THE PEOPLE, Plaintiff and Respondent, v. WILLIAM WESTWOOD McCLELLAN, Defendant and Appellant.
Crim. No. 11728
In Bank
Aug. 20, 1969.
Respondent‘s petition for a rehearing was denied September 17, 1969. McComb, J., and, Burke, J., were of the opinion that the petition should be granted.
71 Cal. 2d 793
PETERS, J.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
This was in no way comparable to the format utilized in the instant case.
Finding no error under the application of Witherspoon I dissent from the reversal of penalty. I concur in the affirmance of guilt.
McComb, J., and Schauer, J.,* concurred.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Ronald M. George, Deputy Attorney General, for Plaintiff and Respondent.
PETERS, J.- This is an automatic appeal (
On the evening of February 16, 1967, the defendant and McFarland entered the Gaslight Cafe in Stanton. Shortly after the stage show began, defendant jumped onto the stage with a small automatic weapon in his hand, stepped into the spotlight, grabbed the microphone, and told the musicians and the audience-seated at the bar and at tables between the bar and the stage that a holdup was underway. He told those in the audience to put their heads down and look at the floor. Since some in the audience initially believed defendant was part of the stage show, defendant repeated his threat to shoot anyone who did not do as he had told them.
Defendant left the stage and went to the rear of the bar near the cash register. McFarland had been at this location forcing the bartender to place money from the cash register into a bag and holding him at gunpoint. Defendant picked up the bag, containing some $800, and told the bartender “let‘s go back to the safe.” As the bartender, followed by defendant, neared the swinging doors at the exit from the main room of the cafe, James Seagris, a customer, threw a chair at defendant which struck the defendant in the back. Seagris dove under a table, and defendant whirled and fired one shot downward. People thereupon began to scream and dive under tables, and defendant and McFarland started to run out of the cafe, the latter firing three shots, apparently towards the ceiling, as he ran. Another customer, Joe Gray, ran after defendant through the swinging doors and into a passageway; defendant fired five or six shots at Gray and Gray fell to the floor. Defendant and McFarland left the cafe and drove off in a car. Both Seagris and Gray died from gunshot wounds.
Defendant does not challenge the sufficiency of the evidence on the issue of guilt. The evidence is overwhelming and convincing against him.
Defendant‘s contentions are as follows:
1. Shortly before defendant‘s trial began, the prosecutor held a meeting of witnesses at the Gaslight Cafe to reenact the offenses. Defense counsel was not present at this meeting, and he was not invited or notified of it. Defendant claims that the holding of this meeting violated his right to counsel as defined in United States v. Wade, 388 U.S. 218 [
At the meeting, agents of the prosecution apparently played the roles of defendant and McFarland, reenacting the robbery and shootings “with the advice and direction of the witnesses.” The prosecutor alleges that no written statements or notes were taken, but numerous photographs were taken, many of which were introduced into evidence at the trial.
Defendant‘s contention that the prosecutor had a duty to notify defense counsel of the meeting and to permit him to attend finds no support in either the language of or the considerations underlying the Wade decision. Wade held specifically that criminal defendants are entitled to the presence and aid of counsel at post-indictment lineups. Underlying the decision was the court‘s finding that “the accused‘s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity . . . to attack the credibility of the witness’ courtroom identification.” (388 U.S. at pp. 231-232 [18 L.Ed.2d at pp. 1159-1160].) Suggesting the potential scope of its decision, the court stated that it would “scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant‘s basic right to a fair trial. . . . [We will] analyze whether potential substantial prejudice to defendant‘s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” (Id. at p. 227 [18 L.Ed.2d at p. 1157]; italics added.)
In the instant case there was no confrontation of the defendant involved in the meeting of the witnesses, who were customers or employees of the bar. There was no possibility that the defendant would be treated or used unfairly in the presence of prospective trial witnesses so as to influence improperly their identification of or testimony about him at trial. Since the defendant was not present, this meeting was no different, for Sixth Amendment purposes, than a meeting of witnesses at the prosecutor‘s office or a conference between the prosecutor and any single witness. Certainly an accused has no Sixth Amendment right to have his counsel present on such occasions.
The accused does have a right of access to written statements or notes of interviews with witnesses, pursuant to a discovery order. But the meeting in the instant case violated no such order. At the preliminary examination, the municipal
2. Pursuant to
Prior to the voir dire examination, defense counsel moved that the prosecution be required to proceed first in questioning jurors for cause. “[A] great majority of my questions to the jurors are going to be concerned with the death penalty, and the guilt or innocent trial comes first, and I think they are going to get the impression then that I believe that it is a foregone conclusion that they are going to get [to] the penalty phase.” Based on
At the outset of the voir dire examination of prospective jurors, the trial court read the information and informed them that if the jury found the defendant guilty as charged and fixed the offense as first degree murder, then it would be required to make a “determination with respect to penalty . . . either life imprisonment or death.” The court continued, “I want to ask each of you . . . with respect to the penalty phase, whether any one of you in a proper case has any religious or philosophical beliefs that would cause you, as a juror in a proper case, as I have stated, to be opposed to the death penalty.”
Defense counsel then conducted his examination of the prospective jurors. At this point, the prosecutor had not yet announced to the jury that he would seek the death penalty should the verdict be guilty of first degree murder, but he had previously indicated this to the court and to defense counsel.
“[U]pon first hearing counsel for the defendant question regarding the subject of death, it cannot be said within any degree of certainty that . . . [the] juror does not get an idea or impression that even the defense counselor believes it might be a ‘proper case.‘”
It cannot be concluded on the basis of any such speculation that
Defendant does not urge any error under Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], relating to the exclusion of two prospective jurors and two prospective alternate jurors because of their reservations concerning the death penalty. From our examination of the record, we are satisfied that there was no such error. Discussion of the reasons for our conclusion is unnecessary since, as will be seen, reversal of the penalty trial is required on other grounds.
3. The prosecution rejected defense counsel‘s offer to stipulate that if the jury found defendant was one of the two robbers of the Gaslight Cafe, defendant was guilty of two counts of first degree murder under the felony-murder rule. Defendant claims that he was denied due process of law when, in spite of this offer, the trial court allowed the prosecution to present at the guilt trial evidence that defendant rather than his accomplice shot Seagris.
This problem arises under the following circumstances. Before the prosecutor made his opening statement to the jury in the guilt trial, defense counsel offered to stipulate that the shots which killed Seagris and Gray were fired as a result of the armed robbery, and that if the jury determined that defendant was one of the robbers it should find him guilty of
The court allowed the prosecutor to consider the proposed stipulation overnight; defense counsel indicated that he would like to make a “formal motion” [ostensibly to compel the prosecutor to accept the proposed stipulation] “perhaps tomorrow morning.” Although the prosecutor did not accept the stipulation, no such motion was ever made.
Defendant contends that the prosecutor‘s refusal to stipulate was prejudicial on the following theory: Defense counsel, wishing to dispute the identification of defendant as one of the Gaslight Cafe robbers, could not in the guilt trial stray from the issue of identity to the issue whether defendant rather than McFarland shot Seagris1 without tacitly conceding guilt. Therefore, he had to wait until the penalty trial to attempt to counter the prosecutor‘s evidence that defendant shot Seagris; at this time, the jury had probably already made up its mind on the issue. Although the question of who shot Seagris was not significant, under the felony-murder rule, in the guilt trial, it was of possibly great significance in the jury‘s determination of penalty since the jury‘s probable conclusion that defendant shot Seagris as well as Gray (see fn. 1) might well have influenced it to sentence defendant to death rather than to life imprisonment.
The prosecutor gave as his reason for rejecting the stipulation that to delete from his witnesses’ testimony all reference to who fired particular shots would unduly break up their testimony on other matters such as identity and sequence of events.
Second, there is a strong policy against depriving the state‘s case of its persuasiveness and forcefulness by forcing the prosecutor to accept stipulations that soften the impact of the evidence in its entirety. “Parties, as a general rule, are entitled to prove the essential facts to present to the jury a picture of the events relied on.” (53 Am.Jur., § 105.) In People v. Pollock, 25 Cal.App.2d 440 [77 P.2d 885], the court held that the district attorney in a rape case was not obligated to accept the defendant‘s offer to stipulate that there had been intercourse. “Except as ordained by law, the district attorney, in connection with the performance of an official act, is not required to accept the judgment of a stranger to the office.” (Id. at p. 444.)
The general rule that the state cannot be restricted by stipulations in presenting its case is particularly compelling when the likely effect of a stipulation removing certain matters from the trial is to make much more difficult the state‘s coherent presentation of other evidence. In the instant case, the prosecutor was understandably reluctant to agree to delete from the testimony of his witnesses all references regarding which robber fired shots and at whom. Such an agreement would have hampered his ability to prove coherently what happened at the Gaslight Cafe on the night in question.
Third, the proffered stipulation in effect required the prosecutor to seek conviction only under the felony-murder rule. It is doubtful whether the defendant could properly narrow the prosecutor‘s options in this respect. (See People v. Lookadoo, supra, 66 Cal.2d at p. 315.) It is quite possible that the prosecutor desired to make out a case of first degree murder by premeditation as well as by felony murder. Under the former
The court did not err in failing to compel the prosecutor to accept the stipulation.
4. But serious and prejudicial error was committed during the penalty trial. During the guilt trial McFarland testified that he had committed five robberies with the defendant prior to the Gaslight robbery. This was offered to show a common plan or scheme (see People v. Hill, 66 Cal.2d 536, 556-557 [58 Cal.Rptr. 340, 426 P.2d 908]) and as circumstantial evidence that the defendant had committed the Gaslight robbery and murders. None of McFarland‘s testimony as to these five prior crimes was corroborated.
The jury found McClellan guilty of first degree murder as to both homicides, and the same jury tried the question of penalty. In the penalty trial the prosecutor questioned McFarland as follows:
“Q: . . . [Y]ou have previously testified [in the guilt trial] that you were with Mr. McClellan on six robberies, starting with the Family Hofbrau on December 20, 1966; is that correct?
“MR. KEENAN [defense counsel]: Objection, your Honor, no foundation. No corpus has been laid as to six prior robberies.
“THE COURT: The objection will be sustained. Leading. . . .” (Italics added.)
“Q: You have previously told us about some robberies that you committed with Mr. McClellan; is that right?
“A: Yes.
“MR. KEENAN: Same objection; immaterial to this phase of the case without a corpus.
“THE COURT: Overruled.
“MR. ENRIGHT: I believe you mentioned a January 31st robbery of the Robert‘s Room; do you recall that robbery?
“A: Yes.
“MR. KEENAN: Same objection, and a continuing objection regarding questions to any offense which the prosecution goes into for which there has not been a corpus introduced.
“THE COURT: Overruled. The motion with respect to the continuing objection, I will permit that.”
At this point, McFarland was examined in detail regarding the Robert‘s Room robbery. Subsequently, this testimony was corroborated by two witnesses who were present on the occasion of that robbery. One of them identified defendant as one of the robbers.
It is settled law that during the guilt trial evidence of other crimes may be proved by a preponderance of the evidence, and that so far as proving other crimes by the evidence of an accomplice is concerned corroboration is not necessary (People v. Rosoto, 58 Cal.2d 304, 331 [23 Cal.Rptr. 779, 373 P.2d 867]). We reaffirm the doctrine of that case.
It is equally well settled that during the penalty trial the jury should be instructed that they may consider evidence of other crimes only when the commission of such crimes is proved beyond a reasonable doubt. (People v. Varnum, 70 Cal.2d 480, 485-486 [75 Cal.Rptr. 161, 450 P.2d 553]; People v. Varnum, 66 Cal.2d 808, 814-815 [59 Cal.Rptr. 108, 427 P.2d 772]; People v. Hillery, 65 Cal.2d 795, 805 [56 Cal.Rptr. 280, 423 P.2d 208]; People v. Polk, 63 Cal.2d 443, 450-451 [47 Cal.Rptr. 1, 406 P.2d 641]; People v. Terry, 61 Cal.2d 137, 148-149 [37 Cal.Rptr. 605, 390 P.2d 381].) Because of the possible great impact on the jury of the evidence of other crimes2 we have held that on the penalty trial the testimony of an accomplice to such crimes must be corroborated. In People v. Terry, supra, 61 Cal.2d 137, as part of footnote 8, page 149, this court stated “As a corollary, defendant should not be subject to a finding of a jury that he committed prior crimes unless his commission of such prior crimes has been proven beyond a reasonable doubt.” That this was a considered conclusion is demonstrated by the careful treatment given the problem in People v. Polk, supra, 63 Cal.2d 443. There at page 450 it was held “Defendants contend that since evidence of other crimes was introduced at the trial on the issue of penalty, an instruction that such crimes must be proved beyond a reasonable doubt should have been given. We agree with this contention. Generally, the standard of competency of the evidence at the trial on the issue of penalty is the same as the standard required at the trial on the issue of guilt. (People v. Hamilton, 60 Cal.2d 105, 129 [32 Cal.Rptr. 4, 383 P.2d 412].) Since evidence of other crimes, however, may
The problem again received considered evaluation in People v. Varnum, supra, 66 Cal.2d 808. At page 814, this court reversed the penalty on the following reasoning: “Error committed in the penalty phase of the trial, however, requires reversal. (People v. Hines (1964) 61 Cal.2d 164, 170 [37 Cal.Rptr. 622, 390 P.2d 398].) The prosecution encouraged the jury to aggravate defendant‘s punishment by evidence that he had committed other robberies shortly before those for which he was tried. This evidence consisted solely of the testimony of Thomas Hanks, who claimed to be defendant‘s accomplice in the earlier escapades.
“We have held that ‘evidence of the earlier crime must meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding.’ (People v. Purvis (1961) 56 Cal.2d 93, 97 [13 Cal.Rptr. 801, 362 P.2d 713]; People v. Hamilton (1963) 60 Cal.2d 105, 129-131 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Bentley (1962) 58 Cal.2d 458, 460-461 [24 Cal.Rptr. 685, 374 P.2d 645].) Moreover, because evidence of other crimes ‘may have a particularly damaging impact on the jury‘s determination whether the defendant should be executed . . .’ they must be proved beyond a reasonable doubt before the jury may consider them. (People v. Polk (1965) 63 Cal.2d 443, 450 [47 Cal.Rptr. 1, 406 P.2d 641]; see also People v. Terry (1964) 61 Cal.2d 137, 149 [37 Cal.Rptr. 605, 390 P.2d 381].) Accordingly, at the trial on the issue of penalty the corpus delicti of
an earlier crime must be established before an uncorroborated extrajudicial confession can be admitted (People v. Hamilton, supra), and an earlier crime cannot be proved by hearsay (People v. Purvis, supra). For the same reasons Penal Code section 1111 , prohibiting proof of an earlier crime by the uncorroborated testimony of an accomplice, also applies at the trial on the issue of penalty.” (Footnote omitted.) Thus the specific problem here involved has been considered at length and in depth.
In the present case the evidence of the five prior crimes was admissible on the guilt trial without corroboration of McFarland, but on the penalty trial such evidence was inadmissible unless corroborated. Since normally, as here, the same jury determines both guilt and fixes the penalty, since normally it is stipulated that all the evidence at the guilt trial shall be considered on the penalty trial, and since here there was specific reference on the penalty trial to the priors testified to by McFarland, the defendant was entitled to a limiting instruction on the penalty trial to the effect that accomplice testimony of prior crimes shall not be considered unless corroborated and proved beyond a reasonable doubt.
The defendant did not request such an instruction but such request was not here required. It is settled law that the court must give basic instructions sua sponte. It must instruct on the general principles governing the case even though not requested by the parties. (People v. Wade, 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116], and cases cited.) Instructions must be given sua sponte as long as the instruction is “vital to a proper consideration of the evidence by the jury.” (People v. Putnam, 20 Cal.2d 885, 890 [129 P.2d 367]; see also People v. Jackson, 59 Cal.2d 375, 380 [29 Cal.Rptr. 505, 379 P.2d 937].) That rule is particularly applicable here because the holding that a limiting instruction will prevent the error is new law and therefore no request or objection can be required. (People v. Kitchens, 46 Cal.2d 260, 263 [294 P.2d 17]; People v. Hillery, 62 Cal.2d 692, 711-712 [44 Cal.Rptr. 30, 401 P.2d 382]; People v. De Santiago, ante, pp. 18, 22-23 [76 Cal.Rptr. 809, 453 P.2d 353].)
The failure to so instruct on the penalty trial was obviously prejudicial and requires a reversal of the penalty judgment.
In order to assist the trial court on retrial of the issue of penalty, we discuss other allegations of error occurring during the penalty trial.
5. In the penalty trial, the court admitted the testi-
A liquor store clerk testified regarding an attempted robbery of his place of work in late 1966. He never saw the robber and only heard him say “This is a holdup. Open the door.” He never was asked to identify the defendant as the robber. McFarland later testified that the defendant had told him he robbed this store, mentioning several details that coincided with the account given by the clerk.
A retail food dealer testified to being robbed in late 1966 by a man who wore a nylon stocking over his head. He too was not asked to identify the defendant as the robber. McFarland later testified that the defendant had told him he robbed this market, mentioning several details that coincided with the account given by the dealer:
If
Thus, the question presented is whether
In Varnum, where this court held that accomplice testimony relating to prior offenses must be corroborated under
Accordingly, we hold that McFarland‘s testimony regarding the robberies defendant committed alone was objectionable under
6. Defendant contends that in the penalty trial the prosecutor cross-examined defendant beyond the scope of the direct examination to the prejudice of defendant.
Defendant testified on his own behalf in the penalty trial regarding the details of the Gaslight robbery. After cross-examining defendant regarding certain details of the Gaslight robbery, the following exchange took place between the prosecutor and defendant:
“Q: You were just coming from robbing George‘s Liquor Store?
“MR. KEENAN [defense counsel]: Objection, your Honor, beyond the scope of the direct examination.
“COURT: Sustained.
“Q: You have been convicted of robbery, have you not, previously?
“A: That‘s correct, yes.
“Q: Once in Santa Ana and once in Orange County and once in Riverside; is that correct?
“A: Yes.
“Q: And this was the result-this was back in-the robberies had taken place in 1960; is that correct?
“A: Yes, sir.
“Q: This was the result of your having committed over thirty robberies at that time?
“MR. KEENAN: Objection, your Honor. There is no foundation laid for that statement.” (Italics added.)
The trial court sustained the objection and admonished the jury to disregard the question. Defense counsel then moved
Having testified on his own behalf, defendant was, of course, subject to impeachment by proof of any prior felony convictions. (
The permissible scope of inquiry into a defendant‘s prior felony record includes the right to question the defendant as to the number of felonies of which he has been convicted and when they were committed. (People v. Jones, 216 Cal.App.2d 494 [31 Cal.Rptr. 79]; People v. Miller, 188 Cal.App.2d 156, 170 [10 Cal.Rptr. 326]; People v. Renteria, 181 Cal.App.2d 214, 218 [5 Cal.Rptr. 119, 78 A.L.R.2d 1275].) From the cases holding that circumstances “surrounding” the offense (People v. Braun, 14 Cal.2d 1, 6 [92 P.2d 402]) and circumstances “comprising” the offense (People v. David, 12 Cal.2d 639, 646 [86 P.2d 811]) cannot be elicited from the witness, the general rule emerges that the witness can be asked about anything which would appear on the face of the record of judgment (see People v. Smith, supra, 63 Cal.2d at p. 790) since such record could itself be introduced into evidence for impeachment purposes.
In the present case, we are not told whether defendant was actually convicted of over 30 counts of robbery in 1960. Even if defendant in fact committed 30 robberies prior
It is extremely doubtful that defendant was so convicted. The information in the present case charged defendant with three prior convictions of first degree robbery, not 30 prior convictions. If in fact, defendant was convicted of 30 robberies, the prosecutor would have proved this at the trial. Thus it would seem that defendant‘s convictions of robberies in Santa Ana, Orange County, and Riverside did not involve 30 counts and that this was a matter of which the prosecutor must have been aware.
Even though in the penalty trial the prosecutor properly could have inquired in good faith whether defendant had committed 30 robberies which did not result in convictions, he never sought to do so, but only asked whether the convictions were the result of 30 robberies, a matter which is one of record. His failure to ask whether defendant had committed the robberies or to seek permission to ask indicates that this was a matter which he could not prove, certainly not “beyond a reasonable doubt” as required by People v. Polk, supra, 63 Cal.2d 443, 450-451.
The effect of the prosecutor‘s question, to which an objection was sustained on a technical ground, was no doubt harmful. It is natural for a jury to believe that the prosecutor is acting in good faith in asking questions because in the overwhelming majority of instances the prosecutor is acting in good faith. (Cf. People v. Lo Cigno, 193 Cal.App.2d 360, 388
The question asked seems so inept that it raises questions as to the good faith of the prosecutor. If the prosecutor meant to ask whether defendant was convicted of 30 robberies, the question was an easy one to ask, and if the prosecutor believed that defendant was so convicted he would have called this matter to the court‘s attention. If, on the other hand, he was seeking to ask defendant whether he had committed 30 robberies for which he was not convicted, he did not ask that question or seek to prove the robberies by other evidence. Finally, if there were not 30 convictions, it does not appear how the question asked could have been proper cross-examination.
It is true that the prosecutor had possession of a report stating that defendant had committed 30 robberies. It is doubtful whether this is sufficient to warrant a conclusion that the prosecutor acted in good faith in view of the fact that he asked a question on the subject which was clearly objectionable and which, while limiting the defendant‘s opportunity to answer, must have had the effect of telling the jury that defendant had committed 30 robberies. Misconduct in this connection, if there was any, seems clearly prejudicial. The admonition of the trial court could not wipe away the obvious implication that defendant had committed 30 robberies. This should not occur in the retrial.
The question about “coming from robbing George‘s Liquor Store” appears to have been within the proper scope of cross-examination. Cross-examination, which is limited to “[matters] within the scope of the direct examination” [here the Gaslight robbery] by
The judgment is reversed insofar as it relates to penalty. In all other respects it is affirmed. A new trial is ordered on the issue of penalty.
Traynor, C. J., Tobriner, J., and Sullivan, J., concurred.
MOSK, J.-I concur in the affirmance of defendant‘s guilt, but dissent to the reversal of penalty.
As will be seen, there are essentially two thrusts to my dissent. First, I take issue with reliance on what may be labeled the Polk-Varnum rule and, second, I am apprehensive about the pragmatic result of that rule.
The Polk-Varnum requirement that at the penalty phase of a bifurcated trial prior crimes must be proved beyond a reasonable doubt finds little support in law or reason, and can be rationalized only by an abbreviated reverence for stare decisis. The rule was devised in the fertile tradition of judicial creativity and in total disregard of a long line of prior cases to the contrary. I proceed, then, to chronicle the relatively brief but checkered history of Polk-Varnum.
Thus in People v. Purvis, supra, at pages 95-96, this court, speaking through Justice Traynor, held it would be error to instruct that facts at the penalty trial must be proved either beyond a reasonable doubt or by a preponderance of the evidence, as the jury “has absolute discretion” in its weighing and application of the evidence. (See People v. Howk, supra; People v. Hines, supra; cf. In re Anderson (1968) 69 Cal.2d 613, 621-625 [73 Cal.Rptr. 21, 447 P.2d 117].) A year later it was held in People v. Bentley (1962) 58 Cal.2d 458, 460-461 [24 Cal.Rptr. 685, 374 P.2d 645], that evidence of other crimes, as long as they were not established by inadmissible hearsay, could be received even though relating to escapades for which no conviction had been obtained. (See also People v. Mitchell (1966) 63 Cal.2d 805, 815 [48 Cal.Rptr. 371, 409 P.2d 211].)
Perhaps the ultimate holding, however, was that in People v. Griffin (1963) supra, 60 Cal.2d 182, reversed on other grounds (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], in which this court held that detailed evidence of a prior offense could be admitted at the penalty phase although the defendant had been acquitted of the crime in another court, on the rationale that an “acquittal is merely an adjudication that the proof at the prior proceeding was not sufficient to
tended to restrict admissibility in the penalty trial. (See Selected 1959 Code Legislation (1959) 34 State Bar J. 710; People v. Terry (1964) 61 Cal.2d 137, 143, fn. 1 [37 Cal.Rptr. 605, 390 P.2d 381].)
Again in 1963, in People v. Hamilton, 60 Cal.2d 105, 129 [32 Cal.Rptr. 4, 383 P.2d 412], this court (per Justice Peters) reiterated that guilt need not be proved beyond a reasonable doubt at the penalty trial (citing Howk and Purvis with approval), but if the court held that evidence was incompetent and therefore inadmissible at the guilt phase, it could not be admitted at the penalty phase. Thus because an admission could not be introduced at the guilt trial without independent proof of the corpus delicti (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]), the admission could not be introduced absent such independent proof at the penalty trial, for the reason that it remained incompetent evidence. As indicated, Hamilton nevertheless reaffirmed the basic established rules as to penalty trials; yet it was later inexplicably to be cited as an authority for the abandonment of those rules.
Remarkably inauspicious was the initial incursion into the previously unquestioned ground rules regarding burden of proof, although the foray was subsequently magnified far out of proportion. In People v. Terry (1964) supra, 61 Cal.2d 137, 149, this court held that a mere information, by itself, could not be introduced at the penalty trial to prove commission of a prior crime, just as an arrest, standing alone, would be inadmissible for that purpose (People v. Hamilton (1963) supra, 60 Cal.2d 105, 132). Both were merely hearsay as to the commission of the crime, and where the defendant ultimately pleaded guilty to a lesser offense “the use of incidents in the preliminary stages of the criminal process as evidence to prove that a defendant has committed an alleged criminal act becomes too prejudicial when weighed against its probative value.” (People v. Terry, supra, at p. 149.) In other words, the evidence there was both incompetent (as hearsay) and irrelevant (having relatively little probative value), and did
Unfortunately, however, the Terry court gratuitously added another sentence of unadulterated dictum to footnote 8, and this has been a source of obfuscation and error ever since. The court restated the Hamilton holding as to confessions lacking a corpus delicti, and continued: “As a corollary, defendant should not be subject to a finding of a jury that he committed prior crimes unless his commission of such prior crimes has been proven beyond a reasonable doubt.” The raison d‘etre of this cryptic sentence has eluded both courts and commentators, and apparently continues to do so. (See Comment (1964) 52 Cal.L.Rev. 386, 397 fn. 69.)
The only consistent interpretation of the footnote is that, given a situation in which only a conviction beyond a reasonable doubt would justify the introduction of “preliminary stages” of the criminal process at the guilt phase-as the Terry court appears to indicate this “same safeguard” applies also in the penalty phase. If, however, that so-called “corollary” to Hamilton requires that prior crimes must always be proved beyond a reasonable doubt in a penalty trial, though not at a guilt trial, we have a classic non sequitur and clearly erroneous dictum which directly contradicts statements of the established principles set out not only in previous cases, but also in the Terry opinion itself and in its companion case, People v. Hines (1964) supra, 61 Cal.2d 164, 173.
At the outset of its discussion of the penalty trial, the Terry court reviewed the applicable principles, outlining the “necessarily broad” range of inquiry and the “broad, liberal rules on admission of evidence” in this area. (61 Cal.2d at p. 143.) In footnotes 1 through 3 the court favorably cited, among others, the Jones, Purvis, Griffin, and Bentley cases,
The fortuitous footnote in Terry inspired four justices of the court in People v. Polk (1965) 63 Cal.2d 443, 450 [47 Cal.Rptr. 1, 406 P.2d 641], to totally abandon all precedent and to categorically assert: “Since evidence of other crimes . . . may have a particularly damaging impact on the jury‘s determination whether the defendant should be executed, we recognized in People. v. Terry . . . that there should be an exception to the normal standard of proof at the trial on the issue of penalty (People v. Purvis . . .).” The uncontrovertible fact is that the court had recognized no such principle in Purvis or in Terry, primarily because such a proposition was then-and still is-precedentially barren.4 With this mythical authority to guide it, the Polk court enunciated for the first time a reasonable doubt rule for other crimes in penalty proceedings, pausing neither to justify its adoption nor to recognize the existence of consistent authority to the contrary. Thus we see the genesis of an evidentiary quagmire. Two years later People v. Varnum (1967) 66 Cal.2d 808 [59 Cal.Rptr. 108, 427 P.2d 772], gave the rule a stamp of venerable authenticity by reference to both Polk and Terry. Now in this case the majority gratuitously add still another to
I have not recited an exegesis of the Polk-Varnum doctrine in a spirit of misoneism or simply to document the origins of a judicially adopted rule of evidence. This is not, of course, the first time such a creative process has occurred, nor will it be the last. My concern arises because the new rules5 which has been embraced unquestioningly by the majority is anomalous and contrary to the legislative intent expressed in
The majority concede, as they must, that People v. Rosoto (1962) supra, 58 Cal.2d 304, 331, is prevailing law, and that “during the guilt trial evidence of other crimes may be proved by a preponderance of the evidence, and that so far as proving other crimes by the evidence of an accomplice is concerned corroboration is not necessary.” But they fail to see the Legislature clearly intended that the admission of evidence at the penalty phase be freer than at the guilt phase (People v. Jones (1959) supra, 52 Cal.2d 636), and at most subject to the “same safeguards” of the guilt trial as to competency and relevancy (People v. Terry (1964) supra, 61 Cal.2d 137). Since the jury in the penalty phase of a bifurcated trial is not considering the fate of a defendant presumed to be innocent-he has by then been found guilty of first degree murder-logic and the provisions of
For efficient trial procedure, trial courts and counsel are entitled to know how prior crimes are to be established at the penalty trial; the majority offer little assistance. Certainly a certified record of conviction will suffice. But what of proof by, for example, eyewitness testimony (People v. Bentley (1962) supra, 58 Cal.2d 458) or confession following independent proof of the corpus delicti (People v. Hamilton (1963) supra, 60 Cal.2d 105) or testimony by an accomplice, as in this case? It is clear that the Terry opinion, whatever else it intended, did not purport to exclude all evidence of prior crimes except formal convictions, a position which “would deny relevant sentencing information to the jury” and create “a fundamental change in the scope of evidence permitted.” (Comment (1964) 52 Cal.L.Rev. 386, 397, and fn. 69.) As said in People v. Mitchell (1966) supra, 63 Cal.2d 805, 815-816, “There is no requirement that a defendant must have been convicted in order to introduce evidence of other criminal conduct during the penalty phase [citing Griffin and Jones].”
The inevitable next question is: Who will decide whether the prosecution has sustained its burden of proof as to prior crimes? It is apparently contemplated that the jury will make this determination after hearing all the evidence, except where, as in the instant case, the court makes the evaluation as a matter of law.6 Where the evidence thus presented leaves any reasonable doubt of guilt of the prior crimes in the minds of the jurors, they will be instructed to disregard the testimony entirely in considering the penalty. In the not uncommon instances under Polk-Varnum in which the identical evidence of prior offenses has previously been presented at the guilt phase, as in this case, the jury will be expected to thoughtfully consider the evidence substantively in reaching a verdict on guilt or innocence, and then to erase that same testimony from their minds in determining penalty. This requirement suggests feats of mental legerdemain far more difficult than we have a right to expect of a jury.
We cannot overlook the serious pragmatic effect of the Polk-Varnum rule on the introduction of evidence of prior crimes at the penalty stage of a bifurcated trial. By requiring a
In the case at hand, the admission of uncorroborated accomplice testimony as to other offenses in the guilt phase of a trial, while denying it in the penalty phase, purportedly pursuant to
I am convinced the original pre-Polk line of cases interpreting
On the other hand, if the majority are determined to assert this new evidentiary concept, they should reconsider the implications of their haphazard method of reconciling the new penalty standard with those imposed at the guilt trial. They should at the very least forthrightly overrule the long line of pre-Polk authorities. In the words of Francis Bacon: “If it be that previous decisions must be rescinded, at least let them be interred with honour.” In lieu thereof, this eulogy in dissent must suffice.
McComb, J., and Burke, J., concurred.