*1 26, 1969.] In June No. 11510. Bank. [Crim. Respondent, v. T. PEOPLE, Plaintiff and LISKIE THE Appellant. MABRY, Defendant *4 Supreme Woodman, appointment under Dennis L. Court, Appellant. Defendant Maier, General, Attorney H. Assist- Lynch, Doris Thomas C. Kremer, J. General, Edsel Haws and Daniel Attorney W. ant Respondent. General, Attorneys for Plaintiff and Deputy the 1954 was indicted for BURKE, J. In juryA found him Francis Rea. Officer murder of Police penalty at death. fixed the degree murder and guilty of first penalty for reduction of were new trial and for a Motions appeal is now before us. automatic denied, and defendant’s (b).) (Pen. Code, 1239, subd. § refusing give erred (1) court Defendant contends degree manslaughter second .murder instructions on jury; instructing (2) certain committed error other had improperly admitted; (3) defendant evidence was (4) representation trial; at ineffective counsel (5) unconstitutional; and applied death veniremen. We improperly court for cause certain excluded upheld have that none of contentions can be concluded and that the should be affirmed.
Shortly p.m. January 2, 1954, on Police Officers regarding Dean Jones and Marvelli radio call Joe received burglary the Acme North Warehouse Sacramento and proceeded there. About the same time the decedent Francis Percy Gassaway, Rea, partner, also received call and his directing warehouse. When Rea and Gass- them to same the- away Douglas turned Avenue one block east the ware- onto carrying house, Gassaway saw a man a container or suitcase running Douglas from Ave- the west across the intersection *5 alley adjacent nue and an thát was to the warehouse. G-ass- awa.y turned into alley, the and Rea his attention to directed fleeing a man a half Gassaway about block-south where last suspect. observed the Rea pursued left the car and the man on Gassaway foot. through drove alley the and next saw the suspect over a block further Doug- south at the intersection las and El Avenue Monte Avenue. He radioed the other police assistance, suspect car for fired at him and returned corner, Gassaway around the and then heard more shots. Marvelli, responded Gassaway’s Officers Jones and who call, lying Gassaway found Rea near unconscious where last suspect. saw the following day The Rea According died. to the autopsy surgeon, the cause of was gunshot death a wound that penetrated head, and probably the lethal bullet was of .22 caliber. morning
The shooting .22 gun after the a was caliber found yard of a Douglas house the intersection of at Avenue wa,s El Avenue, pry and Monte a and bar discovered a short path distance farther north in the area where the suspect had fled. There circumstantial was evidence that the pry to gain bar was used entrance the Acme Warehouse Livingston Company and also to Cement and the Bowman residence, vicinity both of which were the immediate Acme A of whiskey Warehouse. bottle was missing from the Livingston Company, Cement and the Bowman residence police bottle, discovered a similar which had been Jewelry there when Bowmans left. taken from the Bow- man places residence was discovered a location between the pry gun jewelry and were belonging bar Othér to' found. corporation yard Bowmans was discovered a east of the Acme Warehouse.
On the date of the crime defendant lived in Sacramento woman, a Colvin, Jerry. with her son and daughter Steven her They days left At shooting. Sacramento two after the time trial the Hodges, woman was named Mrs. Jean and the daughter Jerry Long. had becomeMrs. years crime,
In March over 13 after the Mrs. Hodges report attorney gave concerning contacted the district a and implicated the crime that defendant. Hodges January 2,
At the trial Mrs. testified follows: On place try her was going get told some 1954/defendant money burglary some or to and commit a also mentioned sell- ing guns, agreed go They some she to with him. drove ways parked. pointed then location she out to [The Douglas Avenue parked near place as the officers Gassaway suspect vicinity of saw the the immediate where like fleeing.] pry bar that looked Defendant took him police. lay down but sat found She car on$ hour up something 45 minutes or an when heard about she running defendant left the car. She then saw policeman shotgun pursuing him. crouched down with a shots, policeman gun, she she heard more shot the thinks *6 home morning and she then next defendant left. The came policeman.” and her also told he had told “he shot a He her in been a in a residence and warehouse. Jerry Long
Mrs. testified left home that before defendant night policeman on she heard him tell her was shot away if and that mother “to drive there was trouble” day say him she after home the next heard defendant came policeman.” And Colvin testified that “he had shot a vari- he make left Sacramento overheard defendant Hodges anything ous threats if said about such as that Mrs. ‘‘ ” happened what of us. he would take care of all tape police obtaining recording Colvin in of aided the admissibility defendant, conversation between him which is later In the conversation Colvin discussed herein. had a rumor defendant told defendant that he heard about policeman” “[s]omething killing and Colvin about up in asked “. . . Is this about that Sacramen Thereafter replied to?” that he did not know. Defendant during defendant made various admissions. conversation stated, just “. in example, For You lived . . never ’54, what, ’67, this that’s ... it’s been Sacramento then, years you only . . He also was a kid see.” thirteen . if Hodges told her find out from Mrs. she told C'olvin to ‘1 she Sacramento, and no matter what present husband about go if I straighten him . . . because she’s she it out told better pill me.” He further stated that going. She’ll sniff the with driving I She Hodges “just guilty as as am. was Mrs. in gun . . . seat night . . . she had a car that .... got got her I her out, that came and of the car. I’m the one her, split. got I anything happens, away from there. I told jail. have away. If set there she’d been have she’d [sic] jail matter. ...” been for that . . . We’d have both trial, evi- Defendant, testify at the introduced who did not Mrs. and her against part Hodges him on the dence bias presented proof daughter He also several of and son. had Hodges regarding matters testified to crime been Mrs. reported newspapers, and he showed some inconsistencies accounts, in. place her as the had parked such where she been on night crime. parties stipulated guilt that evidence admitted at the might considered-by jury penalty
trial In at the trial. prosecution proof addition at the introduced prison that defendant was received in in 1936 for car theft degree robbery, paroled and. first was in 1940 was but prison year degree returned .robbery, later that for first was paroled prison in in 1944 was returned to but for first degree robbery, escaped prison in 1949 but was returned to year prison later an additional commitment for escape, paroled prison was in 1952 but was returned to April paroled forgery, 1954 for in 1958 but was returned prison receiving property, escaped in 1960 for stolen prison paroled in 1962, but was returned and was 1965. parole agent, witness,
A called a. defense testified that supervision defendant was under his from fall of 1965 to February reports 1967 and that all his regarding defendant satisfactory. were A also as a businessman, called defense wit- ness, testified January that defendant worked for him from through March 1967 and that he considered defendant an industrious employee. and honest The defense intro- also *7 duced evidence, testimony by other such as Hodges, Mrs. that escape before family defendant’s 1961 she told him that the was large destitute and that while at he contributed to the family’s support.
Asserted Errors in Instructions jury in part The was that in instructed order to they degree convict defendant of first murder must find that burglary defendant killed Rea. while in of a the commission and that that defendant did not commit or find attempt in burglary night question they commit a the on acquit must give him. The court refused to instructions requested by degree defendant on murder and man second slaughter, thereby and claims the erred. defendant that court duty every theory
It is the the on court instruct support finding (People the ease in the v. evidence. Modesto, 722, Cal.Rptr. 225, 59 Cal.2d 727-730 382 P.2d [31 People 768, v. 33]; Carmen, 36 P.2d 281]; Cal.2d 773 see [228 People Lessard, 447, Cal.Rptr. 78, v. Cal.2d 452 58 375 [25 46].) P.2d in theory Here the defendant advanced
438 was iustructious requested the support
the court . . inferred . can be which it “is evidence that there [from] presumably evidence and killer” was not the burglar the that However, the offense. lesser included killing was a the that to show tend clearly did not pointed to defendant evidence appeal killer.1 On burglar was not that testimony that Dorothy Bowman’s points solely to Mrs. or in her kitchen “Somebody staying there had been [i.e. dishes” pans and pots and using the and had been house] lived,in neighbor- who testimony by Jensen, N. and to J. an intruder police that he told the crime, that hood of the “looked shooting shortly after the yard in his encountered correctly however, Attorney General, like a Mexican.” show that tendency to has no that this evidence states “ neu- wholly best, it is killer, burglar was not [a]t may said to show that killer tral that issue and on residence— stayed the Bowman some time at a Mexican who in the who was indicating therefore [defendant] ’’ entirely hour, innocent. area for no more than an points indisputably Where the evidence to a homicide perpetration attempt perpetrate, of, burglary or one of the other felonies enumerated Penal Code section proper jury 189 it for the court to advise the guilty defendant either is innocent or is of murder the first degree. (People Turville, v. 633 P.2d Cal.2d [335 People People Riser, ; v. 47 Cal.2d P.2d ; 678] [305 1] People Rupp, Sanford, P.2d 1]; Cal.2d Perkins, ; P.2d 8 Cal.2d 534] 631].) The instant case comes within that rule.
There is merit defendant’s no contention that the prejudicial giving court committed error two sets of guilt thereby assertedly instructions at the trial and confus- pointed following 1Defendant An N. J. to the evidence: encounter Jensen, crime, neighborhood who lived in with an intruder shortly crime; yard, Douglas Avenue, his which is east of discovery corporation yard, from in the of loot the Bowman residence Avenue; Douglas discovery which of other loot from is west finding pry bar north of Bowman residence and the Bassetlaw South gun South; of loot Bassetlaw the South; south of Bassetlaw the absence south of description house as in and Mrs. Bowman’s of her chaos *8 “Somebody testimony staying using and had been that had been there argued pots pans that and and dishes.” Defendant this evidence the along Douglas burglar ran Avenue and turned showed that the toward south west South, corporation yard reaching Bassetlaw while the the before entering south, killer, Bassetlaw the area from .the shot Rea south of South, he encountered Jensen. then fled northeast where
439 ing jury. guilt the. At court, giving the trial the instruc- tions, jury recalled' and jury stated that had been erroneously instructed, that would again give court instructions and jury that the should follow the instructions that given disregard prior would' be and ones. The given instructions thereafter substantially were the same as prior except ones that the court omitted an instruction premeditation defining and gave deliberation and certain additional instructions.2 again The court thereafter recalled jury made even premeditation clearer that jury’s were not matters for the consideration, deliberation that in order to convict degree defendant of first murder jury must find the killing committing while committed attempting or burglary, jury commit and that does acquit not so find must him. From foregoing it is not, apparent that defendant was jury’s harmed having heard more than one set instructions.
Asserted Error in Admission Evidence Defendant contends that it was error admit Mrs. Hodges’ testimony policeman that hé told her he shot receipt testimony assertedly because violated the (Evid. privilege confidential marital communications 980). Code, However, objection ground no on that was made § trial, may and defendant not now claim for the first privi testimony time that the admission of the violated that lege. (Evid. Kroeger, Code, 912, (a); subd. § Cal.Rptr. 593, 369].) 390 P.2d Further made, Hodges’ more, timely objection even had a been Mrs. testimony would have been admissible her because uncontra testimony dicted shows that she married defendant before a obtaining divorce she was from her became final and husband marriage that her to defendant was void and later annulled. marriage Hodges Since the of defendant and Mrs. illegal (see Code, 61), and void Civ. the confidential marital § inapplicable. (People Keller, privilege was communications Cal.App.2d People Glab, 423-424 174]; Cal.App.2d 528, Wigmore ; see on P.2d 588] pp. (1961) §2335, C.J.S., Evidence 647-648- Witnesses, §267, pp. “In Wigmore explains, As such cases the 765-766.) meaning per 2The additional instructions concerned the of “in the petration burglary” jury expressly of a informed the the evi charge guilty dence is innocent such defendant is either degree of first murder. *9 440 relation apply . since the . . not privilege does policy ...” confidence. to the law wishes one in which foster is not p. 647.) Peo 2835, In supra, Evidence, (See Wigmore 8 on § 787], it was P.2d 721, 727 Cal.App.2d
ple Godines, [62 17 v. an before communication marital that a confidential held marriage apparently there the privileged, but annulment was illegal and void. than rather voidable was tape-recorded conversation between defendant The objection Miranda admitted an on was over based and Colvin 10 Arizona, 694, 1602, 436 L.Ed.2d 86 384 U.S. S.Ct. v. [16 974], Illinois, v. 378 and Escobedo U.S. 478 A.L.R.3d [12 that the 1758], 84 and contends 977, L.Ed.2d S.Ct. defendant prohibits thereby agree. erred. use court We do Miranda stemming by prosecution of . from custo “statements . . interrogation of the defendant unless it demonstrates dial safeguards privilege procedural effective to secure the use of (384 p. 444 against U.S. at L.Ed.2d self-incrimination” [16 similarly Escobedo with state p. 706]), and is concerned at by police during interrogation where, ments elicited Ing, suspect custody (People among things, other Cal.Rptr. 603, 902, 613 422 P.2d Ballard 590]; 65 Cal.2d [55 64 Superior Cal.Rptr. 302, 410 Court, 170 Cal.2d [49 ]). (at p. 18 A.L.R.3d Miranda states [16 1416 “ [b]y p. 706]) interrogation, we L.Ed.2d at custodial after a questioning initiated law enforcement officers mean person custody deprived of has been taken into or otherwise way.” any significant his freedom of action in Under majority People Arnold, opinion in Cal.Rptr. “custody suspect 515], 426 P.2d occurs physically deprived significant of his freedom of action person, way believe, or is as a that he is so led reasonable deprived.” appears custody,
Here it as defendant was not thus defined, tape-recorded The the time of the conversation. duration, conversation, which was of about 45 minutes car, parked occurred in defendant’s which was front his house. police, who several weeks earlier had received Hodges implicating information from Mrs. and her children they him murder, defendant in the had told Colvin would like to obtain a and had an confession from attached person. device electronic device to Colvin’s That transmitted nearby vehicle, Colvin’s conversation with defendant Jernigan it was recorded Burt. Officer was Officer where Jernigan nearby a second After vehicle. the conversation home, picked up a block from defendant’s Colvin about airport they miles drove several where met Burt. played recording Jernigan, officers, Burt two other Shortly Colvin. thereafter defendant arrested murder later was for that crime. indicted urges appeal,
Defendant on further did court, tape-recorded that the was inadmissi conversation States, ble under Massiah v. United 377 U.S. L.Ed.2d 1199], (at p. p. S.Ct. Massiah held L.Ed.2d at 250]) right the defendant was denied his to counsel against “when there was used him at trial evidence *10 his of his agents own incriminating words, which federal had deliber ately elicited from him he had been indicted and ’’ absence of his counsel. Here, however, pre the conversation ceded argu defendant’s indictment. There is no his merit to that, police ment since the had probable cause to arrest him charge and him with the murder at the time of conversa tion, he was “same under (Cf. as indictment.” a v. Hoff States, 374, United 293, 386-387, 385 U.S. 309-310 L.Ed.2d [17 408].) 87 S.Ct. appeal tape
Defendant further contends on that recording was recording inadmissible because the conversation rights violated his under the Fourth Amendment to secure against specific objec unreasonable searches and seizures. A ground tion on that at trial,3 not made and defendant special has shown no justify circumstances that would our departure ordinary from the challenged rule that errors not at grounds trial cannot serve appeal. (People as for reversal on v. Robinson, 889, Cal.Rptr. 762, 62 Cal.2d 894 402 P.2d [44 834].) Furthermore, see, as timely objec- we shall had a even 3 defendant, objecting receipt At the tape to the record ing, pointed police to evidence that knew that the sheriff’s officehad attorney inquired any received a call from an who whether there were give up warrants if he defendant and stated that defendant would himself police, knowledge, was wanted. Defendant stated that the with that “secretly presence contrived to a from take statement out [him] attorney” of his an arrest and to return elicit a of at a time when “had sufficient evidence make . . an indictment . Defendant asserted that to from statement such under circumstances is violative Massiah, Although States, Escobedo Miranda. in Massiah v. United supra, of radio Fourth Amendment reach that Massiah 201, by government agent 377 U.S. it was contended that the use equipment overhear conversation violated the defendant’s rights, Supreme the United States Court did not issue, apparent upon and here-it that defendant relied solely holding respect right for its to the to counsel under Arizona, supra, 436, Sixth Miranda v. Amendment. 384 U.S. Illinois, 478, supra, v. Escobedo U.S. 378 based on Fifth were Sixth Amendments—not the Fourth Amendment.
442 have recording tape would made the ground been
tion on admissible. been 293, 302 States, supra, U.S. 385 v. In United Hoffa stated, “Neither Supreme p. 382], Court at L.Ed.2d [17 expressed the view has ever member nor this Court wrongdoer’s mis protects the Fourth Amendment voluntarily his confides person to whom placed that a belief unanimously Indeed, it. the Court not reveal wrongdoing will ago years than four rejected very less contention 83 462, L.Ed.2d S.Ct. States, 427 Lopez 373 v. United U.S. [10 concerning the testimony by Accordingly Colvin 1381].” conversation rights under defendant’s did not violate States, supra, pp. at (cf. v. United Amendment Fourth Hoffa applicable made to the pp. 381-382]), 300-303 L.Ed.2d [17 Ohio, (Mapp v. 367 U.S. by the Fourteenth Amendment states 84 1090-1091, 1684, 81 S.Ct. 643, 1081, 655-657 L.Ed.2d [6 933]). A.L.R.2d tape recording violate receipt did the Nor States, 427; rights. supra, 373 (Cf. Lopez v. U.S.
those
United
States,
370,
United States
371;
390 F.2d
Dancy United
973
L.Ed.2d
Knohl,
427,
379 F.2d
443
den. 389 U.S.
[19
[cert.
Mancusi,
ex rel. Molinas v.
States
472]];
88 S.Ct.
United
984
L.Ed.2d
F.2d
602-603
den.
U.S.
[18
[cert.
People Ragen,
Cal.App.2d
397-398
];
S.Ct.
1285]
Cal.Rptr.
L.Ed.2d
den. 393 U.S.
[cert.
700]
Lopez, supra (at
Here,
p.
489]].)
S.Ct.
*11
not use an
p.
at
“The
did
elec
470]),
L.Ed.2d
Government
could not
'conversations it
other
tronic device to listen
on
only
wise have
the device was used
to obtain
Instead,
heard.
possible
the most
of
conversation
reliable evidence
for,
cooperat
participants
working
of
was
which” one
the
with,
government
participant
ing
the
and which
(at
fully
Lopez
p. 439
to
further stated
entitled
disclose.
[10
petitioner
471]),
at
risk that
took
p.
L.Ed.2d
“We think the
fairly
in oífering
government agent]
included
a bribe to [the
reproduced
accurately
the risk that
offer would
be
memory
court,
whether
or mechanical record
faultless
’’
ing.
principle
applicable
This
is also
here.
States,
v.
upon
Defendant’s reliance
Katz
389
United
U.S.
misplaced.
576,
507],
347
88
“Katz
L.Ed.2d
S.Ct.
is to
[19
applied only
prosecution
to cases
seeks to
which
introduce the fruits of electronic surveillance conducted after
18,
(Desist
States,
December
1967”
United
443 Asserted Aid Counsel Ineffective of support In of his claim that he had aid of ineffective court, complains counsel the trial defendant first an adequate asserted lack of public consultation with the represented defender who during him most of the trial.4 complaint Defendant made the same in the trial court during regarding complaint several discussions indicated public only that the defender talked to him for an hour about before trial and that had there been additional consultation public defender have been aware of facts would which would have prosecution extended the cross-examination of might calling witnesses and which have necessitated addi public tional defense witnesses. The defender he stated that saw defendant at least three times trial and before was fur nished reports investigator spent many his who hours trial, with defendant before that he was aware of the wit nesses call, defendant wanted judgment to his it would not be beneficial defendant to call them or to further prosecution cross-examine the On one witnesses. occasion adjourned proceedings court allow additional con subject, public sultation on the and the defender later indi nothing cated that new had been disclosed. Defendant and the public during defender also conferred recesses at the trial.
An right course, right accused’s counsel, includes the (Powell to consult Alabama, with his counsel. 287 45 U.S. L.Ed. S.Ct. 527]; A.L.R. Cornell v. Superior Court, 72 A.D.R.2d 1116]; Miller, Cal.App.2d Cal.Rptr. 91].) appear Here it does not that defendant was denied that right. appears Rather public that defendant and the defender differed on trial tactics and that the public fully defender was defendant, vindicated when discharging public defender, recross-examined several prosecution witnesses and indicated the nature testi mony expected he to elicit from other witnesses who were subpoenaed request. (The at his latter witnesses not did testify because defendant decided he was unable to continue guilt trial, requested After both sides at the rested public discharged reopened. the of the defender be and the case After discussion matter, granted request. Later, arguments court before guilt trial, defendant informed the court that he found could represent inquired pay himself and had no funds to for his defense. The court objected having public reappointed, whether he defender *12 replied reappointed and defendant that he not did care. The court then public represent the defender to defendant. defender, himself, public who was
representing' and the Nothing call substan- them.) did not reappointed, want it presented appear nor does helpful defense was tially to the presented additional been have been had the witnesses would brought were called, prejudicial and some facts to defendant as he was an ex- out on the recross-examination such escaped the Deuel Vocational Institu- convict and had from tion. had aid complains that he ineffective next Defendant argument his to the public defender in the because
of counsel admitted he was that defendant stated guilt trial jury at the Defendant asserts that the crime. time of at the area the However, the such admission. is no evidence there previously the statements he made conversation tape-recorded clearly warranted that he an inference is from which recited electing crime. Rather than of the scene present was public defender as a appears that ignore evidence this “ position look at took [l]et’s trial tactics matter or they may” chips fall where and let evidence —that area time was in the at the admitted shot victim committed he. crime but never admitted burglaries. aid asserts he had ineffective further Defendant object not defender did public Mrs. counsel because privi violated testimony the-ground on that it Hodge’s However, communications. we marital lege for confidential privilege inapplicable. was seen, have public represented by a defender the trial defendant At court, many “has according tried murder to the who, experienced “very able, responsible, eases” opinion claim that he lawyer.” defendant’s had In our upheld. aid of counsel cannot be ineffective Penalty the Death Constitutionality of incorporates by arguments reference Defendant Cal.Rptr. 21, Anderson, re in In made constitutionality challenging of the death 1006], opinion stated in the Anderson penalty. For the reasons arguments lack merit. Excluding Capi- Opposed Error in Veniremen
Asserted tal Punishment
Thirteen were excused cause on the veniremen concerning penalty. reservations basis their the death Defendant asserts that most of them did ‘ state had opinions preclude such conscientious as would find- [their] *13 ing guilty,” argues the defendant and he that were erroneously therefore excluded because under Penal Code sec implied tion challenge subdivision for bias does not if the punishment venireman’s assessment" of alone exist by would be his opinions affected conscientious regarding the penalty.5 argument death The (People is devoid of merit. Gonzales, Cal.Rptr. 497-499 426 P.2d 929]; People Riser, supra, Cal.2d 566, 575-576.) question
The jury remains whether the procedure selection comported with Witherspoon Illinois, U.S. L.Ed.2d 1770], 88 S.Ct. The record discloses that under Witherspoon it was not error to exclude the 13 veniremen responses them, since of each of when considered their entirety, “unmistakably made it clear (1) that would [he] automatically against vote imposition capital punish regard ment without any might to evidence that developed be at the (2) ... or that attitude toward the death [his] penalty prevent making would from impartial an deci [him] (391 sion as guilt” to the p. 522, defendant’s at U.S. fn. 785]).6 [20 L.Ed.2d at p. provides, challenge implied 8. may 5Penal Code section 1074 “A for bias any following be taken . for . . of the causes .... If the offense charged opinions punishable death, entertaining be with of such conscientious would, preelude finding guilty his . . .” the defendant . [By questioned: 6Venireman Pobor was “Q. You indicated court] also, believe, you I objections opinion that have some conscientious — regarding penalty you Tes, the death . . . law ? A. I do. Bo want to Q. you impossible indicate that because of that from would find it under circumstances opinion bringing penalty from in either the- death or making finding you guilt ... or A. do know? It’s matter juror my job bring I conscience. I know as a what to is. would have would, in whatever the decision the case was. I . rather not. . . [By prosecutor] Now, you judge yon Q. had that indicated type objection against penalty had some of conscientious the death itself? you your mind, A. Yes ... Q. Is the conviction have in it a is firm you penalty purpose. conviction feel? A. I death feel the serves no up you, you. juror, hearing IfQ. if were were selected as a you penalty? evidence in the case would not render a verdict for the death undergo A. I feel if I’m I chosen would have to that disturbance. you juror I would rather not. ... if ... conscience did sit as a on the Q. death you phase, required would be return a verdiet of imprisonment? say impris life onment, A. I’m I I afraid would. ... would life against penalty. [By I’m since the death . . . Q. defense coun you you time, And do this feel that if the sel] the matter was in Court indicated that your discretion, you proper do feel that there are no proper imposition eases there could be no cases of the death
penalty? A. not. I There .could feel could not. Q. there And therefore you no under circumstances could penalty, return a verdiet which would indicate you upon penalty? the death called were assess the A. No.” [By questioned: you Venireman McRae was think ”Q. court] Bo you impartial? could fair and A.I. don’t believe in the death' , penalty. You, words, . . Q. other don’t think it should be on the
Conclusion verdict, to'support amply is sufficient .The evidence contrary. made to (cid:127)no claim is affirmed. J., Tobriner, Spllivan, J., and MeComb, J.,
Traynor, J.,C. concurred. expressed
MOSK, views concur in the substantive J. I opinion. majority Burke Justice agree dissent of portion However, I also you you being is, books, Eight. are A. But that it do think that it? Q. *14 my prepared I will the . . . A. do best. to follow law of California? say way other, eonvineingly I one or the because hard for me to It’s really you opinion regarding Well, of don’t because this have Q. know. you arbitrarily No, disregard application? penalty, its A. would the death I would not. you Now, think, [By prosecutor] . . . do . . . the Q. trials, hearing your feelings has that because of been offered both what" evidence from, you awarding penalty; precluded the would be death you imprisonment you life now award verdict of and as there would sit my penalty opinion, preference A. I that be in yeS. ? feel to [sic] would you And would award the . . . The Court: under no circumstances your so, penalty? Honor. The Court: I don’t believe death The Juror: Well, [By Q. . . . defense we to know The Juror: No. want no.w. my you you understanding . the that at . . feel —is it feel counsel] And any you penalty trial, penalty be to under would unable assess death A. Correct.” circumstances? ‘' yom questioned:' [By Ho know Q. court] was Venireman Locke why any you A. I reser- serve this ease? have some reason could not penalty. your on A. What’s attitude it? I’m Q. about the death vations right. Notwithstanding your opposition against to the death it. AU Q. are-you law, prepared penalty should circumstances to follow that law you you [By prosecutor] . Q. A. Yes. . . that should? influence you objections penalty Now, you death do to the that have such conscientious verdict, you whereas the to render such feel that- would not be able you my question? imprisonment? follow Hid be life alternative would A. not Yes, your I Q. I do. believe And what would A. I would answer be? penalty. your [By vote for the death . . . Q. defense it counsel] Is feeling you though circumstances, could under no law now even penalty you states stances there is a death . . . —did state no circum- under you penalty? could vote a death A. I feel I You couldn’t'. Q. you any feel could not under circumstances? A. Yes.” questioned: [By you Venireman ‘‘Q. Jenkins I believe court] your you objection stated raised hand that have to some the death you penalty impossible A. Q. law? Yes. Is that such would find it bring penalty ,Q. any Yes, to A. think it a death verdict? L is. Under any A. Under circumstances? circumstances. ...” questioned: [By ‘‘Q. Venireman Zufall was You court] indicated you-had opinion regarding penalty . . '. some conscientious death (Nods Yes, opposed head.) Y.ou to A. Q. Q. law? A. that that into sir. are it? Hoes you not, just bring apply I mean could it? A. I believe can’t never my religious By your agreement Q. convictions. reason you religious convictions, opposed to the law and under no are would eijrcumstances impose it? . . . death Q. follow A. Yes. You refuse (Nods any head.) penalty . . . The A. Court: ’-under circumstances? relating discretionary power Justice Peters to the conferred upon this court section subdivision of the Penal Códe, power and I would inclined to exercise the in this The, unequivocally case. statute provides the authority guide you you You realize . . there’s no which the law tells where apply penalty. discretionary jury the death ... It with the ..... Having you mind, impossible your that'in do still find it because of con- objections any scientious and beliefs'under circumstances to even consider itpplying penalty? thought through many the death I this The Juror: years your ago, Honor, just myself bring and I’ve held to it and I can’t to-ehange person I it. condemn death.” another couldn’t Venireman Thomas stated that she had “reservations on the death a death penalty” preclude bringing and that her from ever would penalty any verdict of a case. kind find, impossible Tabor that she it stated would to return the Venireman penalty scruples death kind of ease because she had moral 'a against penalty the death law. questioned: [By Venireman Beard was you ‘‘Q. And do court] any- why you know of juror? reason couldn’t impartial serve as a fair and penalty. Well, A. I you have reservations on the death will Q. state what they' Well, A. are? I’d rather not —I don’t believe I could inflict you you . . . DoQ. that. the discretion of A. I think feel that would be able—unable to even exercise imposing imprisonment? either the or life death you your yes. so, Q. so. Are certain in mind?. A. I think you impose penalty? no Q. . . . circumstances would death Under A. -No. [By obligation you Q. defense ... counsel] there was no on penalty, I you degree assess could determine . . . the tbe the. crime you any problem . . . ? A. with think so. . . . The Court: Would have that, knowing you degree that should it determine to be first mur Welly I don’t know. The Court: The Juror: der— (cid:127) —that thereafter given type consideration must be to a life or death sentence? Well, long death, as there was a choice between life and Juror: you right. would be all If had a choice— The Juror: There Court: The. you be— The Court: Would would consider both? The Juror: I think so. Life death? Uh-huh. The Court: And The Court: The Juror: would, notwithstanding your penalty, you give attitude toward death both, depending upon your impression? consideration to The Juror: Well, depend upon arguments it would and the . . . evidence. *15 TBy prosecutor] you, Beard, you yourself Mr. understood that Q. could not award-the would I penalty? I A. believe I could. And Q. don’t death any type in that be almost A. I think . . Q. case? so. . You death, penalty you opposed to are as such? A. Yes. And feel in Q. you any penalty? could not1 award the A. Ho. . . . case death The you you Well, you say, Beard, think Mr. don’t could. That Court: you open possibility to that could. like to know whether leaves We’d you your absolutely you not in mind that or such a 'conviction would have you upon depending not or whether would consider all of circum I don’t think that I it. The would The Juror: stances? Court: Because consider your right.” conviction? Juror: That’s The Sahary opposed penalty she was to Venireman stated that the death notwithstanding that the circumstances of the ease she would refuse and to vote penalty. for that objections Thurston that she entertained to After Venireman "stated you law, indicating penalty . . . that death she was asked ‘‘Are the under no circumstances would juror you you impose it because are a theory?” ‘‘Bight.” replied, opposed to it and she objection capital punish- he had an to Weaver stated that Venireman and, regarding objection, Questioning that after he was ensued ment. informed, jury’s penalties was in the that between the two choice punishment judgment “by imposing the lesser with- modify a only to trial ordering a new trial'’ not granting out or any court power but shall extend courts, also “this Supreme Court may appealed.” case Since the which the appealed when the death only is court the ease is to which the Legislature that penalty imposed, it seems undebatable power Holmes to this court. As Justice intended to extend ‘‘ taught strong presump- nearly century ago, us a There is a meaning giving tion in favor of words their natural and (Mer- against reading something said else.” them as if (1883) 451, 455.) rill v. Preston 185 Mass. dissent, cases long there is a line of based
As recited
upon People
345],
(1951)
The court Odie its construction that this court had based power ground punishment, no to reduce the on the inter alia give that “To construe the otherwise section would the court powers clemency (Cal. similar those vested in the Governor VII, Const., §1), art. and raise ques- serious constitutional ’’ relating separation 58.) powers. (Id. p. tions to the clearly judicial Reduction of a sentence court ‘‘ gives guide, asked, knowing and that discretion the law no he was And you your you that do consider feel' that convictions are such that would not even alternative, it in of the death as with contrasted im- life prisonment? feel, yes absolutely A. I I wouldn’t YouQ. that consider it. impose only imprisonment? give would the life You wouldn’t considera- could, tion death? A. I that I don’t no. ...” feel opposed penalty' Venireman Inderkum stated that she was to the death imposition not her would even consider its because attitude. During voir Ereitag dire of following Venireman occurred: you think “Q. You impartial capacity? could a fair serve A. I agree capital punishment. don’t disbelief, appli- Q. With that if its prevents you you imposing cation in California it, from impose could not it under [By circumstances? A. Yes. . . . Q. defense . . counsel] . problem only penalty? does this arise in the assessment of A. Yes. you you required Q. Do feel that if were to assess the you guilt could determine the. innocence this matter? A. Yes. you you degree Q And do feel that could also determine of offense yourself you required . . . if penalty? were not to assess the A. Yes. knowing, you thereafter, : brought Even . . . The Court in a degree finding— first murder question. I misunderstood the The Juror: my No, proximate not if decision were the cause. Court: That finding would to a body, lead that would have to be made another imprisonment [sic], choice between life and death or otherwise death ability your would impartial interfere with fair render a judgment? Yes, context, The Juror: in that it would.”
449
function. That
Governor
authorized to exercise a similar
clemency
act
the form of
any
judi-
does not make it
less
If
cial function.
there is
deviation from traditional
separation
powers,
it arises because the Constitution con-
“judicial”
fers
power upon
that one
the Chief Executive.
provided
however,
Nothing
suggests,
therein
that similar stat-
utory. authority
in the
resting
courts interferes with normal
separation
powers,
merely
for the courts
to exer-
continue
judicial
only
function but
conventional
cise no executive
otherwise,
power.
holding
error,
In
Odie
subse-
quent
relying upon
precedent compounded
it as
cases
(See
by Schauer,
People
Odie,
J.,
error.
dissent
37
p,
345].)
at
61
P.2d
[230
I am not unmindful
the fact
that whenever this court
adopt
interpretation
1181,
chooses to
the correct
of section
7,
subdivision we will
previously
“stand at the threshold of a
unopened
(Murphy, J., dissenting in
door”
Press
Associated
(1945)
2013,
United States
326 U.S.
L.Ed.
[89
may
1416]),
65 S.Ct.
and we
petitions
be inundated with
corpus inviting
habeas
us to exercise
discretion anew cases
long
potentiality
since final. I do not deem that
crucial,
to be
however,
obligation
reopen
for this court has no
cases
previously
interpretation
decided
prevailing
under a
Retroactivity
properly
upon
iaw.
imposing
frowned
upon
justice”
“burdens
the administration of criminal
when
correctly
results in the reconsideration of “cases that were
(In
decided
under
law in force at the time of
re
trial.”
Lopez (1965)
Cal.Rptr.
62 Cal.2d
P.2d
380].) It must also
here
be noted that we have
no federal or
imperative,
state constitutional
prejudicial
and no issue of
error as in
(1964)
v. Morse
PETERS, reversed, The judgments J. I dissent. should be or, least, judgment of death should reduced life imprisonment.
In place, the first should be reversed because tape-recorded conversation with the witness Colvin was prejudicial inadmissible, and its admission constituted error. agent. interrogation defendant was police His Colvin was a prosecuting attorney or the equivalent interrogation by the *17 by prosecut- police. interrogation carried on Had this been giving the Escobedo-Miranda ing directly without officials have warnings can no doubt it would constituted there agent prejudicial change used does not error. The fact an the rule. taped
Two weeks before the conversation was secured prosecution Hodges, had detailed information from Mrs. Col- vin, and Long Mrs. that defendant had committed the mur- They sufficient information to arrest der. had more than longer they simply investigating possi- defendant. No were Suspicion directly defendant, and ble crime. had focused on prosecu- on defendant The inference is clear that the alone. arranged tape-recorded tion conversation an attempt guilt suspect’s from to secure further evidence of policy own mouth. This violates the of the Escobedo- basic cases, many interpreting Miranda and of the other cases them. policy prohibit basically That is to unfair tactics the inter- prevent rogation coercion, of a defendant and to direct or psychological pressure interrogating indirect. To use directly indirectly, defendant, warnings or without required by through police decoy law and two weeks after they guilt, have accumulated evidence of defendant’s suspicion defendant, police had focused on after the had ample employ very cause to arrest is to same unfair tactics denounced Escobedo and Miranda.
Escobedo clearly and Miranda established that the privilege against right self-incrimination and the apply to counsel police interrogation prior to indictment and trial and that confessions and prior admissions secured to trial in violation privilege right or the must be excluded. Those cases are interrogations not place police limited to which take in the jail station interrogations but extend to designed to suspicion elicit admissions and confessions once has focused upon the recognized defendant. We have that the rules estab applicable lished these cases are in the absence of arrest or People Arnold, confinement. Thus in 66 Cal.2d 448 [58 Cal.Rptr. 515], pointed 426 P.2d we out that a person, although physically deprived freedom, of his should be viewed person such he has led been to believe as a reasonable deprived. Similarly,
that he is so Furnish, Cal.Rptr. 387, Cal.2d 299], 407 P.2d we pointed out that absence arrest all of the circum- making of the defendant’s statement surrounding stances emphasized “factors considered, specifically must be pressures.” (See may subject suspect unusual which Cal.Rptr. Chaney, People v. also 964].) 408 P.2d lengthy
One cannot read the and detailed discussion in (384 Miranda pp. 448-456 pp. U.S. L.Ed.2d at 708- 713]) improper police practices employed to elicit admis- sions and confessions from speak, aceuseds reluctant with- recognizing out basic concern the court was to protect privilege against right self-incrimination and the to counsel from police subversion unfair methods. The instant police cáse reflects unfair used compel methods to make admissions. The fact that those methods may have been more subtle than the ones in Miran- discussed da is immaterial. permit ¥e should not such methods to sub- *18 our guarantees. vert basic constitutional Miranda expressly was and directly psycho- concerned with logical pressures by police used suspect officers to make a talk freely whether or not voluntarily he talk, wanted to adopted the court safeguards protect to the privilege against self-incrimination and right the to Although counsel. Miranda custody involved a defendant in physical police, the same apply police obviously rules also where subtly use psychological pressures same or similar to obtain admis- suspect sions upon or confessions from a suspicion whom has suspicion Once- has focused law enforcement officials focused. permitted should be not to avoid rules by established protect Miranda to guarantees by our constitutional resort to pressures compel subtle psychological but coercive to the sus- pect to admissions make and confessions where has been there privilege against no waiver self-incrimination or right to counsel. by case, ploy
In the used the law instant enforcement psychologically officials as was coercive those discussed disapproval by in Miranda. Prior to interview Col- complained vin, Hodges defendant had learned that Mrs. had by him, parole subject and his of a threat made had been question. plan as reflected the 45-minute conversation between,Colvin was and defendant that Colvin would come to telling Angeles police defendant him that Los a officer had tried to reach him but had that C'olvin not returned the officer’s but called his call had mother who said the call from police'.may have related to defendant. told defend- Colvin
ant police that he had heard a rumor that defendant killed a officer and asked this related whether to Sacramento. Colvin also stated that he was worried that the call from the officer may have related rumor. Even innocent of kill- ing, defendant, parolee, would realize the threat to his free- dom due rumor, say to the would think must or do something stop spread of the rumor, since Mrs. Hodges had recently complaint parole amade to the authori- ties, he prevent must act to her spreading from further such rumors. might
As expected, reacted telling Colvin, Hodges’ Mrs. son, go, that “if I she is going with me.” Interestingly enough, the threat when first detailed did not relate to the Sacramento murder at all but to an assertion that Mrs. Hodges had killed defendant’s first wife. It only after that that he made admissions regarding the Sacramento murder, and those admissions were made in the context of a Plodges threat to Mrs. complicity based on her in the crime. testimony It clear from police officers that the purpose entire of the conversation between Colvin and defendant was to secure confession. The case differs from States, United 385 U.S. 309-310' L.Ed.2d Hoffa 408], police agent 87 S.Ct. 386-387, where undercover m> interrogating the defendant to obtain admissions or confes past sions of criminal conduct seeking but was to determine whether presently the defendant was engaged in attempt an commit, or the of, commission Ing, crime.1 In Cal.2d 603, Cal.Rptr. 590], P.2d and Ballard Superior Court, 64 Cal.Rptr. 302, 410 1416], A.L.R.3d appear it does not whether the police agents used psychological pressures to obtain the incriminating statements, and the factually cases are distin guishable. However, disapprove I would them insofar as *19 state or hold that Escobedo inapplicable and Miranda are the custody. absence of
It seems clear the improperly admissions were secured and their admission into evidence constituted reversible error. tape-recorded Even if the admissible, conversation were how- ever, my opinion, proper this is a case to exercise dis- cretionary power conferred 1181, section subdivision 7 of the Penal Code penalty and reduce the imprisonment. to life pointed Supreme 1It should be out that the United Court States has (Giordano hearing States, Ordered further in the case. v. United Hoffa 297, 1164].) 310 394 U.S. 89 [22 L.Ed.2d S.Ct.
453 fixing governing are no standards Just as there Saterfield, 69 Anderson and jury (In re hy the penalty 117]), or the Cal.Rptr. 21, 447 P.2d 613, 621-623 Cal.2d [73 regulate the statutory standards to judge, trial there are no upon the decided must be this Bach case discretion of court. judge. according each record to the conscience of following In the instant ease the important. are factors The killing years occurred 13 before defendant’s connection with it was discovered. Then was discovered because Mrs. Hodges daughter and her and son came district attor ney and Admittedly, told their stories. Hodges Mrs. had lived defendant, relationship, quarreled á common law had with defendant married another man. There was bad blood between testimony them. Her testimony of her suspect. tape two children are recording was, say The .'least, of testimony doubtful value. The of first degree murder technically while sufficient, weight. was of but we doubtful If discretionary power do have a under section subdivision 7 of the proper Penal Code this case is a one in which to power. (Cf. exercise People Terry, Cal.2d Cal.Rptr. 605, 381].) 390 P.2d The language crystal section subdivision is clear. It power confers on this court the same conferred on trial courts to reduce the death It life. is well settled power that it discretionary confers on trial courts. The matter simple. is that Section provides 1181 of the Penal Code court
may grant when, a new trial alia, inter verdict “the or find- ing contrary (Subds. evidence, to law or ...” 7.) provides Subdivision of that section that if this condition exists but the evidence shows the guilty defendant to be aof degree lesser of the crime of which was convicted or of a may lesser included offense, modify verdict, court find- ing, accordingly granting without a new trial. provides subdivision power further that “this shall ’’ extend may appealed. court to which cause interpreted
Subdivision 6 has been requiring the trial court independent to make an review of the evidence and to reduce degree or crime where it determines that weight of the People evidence dictates (E.g., such action. Moore, Cal.Rptr. 6, ; Cal.2d 348 P.2d 584] Sheran, 101, 108-109 5].) How ever, appellate given while an court under subdivision 6 *20 its court, the circumstances as the trial power same justifying appel- typical functioning of with the exercise in accordance by the justifying action than those narrower are courts2 late application will, upon appellate court Thus,
trial an court. only the offense, consider an degree class of reduce the or support the law to a matter of sufficiency the evidence as (People level. degree at the trial or class determination of Sheran, supra.) equal force apply with do not arguments
These same 7 of section subdivision 7 of the section. Subdivision “ contrary finding is provides or the verdict [w]hen in which it is one if the case before evidence,” and law or jury to court or in the trial “authority by vested statute imposed, be punishment to . . . the recommend or determine finding or verdict may modify such court [trial] ordering granting without imposing punishment lesser to which any court extend to power shall trial, and this new may appealed.” requires the trial the case Subdivision jury imposed court in a case in which the has the death independently penalty to review the evidence and to reduce independent penalty life own its imprisonment judgment penalty proper. (E.g., the death was not Love, Cal.Rptr. Cal.Rptr. 56 Cal.2d 728-729 33, 809].) 366 P.2d capital
Since the trier of fact in a case is neither bound nor guided making regarding penalty its decision two except types hereinafter, power cases discussed court obviously different, under subdivision 7 is more discretionary power possesses it under than which sub- 6. division which, question explored satisfactorily by has not been scope power3 this court is the nature and of this court’s under subdivision 7. In long line upon People of cases based Odle, 37 Cal.2d 345], which prior was decided to the enactment finding power, although normally 2The fact appellate not exereised courts, is not appointed, usually unknown to them. Where a referee is corpus proceedings,
habeas
he hears and sees the witnesses and makes
findings,
findings
though
conflicting
but his
even
based on
are
evidence
binding
appellate
They
weigh
on the
courts.
must
the evidence and
independent
judgment
an
determining
make
on the facts.
Also
whether
prejudicial,
or not
VI,
an error is
under article
section 13 of the Cali
Constitution,
appellate
weigh
fornia
court must
the evidence. Other
finding by
appellate
instances of fact
court exist.
appellate jurisdiction
This court has
exclusive
automatic
in eases
pronounced.
(Cal.
Const.,
which the
of death has been
art.
11;
VI,
Code,
(b).)
§
§
Pen.
subd.
of subdivision 7 of section 1181 and involved a construction of
section 1260, this court has held that absent error affecting the
capital
determination in a
case it will not interfere
with that
power
determination
since
has “no
to substitute
*21
its
penalty
as to choice of
of
the trier of
(In
fact.”
re Anderson
field, supra,
and Safer
613,
69 Cal.2d
623; People
Lookadoo,
v.
307,
66 Cal.2d
Cal.Rptr. 608,
[57
327
People
425
Mitchell,
P.2d 208];
v.
63
805,
Cal.2d
821 [48
Cal.Rptr. 371,
211];
409 P.2d
v.
People Welch, 58
271,
Cal.2d
Cal.Rptr. 363,
People
275
Love,
power under subdivision 7 than it does under subdivision 6 in capital eases, there being no standards govern the trier of fact in determining except in arising cases under sec- tions 209 and 4500 of the Code, only Penal it logical seems power granted to this court under subdivision is. a more discretionary power than possesses that which it under subdivision 6. Accordingly, is most reasonable to construe this power court’s under being subdivision 7 as a limited power impose imprisonment life rather than the death penalty in cases where, in judgment, its trier of fact has abused its discretion in imposing penalty i.e., the death in— cases where in its the evidence should be considered insufficient to warrant penalty, death though even Legislature has explicitly imposition forbidden its in such (possibly unforeseeable) circumstances.
Thus construed, subdivision 7 embodies a legislative man date for provide this court to cautiously appellate-level an upon' check rare clearly imposition cases of abusive penalty. death example, For might this court conclude that particular case where a defendant has committed first degree murder under overwhelmingly mitigating circum stances, clearly has exhibited deed, remorse for his and shows promise only definite for rehabilitation, (a' he not should not determination solely upon entrusted to the trial court review (under under 7) possi subdivision but must not the broadest ble latitude for the exercise of discretion fact) trier of be sentenced death existing legislation. under suggested power construction of this court’s under subdivision 7 of section 1181 of the Penal *23 is not C'ode incon- holding sistent with the numerous cases has that this court power “no judgment penalty, to substitute its as to choice of reasonably phrase for that of the trier of fact” if that is interpreted only may mean court not make this an sentenced, death, except person if the assaulted either an inmate year day proximate a does die within and a assault imprisonment punishment life result thereof then the shall be death or possibility parole years in for nine of the trier without of discretion of fact. penalty appropriate judgment as to the
independent de novo must, this may, indeed' do. Nor would trial court as the exercise of a amount to the subdivision 7 power under court’s to a con arguably give rise clemency function, would which (See separation powers. of problem of stitutional clemency is not 52, 58.) The exercise Odle, supra, 37 Cal.2d grace an exercise proceedings but judicial review Gardiner, 440, 447 224 N.Y. (Andrews v. compassion. Forum Editors’ [Cardozo, J.], 341, 2 A.L.R. N.E. 1371] 412.) (1967) 55 Cal.L.Rev. exer- opinion we should I am the For reasons these by section power discretionary cise this case conferred penalty and reduce Penal Code 7 of the subdivision imprisonment. life because of the admission of I would reverse Colvin, tape-recorded but event conversation proper power granted exercise the section this case to imprison- life 7, to reduce the subdivision ment. August rehearing denied
Appellant’s petition for a was opinion petition Peters, J., that the should be 1969. granted.