complains South Dakota of defendant’s assault him jailer’s description upon dur- ing the evidence of the escape, reasons for the incarceration in South states), Dakota and (burglary revocation of bail in three and Diana’s of a testimony theft which occurred burglary subsequent crime. charged
Defense counsel made no to the introduction of of objection any in accord with CALJIC the above evidence. The instructed No. 2.50 as to the limited for which the evidence was received. purposes were instructed that it was not received and could not be consid- They ered to bad character or to commit crime. prove disposition
828 claim of trial assistance is inadequate
The burden of proving trial counsel failed to on the defendant. must show “[A]ppellant act competent attorneys act in a manner to be of expected reasonably addition, In must establish that appellant as advocates. ing diligent resulted in the withdrawal of a potentially counsel’s acts or omissions 412, (1979) 23 425 v. Cal.3d Pope meritorious defense.” (People [152 continues, 732, “Once an has 859].) appellant 590 P.2d Cal.Rptr. Pope burdens, met these court must look to see if the record appellate If contains for the any explanation challenged aspect representation.” on counsel acted or failed to appeal light why the record on sheds no will on appeal act in the manner be affirmed challenged, judgment one, and failed to provide “unless counsel was asked for an explanation (Id., 23 be no satisfactory explanation.” or unless there could simply 426.) Cal. 3d p. at on counsel’s actions light
The record on this sheds no appeal We the procedure evidence.6 have followed vis-a-vis other-crimes (id., 426) cause upon and issued an order to show proposed p. Pope with contemporaneously habeas filed petition corpus, defendant’s for the appeal. of trial tactics is a matter to make objections failure
Generally, (People Beagle judicial hindsight. as which we will not exercise 313, 441, 1].) 492 P.2d (1972) 458 Cal.Rptr. Cal.3d 6 “[C]ounsel’s [99 light in the harsh appellate not be judged by conduct should ¡courts not at cases, court should an appellate . in rare except hindsight.. (1974) 43 Cal. v. Thomas (People trial counsel.” tempt second-guess al “It is not sufficient to 226].) Cal.Rptr. App.3d [118 the case might were or that poor, tactics that the merely attorney’s lege Rather, must affir the defendant .. effectively. been handled more have a critical involved of defense counsel the omissions show that matively the basis of any issue, explained cannot be the omissions two-step analysis. In addi Pope for a guidelines provide aware that the 6We are objected have reasonably counsel would establishing that effective tion to po him of a deprived to do so must show that failure question, defendant evidence in defense was foreclosed readily apparent what It is not tentially meritorious defense. (Cf. People v. Nation evidence. object to the other crimes failure to counsel’s validity of the 1051], *14 the sole issue was P.2d where Cal.Rptr. 604 Cal.3d 169 [161 object to the criti counsel’s failure to rapist; as the of defendant pretrial identification assistance.) constitutionally adequate deprived defendant of evidence cal identification met the bur opinion that defendant has purpose of this for the We nevertheless assume justification for possible proceed to an examination Pope and dens outlined counsel’s actions.
829 694, (1970) 1 Cal.3d v. Floyd tactics.” (People choice of knowledgeable v. Williams see also 608, 64]; People P.2d 464 Cal.Rptr. 709 [83 208, In re Wil 1008]; 471 P.2d 894, (1970) Cal.Rptr. 905 2 Cal.3d [88 784, 168, 984]; 460 P.2d Cal.Rptr. (1969) 176 1 Cal.3d liams [81 225, 452 678, Cal.Rptr. 690-691 (1969) Cal.2d Hill 70 v. People [76 766, Cal.Rptr. 773 (1966) Cal.2d 64 v. Reeves 329]; P.2d People [51 130, (1966) 140 64 Cal.2d 691, v. Brooks P.2d 35]; People [48 415 Cal. 29 897, v. Fitzgerald 383]; People 410 P.2d Cal.Rptr. (1972) 24 Cal. v. Brunt 296, Cal.Rptr. 458]; People 310 App.3d [105 (1969) 271 Cal. 945, 457]; Perry Cal.Rptr. People App.3d [101 (1967) 256 v. Powers 84, 725]; Cal.Rptr. People 114-115 App.2d [76 Cal.Rptr. 450].) Cal.App.2d [64 to meet attempts counsel corpus, appellate
In the for habeas petition that trial and seeks to demonstrate the thrust of the above cited cases investi- his to research the law or actions resulted from failure counsel’s conscientious a required by diligent, the facts a fashion gate hardly imagine that “one can counsel asserts Appellate advocate. other-crimes than the horrors parade more damning prejudicial be case,” that there could simply in this and submits evidence presented As will appear, inaction. for trial counsel’s explanation no satisfactory of the prejudicial were totally cognizant and trial counsel prosecutor concerns as to its shared counsel’s appellate nature of the evidence and effect. potential based on statu- a reasoned argument counsel first makes
Appellate of the two prior the evidence authorities and decisional tory or, if tech- of this case facts particular murders was inadmissible on it was admissible, merely because nevertheless excludable nically than its probative effect was far greater and its prejudicial cumulative evidence, its admis- However, was made since no objection value. (a)), (Evid. Code, subd. reviewable as such is not sibility § in his representation was not inadequate that counsel since we conclude discourse defendant, speculative will not engage we need not and intent, motive, or prove of the evidence to the possible admissibility counsel briefs of appellate at in the length a matter discussed identity, General. Attorney for habeas cor accompanies petition In the declaration other-crimes objection that he made no counsel states trial pus or plan show common it was admissible to thought he because evidence *15 scheme, is, “that get that the to across was to steal only way country and rob.”7 Counsel felt that the other-crimes evidence did per- also not tain to he had defendant “because had an alibi defense and said he was explanation not there.”8 Counsel’s is somewhat but ambiguous suggests that he tactical to object. had reasons for failing cause,
In the return to the to order show the Attorney General sub- mits declarations of both trial counsel and the district deputy attorney who prosecuted the Trial case. counsel states that percent his 30 of law, of years practice has been criminal that represented he has to75 homicide, 100 defendants accused of 25 who faced first including de- gree murder that charges, and he to of other objects evidence crimes whenever he believes it his client’s interest. Counsel recalled a pre- trial conference at which the of the Kansas subject admitting and New Mexico murders was discussed. It was his that opinion after conference admissible, that the evidence was if not and admitted at the guilt phase, it would be admitted at the penalty phase. . declaration of the district states that it was his attorney profes-
sional that judgment the would convict without defendant hearing Kansas New Mexico murders and that the effect of those murders on the be if jury would enhanced were not they mentioned un- concerned, til however, the was penalty phase. He that the withholding phase and, withheld, evidence until the would be unfair because penalty might conference, be barred. He the raised at a subject pretrial first counsel, his case court laying before the and trial the showing court that it would be impossible separate to of virtually statements other kill- defendant, ings from the letter of confession written indicating his only cross-country journey 7The indication that defendant commenced with theft testimony in mind he assured robbery was his own that Diana before started always out can rob that “I and steal....’’ complete 8Trial counsel’s as to “other crimes” as I declaration was follows: “That objection made Attorney’s opening no to the other-crimes evidence nor to the District argument regarding ‘cross-country killings’ I because believed that evidence scheme, is, way get show plan only admissible to common or that that the to across rob; country asking I was to steal and that did not consider the court to sever irrelevant portions asking to from relevant other-crimes evidence nor the court delete the evidence; concerning I was an details the other-crimes believe there in-chambers judge trial prior discussion of the other-crimes evidence to wherein the trial had indi defendant, willingness plea guilty, cated his life without sentence hand; out of I possibility parole, Attorney an which the refused offer District pertained appellant did evidence because he had an alibi not believe other-crimes there; limiting had for not defense and said he was not that there was no reason evidence;...” 2.50) (CALJIC regarding other-crimes CALJIC instruction *16 that the murders were needed to Diana’s actions at the prior explain a discussion of possible legal time of the crime. There followed charged evidence, intent. reasons for the to show motive and admitting identity, that the defense would be alibi and Defense counsel then indicated the New noted that he would cross-examine Diana at least as to Mexico killing. declaration, to the
According trial court reviewed the statutory death procedures and stated that murders penalty prior would be admissible during phase. Trial counsel then penalty expressed con- cern at the other two on the at springing killings such a late jury point in the trial and stated that if were they admissible for any purpose within the trial should be presented so during guilt phase that both parties could voir dire the jury about them and lessen the impact by being straightforward and honest with the from the jury beginning.
The uncontroverted facts described in the declarations of trial counsel and the prosecutor illustrate that both had an interest in the of timing the admissions of the prior murders. Defense counsel was in a caught cruel dilemma: If the prior murders were introduced for the first time when the alone, considering penalty impact would be such as to make the of penalty death a foregone conclusion. On the other hand, earlier, as noted case, was a credibility factor in this primary admissions Diana that she accompanied defendant two mur- through ders, him, with stayed and shared the proceeds do not tend to enhance her credibility. Those admissions permit defendant to paint her a killer capable of killing Unger him. We blaming cannot say the trial counsel’s actions were not of product informed tactical choice within the range reasonable competence.
Defendant makes four assignments of prejudicial error in the rulings and instructions of the trial court:
Admission evidence to kill conspiracy witness.
Defendant contends that the trial court erred in permitting pros- ecution, over to cross-examine objection, defendant and to present rebuttal evidence his concerning in the to kill complicity plot Diana. record,
From the we present brief of the events chronology leading of Ann testimony Gifford that she with conspired defendant kill Diana: The prosecutor heard from South Dakota authorities 16, 1979, February Diana be might she was danger; placed protective custody. prosecutor heard more no until the night *17 when he 21st was informed that undercover had agents a tape-recorded conversation with Ann Gifford in which she solicited an to kill agent Diana. On the following day, 22, the prosecutor February was notified that Ann Gifford had been arrested and in a statement to had police implicated defendant in the to kill plan Diana. Earlier on the same day, February the had prosecution rested its case. Defense counsel of immediately informed Gifford’s arrest the potential involvement Gifford had been one of the witnesses subpoenaed the by defendant. defense, and when trial recommenced on 26 for February presentation case, of the defense defense counsel mentioned the of his nonavailability witness, Gifford, first and advised the court what he learned had from the prosecutor her concerning arrest in- defendant’s possible volvement. The court inquired of the prosecutor whether he to intended his reopen case-in-chief introduce the evidence he had. The district responded: attorney
“No, Honor, I do not. The that your time this information only may regard become relevant is in bias or potential prejudice of other any who are And people involved. now the that obviously, right only person would include is the Defendant. I ag- kind that think that the it is the “Realistically, of information reason, and directed And unless some really at.
gravation phase for it, unless some reason I would advise the court before into getting for wouldn’t anticipate getting the I up subject, the case opened defense pro- found true and we this unless the circumstances were into special (Italics added.) told The court thereupon ceeded aggravation.” as matters developed, the defense advised prosecutor to keep trial the portion of the throughout remaining record reveals that did so. prosecutor witnesses, The its them the defendant. among defense then called was: the time examination of defendant “From on direct question
last ever in Las did Vegas, you left Elk were arrested you Point until you the neg- responded Defendant contemplate Geisinger?” Diana killing was: time of “Since the The first on cross-examination question ative. Diana killed?” arrest, contemplated Geisinger have you having your later, in- the prosecutor Sometime negative. The answer was in the that he intended to cross-examine and defense counsel formed court evidence of witnesses to elicit defendant and if other necessary present was to be Ann Gifford. The evidence defendant’s with communications evidence, indicating efforts to suppress offered to show defendant’s of Unger. in the killing consciousness of guilt exceed the cross-examination would
Defense counsel’s objection court noted de- the trial court. The of direct was overruled scope do with the crime and ruled that he had nothing testimony fendant’s Counsel guilt. was admissible to show consciousness evidence 352 that the evidence was then under Evidence Code section objected concerning intelligibility After discussion too additional prejudicial. *18 concerning and the of evidence tape admissibility of Gifford’s recording stated, that the court “The fact the to show consciousness of plot guilt, is is of guilty it tend the that the Defendant persuade might insofar as it has been it out. The evidence keeping course no for grounds to re- appears value. It probative revealed to me to have appears great himself, Defendant, the conduct by not to late to the conduct by About the same to him.”9 other on his behalf or unbeknownst people time, potential to Ann Gifford’s proof the court asked for an offer of as and, with proceed permitting prosecutor before testimony defendant, that the Dis- “. .. I am satisfied cross-examination of noted the very faith from good begin- trict has acted the utmost Attorney had, he everything the defense counsel furnishing in this matter in ning And as it became available. bit of information that was available every ” to do so.... I would assume that he would continue his privi violated Defendant contends that the cross-examination of the direct scope in that it exceeded the self-incrimination lege against 761, (1969) Cal. 71 Cal.2d 769 v. Schader examination. (People [80 Ann never mentioned 1, notes that defendant 841].) 457 P.2d He Rptr. direct which con in his and that testimony question Gifford of time period to a fixed of harm to Diana related contemplation cerned defendant Although is spurious. his arrest. The contention preceding Const., I, (Cal. art. witness himself against cannot be to be a compelled denial of the crime makes a 15), general if he “takes the stand and § appeal that a contention made defendant on statement answers 9The court’s was renewed when motion. The section 352 motion never ruled on the section 352 court motion, stating feels The court denied the “The court called to the stand. Gifford was proper proposed great probative is of value and is a which has been the evidence jury.” subject inquiry before the 834 cross-examination
with which is is he charged permissible scope wide”; cross-examination does not have to be confined “to a mere very matters, dates, di- review of the or times mentioned in the categorical rect ‘A examination.... defendant cannot.. .limit cross-examina- tion facts which testifies.’” v. concerning he precise (People 222, (1950) 223]; Zerillo 36 Cal.2d 227-229 see also People P.2d [223 871, (1979) P.2d Cal.Rptr. v. 24 Cal.3d 679 597 Saddler [156 130]; Cal.App.3d Cal.Rptr. James People [128 733].)
Defendant also contends that his evidence of alleged participa tion in the to kill conspiracy Diana rebuttal under improper section 1093, subdivision 4 which that after the de provides prosecution and evidence, fense have offered their parties “The then may respectively offer court, reason, rebutting testimony unless the fur only, good for therance of justice, permits them offer evidence their upon original case.” this bad thrust of the district acted in argument attorney
faith and possible withheld evidence of the the case- conspiracy during in-chief even he had of it defendant’s though knowledge and of involve- that, ment. It is apparent from the earlier chronology presented the was of some the although prosecutor aware Diana from danger 16, on it was not until he rested case February communication after his that he with received evidence of defendant’s connection the conspiracy. time, (see Until that the evidence was irrelevant as to defendant People (1977) 588, 885, v. 19 599 Cal.Rptr. Hannon Cal.3d 564 P.2d [138 1203]); and from then on the candid the prosecutor entirely as to potential use the information and furnished the details to defense counsel as became available to him. The trial court’s finding prosecutor acted faith is good supported record. Defendant by cannot claim legitimately surprise.
Although a crucial known witness and avail able to the should called prosecution be the case-in-chief during (People (1957) 737, v. Carter 48 Cal.2d 753-754 P.2d 665]), circum [312 stances proof make that order of The order may impossible. of proof 1094; lies within sound of the (§ discretion trial court v. People (1969) 379, 1 Mosher Cal.3d 399 461 Cal.Rptr. 659]), P.2d [82 and on the case particular facts of this we find abuse of no discretion or as impeachment part the rebuttal evidence either for permitting case-in-chief out of order.10 Failure to tailor the instruction witnesses. regarding credibility of have, have, the trial court should as
Although might or defen asserts, (CALJIC dant 2.20)11 deleted from the instruction No. portions that were inapplicable, defendant has failed to establish a reasonable that a different probability verdict would have been rendered in the ab sence phrases complained of.
Denial motion to voir dire trial. during jurors the trial con
During
reported
alleged
article
newspaper
to kill Diana. It is contended that the court’s refusal
spiracy
engage
voir dire constituted
error. Defendant’s reliance
requested
prejudicial
Lambright
In the trial of the case at throughout bar the were ad- monished not to read and when newspapers, forewarned that the papers were going print an article about the the trial court took conspiracy, *20 challenges adequacy respects failing 10Defendant also the of in several in that counsel counsel First, Gifford, object should have section section 352 that its urged testimony to rebuttal evidence. as to the of it is objected testimony proof’ provisions to the as violative of the “order of of repeating subdivision 4 in addition to the motion under Evidence Code prejudicial outweighed probative explained effect its value. As above, the trial permitting prosecution court did not abuse its discretion in the to call Ann Gifford completed. incompetence after defendant’s case was We see no of counsel guidelines objection under Pope specific ap the of in counsel’s failure to make the that pellate suggests. counsel Second, object trial counsel’s of failure to to introduction in rebuttal the coveralls al- legedly gun Unger used to muzzle meet the the used to kill does not level incompetency Pope. “potentially decried in We see no defense” withdrawn meritorious by object. from defendant trial counsel’s failure to determining jury credibility 11CALJIC No. 2.20 tells the that in the of a witness they may any prove disprove Among consider matter that tends to or truthfulness. the honesty veracity or opposites,” listed considerations are: “His character for or their and prior felony.” “His conviction of a special pains to warn the not to read the or listen to the jury press radio. In the absence of evidence that failed to any jurors any admonishments, heed its we cannot that the trial court abused its say alternatives, discretion after the it determining, considering that would be best emphasize not to the matter the by polling jury.12 Trial court’s comments to prospective jurors.
Defendant contends that comments the court by to prospective jurors (expense of trial to district was of taxpayers; attorney opinion that defendant was defendant would be guilty; parole on find subject ing circumstance; first murder without degree special decision jury’s review) reviewable aby were judge by appellate improper prej udicial. We the contention. Defendant reject neither objected comments nor has he shown effect. any prejudicial
Each of the comments must be considered in context: When address- the ing prospective the trial court jurors outlined in detail the procedures to be followed and their emphasized as obligation jurors make the decision. the court Although noted in that the passing jury’s decision was subject Court, to reviews him and by the Supreme court emphasized again again that the ultimate decision was the jury’s. not,
The court did as defendant charges, refer to the repeatedly pros- ecutor’s belief in information, defendant’s When guilt. an describing “piece of paper” office, prepared by district attorney’s court stated several times that the information was no evidence whatso- ever of guilt, that although “thinks he’s to start the somebody guilty” process, “what we are here for is to find out whether those are charges true, not whether thinks somebody are true.” they occasions,
On two while of the decisions informing jurors would be required to the court if told defendant make were found of first murder without circumstance guilty degree special would be life penalty with imprisonment possibility parole. *21 Lambright, jury correctly 12As in stated “In a case where the is admonished not to trial, newspaper extrajudicial may receive reports proper or other of the it be a exercise regarding of poll jury any specific discretion for the trial court to refuse to news may presumed media account of the trial. In such a situation it be in the [Citations.] showing jury (61 absence of a misconduct heeded the court’s admonition.” 486-487.) pp. Cal.2d at
837 in court no consider way suggested in they possibility parole v. Morse (Contrast, their 631, determinations. 60 Cal.2d People 33, Cal.Rptr. 388 P.2d 810], A.L.R.3d where the jury [36 was instructed that consider the they might possibility parole verdict.) their reaching
And, on several occasions finally, or trial prospective jurors jurors were admonished on their to follow the law and duty not engage misconduct which a mistrial. The might require court noted that re- trials were difficult and unfair to the parties and to the In taxpayers. no did the way court that the suggest expense of trial was relevant to de- fendant’s or guilt innocence. above,
As noted no objections were made to of the any remarks. And in view verdict, of the evidence in overwhelming support we dis- cern no possible prejudice defendant.
II Relating Penalty Issues Phase selection, In the course of jury eight prospective jurors ex pressed objections to the death Defendant contends that penalty. Herkelrath) exclusion of three of these jurors (Holley, Hayter Illinois, to the standards established in Witherspoon supra, contrary 391 U.S. him of his constitutional deprived right to an impar tial We as to exclusion of jury. agree jurors Holley Hayter.
To determine the juror attitudes death concerning penalty, “Now, court remarked to the first two preliminarily panels: back to the problem at hand. When we come to the business of the death penalty, the law that since a requires to have to wrestle with this jury going decision that the be able to wrestle with the jury decision. It would not be appropriate for us to have someone on the whose be- religious liefs or moral or whatever source of beliefs are such feelings, that under circumstances, were, no no matter what the facts no matter what hap- pened, could even take deliberations that part lead to any might a death penalty.
“If has that are that then anybody strong, obviously, they feelings start, should not serve on a Because before we even we are in a jury. po- *22 have a or could not hung jury possi- where we are going maybe sition the evidence alternatives no matter what possible arrive at bly shows. I heard people
“And I that there are some have religions understand beliefs, whatever religious they that there are some who for people say, And I would take such deliberations. part any feel cannot they just convic- personal of who feel that you your like a show of hands of all under are such that could not you tions or beliefs or whatever personal showed, part the evidence even take circumstances no matter what any so, If raise lead to a death penalty. in the deliberations which might hands?” your when af- two were excused
After individual questioning, jurors in deliberations which inability participate voiced firmatively verdict, circumstances of the facts or lead to a death regardless might the case. place: took following exchanges Thereafter Holley: Your Honor? “Mr. Yes, sir?
“The Court: Holley: number 37. If the trial Holley, Mr. came to the third “Mr. of, where there was a choice spoke between life and stage you sentence, have any degree does the selection there? death the jury. absolutely up It is “The Court: Holley: mean— I “Mr. with now, to do nothing has I’m telling you, —what
“The Court: All we up jury. That is entirely would be. decision your what in delibera- part capable taking would be is that you want to know death penalty? vote for the with the tions, up end eventually which may Holley: could, I sir. believe I don’t “Mr. that, it? Holley, Mr. I appreciate
“The Court: Holley: Yes, sir. “Mr. *23 excused, would to the go are you, you you Thank
“The Court: them room and let know? assembly
“That was number 37. Holley, Wesley would have think
“Anyone feelings you prevent else? If you any death penalty, in deliberations which lead to the your taking part might us if are that let know. feelings strong, why your “Yes, sir? Hayter: Sir, I I don’t believe that could.
“Mr. What name? your
“The Court: Hayter: 33. H-a-y-t-e-r,
“Mr. In the first group. All is this because right, of your “The Court: personal convictions or beliefs or religious what? Hayter: beliefs, I’m a Religious born Christian. I again just
“Mr. don’t believe that I could have any part electric sitting chair, sending anyone. Incidentally, Mr. Broderick counsel], I [defense Court: “The
haven’t asked on these other if you you cases want to question any them, these people further before I if know, excuse let me I why you give will you that privilege. will, I Honor. your
“Mr. Broderick: sir, All right, you, thank Mr. You Hayter. are ex- “The Court: cused, would you go jury assembly room and them let know.” court else, asked if there was anyone there was no further response.
Later, from the third three were panel, excused who jurors responded whether affirmatively question their about the death feelings pen- were such under alty no circumstances would be able participate deliberations which lead to the death might penalty. Thereafter, resumed, general were as questioning jurors queried and possible or agents agencies with law enforcement
their association Herkelrath: ensued with colloquy juror The following bias or prejudice. *24 And I am for 25 City years. I worked for “Mr. Herkelrath: time and at that policemen awful lot of with an acquainted well pretty sheriffs. name, What is sir? your
“The Court: Herkelrath. “Mr. Herkelrath: Yes, been retired? how have long you
“The Court: Nine years. “Mr. Herkelrath: a lot of known your having about anything Is there
“The Court: in this case? decision that affect policemen might your mean, never been Well, I I have I don’t know. “Mr. Herkelrath: hear all until top you off right It is hard to answer in that position. and I don’t a that extensive jury I would hate to sit on evidence. But stake. I hate cases, man’s life is at but a other types mind sitting jury. to sit on that kind of a Herkelrath, Mr. I Well, background, in view of your
“The Court: them know.” and let room assembly Go to the jury will excuse you. equiv- Herkelrath gave Holley, Hayter, that Defendant contends improperly and were inquiries penalty to the death responses ocal error, and waive the does not excused, failure to object that counsel’s As will ap- representation. ineffective failure to constituted object Hayter. Holley as to jurors we pear, agree with scruples against jurors that prospective holds Witherspoon unless that basis for cause on be excused not may the death penalty automati (1) that would they clear “unmistakably it made have without regard punishment of capital imposition cally against vote the case before the trial of at developed be that might evidence any would prevent penalty the death them; toward (2) that their attitude or guilt.” the defendant’s as to decision impartial an making from them (italics in p. 785]; at 522-523, 21 L.Ed.2d (391 fn. at pp. U.S. [20 original.)
841
We
and its
compelled by
progeny
recognize
are
Witherspoon
Thus, expression
scruples
certain
said to flow therefrom.
principles
the death
or abhorrence or distaste for
on a
against
penalty
sitting
sufficient;
case is not
must indicate
trying
capital
juror
that his beliefs or
will
whatever the circum
automatically,
feelings
stances,
him
will affect his
prevent
from
for the death
or
voting
penalty
(Id.,
522-523,
determination of the defendant’s
at
fn. 21
guilt.
pp.
[20
614,
(1969)
L.Ed.2d at p. 785];
v. Williams
71 Cal.2d
628
People
[79
65,
(1969)
406,
Cal.Rptr.
456 P.2d
71 Cal.2d
633]; People
Vaughn
186,
416
455 P.2d
Cal.Rptr.
122];
v. Risenhoover
70
People
[78
Further,
Cal.2d
Cal.Rptr.
925].)
P.2d
when a
[73
*25
seemingly
answer follows a
that is itself
or
unambiguous
question
vague
terms,
in
unspecific
court must determine
Witherspoon
reviewing
whether there is
that the
construed the
any possibility
juror
question
such a manner as to render the answer
ambiguous Witherspoon
(Williams,
628-629.)13 And,
terms.
71 Cal.2d at
con
supra,
pp.
finally,
clusionary-type responses or
such
responses hedged
equivocal phrases
by
think,”
as “I
“I don’t think” or “I don’t believe” have been held insuffi
cient
765,
basis for
(1968)
exclusion.
v. Chacon
Cal.2d
(People
69
10,
106,
772-773
Cal.Rptr.
447 P.2d
34
454];
A.L.R.3d
v.
People
[73
(1969)
462, 452,
Osuna
Each prospective
must
juror
satisfy
requirements of With
erspoon
(1969)
1170,
v.
(People Washington
71 Cal.2d
1177
Cal.
[81
5,
259,
Rptr.
459 P.2d
449]; 1019), 71 Cal.2d supra, “no amount of reference to responses other veniremen or to comments or given by court by counsel can serve to make certain the of the venireman’s re- meaning (Hill, 1019) in supra, sponse” 71 Cal.2d at the absence of an p. intends his answer to state that he could never indication that the juror the death impose penalty. in mind after a
With these few general principles prelimi comments, examine the voir dire of nary we jurors Holley, Hayter, dire, properly Herkelrath. The court itself conducted the entire voir make, summarized the decisions which the would be called upon affirmance a show of hands as to the sought by prospective jurors’ which lead to the might to “even take deliberations” inability part show of death affirmance penalty. Significantly, despite apparent court, hands on the of the first two excused as one part jurors, them, whether her to the death repeated question opposition penalty on de would make it under circumstances to deliberate impossible any and, itself that the juror fendant’s as to the second assured guilt juror, statement “one hundred cent.” per subscribed to the court’s preliminary *26 thereafter, hand, in his whether af- raised Immediately juror Holley a propound question in order to the court’s attention to get firmance or answered, had been asked and question is not clear.14 When Holley’s it with as had done repeat Witherspoon questions the did not the court was all it wanted to know the but instead stated that previous jurors, To this in deliberations.” part was of “capable taking whether Holley terms, re- Holley Witherspoon not in question, phrased unrefined I “I don’t believe could.” equivocal, with an sponded third, the death the to the concerned judge initial question Holley’s if at that stage to know He wanted the deliberations. penalty stage that the assuring Holley After selection. any degree had jurors indication of for an the court pressed the jury’s, was entirely choice it is not this time By in deliberations. “capability” engage Holley’s if to, it is also unclear and referred are being what deliberations clear distaste, feelings, as to his inquiry as an question construed Holley other to do inability to his case or as capital a concerning or abhorrence reject the At that we ambiguity in the conduct possible because of precisely 14It is on the conduct raising hands was assertive suggestion that the torney General’s to the answer which, unequivocal affirmative an itself, establishes jurors part of the the is impartial on not be unmistakably clear could to make it question sufficient guilt. sue of
843 than vote the death automatically equivocal ques- against penalty. (71 tion evoked an answer. As noted in Williams Cal.2d at equivocal 633-634), spoke Court in with pp. Supreme precision, Witherspoon answer, and required ultimate specifying question supplying we must therefore “with considerable regard suspicion disfavor any exclusion which is not based on a in the juror... question phrased terms Witherspoon unmistakably so suggests.”
Somewhat hold that of juror we the exclusion was reluctantly Holley error.
Juror was not Hayter next. Apparently Hayter among those who initially raised their But when hands. the court asked whether pro- any had spective juror would “any feelings you prevent think your part which taking deliberations lead death might penalty,” “I Hayter responded don’t believe that I could.” He then indicated his Christian”) beliefs religious stated “I (“born-again don’t again just I believe could have any part sending electric chair anyone “I don’t [j/c].” believe I or “I I just can” don’t believe could” are not unequivocal required affirmation cases by California interpreting (See Witherspoon. 425, v. 26 Cal.3d People Velasquez 440 [162 306, Osuna, 606 Cal.Rptr. P.2d v. People likely”]; supra, 341] [“most 759, Chacon, 70 Cal.2d 769 I feel v. guess strongly”]; People supra, [“I 765, 69 Cal.2d 772 don’t think so”]; v. Vaughn, People supra, [“I think,” feel,” believe,” Cal.2d “I 415-416 “I “I am afraid”]; [“I People Risenhoover Cal.2d 55-56 don’t supra, know I [“I if could “I I possibly,” don’t feel hedged where answers in quoted would”] were phrases held to be equivocal pursuant too for excusal to Wither- *27 spoon.) and the other cited Velasquez compel cases the exclusion of juror Hayter as well as juror Holley.
Juror Herkelrath a different He was in a third presents situation. and did the court’s panel prospective jurors not come to attention during While examined his Witherspoon questioning. being concerning association with law enforcement officers and its effect on his possible a impartiality, very response. Herkelrath He stated he gave ambiguous (“hard did know affect not whether it would his decision to answer right evidence”). off until the his top, emphasis the hear all Then shifted you to the fact that this case capital was a and his statement thereafter can interpreted be to his an effect in mean that association could have this in capital of case. He distaste for case but type expressed some sitting nor penalty grounds he did not to the death on express opposition any state his vote. did he that it would affect duty point that the court had a at this under Defendant trial argues to as Witherspoon clarify response any ambiguity to Herkelrath’s avoid death pen- to whether the concern for the prospective juror’s imposing in favor of possible was a of a bias the due alty prosecution by-product or had personal scruples against to his former associations whether he the death penalty. which, his
The court excused Herkelrath because of in “background” context, this to association with offi- prior must refer law enforcement the excusal improper cials. Defendant does not contend that this is therefore here. Witherspoon ground. inapplicable the whether waived question There remains defendant the and to Witherspoon Hayter object error as to to jurors Holley failing People question their excusal. This court addressed recently adopted by 26 Cal.3d 443. Under rule Velasquez, supra, case, to the object we conclude that counsel’s failure to majority excusáis not bar the claim of error. here does us requires
The and to jurors Holley Hayter erroneous exclusion therefore penalty. as it relates to We need reverse insofar judgment re- raised the defendant not and do not resolve the other contentions trial. lating penalty In all other as it relates judgment penalty. is reversed insofar is dis- cause is affirmed. The order show
respects judgment denied. corpus for writ of habeas charged petition Newman, Richardson, J., J., Bird, J., Tobriner, J., Mosk, J., C. concurred. de as it holds
CLARK, J.
opinion
from
insofar
majority
I
dissent
Holley
error as to
jurors
did
the Witherspoon1
fendant
not waive
indicate,
As the majority
to their excusal.
object
Hayter by failing
*28
Witherspoon
constitutes waiver of
the
whether failure
question
object
(1980)
People Velasquez
in
v.
was
resolved
this court
recently
by
error
of
306,
“The decisions
the
606 P.2d
Cal.Rptr.
845 States Court and of the California courts have unani Supreme United is not waived Witherspoon ruled that error mere failure mously by (Id., 443.)2 at object.” p. shown, not this Re support proposition,
As will be the cases cited do trial when on failure to at the appeal precluded by object view not (See, De v. e.g., People law is in the interim. changed substantially 18, 809, 453 Santiago (1969) Cal.2d 22-23 P.2d Cal.Rptr. 71 [76 Velasquez majority 353].) examples All of the cases cited are by principle. Witherspoon substantially changed; operation of this (In 613, re Anderson (1968) 21, law. 69 Cal.2d 618-619 Cal.Rptr. [73 447 P.2d All the cases cited were Velasquez 117].) majority Therefore, Witherspoon. prior tried failure to a raise Witherspoon cases, in at trial was excused on these or im objection appeal expressly Velasquez majority on this The relevant pliedly, ground. portion follows. opinion after Witherspoon,
“Shortly
United States
Court re
Supreme
versed and remanded two cases in which the
Witherspoon
error was
(Maxwell
raised neither at trial nor on
Bishop
(1970)
v.
appeal.
398
221,
262
Holman
U.S.
1578]; Boulden v.
(1969)
L.Ed.2d
90 S.Ct.
[26
433,
made a in petitioners material in the law this state. Since were change tried Witherspoon, object before failure to to the exclusion of the pro- in not bar spective jurors question claiming does from now petitioners Risenhoover, (69 619.) error.” In because People supra, p. Cal.2d at v. the trial to Witherspoon, prior also occurred failure to obviously object in the in trial court to the exclusion of was excused prospective jurors (70 on Anderson. 55-56.) reliance at the Cal.2d Examination of pp. too, United States Court cases cited reveals that were all Supreme they, (Maxwell 262, Witherspoon. supra, prior tried v. U.S. Bishop, to 398 Holman, 221, 478, Boulden v. supra, 264 L.Ed.2d 394 U.S. 223]; [26 484, State v. Wigglesworth, supra, 433, fn. 18 439]; 8 L.Ed.2d [22 v. State 171, 173; (Tex.Crim. 1970) Harris Ohio S.W.2d St.2d 457 903, 908.) Velasquez
Significantly, majority did not mention the cases which have held that error is waived Witherspoon failure to object. (Boulware (Tex.Crim. 1976) 677, 682-683, v. State 542 S.W.2d cert. den., 811, 430 v. State 959 97 Shippy 1610]; U.S. L.Ed.2d S.Ct. [51 (Tex.Crim. 246, den., 1977) 251, 556 S.W.2d cert. 434 935 U.S. [54 294, (Tex.Crim. 1978) Von v. State L.Ed.2d Byrd 98 S.Ct. 569 422]; 891, 883, den., 1073, S.W.2d cert. 441 U.S. L.Ed.2d S.Ct. 967 99 [60 622, 2418]; Clark v. State (1978) 264 Ark. 630 S.W.2d [573 625-626].) 732, (1978) 21 Cal.3d 548 People Rogers Cal.Rptr.
In v. [146 that questions relating P.2d we “the rule 1048], general reiterated the ab will not reviewed on in appeal of evidence be admissibility ground the trial court on the sence of specific timely objection a de contrary rule would to be on sought urged appeal. [Citations.] at would defect trial and cure the prive People opportunity an at his secure on trial acquittal the defendant ‘permit gamble (Coy reversed on appeal.’ that a conviction would knowledge be P.2d For 569].) Court 51 Cal.2d Superior [334 for the Miranda issue, not be raised may for example, same reason a time appeal. first on [Citations.]” ap- be should not reviewed contention
Analogously, Witherspoon encourages rule contrary below. The absence of objection peal this judge trial For judge. example, defense “sandbag” counsel jurors question prospective to further defense counsel invited expressly opportu- himself this Had counsel availed before were excused. prevented. have been complains might which he now nity, error *30 Indeed, But counsel remained silent. is in these circum- golden silence stances, for counsel cannot Either his client or acquitted lose it. is sentenced to life death on imprisonment, or the is reversed penalty ap- for peal error. Witherspoon statute,
In the clause of the 1977 death penalty Legisla- urgency ture stated: California Court has declared Supreme existing “The act death law unconstitutional. This remedies the constitutional penalty law, infirmities be in and must take effect immedi- found to existing in an protection in order to inherent ately guarantee public op- (Stats. 1977, 316, 26.) erative law.” ch. In reality, death penalty § still have the inherent in an death public protection does not operative later, has penalty years law. Three this court yet uphold single death penalty judgment. far,
Thus
four cases
under the 1977
been
arising
statute have
re-
viewed; in all
four
death
has been reversed.
v.
penalty
(People
633,
Teron
The judgment convicting defendant of first degree murder impos- ing the of death should penalty be affirmed.
The petitions parties of both for a were rehearing denied May Clark, J., 1980. opinion petitions be granted. should