*1 may enjoined. If municipal be board jurisdiction of a by operation an of law in fact dissolved the district direc of the district’s city, all activities then nexation prin This jurisdiction. their excess tors would Court, Superior supra, recognized in ciple of law is Glide ‘‘ equity do Courts it is said: page 23, at where Cal. interference, cases their justified in are interfere, and tribunals boards or municipal corporations or inferior where jurisdiction of their act, excess proposing to acting, or are authority.” and without is dis- writ the alternative herein stated the reasons For denied. petition is charged McComb, J., and Schauer, J., Traynor, J., Gibson, C. J., J., concurred. White, In No. 6786. Nov. Bank.
[Crim. 1961.] PEOPLE, and Respondent, THE Plaintiff v. ALBERT LOVE, Appellant. Defendant ERNEST *4 Shapiro, appointment by Supreme Carl under Court, B. Appellant. for Defendant
725
Attorney General, Doris
Stanley Mosk,
Maier,
H.
Assistant
Raymond Momboisse, Deputy
M.
Attorney General, and
At-
Respondent.
torney General, for Plaintiff and
TRAYNOR,
jury
For the
a
J.
third time
has
de
fixed
penalty at death for the murder of his
He
fendant’s
wife.
jury
guilty
in
The
him
was first tried
1958.
found
hut could
agree
penalty.
jury
penalty
on
A
not
the
second
the
at
fixed
granted
ground
the trial
on
death; but
court
new trial
the
newly
evidence,
(People
discovered
and we affirmed.
v.
Love,
169].)
Cal.2d
again
51
751
P.2d
Defendant was
[336
guilty
;
in 1959
in
degree
tried
and found
of murder
the first
again
jury
penalty
the
at
We
fixed
death.
affirmed the
adjudication
judgment as to
guilty
defendant is
degree
murder of the first
and was sane at
time of the
judgment
the offense.
commission
We reversed the
toas
the imposition
of the death
because of the admission
tending
prejudice
jury. (People
to inñame and
Love,
v.
705].)
to determine and are therefore issues. Hence evidence as to these matters is inadmissible. capital Juries legislatures hoc, become acl and trials on cases cannot legislative hear the issue of cannot be converted into ings. denying change
The court did err of venue. change application An of venue is addressed to the sound (People Burwell, discretion of the trial court. 44 Cal.2d 744].) showing There has been no of abuse *6 excusing pros discretion. The court did not err pective jurors conscientiously opposed capital punishment. to (People Riser, 566, 1].) 47 v. Cal.2d 575-576 P.2d [305 During jury “passed” selection the both sides jury presently the Thereafter, prose constituted. both the cutor and the defendant to peremptory continued exercise challenges. objection There doing so, was no to their and prejudiced thereby. defendant could not have been objects
Defendant to the introduction of two colored People Love, photographs supra, of the victim. In v. 53 Cal.2d “ pages 852-853, photographs present at we stated he in the [t] exceptionally gruesome. photographs case were not . .. The prove shooting to the tend how occurred and corroborate intentionally gun evidence that defendant held the close to body injuring his wife’s to avoid others.” These facts are punishment guilt. (People Jones, relevant to as well as to v. 636, 577].) 52 Cal.2d P.2d [343 erroneously Defendant contends that the court admitted erroneously jury average and instructed the on the parole prisoners serving time between conviction degree parole for first life sentence murder. He insists that prisoners differs from case to ease on and that statistics subject misleading. are average Evidence of minimum, the and maximum actually being by persons terms served convicted of first degree Purvis, (People murder is admissible. v. 52 Cal.2d 22].) 884-885 Moreover, P.2d defendant elicited all [346 testimony parole relevant on the factors that influence Authority would that be considered the Adult in his case be parole. granting him a trial instructed fore The court jury period imprisonment the on the minimum before de eligible parole. would be It also fendant instructed period parole depends on a that the actual number including of factors his criminal record and his behavior mean prison. court then reviewed evidence on by- parole served conviction between times median degree for first imprisonment life prisoners sentenced P.2d 116-117 Cal.2d People Reese, In murder. on the minimum jury may be instructed held 582], we eligible for prisoner will be before a be served that must time parole; more favor- present ease were instructions able to defendant. give proper did not the trial court contends Defendant penalty from death to reduce his motion consideration imprisonment. to life granted the court their verdict jurors returned After for a new trial. prepare his motion a continuance defendant They presented the motion. counsel who obtained He then imprisonment life penalty to to reduce urged the court justify a sentence did not ground that the evidence power not have ruled that did The court of death. only errors grant a trial new penalty and could reduce of law. Moore, invoking People v. 53 Cal.2d counsel, Defendant’s power court had 584], insisted 451, 454 [348 stating: “Well, disagreed, penalty, but the court to reduce apparently apparently, different, a little Moore it’s case] [the unlimited, case was not as remanding particular remanding The follow- this case.” as the not as limited [of] counsel ensued: exchange between court and ing *7 Shapiro: No, stake, the issue is at because same “Mr. only the issue.” it, isn’t any of of the exercise Well, the conditions Court: “The law, or a predicated upon an error of either are discretion right jury the Court to recommend part the the by being and I don’t imposed, vested statute to be sentence procedure present anywhere in the Penal Code under find that penalty in murder. affecting trials Shapiro remanding after ease, this At the time : “Mr. court, remanding case, in Moore the order the remand exactly position in the same the Moore ease was the court I believe. today, is the Court as ‘ ‘ rationalize, to but-- : It is rather hard The Court Shapiro Beg pardon 1 : “Mr. ‘ ‘ however, there, view decision would be : The The Court juries their have exercised conscientious of the fact three penalty say that the death regard, I can’t judgment in this trial will be The motion for new improper in this case. denied.” People Moore, supra, 451, 454,
In v. 53 Cal.2d we declared: “Although jury jury the trial power has the exclusive penalty degree instance to select the for first first imprisonment between life murder as death and [citations], court, power not of a in disposing this does affect the trial trial, punish- of a a new defendant’s motion for to the reduce upon imprisonment. ment from death to life Based its own independent evidence, only view the the trial court is not empowered degree to reduce the or class of the offense [cita- ’’ , empowered but is also to penalty imposed. reduce the tions] (Italics added.) power of the trial to review court the evidence and penalty by jury to reduce the the fixed is therefore settled. “ It also ‘. settled that . . This court cannot sub judgment punishment stitute its to choice [citation] may appropriateness even where we doubt the of the death penalty Only . . the trial court has the [citations].’. power originally punishment to reduce the selected trier the (People Rittger, fact. v. ...” Cal.2d 734 [355 645].) P.2d Thus, only the trial power court has not the to duty reduce the but review the evidence and judgment weight to determine whether in its supports jury’s (People verdict. v. Borchers, 321, 328, 50 Cal.2d 97].) performing P.2d In [325 “ duty the trial judge court ‘. . credibility must . witnesses, probative determine force of the testi ” mony weigh (People evidence. . . .’ v. Sheran, 49 101, 109 5].) Cal.2d It from clear the record this case that only scope trial not power court erred as its give reduce the but also failed to defendant’s motion required People Moore, v. consideration During Sheran. most of the of the motion the discussion court opinion power was of that it not have did reduce ruling motion, At the time of the on the the court power still that it doubted had such and indicated that even if power juries it had it would exercise that because three had fixed the at death. giving The trial weight court erred to grounds newly that had aside on verdict been set *8 jury discovered and verdict that had been prejudicial set aside because the admission evidence. properly Although the court could consider the verdict of case, rely it not on that jury present could verdict the responsibility jury. thus its own alone and shift the It independent responsibility give an defendant had and the judgment People the benefit of its own as to whether not penalty proper. was the death only If error was the failure trial court properly trial, to consider defendant’s motion for new it appropriate judgment to vacate the would and order denying the motion for new trial with directions to the trial appropriate to reconsider the motion and to enter court People judgment (See Moore, supra, or order. v. 53 Cal.2d 452.) prosecutor 451, appears, however, Since prejudicial arguing committed misconduct in the deterrent jury, judgment effect of and denying the order the motion new trial must be reversed.1 During closing arguments prosecutor urged to fix the death because at such would serve prosecutor as a deterrent to others. The also stated: “It is a callous, known fact that they hardened criminals when commit burglaries, robberies, breakins, rarely carry loads in their pistols. . . men . are after asked these [W]hen crimes are ‘you committed, keep any . . don’t your gun . loads when you Why you were arrested. is that?’ Do know that these say? people jury, they Members of the say they know that says they law that if kill they someone while are robbery, or that burglary, they get will the death penalty, thinking therefore reflecting that, they even while their crimes, guns commit unload their and as insurance getting against penalty. not In other ... words if there were no death penalty, jurors if did not exercise their proper discretion in sound case such as this and inflict it prosecutor in defendant’s contentions that 1There is no merit also by reserving psychiatric prejudicial testimony misconduct committed for rebuttal and sented the offered, all, have been if that should at the case chief by stating during argument repre voir dire that he People of the State of California. psychiatric testimony testimony by The was offered to rebut a defense incapable premeditation. was witness that defendant The issue of capacity premeditate part prosecutor’s defendant’s ease in chief in the trial on the trial court was not proper rebuttal, It admitting testimony. did not abuse its discretion in Code, 1093, 4; People Carter, Pen. subd. v. $ 48 Cal.2d object 753-754 665].) Moreover, P.2d did defendant to its admission. prosecutor’s represents statements that he of Cali improper. (People Wein, fornia were not 50 Cal.2d 395 [326 457].) *9 730 and courage have the it, inflict it would be better for a burglar or or murderer committing someone a crime to take a chance and kill [Tjhey someone. . . . would know then that they gamble could ten to years against twelve shooting some- one to escape silencing the witness, killing the policeman, killing the clerk getting away, they but know their life is, paltry they are, as keeps them in line, gives them the fear in their they hearts that going are not to murder innocent
people, not they because don’t to, plain want good but they might gamble business ten years to twelve life im- prisonment parole on a to shoot to kill someone someone, but gamble won’t their own life.” summation Counsel’s “must be based solely upon matters of fact of those which evidence already has been or of which no introduced evidence need ever be intro notoriety judicially of their duced because as noticed facts.” (3d (6 1940) Wigmore, 1806, p. Evidence ed. 269; § accord Evans, 242, People 39 251 636].) v. Cal.2d P.2d He [246 may state matters not evidence that are common knowledge, drawn or are illustrations from common experience, history, (People Gingell, v. 211 532, or literature. Cal. 541-542 [296 Molina, 70]; People 505, People P. v. 126 Cal. 508 34]; P. [59 Cal.App.2d Scarborough, 186, 171 v. 190 ; P.2d [340 76] Travis, Cal.App.2d People 29, v. 129 ; 37-39 P.2d [276 193] Levy, Persuading 139, Levin 105 Jury, U.Pa.L.Rev. Thompson, 814-817, 150; Trials, 831.) may 1 He not, guise argument, however, assert as under facts matters (People or excluded because not evidence inadmissible. v. Kirkes, 719, People 1]; Evans, 39 724 P.2d Cal.2d v. [249 People supra, 242, 251; Carr, Cal.App.2d v. 163 568, 39 Cal.2d People Whitehead, Cal.App.2d v. 148 ; P.2d 701, 577 [329 746] People 442]; Vienne, Cal.App.2d v. 142 P.2d 172, 705-706 [307 People Talle, 1027]; Cal.App.2d 111 650, P.2d v. 173-174 [297 Wigmore, (3d 633]; 1940) 6 Evidence P.2d see ed. 675 [245 261.) may He not 1807, p. use evidence offered for § credibility mind, special purpose, argue or state such (People for which the evidence inadmissible inferences v. Cal.Rptr. ante, pp. 93, 801, 99 362 Purvis, P.2d [13 Cal.App.2d People Adams, 27, Cal.Rptr. 182 38 ; v. [5 713] 650, Talle, supra, Cal.App.2d 675; People 111 see 6 795]; v. (3d p. 1940) 1807, 272), ed. and he Wigmore, Evidence § guilt upon argue based may his own belief not (People Kirkes, supra, 39 produced court. v. Cal.2d not Cal.App. 891]; People Edgar, 459, v. 34 468 P. 719, 724; [167
731
p.
1940)
259; Stout,
(3d
1806,
ed.
Wigmore,
6
Evidence
§
see
on Appeal,
Convictions
43 Cal.
Appellate Review Criminal
may
Moreover,
381, 427.)
counsel
use
L.Rev.
jury (People
Purvis,
to mislead the
v.
arguments calculated
Caetano,
People v.
29
22];
871,
52
886
P.2d
Cal.
Cal.2d
[346
Johnson,
Cal.App.
616,
; People v.
178
P.2d
2d
619-620
1]
[177
Cal.Rptr.
;
v.
&
Milwaukee
Suburban
2d
372 [3
28] Affett
274, 280];
Transport
11
N.W.2d
see
Co., Wis.2d 604 [106
Fact,
Adler,
34 Colum.L.Rev.
Michael and
Trial
an Issue of
primarily
passion
appeal
1224, 1483-1484) or that
prejudice.
(People
Wein,
v.
Cal.2d
[326
;
Cal.App. 675,
P.
457];
Simon,
677-679
758]
*10
Levy, Persuading
Jury,
139,
105
see Levin and
U.Pa.L.Rev.
931,
143;
949;
935.)
946,
36 Colum.L.Rev.
54 Colum.L.Rev.
necessary
is
have often stated that
it
Prosecutors
swiftly
severely
punish
guilty, and such
to
statements
usually
proper
within the bounds of
have
been considered
argument.
(People
Friend,
749,
47 Cal.2d
766
P.2d
v.
[306
463]; People
Cal.App. 611,
;
Wilson,
v.
61
628
P.
[215
565]
(Mo.)
75, 77;
v.
State v. Rhoden
243 S.W.2d
Johnson
State,
811,
Rep.
;
141
43
Tex. Crim.
S.W.2d
[147
814]
State,
Ga.App.
541,
; People
Smith v.
74
777
S.E.2d
[41
551]
Wood,
;
273,
Levy,
733 applies to defendants who have refused counsel rule as well (People represented counsel. Brajevich, those v. 174 438, 815].) Cal.App.2d 447 P.2d We cannot [344 prosecutor’s improper consider the of fact statements however, parcel part abstract, were his errone respect argument ous to the deterrent with effect of the death penalty. argument if Moreover, even that were other proper, disregard an improper wise admonition to state ments of not fact would have cured the error. This is not ease which a misstatement of law of the evidence in the record could have been corrected the court or the prosecutor (See himself had it been to their called attention. People Samps ell, v. 757, 34 Cal.2d 813].) 763-765 P.2d [214 prosecutor firmly The penalty that believed the death is a imprisonment more effective deterrent than and that facts he support that advanced in of his belief were true. Surely willing he would have been to recant his statements had defendant objected, and the trial court could not have giving labelled them as erroneous without itself inadmissible hearsay opinion support of defendant. At it jury disregard most could admonish the prosecutor’s statements; jurors’ could not erase them from the minds or explain why they should not be considered without further magnifying impact. their argument penalty prosecutor’s
The part not a minor was essential to deter murder was of his appeal It was one of the three points sup he built his argument, main around which and he surely ported it of fact he with statements should have Linden, In known he not entitled make. v. pointed 397], we out that P.2d error Cal.2d [338 jury’s fixing tending affect attitude Only every “implicitly invites reversal case. under extraor provision dinary can the constitutional circumstances [art. find no such the verdict.” We circumstances VI, save § 41/2] “reasonably prob case, it is in this and we are convinced that more to defendant “would have able that result favorable” accordingly in the absence of the error” and been reached (People Watson, prejudicial. 46 Cal.2d the error 243].) judgment imposing and the order denying question reversed, a new trial on the are for retrial and redetermination and the cause remanded pronouncement penalty only for the question *12 judgment sentence and in accordance with such deter- new applicable mination and the law. Gibson, J., Dooling, Peters, J., White, J., J., C. and con- curred.
McCOMB, . I dissent. J attorney’s argu- First: I do not believe that the district prejudicial ment to the constituted misconduct. my knowledge opinion, In it is matter of common that the penalty is a deterrent, because: beginning (a) Christians and from the Jews recorded history recognized have that the death is deterrent to murder. that, according This is demonstrated the fact (see account contained the Old Testament New American Holy Edition, (1950)), spoke Catholic Bible the Lord ‘‘ to Mosesand He dying said: that striketh and killeth a man: (Leviticus 25, any let him 17.) die.” verse “If man strike iron, guilty with and he that was die struck: he shall be murder, and he himself shall die. If he stone, throw a and punished he that is struck die: he shall be in the same manner. If revenged he that is struck with die: he wood shall be him things the blood of that struck . him. . . These shall be perpetual, your for an ordinance in all dwellings. . . . money You not take of him guilty shall that is but blood: (Numbers 35, he shall die forthwith.” 16-31.) verses (b) early history In the of the western states of the United including America, California, States of the death imposed by early stop was rustling settlers to of cattle. knowledge It is a matter of early days common that in the apprehension hanging this state the of cattle rustlers reduced, stopped, almost the theft of cattle. early history In
(e) of San Francisco, law enforcement prevailed. broke down and chaotic group conditions A citizens, Vigilantes, known as the undertook to restore order. they apprehended this, To do criminals and after trial promptly guilty parties. executed the Order restored, was again. Clearly the civil authorities assumed control fear of basic reason for the restoration of order. (d) Any prosecuting attorney attorney or criminal defense any judge trial period who has sat for a substantial in a department superior of court felony devoted to the trial of *13 arm- refrain from many are careful to felons knows eases they not want deadly weapon do a because with ing themselves suffering as anyone and death killing chance to take the penalty. a accuracy are examples of this view recent A few by involving persons arrested following cases be found Department Angeles Police :* the Los officers of Daly, Pedro, arrested Margaret San was (i) Elizabeth assaulting a knife. 1961, for Pete Gibbons with August 28, I him and investigating “Yeh, officers: I cut stated She job. him but I I killed a would have have done better should go gas chamber.” want didn’t Hall, Robert an ex-convict Thomas, D. alias (ii) Robert Wilson, Eugene Young, alias Kentucky; Melvin Gene from Illinois; Shirley Coffee, from and and R. petty a criminal Iowa April California, arrested Salquist, of were Elizabeth alias toy pistols robbery. They their used to force 25,1961, for had bound. rear where the victims were When rooms, into victims for questioned investigating officers to the reason as agreed toy guns genuine guns, all using instead of three killed in the guns dangerous, too someone were real were if robberies, could all receive the death commission of Luigi Joseph Furchiano, (iii) Turek, alias alias Louis Hooper, Moreno, an Joseph Parino, alias alias Joe Glenn dating felony 1941, a from was arrested ex-convictwith record prior May 20, 1961, robbery. guns for had used rob- He gun robbery a here. in other states but simulated beries investigating he was of the Cali- aware He told officers penalty although had for fornia only he been this state only month, why he said, when asked had one and gun gun, “I I used and that knew that a real simulated if might get robbery, in a I I shot someone if gas go to the chamber.” September 26, was (iv) Ramon Jesse Velarde arrested supermarket. attempting time, At that 1960, to rob while holding revolver, caliber he was with loaded .38 armed hostages. subsequently He employees the market as several jail at escaped apprehended the Mexican border. from was Angeles being prosecution, for he made returned to Los While transporting I following “I think statement to the officers: Angeles Los cited are the records on file *The cases taken from Department. Police might escaped at if I have the market had shot one or more probably I done it of them. gas would have it wasn’t if for only years 7 or 10 chamber. I’ll do for this. I don’t want you what happens, day.” to die no matter want live another an (v) Stewart, ex-convict, long Orelius Mathew with a felony record, attempted arrested March was bank robbery. subsequently He was convicted sentenced to the discussing prison. probation with state officer, While matter he stated: “The officerwho me himself, arrested was wanted, thought if I I had could have blasted him. I about time, changed my thought I it at the but mind when I gas chamber.” Anthony (vi) Brusseau, Paul with a criminal record February states, six other 6, 1960, robbery. arrested readily holdups candy He admitted five stores in Los Angeles. In only robberies he series had simulated *14 gun. questioned by investigators a When as to reason for gun simulating using his a replied rather than a real he one, get gas did not that he want to chamber. 19-year-old (vii) Estrada, youth Salvador A. a awith four-year record, criminal was February arrested 2,1960, just he an parking after had stolen automobile from a lot ignition wiring being around the switch. As he was booked station, arresting at he to stated officers: “I want you you they do question, repeal to ask one think will capital punishment do, you cops law. we can hill all If worrying judges without and about it.” a (viii) Colevris, Jack criminal habitual with a record dating 1945, robbery to an back committed a super- armed at April 25, 1960, a market on about escaping week after from Shortly Quentin stopped by Prison. he San thereafter was motorcycle Colevris, a officer. who had twice been sentenced prison robbery, to for armed knew if brought state prison again trial, long to he he sent to a would term. The was on the seat him, loaded revolver of the automobile beside easily arresting could shot and he have and killed the officer. By interrogating own statements officers, his however, he preferred possible was deterred this action because he a from gas death sentence to in the chamber. life Joseph (ix) who Lapienski, Edward a had criminal record dating 1948, back to was arrested December a 1959 for holdup toy with a type pistol. committed automatic When questioned by investigators why as to he had threatened his provided victim with death and had not himself with the threat, stated, “I carrying out the he know means if gas someone, get gun killed I would I real and had a chamber.” Dixon, long felony an with a George ex-convict (x) Hewlitt robbery kidnaping East, arrested for and was record Using a 27, 1959. screwdriver in Ms on November committed jacket pocket up kidnaped gun, a he had held simulate releasing station, a later him un- attendant of service the harmed. using questioned a screwdriver When about many a gun, man, this hardened criminal with simulate escapes felony custody, at least two arrests and known from respect fear and for the California death indicated his get gas.” stated, “I did not want to (xi) Eugene Fitzgerald, Freeland Finley, alias Edward felony dating an with a ex-convict record back to candy February 2,1960, robbery for the of a chain of arrested toy gun committing robberies, He used a stores. questioned by investigating when officers to his reasons doing joint for probably so, going he stated: “I know I’m gun someone, life. I had a real and killed I If get gas. would I way.” would rather have (xii) Quentin Lawson, parole, an on was arrested ex-convict January 24, committing 1959, for he robberies, two which gun had pocket. simulated questioned his coat When simulating gun using his reason for replied one, a real he and not he get did not want to kill someone amd (xiii) Theodore Roosevelt Cornell, with many aliases, an ex-convict from Michigan with a criminal record of 26 years, was arrested December 1958, while attempting up’ to hold the box officeof a theater. He had gun simulated a in his coat pocket, *15 by and when asked investigating why officers an ex- everything convict with to lose would not use a real gun, he replied, I gun used a real and shot someone,I could “If lose my life.” (xiv) Blood, Robert Ellis Daniel B. Gridley, and Richard R. Hurst were 3, 1958, arrested December for attempted rob- bery. They equipped were with a roll of toy pistol. cord a When questioned, all of they them stated toy used the pistol they because did not want to kill anyone, as were penalty aware killing person a robbery in death in gas chamber. (e) people The of have, State California through their many on Legislature, occasions considered whether the recently state—this should abolished this Legislature—and as the 1961 session of the in each instance
have to conclusion that the death is de- come Therefore, judiciary it. of this terrent and have retained expressed legally to follow the will state bound sovereign people of the State California. prosecutor’s object not state did Second: Defendant propriety Therefore, cannot the issue of their he raise
ments. that the error appeal they were of such character on unless by prompt admonition instruc not been cured could have Cal.2d (People Hampton, 47 of the trial court. tions any alleged prejudice 300].) my opinion, In [3] [302 P.2d giving by for, and the prompt request have cured could been judge. by trial instructions of, an admonition and properly exercised judge my opinion, trial Third: In on the a new trial denying the motion discretion phase. Any attorney experience has judge or who had trial court always judge that a trial is not familiar with all
knows procedural of the trial of a law at the outset This is ease. part particularly present at the time and is in true due recently ever-changing rules of law. This view was ex- the pressed Angeles Younger, of the Evelle Los Honorable J. Court, he Superior in an address which delivered before following report Lawyers Judge Young- Club. appeared Angeles legal er’s one Los news- remarks “. papers: . . . changes example Judge Younger recent an noted the “As admissibility illegal of evidence obtained the rules on recently gamut just have run the ‘We search and seizure. such was admissible law rule that from the common obtained, if regardless of how in probative courts Federal or State ’ rule of value, The latest absolute exclusion. year in ease of down was handed absolute exclusion (81 Ohio, S.Ct.. Mapp v. 364 U.S. Dolly Mapp. [Dollree 1081).] 6 L.Ed.2d ‘‘ changes increasingly is that it The result these becomes peace are, for local officers determine what difficult ‘ mounting procedures coping with allowable what are not, ’ activity. arrest, stated, justified he cannot be if An criminal whose conscience the deter- the conscience—but shocks ‘ community’s. Not the Not the Police Chief’s. mining factor ? of the Ninth talking about conscience Mem- ... We are Supreme And, are Court. we States ber of United
739 talking we yesterday; talking about his conscience are about his tomorrow’s conscience.’ legal difficulty judges defining “If and scholars have sympathize lonely process, policeman
due one can with the patrolling legally his beat make who is to correct expected split-second decisions, he commented.
( 6 by speaker zealously reiterating, “The concluded ‘We must guard rights individuals; protecting but in indi- the the charged sight with we vidual crime should never lose ’ ” society. rights (Metropolitan News, XXXIX, Yol. No. Angeles Daily Journal, LXXIY, 152 The (8/31/61); Los Yol. (9/1/61).) No. 175 judge rely The large result trial to a must measure
upon by attorneys appear- the information furnished him the ing present before him. In the case this was done. After the expressed judge authority reweigh trial as to to doubts jury’s following fixing penalty, the death pointed counsel defendant out to him that he did have such authority. Whereupon judge accepted that he view authority had reweigh for a motion new trial application evidence as to the then the death He assuming deny authority, stated that motion, he such he had would properly imposed, as the was supported juries imposed view fact had that three con- of which defendant was the crime victed. problem presented academic The is not a mere one.
people extremely important of this state with an are faced situation. I judgment would affirm the denying the order
motion for a new trial. SCHAUER, J., Dissenting. I concur the conclusions stated Mr. Justice reasoning. McComb and in his I find emphasize necessary, however, my differences with the majority opinion. People by full ably [9, I can 10] [325 duty satisfactorily debatable understand with the [2] v. Borchers P.2d independently weigh question 97] shows that the trial court (1958) 584]. toas whether majority However, construing 50 Cal.2d v. Moore the record that there is a reason- evidence as (I960) 328 performed affirmatively [1, 2], 53 Cal.2d required record its duty reviewing
favorably court, of a affirmance, as is am with MeComb’s conclusion that I satisfied Justice *17 judgment should be affirmed. judgment (and in a The of a ease of this character reversal clearly case) is in even when a second reversal the same required law, is in itself a under established serious matter. transcending importance far of the in But effect on the reversal adverse pronouncements enforcement, are in law certain the opinion which, (hereinafter quoted) whether so intended or not, penalty. an the constitute attack on death I cannot find justification majority’s in for of fact or in law the criticism the argument jury regarding penalty prosecutor’s to the pronouncements or for undermining the which an constitute penalty. attack on that majority jury
The
that “For
relate
the third time a
has
penalty
fixed
at death
the
of
defendant’s
murder
granted
first
wife. . . .
the
the trial court
trial]
[After
ground
newly
on
evidence,
new trial
the
of
discovered
and
again
affirmed.
was
.
we
Defendant
. . found
[Citation.]
guilty
again
.;
penalty
. .
fixed
the
the
at death. We
judgment
adjudication
the
as to the
affirmed
guilty
that.defendant
degree
murder of the first
[McComb,
of
and
...
sane.
We
J.,
J., dissenting]
and
...
reversed
Schauer,
imposition
penalty
to the
of the death
because of the admis-
tending
prejudice
jury.
of
sion
to inflame and
the
is as follows
(People Love
The
order
of
(p.
the
[1960]
858
imposition
majority
But contrast the law assert that judgment here reversed and remanded for a must new “ penalty of (fourth) prose- trial on the issue because: [The disputed vigorously proposition stated as a fact cutor] capital punishment is a more effective deterrent than that “vociferously” perhaps be a imprisonment.” more Would “vigorously”? since, than And as the ma- adverb accurate Legislature already held, penalties fixed the jority has had justiciable degree not “are therefore for first issues,” murder accept why prosecutor findings should the penalties, Legislature law as to the two alternative and the argument pertinent exactly did, evidence and as he and offer clearly contemplated by as jury’s performance duty, to the of Penal Code sections 190 Legislature in its enactment 190.1? Legislature has left majority “The continue: The jury punishment fixing of the of the discretion absolute degree any by first [i.e., judge murder without control but, course, presumably rationally their discretion
light legislative There is thus no evidence]. [Citation.] finding, and it is not a matter Jenowledge, common capital punishment is is or not more deterrent than effective imprisonment.” pronouncement, my view, italicized is Unsupported by to fact prior obnoxious and law. statute or decision, appears it is a directly blow which to be aimed against application, rational and therefore toward ultimate abolition, quoted of the death If pro- italicized nouncement were true—that ing legislative there is neither find- knowledge capital punishment nor common “that is or is not a imprisonment” more effective deterrent than then, of course, the death should be abolished. implementing majority opinion Further its tenet the con- question tinues: [presumably “Since evidence evi- aggravation mitigation dence or contemplated Code, inadmissible, argument Pen. is thereon § 190.1] by prosecution or defense could purpose, serve no useful apt improper. misleading, to be and is therefore It true ments as to which punishment’ that in 463], we stated v. Friend that counsel could will better [1957] 47 Cal.2d serve the advance 749, 766, objectives ‘argu- one of those of crime as listed deterrence People Friend is inconsistent objectives. To the extent (Italics added.) it is overruled.” herein our conclusion with majority holdings place in effect quoted By the above argument jacket strait as to prosecutor in a forensic effectually holdings emascu Those also greater deterrent. taking 190.1, for the section provision of Penal Code late intelligent making an to aid the of evidence alternative, but no means between the selection as informed doing In so imprisonment. penalties of death equal, upon majority trenches an action appears to me disregard legislative province in of the distri invasion *19 Constitution, prescribed article powers California bution of Corning Hospital Muskopf Dist. (Compare III, section 1. Cal.Rptr. 89, 359 P.2d 211, 213-221 (1961) 55 Cal.2d dissenting opinion, pp. Code, 221-224; Civ. also ; see 457] today’s p. 3209.) To the same end ch. 22.3; Stats. § disregard of stare decisis in over majority the doctrine also admittedly quoted) the decisional law which ruling (as above at the time of trial. trial court bound the had rely majority overruling decision the on Although the cited They say “That for reversal. decision as a basis [Friend binding trial (1957)], was on the court at the time however, tried, been an for and it would have idle act case prosecutor’s argu- object in the trial court to the defendant capital punishment is a more ment that effective deterrent precluded imprisonment. than He is therefore not from rais- question ing appeal.” the first time on The trial court following thus as it at is reversed for law existed the time also at of trial—and as it existed the time this court’s of first judgment reversal and remand retrial and re- of “for question only.” determination of of rules, Actually the correct had been held this court (1957) in the Friend relative to decision, the selection of penalty (as between death and so-called life imprisonment) are appears proper nent trend is toward the more liberal admission of clares come cerning stated only established (p. to the selection of or possibilities indicated [8] practice be of quoted here, of pardon, commutation, parole, etc. the now overruled case. Insofar as to advise the Cal.2d) penalty. : “We note . . opinion For example, it of in that . facts ease has perti- con- de- be- Obviously, pertaining the law to pardons, [Citations.] com- paroles slightest not mutations has relevancy to the pertinent only guilt; it issue of as a may which be con- fact selecting sidered in i.e., be imposed; it is evi- ‘ may dence be which considered as relevant aggrava- ‘mitigation’ punishment tion’ or of sense which those have been terms used relation to the of selection They jury] . . . should be told . [P.767 [13].] [the . . that beyond penalties prescribing the two alternative the law itself provides guidance no standard for their the selection of the deciding question punishment; . . . that whether the put imprisonment should be to death or sentenced accused their alone to for life it is within discretion determine, each weight far he himself, how will accord to the considera- objectives punishment, of tions of several the deter- crime, protection society, desirability rence retribution, sympathy clemency, or stern or .” . . pointed added.) in last (Italics sentence We out also that years many (fn. 8, p. 766) “For some courts and writers penology purpose law and have criminal legally held adjudicated punishment venge- is not should prospec- ance, but rather deterrence of the offender and other *20 (Italics added.) All of the crime, ...” five from offenders majority today brush aside. foregoing, the among justices I preferences Regardless individual accept that the fact duty of this court to be the it to deem penalty, in the cases that the death Legislature has determined against strongest deterrent prescribed, is the it is wherein jury (or the that the The fact of such crimes. commission to whether power determination as a final judge) has trial in a imprisonment imposed penalty shall be or life death life legislative a determination not given is of course case merely It shows strong equally deterrent. is an imprisonment liability to suffer Legislature that of the the concern safeguards strongest by the surrounded strongest deterrent be strongest penalty is Even as accused. for the effective the most it also against murder, so is deterrent deliberately who of those of the victims of the lives protector profession. aas of violence of crimes the commission choose of the death California potentiality in present That the ever robbery,1 of armed commission penalty, for murder of victims scores,2if not hundreds year the lives saves each by any reasonably doubted be think, I crimes, cannot of such experience judge has had substantial at the trial court who persons. handling during of such I know that wth level although which my trial court extensive experience, own law, years (1930-1934) some four to five included in criminal exclusively superior engaged in court department of in a handling repeatedly lips felony cases, I heard from the profes- (no prior convictions), some amateurs robbers—some story: “I used a (with priors)—substantially same sionals toy gun firing pin gun gun or which the a simulated [or damaged] or because I didn’t extracted had been or hammer (The penalty, at the time referred my stretched.” neck want gas 1941.) was substituted hanging; lethal to, death example robbery for discussion because the deterrent as the 1 use (or attempt penalty for murder the commission of the effect to among commit) robbery particularly law enforcement well known investigation, arrest, and trial such cases at officers who handle court levels. discussion, however, equally applicable point my against harming kidnap deterrent effect of the death perpetration attempt against committed in the murder victims upon burglary, mayhem perpetrate arson, rape, or lascivious acts 288.) Code, age (See 209, 189, §§ of 14. Pen. child under 2According Department Report of Justice the to the 1958-1960 11,548. reported in California 1959 was number of robberies 108,002 burglaries may year were It be noted also that the same reported in this state. recognize I, course, persons that there are in all who sincerity urge They point that the death be abolished. ‘‘ say: See, to the cases which reach the courts and it has not Certainly deterred the commission of crimes.” these potentiality per is not 100 cent effective as deterrent as to all But it to claim *21 criminals. would absurd any. that because it did not deter all it did not deter As robbery spared each victim of each life is because armed whose killing, say I that the one robber was from dare deterred per- quibble victim and his loved ones would not over centage efficacy. of the deterrent’s persons There are also who entertain a scruple conscientious against any taking of person human life. When a who con- scientiously believes that the state should never take a human upon part life is called penalty operation take of a death he, understandably—being law duty conscientious in in personal well as grievously. conviction—will suffer repeal Whether he shall advocate of the law would be one thing; urging forbearance of might execution be another. regardless But person any whether a has or has not official connection whatsoever with law enforcement, and whether he not, realizes it or import- a law is matter of safety. ance any to his urge Whether citizen would amend- ment of the law application to make its more swift sure, repeal or change would it otherwise, or the de- altogether, grave cision he makes should be of concern to him—and to his neighbors. Certainly person each must live with his own is, hoped It however, decision, conscience. as to to be his any affecting action is death which motivated by conscience, enlightened decision; will be an that the decision superficially he makes will be more than consistent with his objective. requires thinking— true To a make such decision By and information. Probably information, facts, I mean not theories. thought all us who subject—and par- have on the ticularly responsibility those of us who have some in these (even appellate cases as remote as it at level)—devoutly is longer necessary. wish that the were no But we yet have not reached the state which Sir Thomas More en- Utopian government reality, a visioned. Until has become organized society (if exist) posit it is to must continue on the personal responsibility of free will and for one’s choices of (see (1959) action 51 Cal.2d Gorshen appropriate 492]) for crimes their with sanctions gravity. good government protection A owes its law abiding citizens. robbery. Let us consider further this business armed burglary
It profitable, ordinarily, is more than much but it Robbery facing entails more risk. means and tak- victim ing person property presence “from his or immediate against will, accomplished by . . . force or means (Pen. Code, (if fear.” The victim §211.) blind and potential Robbery deaf) degree” is a “in first witness. is “perpetrated by if by person being torture or armed with dangerous deadly (Pen. weapon. Code, 211a.) ...” § robbery Robbery Other degree. kinds are of second degree punishable “by imprisonment the first prison in the state . for years;” . . not less than five the second imprisonment year.” like degree, “for not less than one (Pen. Code, 213.) The maximum in both cases is § life imprisonment. Few, law-respecting any, people if con- would tend that these particularly early sentences, view parole probabilities, are too severe. of undergoing just
The risk such sentence as much a risk of professional calculated deflation robber as is the risk of (or competition) a calculated risk of the conventional *22 businessman. But thing vastly the robber can do will one that the risk decrease of identification and he can conviction: eliminate the known witnesses—the victims he robs. To accom- plish any robbery he must at least make a show force and fear; usually induce and for gun— that reason he carries something or gun. that validly looks like It cannot be dis- puted that the gun choice as to he which carries—-a or what gun—is solely looks like a respect case after case controlled punishment for the death If the he for risks robbery imprisonment—and to be only imprisonment, even only if he eliminates the witness—it would seem inevitable that incentive greatly the to kill be would increased. The greater escaping any punishment chance of would, in the outweigh at least, slighter minds of some having the risk of Many term increased. the a robber who would take the risk longer absolutely of a term any plan would shun which sub- imprisonment. for stituted death subject I return And now to scruples conscientious against execution being. of a human From what has already it been said must be obvious that I understand that poignantly (in it performance would be desirable the faithful duties) jurors of their law enforcement judges and trial justices review, of courts of and particularly, and also having power commutation, governors other officers or comprehend But I also if were abolished. the death to the families of the tragically undesirable it would be violently die result. innocent victims who would eyes my my and ears have Because of what own have seen efficacy of the death as a heard I cannot doubt burglars, robbers, kidnapers, savior of the lives of victims of dispositions. ifBut there were doubt and criminals of similar in my protecting it in mind I should resolve favor sparing guilty than innocent of the future rather victims past. killers of the today’s majority opinion may (1) Inasmuch as well be approaching Legis- as at least an invitation to construed repeal penalty; (2) as it lature proposition which, declares a accepted, argu- if would constitute a basis ably demanding repeal;3 (3) as it shackles district attor- neys present and trial courts effective administration of the may enacted, it Legislature law as was well be give legislation attention to the so should In affected. today’s connection, in court action view and of the entire appeals from record of determinations under Penal (as respec- 190 and 190.1 those sections were, Code sections tively, 1957, 1968, p. amended added Stats. ch. 3509, p. Legislature 2727), perhaps Stats. ch. consideration give possible will wish to desirability eliminating imprisonment alternative in certain situa- designated by tions Legislature, making to be greater penalty, deterrent the sole to follow as a matter of any designated law final conviction in such situation. It if that, contemplated, would seem such action is Legis- study might greater lature in its consider whether the deter- certainty might reasonably rence of such applicable made personally kill, to those who would or kill, direct another to attempt perpetration perpetrate “in arson, rape, robbery, burglary, any punishable mayhem, or act under 288,” kidnaping. (See or in Code, 189, 209.) Section Pen. §§ emphasize: person officially I each Finally, who or unoffi- cially participates in enforcement, or advocates repeal or *23 subject of the amendment law—and who receives the benefits protection—must of live with his its own But conscience. I re- repealed 3Why, indeed, if, majority declare, it not he should as the imprisonment? is no more a to murder is of deterrent than mere he consider earnestly urge that who would spectfully law, operation defeating of this repealing or otherwise the lives of the vic- protect is to purpose of which principal either make sure that violence, will of crimes tims convincing or will acts is sound and he information which may him as to tell some what conscience pause to consider for the responsibility “eliminations” which moral measure thereby encouraged. may be suggests reason J., McComb, concurred. rehearing petition was denied December for a Respondent’s opinion MeComb, J., of the were Schauer, J., 1, 1961. following opinions granted. The petition be should
that then rendered: were Dissenting. McCOMB, The
SCHAUER, J., J., and of California Attorney on behalf has filed General presents facts, law, which he petition rehearing a request that court reconsider supporting his argument petition majority November 1961. its decision filed Attorney arguments of the General has been denied but the fundamentally remain unanswered. arguments gen-
Such are founded on facts which have been erally recognized society organized since time immemorial and on the law of this state as it had existed in all material majority’s unprecedented respects, until the pronouncement, at adopted from least time that the Penal Code was Only majority validity the fiat of the 1872. denies clearly (and expressed implied finding) intention (Pen. Legislature Code, 190 and 190.1) that evidence and §§ argument aggravation mean evidence and argument death, argu- while evidence mitigation imprisonment inment seek so-called life governor in contrast to death. How can it be said a can imprisonment commute a sentence unless the latter punishment punish- mitigated a lesser ? A mitigated, i.e., a is, course, aggravated ment a than an lesser deterrent punishment. true, society If we a this be not should abandon premise man a agent; based on the free we fortiori scrap system penology should the entire modern because concept agent, man is it is on the a free moral based reasoning being responsive to sanctions and benefits. And if pot aggravated than punishment greater deterrent
749 then it simply lesser would be cruel unnecessary; and hence it would violate section 6 of I article of our Constitution and be void. We observe that as a simple matter logic majority’s inevitably decision must encourage tend to in murders commission of of violence, crimes every hence to increase for citizen, particularly and for law officers, enforcement by hazard of death violence; further, opinion we note that the respect necessarily fails to implied finding Legis- of the lature as to the deterrent effect of the penalty, im- plicit express provisions for the trial of the capital (see issue cases Code, 190.1) Pen. 190 and which §§ following
were enacted People implementing and our decision in (1957) v. Friend (fn. 47 Cal.2d [8], 764 8), 766 P.2d Instead of majority respecting, [13] [306 463]. opinion effectually emasculates, pro- selection visions Legislature section 190.1 and overrules the decision which the thereby implemented
had and eoncededly which had been the law this state when the case was tried. petition Because the rehearing (signed by for Attorney Stanley Mosk, General Attorney Assistant General Doris Maier, Deputy Attorney H. Raymond General M. Momboisse) cogently, so presents albeit respectfully, the case for People, grave import and because of the of this de- peace officers, cision to law-abiding to public and to the proper Legislature, to, we deem it incorporate and we do, major portion herein the petition, as follows:
“This Court has held that it was error for the district
attorney
argue
to
that the death
is a more effective
imprisonment
deterrent
than life
legislative
as there is no
finding,
is not matter of common knowledge, that
capital punishment
is not a more effective deterrent than
Further,
imprisonment.
found that it
Court
was error
prosecutor
any
assert,
to
without
evidence in the
many
empty guns
that
record,
criminals use
and that
do so because of the fear of the death
‘‘Certainly
Legislature
enacting
it was the intent of the
codify
expressed
section 190.1 of the Penal
the law as
Code
People
Friend,
463],
v.
“This Court went on to outline the placed upon members difficultness of *25 Naturally discharge in the conscientious of their verdict. jurors eager have, right given duty, are and have have guidance Among to things all the law can those them, the offer. at that time felt were essential which this Court by arguments jury as intelligent an were determination objectives punish- of will serve the which better recognized deter- Among objectives those this Court ment. prospective offender, offenders. and other rents [sic] January 25, In “People v. on 1957. Friend was decided year section 190.1 to Legislature added that same be a provided that there should Code, in it was Penal which penalty when one of separate pass question of trial to on the trial ‘Evidence At that penalties death. the alternative may was surrounding the presented ... of the circumstances be of background and history, and crime, of the defendant’s mitigation penalty.’ any of the aggravation in or facts Legislature presumed that at the time enacted “It this knew of the decision of Court case this statute (Kusior Friend, Cal.2d 749 v. People v. 47 P.2d [306 463] 603, Cal.Rptr. 657]). Silver, 129, 618 354 P.2d 54 Cal.2d [7 said, by held in be was this Court it could “Indeed 36, 416], 47 P.2d that it is People Nash, 52 Cal.2d v. [338 presumably in Legislature had the law and mind apparent regard existing decisional in this domestic law knew by utilizing change Rather, judi- it. intended not and ‘aggravation mitigation of the words cially construed penalty,’ the judicial that the Legislature indicated its intent the law of this continue as State. should definition 190.1 of the Penal Code of section the enactment “After (Stats. 738) 1959, in Ch. Court 1959 amendment and its 843, 705], 856 P.2d indi- 53 People [350 in v. Cal.2d Love, permissible still stated decision that the Friend cated inquiry issue on the range opinion of this that suggest Court respectfully “We adopted by that it was correct, was People Friend v.
751 Legislature when it enacted section 190.1 the Penal Code controlling law this case. should be and 1‘ repeatedly jury has This held could Court person given term a a life sentence informed minimum average degree murder must serve and the minimum for first actually being degree maximum terms served first (People 871, 52 884 Purvis, v. murder California Cal.2d People 22]; Friend, v. 47 Cal.2d P.2d P.2d [306 [346 Green, 307]). People ; v. Cal.2d 463] put forth the court was that such matter is The reason ascertaining significance life sentence essential intelligent arriving at an evaluation of the thus at imposed. penalty to be “Certainly equally dealing true when the same is with penalties involved. deterrent effect respectfully suggest opinion that the of this Court “We Friend, correct, that it is essential that capital punish- deterrent be advised of the effect they may effectively intelligently per- ment in order that grave responsibility given to form the them. question thus confronted with the of whether or
“We are
capital punishment
a deterrent.
indisputable
greatest
“Logically it is
death is the
de-
possible
terrent
and as stated
Justice McComb it is a
knowledge
is a
matter
common
de-
*26
terrent.
‘lawfully’ in our criminal
“The use of the word
statutes
person
doing,
implies that
knows what he is
intends to
the
agent (People Trombley,
a free
doing,
what he is
and is
v.
do
31
801,
[sic,
Trombley,
801,
In
Cal.2d
807
807
re
Cal.2d
(193
734)]).
P.2d
quite recently
“This Court
reaffirmed its belief in the
dignity
People Nash,
of man when in
v.
“If there is punishment legally adjudicated is to deter commission ‘King it must is crime, follow which death, (Job xviii, 14), penalty is Terrors’ which the extreme generally (People Gomez, so is considered Cal. 998]), P. is most effective deterrent. 300 [286 seriously “Certainly argue no can that insofar one capital involved, punishment is particular with- individual peer in its deterrent effect. out others, Royal its effect on Com- “Insofar as deterrent Capital report in its mission on Punishment concluded penalty likely stronger of death is to have ‘Prima facie beings any to normal human than other as deterrent effect (though punishment, no and there is some evidence form (page evidence) that this is fact so’ convincing statistical 24). proof of the effectiveness death “Further questionnaires to to be in answers circulated is found Judiciary Capital Punish- Committee on Subcommittee report problems of pertaining to found in its
ment and its administration California. The the death attorneys overwhelming judges, district majority opinion police officers were of qualified men who are best These are the retained. should individuals are the conclusion, arrive at such the criminal element our are in with who direct contact society. of this the follow- “Probably best is one of the statements james Stephen: Fitz
ing remark of Sir James “ effectually punishment from deters men so ‘No other punishment is This one committing as the death. crimes simply prove, propositions which it is difficult those any proof more than they are in themselves obvious because ingenuity arguing possible display make It is them. can against experience of whole mankind that is all. The but it, threat of instant death in the other direction. always an been made when there was resort has one to which goes necessity . . No one producing some result. . absolute except compulsion. Put certain inevitable yet who, way. there ever criminal Was the other matter *27 brought die, out to would refuse sentenced death when the his sentence for severest of offer a commutation the of
753 Surely Why punishment? not. is It can secondary this? give a for his life.” only “All that man has will he be because any secondary terrible, hope; is punishment, however there In death; its cannot be described more but is terrors death ’ Capital Punishment, 1949- forcibly. (Boyal Commission Beport, page 19.) dissent, by if “Indeed, as Justice Schauer stated a than im- capital not more effective deterrent punishment is Actually it would have prisonment, it must be abolished. history clearly now, establishes the for been abolished before feelings penalties shock human disproportionate fact that punishment. Thus equalization crime and the of result in crimes penalty has been limited to of years the over the death society cannot atrocity danger which otherwise great effectually guarded against. by recognized for our courts principle has been “This classify may Legislature crimes and has been held that prescribe of one punishment for commission class severer against the commission of a than another as deterrent (People Smith, Cal. the more heinous crimes 166]). certainly is of of “This reflected codes the State Legislature imposes California wherein the death only against (Pen. for the crimes treason the State Code procuring person 37), the execution of sec. an innocent (Penal degree (Penal 128), first Code sec. murder Code sees. 190), (Penal wrecking 219), kidnap- train sec. 189 and Code ing bodily (Penal aggra- 209), harm an with Code sec. prisoner (Penal 4500). vated assault life Code sec. particularly section 209 of the Code is “Indeed, Penal Legislature the conclusion demonstrative far deterrent than more effective life person kidnaped imprisonment, for there suffers when imprisonment bodily harm, punishment is to be with- life death, whereas in those in- possibility parole, out the bodily harm, victim suffer stances where the does imprisonment possibility with only life punishment is recognizes proof Legislature parole. This than mere life deterrent is more effective imprisonment. dissents, in both of “Likewise, pointed out constantly been called have State California Legislature to abolish the years through upon in recent
death In each instance the conclusion has been that penalty the death is a deterrent it has been retained. vein, “In interesting the same it is to note that the of directly State California have not been offered opportunity express to their view in an election as to whether or not the death should be abolished. only “It seems to proponents reasonable that if the conclude of majority abolition people believed that the of this capital not they did believe punishment, State that would attempt
at least to popular submit the matter to a vote. The proof do so failure to is the best that even the advocates of majority abolishment are that convinced of people of this it an State believe that is effective deterrent and desire its retention.
“Historically capital it has been punish- demonstrated that a most ment is effective deterrent. Little can be added to the history excellent summaries of to be in the found dissents They vividly pointed filed this case. out that throughout history of Jews, particularly the throughout Christians and more history California, of has universally proven been considered and has to be the most effective deterrent. vigilantes “In to the addition effectiveness of the referred McComb, might of the dissent Justice we add activity in New similar Orleans 1890s an resulted in equally to crime. effective deterrent summary argument of our “The best is found in these knowledge ‘it a matter common
words ... is penalty is a deterrent.’ death portion attorney’s “In reference to that of the district argument wherein he that it is a recognized stated known toy carry guns guns will or fact that criminals unloaded be- respectfully penalty, we cause of the death submit that this history legitimate argument, for it and matter knowledge. common specific “In McComb the dissent Justice numerous cases prove argument set which have been forth is a correct personal history, experience as does the reflection Justice Sehauer. Royal Capital Report on “In the Commission Punishment virtually we ‘From them received unanimous
it was stated: England Scotland, evidence, both effect that uniquely capi- value of convinced deterrent were On criminals. professional punishment in its effect tal only have the may not death fear of the these using lethal violence deterring from them effect direct silencing to avoid detection accomplish purpose, their may also It resist arrest. crime, or of their the victim carrying deterring from them effect have the indirect tight corner should temptation use weapon lest no had doubt These witnesses prove irresistible. why lethal the main reason penalty was existence of why in this criminals often used and more was not violence They weapons. usually carry other firearms or country do capital criminals punishment, if were no thought that, there *29 carrying weapons; and the using to take violence would ’ compelled retaliate might be unarmed, police, who are now (page 21). specific page 335, report, appendix to that “Likewise, in the forth in those set Justices which confirm instances were cited dissents. MeComb's Schauer's hearing before the Senate a was held “In own state our hearing was 9, That Judiciary on March 1960. on Committee subsequently released a entirety in its and was telecast printed report. “During hearing report a from Angeles the Los Police Department entitled, ‘Employees Suspects Report, Robbery Committing Capital in port Offenses’ was That introduced. re- a showed that number of defendants in conversations reporting they (1) with officers stated that toy either had guns, empty (2) (3) or guns, simulated than guns, rather getting gas taking a chance on chamber. Angeles County, of Los “Likewise Sheriff Pitehess, Mr. presentation specific referred instances where sus- pects they had admitted that had not armed themselves for penalty. tape played fear the death Likewise a was suspect in which committee had stated that a crime gun him been committed had with from firing which the pin no injured, had been removed so that one would be be- get gas (Report cause he did want chamber Judiciary, 1960, 9, pp. 149-153). March Senate Committee Attorney Coakley, “Likewise Mr. the District of Alameda any County, police informed the committee that chief of attorney any large community or or sheriff district has experience talking had same to robbers who had told they gun inoperative used a them which was because of fear (Report the death of the Senate Committee on p. 156). Judiciary, 9, March 1960, “Testimony to the same effect was elicited from Chief of Angeles (Report Police Parker of Los of the Senate Com- Judiciary, p. mittee on 161). March appearing “In an article in 35 Bar State of California outstanding Journal one of attorneys defense of the State, Friedman, Mr. Leo R. stated: “ foregoing (that ‘The capital punishment claims was.not a deterrent) cannot be reconciled with the numerous cases robbery, stick-ups, bank burglaries, etc., where the criminal gun toy an pistol. used unloaded or a Such criminals were willing to being take a chance on caught and imprisoned, but would not killing take chance on being the victim and executed. “ ‘Naturally, no produced there can be statistics to demon- many strate how murders were not committed because the perpetrator would-be If but one feared or two year innocent lives are saved each because the death penalty has deterred the commission of a murder, then the justified. successfully No deny one can the fear of the death has saved innocent lives.’ specific “The numerous part instances are history all of this among State and show professional capital punishment criminals is a deterrent it, and because of toy he commits crimes inoperative armed with a gun. Thus proper it jury.” attorney for the argue district to so For all the reasons stated our majority dissents to the *30 decision ably and for the further presented reasons so for People by Attorney General, petition for rehearing granted. should be GIBSON, J., TRAYNOR, J., PETERS, J., C. WHITE, J., DOOLING, The dissentingopinion J. deny to the order ing rehearing requires response. this We held in prejudicial this case that it was error for the prosecutor in a penalty murder case to assert that the death imprisonment is a more effective deterrent than life when there was no that evidence to effect record to bolster that assertion with statements of fact of which there was like- wise no evidence in the record. penalty The wisdom and effect of deterrent the death are Legislature
for determine, justici- to and are therefore not holding in- our that evidence thereon was able issues. Hence capital legislatures not are hoc admissible. Juries eases ad penalty on not and trials legislative hearings. the issue of are to be converted into otherwise, for it counsel both sides Were of prolong well the trial on the issue could as as confuse penalty tangle conflicting vigorously with a evidence on the a disputed proposition that the death is more effec- imprisonment. than Even dissenters tive deterrent life holding agree “certainly . is correct” that the that the . . degree penalties of first “wisdom deterrent effect [the Legislature determine and are there- are for the murder] justiciable matters issues. Hence evidence as these fore not ’’ is inadmissible. jury People argue proper “it is to advise that penalties which must effect of the various choose, between jury at an only for if such is done can arrive impose.” intelligent In of which determination argument holding is support of eases are cited that it person that a proper to inform the of the minimum term may given degree a life for first murder serve. sentence recognize petition rehearing fails that What the is argument permitted the basis of the on minimum term the is the may be on served a life sentence introduction argument. support evidence to such Once we concluded comparative respective deterrent effect of the necessarily argu- admissible, sentences was not it followed that say subject proper we ment on the not unless could would knowledge is matter common the death the more effective deterrent. We when could so conclude knowledge vigorous dispute there is common instead that capital punishment whether is more effective deterrent than imprisonment. life effectively penalty more or not “Whether Thus any punishment other than would of murder the crime deters capital punish question hotly within the debated most Legislative Commission, (Ohio Service policy issue.” ment Report 46, January, Punishment, Research No. Capital Staff conclusion is documented numerous p. 31.) This legislative criminologists, committees, by penologists, studies Royal example, Report of Commis (See, and others. Report of 1949-1953; California Capital Punishment
sion on Assembly Judiciary I960; March Committee Senate 1955-1957, Report Reports, Subcom Committee Interim Judiciary Capital Committee on Punishment mittee *31 758
Pertaining Penalty to the Problems of the Death Its and Administration in California; Sellin, Thorsten The Death Penalty—A Report Project for the Penal Model of the Ameri can Law (1959) ; (Chairman Institute Sir Ernest of Gowers Capital Punishment), A Life for a Royal on Commission (Director Prisons, of of Bureau U.S. (1956); Bennett Life Capital Department Justice), Delaware Abolishes Punish of (Chairman of the ment, 1053; General ABAJ Gardner England Wales), Capital of the Bar of Punish Council Study 259; Savitz, Capital A Britain, 45 ABAJ ment in Punishment, Criminology Law, of Criminal 49 Journal George Ryley History 338; Scott, Capi The Police Science Roy Capital Calvert, Punishment (1951); tal Punishment E. Century Capital (1927); Punishment in the Twentieth Council, Episcopal Church; Zilborg, (1961), the National The Psychology (1954); of the Criminal Act and Punishment Concept Criminology Ball, Law, The Deterrence L., 353-354; & P. The Deterrent J. Crim. C. S. Influence Penalty Penalty Death, in Murder and the the Death of 284 The Annals Academy of the American Political and p. Thoughts Capital Science, 62; Morris, Punish Social ment, 335.) Wash. L. Rev. express preference not to taken care Legislature has it has left to absolute other. Instead penalty or the for one fixing punishment jury of the for first of the discretion degree noting that reasons other than deter- It bears murder. support penalty, advanced have been rence society protection from further retribution, such as speculation It is a far-fetched the defendant. harm from jury impose leaving one it to the Legislature, that the death is a more other, has indicated or the imprisonment. than life deterrent effective preclusion arguments that the fear It is a baseless properly without question cannot evaluate jury aon encourage murders the commission crimes will provides for the death The Penal Code of violence. hardly grave to take a risk be emboldened so will criminal A ruling prose- neither the defendant nor the because argue or one introduce evidence cutor can prescribed is the more effective penalties the other deterrent.