*1 No. In June 7166. Bank. [Crim 1963.] PEOPLE, Respondent, THE Plaintiff and v. LAWRENCE Appellant. MODESTO,
GLENN Defendant and *3 Appellant. Klein Earl for Defendant Stanley Attorney Mosk, General, E. William James, Assist- Attorney General, ant Deputy Norman Sokolow, S. Attorney General, Mackey, William 0. District Attorney, and Roland Deputy Wilson, Chief Trial District Attorney, for Plaintiff Respondent. TRAYNOR, J.Defendant was convicted of two counts of penalty murder. fixed the at death on each count. prior Defendant admitted felony two convictions. appeal (Pen. This 1239, automatic. Code, (b).) subd. § Shortly midnight after October 1961, defendant entered the home of andMr. Mrs. Ardel Mack carrying a sledge 4-pound hand daughters, Connie, with hammer head. The Macks’ age age and Mary, asleep in the p.m. house. At previous evening about 10:30 had seen Mr. and place Mack at a where Mrs. Mr. Mack *4 played guitar with a band and knew that would Upon returning return home until about home, a.m. Mary lying found Macks on the floor dead. Connie had dis- appeared. Her blankets were on floor, and there was on her bed. blood arrested at Ms home at
Defendant was about 2:30 a.m., arresting 29, 1961. The officers October found bloodstains on right right fender, rear rear handle, door the rear seat, and the floor mat of defendant’s automobile. The blood appeared on the rear seat to have been body smeared moving sledge on the Defendant’s hammer seat. was removed from the trunk of his automobile. A chemist testified that heavily the hammer had been smeared with blood had and been washed. asleep At the time of arrest, bed, his defendant was in his
wearing only pair bloodstained, shorts. His hands were as were his shorts and his other clothes found on the floor of police his room. A chemist testified that there were semen stains on T-shirt, defendant's on the outside of his trousers, wearing and on the shorts he was when arrested. p.m. day
At 7 on the of his arrest, defendant admitted to police investigators Mary that he struck and Connie with the sledge hammer. He stated that he entered the Mack home scaring “with the intentions Connie way Jean for the she snotty has been acting, smart-aleckie, just and and to kind of get things back at her for a lot of she I said. went into the through house the side door. house was dark and the door locked. I wasn’t So went to the bedroom, flicked on the light and Connie Jean turned over something and mumbled light and shut the I off and again, I went over to shake her Mary awake, and little light, turned on the and I turned scaring around with the intention of her, my and hand went sledge far and I hit her with the too hammer. She went down, and Connie moaning, Jean started screaming, so I told her to quiet, (indicating) and I went like this to hit too, her but just right my hammer went on and hit too; I her and I don’t don’t know, many after I know how times I hit them— apiece—I three or four or five They times don’t know. moaning screaming and I couldn’t many remember how ’’ I them. times Mt stated picked Defendant to the officers that he up then dropped lawn, returning her on the Connie to the house putting for the hammer. After body Connie’s unconscious car, the rear floor defendant stated that he intended to go panicked Mary, away back for and drove when he saw lights approaching Shortly automobiles. thereafter he drainage stopped ditch at a to clean the blood from Connie’s opened legs “When hung I her head. door And the out. *5 thing ground—so grabbed next I knew she was on the I her pulled by the hand and over to the drainage her side of that get ... ditch so I could some water to clean off, her and she just water, moaning loudly. tumbled into the ...” Defendant also stated to the officers that “Between there drainage and . . . the house I ... don’t know [the ditch] stopped. where I I’m not in my mind, sure but I think—I think I had intercourse with Connie—I’m not sure.” body drainage Connie’s was found face down ditch point downstream from the at which defendant stated she had gone into the water. Autopsies girls’ injuries of the separate bodies showed four separate injuries to Mary’s Connie’s head and five head, probably which were sledge inflicted hammer. Al- though drowning was the immediate cause of death, Connie’s injuries to her head Mary’s would have been death fatal. injuries resulted from brain by multiple caused skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten pathologist hours, was unable to state whether or not she had sexually been molested. disputed It was not at the trial that defendant killed the girls. prosecution two sought prove killings that the
were murders in the first either wilful, deliberate, premeditated, occurred dur- ing the commission of burglary, punishable or an rape, act Penal Code (Pen. under section Code, 189.) 288. There is § question no sufficiency of the support evidence to verdicts. Defendant contends that the trial court erred re fusing to instruct manslaughter. on the issue of
Manslaughter killing is the unlawful being of a human with out Involuntary manslaughter killing malice. is the without perpetrated malice “in act, the commission of an unlawful amounting felony; inor commission a lawful act might produce which death, an unlawful manner, or with out circumspection. due caution and (Pen. ...” Code, 192.) It was error to refuse the if § evidence instruction there is manslaughter deserving of consideration. Carmen, In Carmen, supra, we held that the defendant’s frighten statement that he had shot to the victims but did not injure anyone intend to kill or and did not aim at them was deserving required of consideration and issue manslaughter jury. to be submitted to the Defendant’s state- goes ment to the officers original farther. He stated that his frighten light intention was to Connie. When the came on Mary he turned unexpectedly, toward with the intention of scaring her. His hand went too far and he struck Then her. he struck Connie screaming. who had awakened, Thereafter, girls he struck each of the three or four times. He offered no explanation subsequent for these He did not take the blows. during stand guilt. the trial on the issue of His statement alone would submitting not warrant the issue of *6 jury, to the reasonably for the could not infer from it aforethought. an absence (Pen. of malice Code, 1105.) §§ There was other evidence of manslaughter, however, that deserving was of consideration. There was evidence that de- fendant Saturday, ate no breakfast on 28, 1961; October purchased he six cans of beer about noon and 12 more about 4 o’clock; drinking that he early was and intoxicated in the afternoon; high,” “feeling pretty 4:30 or 5 o’clock he was eyes and that speech his were bloodshot and his thick and slurred. Several ap- witnesses testified that defendant peared intoxicated when during observed him the eve- ning. p.m. At about stepfather 11:30 his drove him home be- cause he was too drunk to drive. Defendant’s wife testified appeared that he drunk when he arrived he home; that was “awfully staggering drunk” and again when he left home midnight. about When he returned, his clothes were bloody, glassy-eyed and he was and unable to walk without her assistance. Zonnis,
Dr. a psychiatrist, testified that she examined de- fendant both in a hypnotic normal state and while he inwas an gave neurological trance and him electroencephalogram and neurological tests. The results of the question- test were “of significance” up able and any particular “did not add pic- ture.” There was “some abnormality evidence of [electroencephalogram] diagnosed test.” Zonnis defend- Dr. “passive-aggressive aggressive ant as a plaining personality, type,” ex- descriptive general that this was a statement of his configuration. personality person “A who falls into this classification, by description, tends to irritable, short- tempered, given temper at times tantrums. He tends some- pathological degree.” times to harbor to a resentments She diagnosed possibly suffering organic defendant as brain disease undetermined cause.
On the basis her examination of defendant, Zonnis Dr. opinion that defendant did not enter the was of Mack life; intent to take that he did not house enter with with girls; strike either of the and that he the intent to did not sexually girls. with the intent molest either of the enter opinion cross-examination, Dr. Zonnis asked her was On had at time formed an intent to whether girls opinion, It with the hammer. was her based hit the upon her examination of defendant and view of the fact moderately time, intoxicated at the that he at least was injure or to he did not intend to strike them. Dr. Zonnis explanation testified in of defendant’s statement to the inves- tigating “being officers that able to reconstruct what he has necessarily done mean to me that he does knew what he doing at the time.” He became that he was aware had struck girls only after the fact. Zonnis testified that be- Dr. deficiency cause of defendant’s intoxication “there was a insight judgment very possibly disturbance of usual ’’ a disturbance in motor control. prosecutor questioned regard Dr. Zonnis with to de intent the time fendant’s at he struck each blow to the head girls. of each of the opinion Dr. Zonnis was of the each consciously instance defendant did not intend to strike girl. either “I part see all of the blows as of the same situ possibly ation, reflex, automatic and uncontrolled.” She asked, you “What do mean he did not [the statement] consciously intend to strike responded, her?” and “I should *7 say deciding in terms of that he her, wished to strike ’’ being consciously striking aware of the fact that he her. light In foregoing of the evidence, the court erred in refusing give requested defendant’s instruction on the manslaughter. issue of jury “It is a settled rule that responsive instructions must be to the The in a issues. issues criminal case are determined the evidence. . . . may inspire evidence not be a character to fact does authorize the an instruction based belief thereon. refusal of [Citing question That is a within the ex cases.] province jury. clusive However incredible the testi mony may be he is entitled to an instruction of defendant ’’ upon hypothesis entirely based that it is true. v. Carmen, Cal.2d 768, 772-773 P.2d [228 provides Section of the Penal Code that “when ever the any particular actual existence of purpose, motive, or intent a necessary any particular element to constitute
species
jury
crime,
may
or
take into considera-
tion the fact that the accused was intoxicated at
time,
determining
purpose,
motive,
intent with which he com-
mitted the act.”
In
Gorshen,
v.
Accepting testimony of defendant’s witnesses that he intending entered the Mack house a state of intoxication frighten Connie, and that when he struck the blows girls’ that resulted conscious deaths he did so without injure jury intent either to strike or to could have them, involuntary manslaughter. found defendant People Carmen, supra, In v. we held it reversible error to refuse a instruction when there is manslaughter. that would warrant a conviction of (36 Cal.2d 773-774.) required pp. Reversal is not at because of a probability the absence of the reasonable error the (see People have reached a different would verdict v. 818, 836 Watson, 243]), but because the [299 right to have the has a constitutional deter presented by the every material issue evidence. Re mine guilt overwhelming may be, the evidence of gardless of how right cannot be a fundamental cured the denial such 4%, Constitution, for the VI, section California article miscarriage justice right within itself is a of such a denial meaning provision. (People McKay, of that People Mahoney, 201 Cal. ; 792, P.2d 145] Sarazzawski, Cal.2d 607]; P. Rogers Richmond, 540-541 934]; see also U.S. *8 Court, Cooper Superior 760]; 735, 5 L.Ed.2d S.Ct. [81 People v. Cal.Rptr. 274]; 291, 842, P.2d Cal.2d [10 Cal.Rptr. 660, 363 301, ; 56 Cal.2d Rogers, [14 892] Cal.Rptr. 909, Brommel, 56 Cal.2d People v. Cal.Rptr. Trout, 576, 585 ; P.2d 845] Holmes, 443-444 231]; Cal.Rptr. 871, 353 P.2d however, that under the instructions contended, It is jury could have reached a verdict of given in case the only by rejecting degree murder instead of second jury passed manslaughter therefore evidence of con every presented the evidence. This material issue dissenting opinion in forcefully in the advanced tention was distinguishing no basis case. There is the Carmen respect. there in this It is present case case from Carmen manslaughter right instruc to a that defendant’s fore settled precludes our evidence thereof tion when there is weighing determine the likelihood that a that evidence to manslaughter, properly jury found instructed would have present attempting the failure to also our to determine how manslaughter jury may may or not have the issue of to the degree influenced its choice between first and second murder. that the know effect an instruction Since we do not what had on would have its could return a verdict of rejected necessarily deliberations, that it we cannot conclude entitled to a manslaughter. Defendant evidence evidence, and presented jury trial on all of the issues right he was denied. judgment reversed, Since must be we shall consider may other contentions that arise on retrial.
There is no merit in defendant’s contention that the failing give court erred certain instructions on its own Relying upon People motion. Carnine, 41 Cal.2d 384 [260 urges should have been instructed that the homicide would not be first if the sexually act or intent rape to molest or arose after the act striking girls. In ease, the Camine however, there was tending to show that the defendant did not decide property steal the victim’s until after the conclusion of the lethal present assault. evidence in the clearly case estab lishes that the homicide part and the if felony, any, were one continuous transaction. Defendant’s own statement re flects that he had point intercourse with Connie at some be tween drainage ditch, the Mack home and the and since the immediate drowning, cause of Connie’s death was such act
732 place completion taken before the must have homicide. Mason, 164, Cal.Rptr. (People Cal.2d 1025].) contends that the court Defendant should have in an prose structed the inference unfavorable to the from the failure cution could be drawn to introduce Connie’s underpants into evidence. Defendant contends that the con underpants prosecution’s theory dition of the was vital to the killings perpetrated that the the course of a sexual shows, prosecution however, attack. The record that the in testimony regard finding troduced with to the of the under pants opportunity and that defendant had full a to determine Having their condition on cross-examination. failed to raise any suspicion that the introduction of this evidence would prosecution’s have been to the case, adverse defendant cannot failing give now assert that the court erred in an instruc requested tion that was neither defendant nor warranted by the evidence. refusing Defendant contends that the trial court erred in explain hypnosis allow Dr. Zonnis to use as an an- alytical excluding tool, tape recording and in of statements hypnosis. made defendant while under Zonnis Dr. was opinion alloAvedto state her as to defendant’s intent at the time he entered the Mack house and at the time defendant girls. repeatedly struck the She testified that she based her opinion on upon what defendant had pyschi- told her and her atrie evaluation of precluded him. At no time was she considering information derived from defendant Avhilehe was hypnotic Indeed, under trance. on cross-examination, Dr. ‘‘ opinion Zonnis testified that she based her On the interviews had him, consistency I with responses, of his on the information that previously corroborated what he had said that hypnotic I obtained in the with interviews him.” error, It was however, prof to exclude Dr. Zonnis’ explanation hypnotic techniques fered psychiatric as are used in a expert
examination as a opinion. basis for her clearly The evidence purpose. was admissible for that Brown, Although tape recording of defendant’s state hypnosis might ments properly while under have been ex cluded in the exercise of the weigh trial court’s discretion to probative its part value expert’s opinion as of the basis for the against jury might the risk that the improperly consider it proof independent therein, of the facts recited the record trial court did not that the exercise this discretion, shows erroneously Busch, concluded Cal.2d Cal.Rptr. 898, 314], required exclusion of the Busch case we held In that the trial court evidence. excluding expert’s opinion an part did not err based upon hypnotic proper an examination on the that no reliability foundation had been laid to show the hypnosis analytical expert qualified as an tool or that the was in its use present purpose. ease, for that In the however, Dr. Zonnis qualified expert psychiatrist. as an The defense offered prove hypnosis accepted analytical is an tool in the profession psychiatric determining person’s mind, state of *10 opinion and Dr. Zonnis was allowed part to state her based in hypnotic on the circumstances, examinations. Under these nothing preclude there is in the Busch case that would in- troducing in evidence all of the data on which she based her opinion. failing The court therefore erred in to exercise its determining recording discretion whether the should be ad- mitted. improperly Defendant contends that he was interro
gated subjected “psychological by coercion” the in vestigating officers the absence of counsel as a result of stating which he was tricked into that he had intercourse with attorney Connie. Defendant was allowed to consult with his question made, before the statement in by was and was advised speak him that he could to the officersif he wished. When custody knowledge into first taken he claimed to have no killings. Gradually during questioning the course of story emerged, physical consistent with the evidence. The suggested possibility a sex crime, de fendant was asked whether he had intercourse with Connie. it, anything He first if denied when later asked there was thought say, else he wished to he he had in stated that he drainage tercourse with Connie between the house and Although psychological may ditch. coercion render an ad mission or confession case involuntary, the record falls showing far short of such coercion. Defendant contends that the trial court erred al
lowing photographs and slides of the victims to be introduced
evidence, arguing
into
that since there was no doubt as to the
injuries
nature of the
inflicted,
photographs
and slides
served solely to
jurors,
inflame the
concedes
Defendant
pictures
testimony
served
illustrate the
of the witnesses.
Clearly
pictures were relevant;
whether
probative
their
outweighed
any probable prejudicial
value was
effect was
question
to the
addressed
court’s
discretion.
Kendrick,
Cal.Rptr.
13, 363
13];
People Ditson,
majority p. reversal (ante 730) “because the defendant has a constitutional case at bench every right pre material to have the determine issue egardless sented the evidence how over [and] [r] whelming guilt may be, the evidence of the denial of such a right VI, fundamental cannot be cured article section (Italics added.) . .” Constitution. . California 4% majority’s holding I must also dissent from the narrower (ante p. 731), assertedly based on v. Carmen that “de [5]-774 [6] right instruction when there to a fendant’s weighing precludes thereof our that evi is evidence properly to determine the likelihood that instructed dence attempting manslaughter, but also our jury would have found *12 736 present how to the issue
to determine
man-
failure
may
slaughter
may
or
to the
not have
its
influenced
”
(Italics
choice hetiveen
and second
murder.
added.)
reading
holding
A mere
of Carmen discloses that its
does
support
proposition
majority
for which the
now cite
language
any
but to the extent that
found in Carmen’s ma-
jority opinion may
support
deemed,
today’s
or be
to
appear,
application
VI,
drastic revision in
of article
section
4%,
our
disapprove
interpre-
or overrule
Constitution, I would
such
Certainly four members
this court did not in the
tation.
envisage propagating
change in
any
cited ease
such extreme
subject
clearly
authority validly
the
supporting
worded
section and no
departure
such a
I document this
was cited.
state-
place.
appropriate
ment
at more
a
infra
excerpts
quoted
majority opinion ap
from the
above
pear
retrogression
concept
to declare full circle
to a
of Su
preme
duty
prevalent
Court
which had been
before our Con
stitution was amended in 1911
addition of section
4%
stop
ap
By the
order to
what
amendment,
article VI.1
regarded
parently
widely
sapping
deter
had been
as a
encouragement
(with
rent
coordinate
effect
criminal law
potential
through
crimes)
convictions,
technical reversals of
jus
promote
of criminal
and to
more efficient administration
provision
which it had inter
tice, the court was relieved of
preted
under the
require
specifically,
such reversals. More
right
given
People2
a constitutional
amendment the
setting
any judgment
aside
have this court refrain
subject
applicable
10, 1911,
adopted
section was
1As
October
any case,”
case’’;
present
form, applicable
“in
“in
criminal
in its
adopted
3,
it was
November
1914.
political
much
California
as a
2And this means not so
the State of
entity,
entitled
citizens who live and work here and are
the innocent
keeps
protection;
e.g.,
small businessman who
law’s
to the
effective
evening
(People
(1962)
grocery
open
v.
58
hours
Gaines
Cal.
his
store
296]);
neighborhood liquor
Cal.Rptr. 448,
store
375 P.2d
2d 630
owner
Cal.Rptr. 685,
(1962)
Bentley
(People
58 Cal.2d
v.
Deptula
(1962)
;
night
janitor
(People
645])
at a café
P.2d
Cal.2d
on
366,
430]);
gas
Cal.Rptr.
station attendant
373 P.2d
225 [23
Cal.Rptr.
night
Hughes
(1961)
duty
|(People
Cal.2d 89 [17
at
(1962)
patrons
(People
33]);
Welch
617,
casual restaurant
367 P.2d
427])
patrons
Cal.Rptr.
tavern
373 P.2d
Section 4 of article jurisdic- VI is definitive of the Supreme tion of the Court. court, it appears, had be- jurisdiction lieved that the limited in appeals criminal case provided then by that required section reversal almost auto- matically discovery substantial error. Section (Constitution provided 1879) as revised in that “The Supreme jurisdiction appellate shall Court have in all in cases equity exceptions ; not here . . . [with in all also, material] cases exceptions at law not here ; [with . . . also material] in cases entry of forcible and pro- detainer other civil [and ceedings probate also, . . . ; all criminal matters] prosecuted by cases indictment, or information in a court of questions (Italics record on added.) law alone.” The fact significant which the court found in this clause be to was the solely inclusion defining jurisdiction appeals over criminal case limiting phrase questions sig- “on of law alone.” It is nificant that the first (adopted amendment to section 4 present ap-
1911) substantially its form but added 4% plicable only appeals. to criminal case VI, Subsequent adoption of of article section 4% declared, judicial duty this court con there obedient “Prejudice concept is no trast held above stated longer error, as well must presumed, injury, substantial judgment affirmatively appear of convic before made ’' (1924) Cal. tion be set aside. McGann will People again in 169].) P. 688, 696 And [8] [230 Hoffman adop “Since Cal. P. [8] [248 injury or of article VI of the Constitution tion of section 4% the mere fact of error. prejudice presumed cannot be injury prejudice musí justify appeal To a reversal on such the record.” affirmatively appear inspection from an equivocal recognition of 818, 835-837 (Italics added.) But Cal. indisputably departing 63-65 (See also P. constitutionally imposed duty, 243]; from v. Watson the above (1956) 46 Cal.2d O’Bryan *14 quoted un- the instructions, error in majority today say that, because of an ‘‘ guilt may Regardless overwhelming of of how the right an instruction be, the denial of such a fundamental [to VI, section by article manslaughter] cured on cannot be 41/2----” bring holding majority purport their within the scope VI, 4%, by asserting (ante, p. article of section 730 right [i.e., a “to have the denial of such deter- “the presented by every the material issue mine itself evidence”] justice miscarriage meaning provi- the of is a within ’’ support a sion. But there no such construction the language Certainly VI, of article section an error in 4%. by instructing jury—whether noninstruction or misinstruc- by in the defined tion—may, circumstances section 4%, effect miscarriage justice. provision But the constitutional “miscarriage justice” envisages expressly that a as the may phrase used be found “after an is there examination including cause, ...” Here entire evidence. saying majority to undertake such an examination, refuse overwhelming “Regardless guilt may of how the evidence by” subject “cannot be cured the constitutional be” the error me, simply provision. This, appears constitutes an in- acknowledging 4%, VI, that article section direct method given no in this ease. has been effect People v. Mc Moreover, (i.e., choice of authorities cited ing Kay (1951) Mahoney (1927) to invoke the 934]) Sarazzawski shows Cal.2d 792, that in qualification fact the Cal. that “When a defendant has 618, 627 [4] [236 majority are here endeavor 145]; [1a-2] [161 P. People 607]; been essential denied element of a fair trial or due process, saving provisions broad even the of section 4% article VI state remedy of our Constitution cannot the vice ’’ judgment (Cooper Superior cannot stand. Court Cal.Rptr. 842, 359 P.2d [13] [10 274], quoting (1945), supra, 27 Sarazzawski [la].) Cal.2d I quarrel qualification have no with that if properly it is applied; plain understood and but the fact inapplicable type is that it is to the case now us. before What, is the precisely, majority error that find to have been (ante, p. here ? It 727) committed is said that “It was error to refuse instruction’’ on the issue of because deserving there was evidence of that offense of con majority sideration. Thus the that the court hold trial erred should, refusing give an instruction on a matter that the evidence, jury. have been submitted to the sure, To be one imagine can a condition of the evidence which this instruc important tion yet could be ; an one such an error has never, ‘‘ thought until today, been to fall within the Sarazzawski due process’’ qualification VI, to article section our 4%, of Con by majority stitution. (ante, In none eases listed pp. 730-731) involving reversible error one a fail instruct, by ure or such case cited refusal to and no has been parties through independent or discovered research. just (fn. 3) As noted two of the decisions relied on majority (McKay Mahoney) VI, hold that article see- two involved motion by Rptr. *15 tary of jury 632 S.Ct. [11] [3] [5]), (1960) [1] 798 [l]-307 [5] 3Three of judge defendant’s - - [1] - confessions trial 18 and 871, 353 P.2d 735, 303 54 (Cooper - [16]), [4] 634 the Cal.2d [14]; People 5 L.Ed.2d the eases jury (People McKay (1951), ; [14 denial remaining People [4] two involved denial of a fair counsel v. (Rogers Cal.Rptr. 660, 576, v. [15 583]). Superior of a v. Holmes 583 cited 760]; People Cal.Rptr. 909, Mahoney (1927) two v. Sarazzawski (People v. Richmond reasonable [1] v. involved Court -585 (I960) 363 P.2d v. majority [6] Rogers v. (1961), opportunity entry 364 (1961) Brommel [6 supra, (1945), 892]) Cal.Rptr. 759, P.2d of a involved (1961) supra, trial supra, 365 U.S. 201 442, stipulated and 845]; People supra, to (1961) by Cal. 55 443-444 prepare 56 Cal.2d improper 37 Cal.2d reason 618, 534, Cal.2d 27 354 P.2d use 56 plea 621 Cal.2d 540-541 [81 Cal.2d [1] of to waiver of 291, v. 301, 792, [4] the bias involun argue [5 231]), Trout 7, - 629, Cal. 793 305 302 627 12 a 740
tion been also 1003]; vision Chadwick Cal.App. 679, [1] -716 People 4%, P. deprived of a fair and 12, would not cure an People v. 62] [16b] will ; v. People not 687-688 Barrett Carmichael save 242].) Mason [3] [209 a (1929) outright judgment 481] A impartial fortiori, 183, 201 (1946) (1926) ; 207 P. denial of the 259] Cal. when 198 the constitutional judge v. Wismer ; but Cal.App.2d 699, 47, the Cal. - and 49 defendant has cf. right to jury 534, [1] jury. Buckley [18] [288 (1922) 547 [276 (See pro [5] P. I, (Cal. Const., 7); trial art. observed in § O’Bryan (1913), supra, 65-66, “if court Cal. a should deny charged to a undertake to right defendant with felony a the by hearing jury, of trial and after a of the evidence judgment conviction, render a it cannot be doubted that judgment though should be set aside even such there had guilt.” proof (Cf. City the Farrell been clearest On Cal.App. tario P. The ma jority imply that erroneous failure or to an refusal instruct equivalent right by of a denial of to is somehow trial implication indeed, explicitly is jury; drawn the ma p. jority’s {ante, 731) statement that “Defendant en presented jury all to a trial on issues titled right (Italics evidence, denied.” added.) and that he was absurdity equation apparent.4 of such an The But majority absurdity by speaking seek to circumvent this rather right “constitutional to have the a denial of defendant’s presented by every material issue the evi jury determine really a added.) But does this differ from (Italics dence.” right complete statutory and to correct of defendant’s denial no such difference is That there is in fact instructions?5 majority’s quoted hereinabove, plain by conclusion, made jury trial all entitled to that “Defendant was why reasoning apply example, an same to erroneous 4For would all, rejection his behalf? After the defendant on evidence offered excluded, particular on a issue is issue if the defendant’s will jury will be extent not be submitted to argument fallacy accordingly. an such trial” “denied elaboration. does not need part: provides “The court shall in relevant section 1127 5Penal Code judges jurors of all are the exclusive in all inform cases credibility of the wit questions and of the of fact submitted them charge party may present on the court written nesses. Either law, request given. fact, respect it be but not with matters and given; not, pertinent, must if be court thinks it correct If subd, refused,” 6,) Code, (See Pen. $ also it must
741 by evidence, right presented that he issues (Italics added.) denied.” appears language opinion It therefore of the it majority propose to hold that failure re self that or upon any presented fusal instruct by of “the issues (ante, p. 731) evidence” is an error that be “cannot cured VI, 4%, article section of the California Constitution” p. 730). holding To (ante, state the is to refute either it integrity provision by of section The constitutional its 4%. very applies “on terms to all reversals of misdi jury. recognition rection ...” In of this fact we held, long today, have in a line of decisions unbroken until that an erroneous failure or refusal be instruct will not cause “unless, for reversal after an examination of the entire including opinion cause, evidence, be of the court shall complained miscarriage that the error of has in a resulted justice.” (Cal. VI, 4%.) Const., This constitutional art. § obeyed following cases, mandate has been in the illustrative among many: duty 1. Erroneous failure to that it of the instruct is weigh surrounding the circumstances the defendant’s
subd.
confession and to
78
(1944)
2.
coercion.
[8] [4
Erroneous failure to instruct
4)
lawful charged. character is an element of the offense tic essential troduced, a codefendant was 2d (People v. Winston [293 6. Erroneous failure to 750, P.2d 40] 759-760 ; accord, [12] [276 (1956) People P.2d 72] instruct 46 an Cal.2d v. Perez accomplice ,)6 that, 151, (1954) on the evidence in- 158 a matter of [9] 128 -161 Cal.App. [12] law. (People Barclay (1953) 146, v. 40 Cal.2d 152-153 [5] [252 321].) P.2d (Pen. 1111) Code, Erroneous instruct that failure to 7. § upon accomplice testimony
a conviction had cannot be unless it be 2d subd. 661, 8. Erroneous failure to 71, 673 corroborated. 4) that 76 [17a] [1] - - 674 78 testimony [20] [276 [8]; (People People instruct v. Bevins P.2d 801].) of an v. Davis (Code accomplice ought (1960), Civ. (1954) supra, Proc., 43 54 § Cal.2d to be 2061, Cal. viewed with distrust. People 653 when (1961) [4] 9. Erroneous failure to instruct [249 [5] 197 v. - P.2d 659 evidence is sufficient Ahern Cal.App.2d [15] [140 63].)7 (1952) (People 165, 171-172 P.2d 113 828]; accord, Cal.App.2d 746, v. Dail (see support [1] [17 Pen. (1943) Code, People finding Cal.Rptr. 22 Cal.2d 748 § v. Jackson 1096) [l] -749 113] guilt that 642, ; v. Butcher 929]), article v. People that Arriola existence People an erroneous not bound to States States People (People Morris 6See 7This is also the rule Seay jury in specific an erroneous failure to VI, Norwood v. also the decisions of the v. (9th v. (9th Fellows v. (1958) (1960) v. of a DeWitt defendant McPhillips section determining (1959) Cir. intent Cir. failure to specific accept 164 179 1953) 1958) (1950) (1940) (1923) 4½, (1952) 174 Cal.App.2d 430, Cal.App.2d 362, an essential intent (1957) 208 F.2d 254 is that Cal.App.2d instruct 98 intoxicated 39 testimony 63 applicable 110 F.2d Cal.App.2d is an Cal.App.2d intent 149 Cal.App. 557, instruct federal courts. Cal.App.2d 469, 945, District element of (Pen. essential 654, Cal.App.2d 687, may 722, 434 954 363 at 656-658 Code, 709, (Pen. Code, 503, an an [3a] take 730-733 [11] [13, 14], Courts of [1] element of the offense erroneous failure the crime 561 717-718 [3] expert 504-506 [1] [103 -437 [6] into consideration evidence $ time he acted [3 (See, e.g., Mims v. United [2]; Papadakis 1127b) 478 [4-5] Cal.Rptr. 769]; 690-691 and eases there witness as conclusive $ Appeal [16] 22) [219 [330 [345 [220 robbery [243 that where [3] holding P. P.2d P.2d P.2d to instruct P.2d (People P.2d [308 v. United 80]), charged, (People 683]); People cited.) 981]). 127]; 618] P.2d 66] that are v. ; ;
743 charged offense, included lesser offense both if guilty of the lesser en- jury must find the tertain ted. (People a reasonable Dewberry (1959) doubt as to which offense was commit- 548, [2] - 558 852].) P.2d [8b] (see Code, 1096) Erroneous failure instruct Pen. 10. § upon is relied a con- where circumstantial evidence sustain viction, it must be irreconcilable with rational conclusion 49 as to innocence or if other than Cal.2d (People 11. Erroneous failure to instruct evidence is [1] - Simeons guilt. [5] susceptible [1] (People Yrigoyen guilt, (1945) -177 P.2d of two [4] 1] ; People Cal.2d equally (see must Pen. v. Bender reasonable inferences (1955) 8].) adopt Code, 1096) - 807 [8] [161 § the former. (1945) 46, 27 12. Erroneous failure to instruct on the defendant’s evi and eases there Cal.App.2d 48, cited; accord, -51 [4] [318 Romero dence alibi. v. Foster Cal. P.2d
People Bagley (1955) dence unanimous. tory minimum term aof 2d 198 will [11] [2a] 14. 13. Erroneous failure to instruct Cal.App.2d 442, [6] [271 -853 -128 36]; as to guilt, ordinarily Erroneous of v. 353-355 practices People [2b] [12] [243 (People [155P.2d819].) serve a failure, [46] of the Adult Authority whereby a convict 196] Jackson P. 446 667] ; 133 of in cf. [6a] “life” sentence, to instruct on evi- Kelso longer Cal.Rptr. the *18 ;8 accord, informing Cal.App.2d 481, People (1954) -448 offense, (1945) term than that minimum [6b] [17 125 v. Rosoto that People 779, 373 the Cal.App.2d 776, the verdicts of the v. Hickok 485-486 [3] [284 penalty Cal.2d Cal.Rptr. (1962) of the statu- 867].) must be (1961) 875] 780- Cal. ; denying application hearing 8Thus in an in for Visconti Cal.App. 169, P. this court stated that “we proper say deem it intimating to that we are not to be as understood give [i.e., that the refusal to an such instruction on alibi] as was re by fused in this ease in would all eases be deemed us sufficient cause Especially provisions for reversal. is this in of true view the of section VI article of the Constitution. 4½ denying application hearing “In the for in this court we assume that appeal concluded, the district court of in view of the circumstances of particular record, this court ease as shown the the refusal of the trial permit requested operated substantially to the instruction to the prejudice of the defendant.” Rptr. These v. Jackson authorities (and many ante, pp. 375, others) are 378-379 indistinguishable Cal. principle at It cannot be said that in ease bench. a failure to instruct in issue on which there was the case example the than, somehowmore “material” before us was (Bev of a defendant’s confession issue voluntariness weight testimony prose of a to be accorded to the ins), a cuting on uncorroborated word alone defend witness whose (Wein), may be serious offense or the ant convicted of a sex seeking an proof in to establish alibi defendant’s burden any of latter issues favorable {Poster). resolution of A being guilty found to the defendant could result his finding a any case at bench favorable crime; subject offense) manslaughter an included on the (i.e., issue being found could result at best defendant’s manslaughter. subject is defini crime of Hence the issue is word that (in tion “material” sense less meaningful of those on which defendant) than number a eases. Yet in the above cited there a failure instruct majority today held, it as the in none those instances was instruct on failure or refusal to hold, the erroneous 4%, VI, section questi by article issue in cannot be cured holding p. (ante, 730). Such of the California Constitution” value will at face wholly if its unprecedented, and taken is nineteenth-century era long step to the constitute a backwards criminal in the “presumed prejudice” administration justice appellate courts of this state. it is Turning majority’s holding, stated narrower p. 730) [1951], supra, that “In Carmen (ante, held reversible error refuse we instruc is that would warrant a tion when there convic ” manslaughter. (36 pp. 773-774.) (Italics Cal.2d at tion point added.) however, fail to out the lan majority, inferentially they support proposi which deem to guage, Carmen, tion for which invoke has been lifted from con n any relevancy essentially context material to text *19 language and that in here; further, of the to the issues con holding supportive majority the text the of Carmen is but of thesis this dissent. reveals that Perusal of the Carmen decision reversal judgment degree imposing penalty the for first of the death give manslaughter
murder based not mere refusal to a was on murder jury in found instruction a ease wherein the had degree having fully correctly first after been and in- in the degree By both first and second contrast, structed on murder. appears given that on the in instructions as there Carmen intelligible guilty the had only the choice was of mur- degree guilty. parenthetical in is der or not There the (p. Cal.2d) jury] 777 of 36 that “It statement had to [the (first degree) acquit find of murder second him or or him,’’ but this mention a second murder alternative qualified by express holding page on the same given ground “The as leaves instruction no for the classifica- ’’ degree. tion of murder of the second follows in ter, need The failing the court be, pertinent portion (p. however, no considerable instruct on erred in of 36 giving of the decision in this Cal.2d) subject following : space “In involuntary manslaugh addition to the error instruction: There of time devoted to respect ‘ is as deliberation or between the formation of the intent kill killing. necessary and the act of It is act killing preceded by, be and result of concurrence of will, part premeditation slayer deliberation and on the of the degree, regardless to constitute murder in the first of how rapidly slowly processes or these mental succeed each other or quickly tardily they how or are followed act of kill ’ ing, refusing give and an instruction offered defend defining ‘premeditated’ ant ‘deliberate’ as set forth People Bender, 27 Cal.2d The word ‘considerable,’ ‘Worthy used an adjective, con means sideration; importance consequence.’ (Webster’s New given (1943).) Dict. no Inter. instruction as leaves degree. murder second classification (People Honeycutt, [Italics added.] 698]; People supra, pp. v. Bender, 182-185; see, also, Valentine, 1].)’’ significance justice It is penning not without dissent majority opinion was the author of each of last quotation Carmen; cases above cited in the i.e., People v. Honeycutt (1946), (1945), Bender Peoples. (1946). Valentine It was further held (id. p. Carmen at 778 [12]) that giving of another instruction which in itself correct, circumstances, “under the does no more than create a conflict with the incorrect instruction and we speculate cannot which of conflicting instructions the followed. [Cita- ’’ By reason holding tions.] court’s that “The instruc-
746
degree
given
[relating
tion
and
to first
second
as
murder]
the
the
leaves no
murder
second
classification of
degree” (italics added),
it manifest
the
is
that
failure
give any
manslaughter acquired
instruction
on
far
whatsoever
greater
significance than it otherwise would have had.
“
elementary
language
any opinion
is
the
used
[I]t
light
is to be understood in the
facts and the issue then
’’
(Eatwell
(1953)
128,
before the court.
v. Beck
Fe
P.2d
ity
Carmen,
136
for the
Springs
[8] [257
344].)9
when
majority’s
(1960)
P.2d
considered
643];
language excerpted by
the first without recommending imprisonment. and life If under evidence calling jury a verdict instructions, these rendered penalty, suppose that its verdict death it is not reasonable to different, proposed instruction on had the would have been ’’ given. manslaughter been four-square hold- Admittedly are not all authorities these herein, is language, quoted ings issue; their on the but by majority, today strong reached that the result evidence departure undocumented, unjustifiable is unwarranted and an jurisprudence. the mainstream of California general State Decisions. The rule in Out the United the court States is stated as follows: “Where instructed on degrees[12] grades offense, of an or and convicted two higher degree grade, or the fact that court accused of not instruct on a still lower crime did lesser (24B (Italics added.) C.J.S., p. 230.) not reversible error.” decisions at In three unanimous rendered about the time adopting VI, 4%, California was article section of our highest Constitution, applied gen- court of York New manslaughter to a to instruct on eral rule failure a mur- prosecution. Granger First, der 187 N.Y. N.E. the trial court on both de- instructed grees manslaughter. on defendant, murder but not guilty degree murder, of first found contended it was prejudicial give any instruction on man- error refuse to slaughter. Appeals agreed there The New York Court bring “that, doubtless, was sufficient [the manslaughter in the within the definition homicide] de- degree” and that were authorized “find the degree charged guilty indictment, of the in the fendant not guilty any degrees of the inferior thereto authorized including manslaughter. Yet held evidence,” the court refusing it error that on the facts and record before manslaughter nonprejudicial, deemed instruct on must be course, reasoning the court could coerce as follows: “Of greater than jurors crime force a conviction for withhold- have found him would otherwise bench, remembered, court did instruct must at it 12In ease offense, degrees” it is the case in Carmen law while two “on opinion on murder instructed the court on the face of the flatly i.e., degree; refused to instruct the first given classi for the leaves no instruction as as to murder “The degree.” v. Carmen of murder of the second fication 777 [11] Cal.2d *24 ing degree from their consideration a lesser authorized the But, seen, evidence. . . as we have the . defendant was in- charged degree. dicted, with the crime of murder in first the killing, This involved the intentional with deliberation and killing . . . the with the to premeditation, or intent rob. The jurors question court to submitted the the the as to defend- guilt charge, ant’s under this and also them instructed as to statutory the in degree, murder the second definition of they that, instructed in them ease entertained reasonable guilt charged, they might doubt as to of the his crime determine question guilt the his jurors, as to of the lesser The offense. therefore, rendering were not coerced in into a verdict manslaughter. no first degree; degrees not right of of In manslaughter murder doubt as to his defendant.” failure convict him the People of convict ], in the to instruct them that murder for, Serimarco court in the The (Italics added.) of in the under the second guilt but read defendant, instructed second first lesser of degree, charge degree, degree. degree greater found they could the statutory a lesser jury indicated N.Y. 225 had the The not guilty offense, and court, at fad well have harmed degree length right of first they definition of to convict N.E. than that therefore they they on both had the degree had did murder, prejudicial that it contended was not charge error manslaughter. fully Rejecting more on contention, this Appeals Court of jury reasoned: “The fact that the con- degree victed the defendant of murder the first is a suf- this apparent ficient answer to It is contention. that the de- prejudiced by fendant could not have been the failure of the justice charge fully upon subject trial slaughter more of man- right degree; the first had the to re- guilty turn a verdict of of in the degree, murder second if in judgment their the evidence warranted such a verdict. The precluded did such a verdict pos- find fact sibility finding upon guilt a verdict based a still lower grade homicide, and thus it evident that the failure of justice fully charge upon subject the learned trial more degree slightest in the first was not consequence (Italics added.) in the case.” And Brown N.Y. 44 N.E. [4], Ann. A the court Cas. had instructed at length degrees “simply on both para- murder had briefly that section of the phrased very manslaughter statute which defines ’’ degree. The defendant, guilty the first found prejudicial that it murder, contended error completely manslaughter. more not to instruct The Court rejected Granger Appeals contention, cited (1907), supra, N.Y.67, and reasoned: “This feature of may summarily disposed of. court the trial ... had correctly fully charged degrees toas two murder. in the Had the found the defendant of murder sec- *25 might assumption for the degree, ond there some prejudiced by cause the that the defendant’s was action of support have a situation would lent to the the court. Such jury might guilty declared the defendant claim that the have degree they proper homicide, had received of a still lower of speculations All such are dis- instructions from court. by guilty sipated, however, was defendant fact found degree. jury, When excluded murder in first of degree, the alternative murder in the all the case .second of necessarily degrees the same rule.” lower eliminated (Italics added.) Appeals of York Court of
These three decisions the New questioned. enunciate, been The law that have never occasions in the in- moreover, has been invoked on numerous today living in State v. tervening years and law. Thus 526, [22]], the (1962) N.W.2d Drosos 253 Iowa [114 degrees but not on instructed on both murder trial court degree guilty first manslaughter. defendant, found prejudicial to refuse to murder, error contended that was contention, manslaughter Rejecting this give instructions. opinion in unanimous appellate held a court instruction, warrant manslaughter insufficient to an jury, in find- any that in event “The alternative, in the and, degree murder, rejected the sec- ing degree By rejecting degree the second submitted. ond offense preju- then how offense, fail to see defendant was or lesser we manslaughter, a lesser offense failure diced to submit degree than second murder.
law of
the second
‘Appellant
also submitted
[220
“We so held
homicide
N.W.
manslaughter
degree.
of a
complains
95,
in
98,
higher
State
question
As
was not
that his
degree
N.W.
Troy
jury found the defendant
defendant’s
than murder
request
granted.
in
.
.
. .
. 206 Iowa
guilt
instruction
. He
in the second
following
of murder
[the court]
guilty 859,
words:
on the
de-
(as
manslaughter,
above
error
to the exist-
gree, which is
inquire)
subject
do not
in instructions on the
of which we
ence
’ ”
prejudice.
(Accord,
was without
State
(1930)
no of the for the reason jury, upon correctly submitting degrees instructions murder, appellant guilty found of murder degree, in the first implies finding killing which that the was done with malice Referring and after deliberation.” given to an instruction degree on first murder and doubt, reasonable the court fur d: ther observe necessarily implied finding the verdict under this instruction killing that the was not done un der degree circumstances which would reduce the of the of manslaughter, prejudice fense to and no resulted from the subject failure of the court to instruct on the of man slaughter.” (Italics added.) Among jurisdictions the other held have in accord general with the Colorado,13 above discussed rule are Kans as,14 Kentucky,15 Nevada,17 Nebraska,16 Carolina,18 North Texas,19 Wyoming.20 No decision been found in has our refusing sister apply states this rule when warranted the facts. Neither the majority opinion present Carmen nor the ma- jority opinion reasoning answers way refutes the general
from which this rule derived; Carmen did not dis- phase cuss this present majority matter at all, and the do no than bluntly p. more (ante, assert 731) that “There is distinguishing” no basis for respect. Carmen Such assertion, has been demonstrated, is unwarranted on the opinion. majority’s face the Carmen The reluctance to dis- surprising, particularly appli- cuss the rule is not for it is cable to the facts of the case at bench. begin with, majority acknowledge (ante, To p. 727), disputed “It was not at the trial that defendant killed girls. prosecution sought prove
the two
the kill-
ings
were murders
the first
on the
(1951)
351,
13McKenna
1963. granted. petition should No. In Bank. June F. 21255. 1963.] [S. Respondent, DEPARTMENT WALSH, Plaintiff and L. A. Defendant CONTROL, BEVERAGE OF ALCOHOLIC Appellant.