Lead Opinion
This еase involves an automatic appeal under Penal Code section 1239, subdivision (b), following verdicts finding defendant guilty of two counts of murder in the first degree and imposing the death penalty.
The three separate counts of the indictment charged defendant with the murder of his mother and sister and with assault upon the person of one Ellen Young. To these counts defendant entered a plea of not guilty and not guilty by reason of insanity. Finding defendant both guilty and sane, the jury imposed the death penalty for each of the murders. The trial court thereafter denied defendant’s motions for a new trial and for reduction of penalty.
Defendant, a young man of 18% years, became involved, prior to the murders, in an incident with a Miss Young. He
Defendant then went to his home, where he lived with his mother and a 12-year-old sister who suffered from cystic fibrosis. Somewhere outside the house he picked up a rock, concealing it under Ms shirt. His mother let him into the house. When Ms mother returned to her bedroom he called to her on some pretext, anticipating that she would get out of bed and come to the bedroom door. When she opened the bedroom door he was waiting in the hall; he hit her with the rock and killed her. The struggle awoke his sister and she started “yelling or something”; he struck her; later he secured a baseball bat from the kitchen closet and beat her until she was quiet.
When defendant related this episode to the police, he said he had felt the urge to kill or “snuff” someone, a recurrent urge with him. That night he had intended to kill his mother as well as the girl on the bus. The identity of his victim was of no consequence.
After the commission of the crimes, defendant roamed the city in the family car in search of companionship, but he found none. He considered and rejected suicide; he thought, too, of the possibility of successfully disposing of the bodies and decided that it would be futile. He did not sleep at all that mght but finally about 4 or 5 p.m. on Sunday he visited the home of his sister-in-law, Gail Morse, and her mother, Mrs. Keating, whom he informed that he had found his mother and sister dead. Mrs. Keating sought the assistance of a neighbor who was a police officer; he called other officers to meet him, and they escorted defendant back to investigate the crime scene. The officers found the bodies and the murder weapons, the rock and a baseball bat, on the premises just as defendant had left them.
Defendant remained phlegmatic until one of the police officers in the car transporting him to headquarters mentioned that he would give defendant a pencil and paper so that he might make notes to refresh his memory. Defendant responded: “I don’t tMnk that will do me any good, and
At the trial defendant recanted some of the statements he had made in his confession. He asserted that he had procured narcotic drugs in Tijuana the Saturday preceding the killing and, contrary to his earlier denial, stated that during all of that evening and the next day he had remained under the influence of benzedrine and barbiturates. He denied that he felt an urge to kill but stated that he was “bombed out” from the effects of the drugs. He claimed that he kept this fact from the police because at the time of bis confession he was so shaken that he wanted to die. Defendant further testified, in substance, that the crimes were not premeditated. He said that he intended merely to steal Ellen Young’s purse. He was induced to strike his mother by her accusations when he tripped over the doorsill that “You are going back to jail because you are messing around with dope again.” He struck his sister to silence her screams.
We consider, first, the penalty phase of the trial and explain why we have concluded that the rendition of certain instructions, the introduction of certain evidence, and the presentation of certain arguments worked prejudicial error. We then examine the guilt phase of the trial and briefly point out that defendant’s four assertions of error lack merit.
A. The penalty trial.
The trial court instructed the jury that “Every person guilty of first degree murder shall suffer death or confinement in the State Prison for life in the sole discretion of the jury. ... In making your determination as to the penalty to be imposed, you may, in exercising your discretion to choose between different punishments, consider as a possible consequence that the law of this State provides that a defendant sentenced either to death or life imprisonment may be pardoned оr have his sentence reduced by the Governor and that if this defendant is sentenced to life imprisonment he may be eligible for parole at the expiration of seven calendar years. A trial judge may also reduce the penalty from death to life imprisonment.” (CALJIC No. 306 (rev.).)
The quoted instruction illustrates the last and most extreme stage in a progression of instructions in the penalty phase of capital cases. Our present concern as to the impact of the instruction compels us to review our past rulings on this subject and to make certain that the court’s statements to the jury in its tragic task do not confuse but clarify its undertaking. Our original purpose in permitting the court to instruct the jury that, if it found for life imprisonment rather than the death penalty, the defendant could possibly be paroled,
The very introduction of the fact that a prisoner sentenced to life imprisonment became eligible to parole after seven years inevitably led to ramifications. Confronted with this bare instruction, defense counsel first countered by adducing evidence that the average and median sentences of defendants sentenced to life terms actually ran longer than the minimum of seven years.
The reaction by prosecuting attorneys to these developments took the form of an attempt to emphasize to the jury the possibility of error by the Adult Authority and the potential grievous harm that might result from the inadvertent
Concomitantly with permitting instructions as to the parole laws, this court accepted the procedure of informing the jury that the Governor could exercise the power, among other things, of reducing a death penalty to life imprisonment.
In the recent case of People v. Purvis (1963) ante, pp. 323, 352 [
When we opened the door a slight crack to allow an instruction, and to admit an evidentiary showing, as to the realistic consequence of a sentence of life imprisonment, we had in mind a limited and legitimate objective. But various maneuvers have pushed the door so widely ajar that too many confusing elements have entered the courtroom. The
Before turning to a specific analysis of the ease as it is now presented to us, we note the current posture of the decisions. As to the issue of presenting to the jury the possibilities of parole, California now stands in a striking minority position among other jurisdictions,
We turn to an analysis of these two basic aspects of the problem: the instruction, evidence and argument as to the role of the Adult Authority, and the instruction as to the roles of the trial judge and the Governor.
Although the Legislature has, through the Adult Authority, sought to provide for the rehabilitation of criminal defendants, it has coincidentally retained the death penalty and left its administration to the unguided discretion of the jury. In the general field of criminal law the Legislature has abandoned the ancient notion of categorical punishment, the infliction of fixed terms for certain crimes, and substituted the indeterminate sentence, leaving to the Adult Authority the judgment of the period of incarceration.
The jury’s task assumes formidable proportions because it far transcends the usual function of finding whether or not certain events occurred and certain consequences resulted from them. The jury in this instance performs no such circumscribed task; it must in each particular ease, depending wholly on the kind of defendant and nature of facts before it, decide the issue of life or death. In reaching its crucial decision, although Penal Code section 190.1 states it may consider “facts in aggravation or mitigation of the penalty,” the jury has no guidelines, no standards, no criteria. The Legislature has reposed in the jury a wide and onerous task, aggravated by this conflict in function and philosophic background. (People v. Hamilton (1963) ante, pp. 105, 136 [
The objective situation is difficult enough without blurring the functions. The function of the jury is to consider the facts surrounding the crime and defendant’s background, and upon that basis, reach its decision. The jury should not be invited to decide if the defendant will be fit for release in the future; it should not at all be involved in the issue of the time, if any, when the defendant should be released; it should not be propelled into weighing the possible consequences of the Authority’s administrative action.
The vice of placing such issues before the jury reaches deeper than the promulgation of confusion; it frames questions that no human mind can answer, and it, in substance, transposes the task of the Adult Authority to the jury.
The questions are unanswerable because they rest upon future events which are unpredictable. The jury’s attention may be focused, as it was here, upon whether the Authority will release the defendant into society at some uncertain date in the future, such as “eight, nine, ten years from now.”
To propose such questions to the jury is to present to it problems that the Legislature has entrusted for solution to the Adult Authority. The Legislature established the Authority as a specialized body, aided by a trained staff, to decide such questions. It reaches its decisions after the prisoner has received treatment at a corrective institution, has been carefully supervised and has been afforded an opportunity to attempt to understand his maladjustment. Prom years of annotated observation of the defendant the Authority can render an informed prognosis as to his potential. The jury, on the other hand, must plunge into a judgment based upon conjecture; it must attempt to perform a function which the Legislature expressly granted to another institution and impliedly denied to it.
The final and most dangerous error of permitting the jury to consider the Authority’s possible grant of parole is to induce it to pass judgment upon the very issue foreclosed to it and to prevent the proper body from deciding the issue at the proper time. The jury can conclude that the Authority will improperly grant defendant parole in the future; it may fear that the Adult Authority will permit a “dangerous” defendant to walk the streets; it may then foreclose the authority from ever granting parole by imposing the death penalty. The jury would thus improperly preempt the whole parole system and defeat the legislative design. The jury would then utilize the death penalty for fear that the Adult Authority will not properly perform the function that the Legislature has specifically delegated to it.
The vices which we have described above find dramatic illustration in the prosecutor’s argument to the jury in the instant case: “And I frankly believe, based on the evidence that we have heard here, that he is never going to change. Twelve years from now, or seven, eight, nine, ten years from
We have pointed out that the majority of other jurisdictions hold that the possibility of parole is not a proper matter for the jury’s consideration in the instant situation. We turn to an exposition of the reasoning of some of these eases.
The leading case on the subject demonstrates that we would not be the first jurisdiction to reconsider its earlier position on the point. In a learned opinion by Chief Justice Weintraub the New Jersey Supreme Court in State v. White (1958)
Broyles v. Commonwealth (Ky. 1954)
In Williams v. State (1950)
The appellate court found prejudicial error in Sukle v. People (1941)
In reversing a rape conviction which involved only imprisonment, and not the death penalty, as here, the court in Lawley v. State (1956)
In view of these considerations we turn to the delicate problem of delineating the function of the jury in the penalty phase of the case and determining the kind of instruction that should be given to it. We have stated that enlightened legislation in California has advanced the treatment of criminals from the stage of mechanical punishment, based exclusively upon the crime, to an appraisal of the individual wrongdoer for the purpose of his possible reformation. The emphasis must be upon the individual rather than the offense; such insistence upon the importance of the individual symbolizes a basic value of our society that contrasts with a totalitarian denigration of the individual as an appendage of the state. Our insistence upon the dignity and worth of the individual must surely be strictly and steadfastly applied in the crucial context of the individual’s life or death.
The jury decides whether the individual should be permitted to live upon the basis of a complete and careful analysis of that person as a human composite of emotional, psychological and genetic factors. The jury looks at the individual as a whole being and determines if he is fit to live. The jury is entitled to weigh psychiatric and other testimony as to his susceptibility to rehabilitation and reformation. It should not, however, attempt to appraise whether at some future date the Adult Authority may improperly release the defendant or speculate as to when he might be released.
In evolving a proper instruction for the jury, we recognize that individual jurors often entertain some ideas of parole laws and might erroneously consider the effect of such laws upon a term of life imprisonment. They may ask the trial judge for information upon the subject; it is not enough for the trial court merely to refuse the request and relegate them to ignorance. To avoid such unanswered queries and to prevent latent misconceptions, we believe the trial court, at the time of rendition of all instructions, should inform the jury in general terms that life imprisonment can result in parole but that such matters are of no concern to it.
“So that you will have no misunderstandings relating to a sentence of life imprisonment, you have been informed as to the general scheme of our parole system. You are now instructed, however, that the matter of parole is not to be considered by you in determining the punishment for this defendant, and you may not speculate as to if, or when, parole would or would not be granted to him. It is not your function to decide now whether this man will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether this man shall suffer the death penalty or whether he shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment is the proper sentence, you must assume that those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that they will not parole this defendant unless he can be safely released into society. It would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Adult Authority will properly carry out its responsibilities. ”
In the light of the foregoing discussion we disap
2. Instruction as to the trial judge’s and Governor’s possible reduction of the death penalty.
We believe that the instruction that the trial judge has the power to reduce a death penalty to a sentence of life imprisonment may very well induce the jury to assume that its finding for the death penalty merely initiates a series of procedures which invoke a reconsideration of the pеnalty and which may result in its reduction to life imprisonment.
Since the jury undertakes the task of assessing the penalty in the wide latitude of absolute discretion and in the absence of statutory guide lines, the suggestion that higher authorities will review its decision must profoundly affect it. Upon the delicate scale of unbounded determination we add a new but definite weight. The impact of the instruction must necessarily weaken the jury’s own sense of responsibility. Yet nothing should be introduced to the jury to detract from its most careful consideration of the choice of penalty. That effort should not be adulterated by the infusion of foreign and deflecting factors.
In previous eases we have condemned the introduction of considerations of less consequence than instructions which have brought to the jury’s attention a postsentencing possibility that might diminish its sensitivity to its task. In People v. Linden (1959)
While Linden relied upon two propositions, the seсond, and more significant, developed the danger of involving the jury in matters with which it had no concern. The court first explained that the argument misinformed the jury as to the power of this court. In particular, the contention improperly implied that this court could substitute its judgment as to choice of punishment. Thus Linden stated that “of course they should not be misinformed . . . concerning this court’s powers.” The court’s second and more basic point was simply that the automatic appeal in death penalty cases should be of no concern to the jury, since to inform it of the possibility of this appeal improperly diminished its own sense of responsibility.
The latter reasoning in Linden finds support in People v. Sampsell (1950)
If Linden and Sampsell condemn the argument which may diminish the jury's sense of responsibility, the instruction which works that result is necessarily erroneous. Words of instruction of the trial judge are more likely to effect prejudice than the words of argument of the prosecutor. Moreover, if the jury cannot be told of the automatic appeal which does not enable the Supreme Court to reduce the penalty, it should not be told of a procedure which permits the trial court to change with finality the very decision rendered by the jury.
The recent ease of People v. Ashley (1963)
The theoretical considerations which lie behind the prohibition of the introduction of alien matters in the guilt phase of the trial may very well apply to the penalty phase. In the guilt phase the accepted rules forbid the jury from resolving doubts in favor of conviction upon the hypothesis that an appeal can cure the possible error or that the defendant may obtain parole or a pardon. Indeed, the clear weight of authority holds that the jury should not reach a compromise of the issue of guilt and find a conviction because appeal may cure this error,
Some cases extend this philosophy to the function of the
Concluding for the foregoing reasons that the instruction improperly called to the jury’s attention the judge’s pоwer to reduce the death sentence to life imprisonment, we note that the instruction additionally stated that the jury could also consider the possibility that the Governor could so reduce the sentence. The vice of the latter instruction parallels that of the former. Both statements tend to diminish the jury’s sense of obligation; they both infuse into the issue factors that do not belong there. To the extent that previous cases permit instruction.or argument that the court or Governor may reduce a death sentence to life imprisonment, they erroneously permit the importation of extraneous matter to the jury rooms; they should accordingly be disapproved.
We have no doubt that these errors in directing the attention of the jury to the roles of Adult Authority, judge and Governor, by means of argument, evidence and instruction in the instant case, prejudicially influenced the jury. Moreover, after deliberating for one day, the jury specifically asked “to hear again the court’s instructions re the third phase, in
In view of the prior decisions as to the subject matter of the instruсtion, defendant’s failure, to object to it should not foreclose his opportunity to present these issues on appeal. Such an objection at the trial level under the existing rulings would have been useless and unavailing.
In conclusion, we believe that the instructions as to the judge’s and Governor’s possible reduction of the death penalty tend to mislead the jury into assuming that the rendition of the penalty initiates a chain of proceedings by the court and the Governor which will achieve a reweighing of the sentence and possibly produce its nullification. The instructions and evidence of the Adult Authority’s possible grant of parole invite speculative argument to the jury and surmise by it of the possible improper release of a defendant to society in the future; yet that matter does not truly lie in its province but in the expert judgment of the Adult Authority. In sum, the instructions foster the dual vices of foisting upon the jury alien issues and concomitantly diluting its own sense of responsibility.
Our rule is a minority one which we have only lately adopted. One jurisdiction has reversed its formеr approval of these instructions even though they had been given for a longer period than here. These erroneous instructions should be uprooted from our law before they become a verbal jungle of error; planted in the jurors’ minds, they bear their own fruit of confusion.
The court did not err in overruling a defense objection to the prosecutor’s charge in oral argument that defendant testified falsely. In view of defendant’s conflicting statements, the prosecutor drew a legitimate inference from the evidence that defendant falsely stated that during the weekend of the crimes he had used dangerous drugs. Such inferences, limited to the evidence adduced at trial, constitute proper argument. (People v. Terry (1962)
The prosecutor emphasized that defendant had told the police that he had not been under the influence of drugs or narcotics. At that time defendant volunteered “If I thought it would do me any good in court I would tell you I was really strung out.” Subsequently defendant testified that on the Saturday afternoon immediately preceding the crimes hе had obtained a quantity of dangerous drugs in Tijuana, had taken an excessive dosage, and would not have committed the crimes if he had not been under the influence of the drugs. Yet Jack Drummond, his companion on the Saturday in question, testified that he and defendant had been together most of the day; such testimony practically nullified defendant’s opportunity to leave the country to purchase the drugs. The only testimony in support of defendant’s contention that he had obtained and consumed drugs that Saturday was that of a fellow tankmate, facing trial for a felony narcotics violation, who maintained that he and defendant had been in Tijuana. The prosecution, however, seriously impeached that testimony. Under the circumstances, the prosecution merely emphasized one reasonable interpretation of the evidence.
2. Instruction as to intoxication.
The court refused to give defendant’s requested instruction based upon People v. Gorshen (1959)
Without passing on the merits of the requested instruction, we believe that the complete answer to defendant’s contention lies in his failure to adduce expert evidence of unconsciousness resulting from voluntary intoxication. In fact, the opinion of the expert witness, as implemented by the testimony of defendant’s acquaintances who observed his relevant behavior, defeated any possible inference of defendant’s voluntary intoxication to the point of unconsciousness. Several witnesses testified that defendant’s behavior in their presence during the weekend in question appeared normal.
Dr. Lеntz, who later testified as an expert witness for the defense, had, as a court-appointed psychiatrist, submitted to the court a report indicating that defendant’s asserted intoxication from drugs during the weekend “although not exculpatory, might be considered mitigating.” At the trial, however, he stated that the benzedrine and barbiturate drugs which defendant claimed to have taken would be incapable of producing toxic psychosis and that unless defendant had reached a degree of drug intoxication readily apparent to lay observers he would remain capable of calculated judgment. “People on the street would be able to say, well, there was something odd about this reaction. ... This state, or this severity ... would surely show to anybody.” Dr. Lentz further testified that in his opinion defendant, at the time of the perpetration of the crimes, possessed the ability to premeditate and deliberate.
3. Instructions as to murder by means of lying in wait.
Although defendant contends that the evidence did not justify the court in instructing the jury that “All murder which is perpetrated by means of lying in wait is murder in the first degree,” аmple evidence supports this instruction; defendant confessed to conduct which justifies it.
The jury in its discretion could reject defendant’s version of the criminal episode as described at the trial and accept, instead, his earlier tape-recorded statements to the police. Officer Morrison verified the transcript of the tape-recorded statements as required for its introduction. (People v. Wojahn (1959)
Defendant, in his tape-recorded confession, stated that he picked up the rock in his front yard early Sunday morning with the intent to kill someone. After his mother let him into the house and they had each retired to their respective sleeping quarters, defendant called to her, perhaps saying “Hey, come here for a second.” He waited in the dark of the bedroom corridor until she arose and opened her bedroom door; then he struck her.
The instruction concerning murder by lying in wait appropriately stemmed from these events; the record affords evidence of defendant’s intention to kill and of his perpetration of his mother’s murder by means of lying in wait for the opportune moment to strike. (See People v. Sutic (1953)
4. Instruction as to reasonable doubt as related to the degree of the murder.
Because defendant addressed-his argument principally to the question of first or second degree murder, he maintains that the court should have specifically pointed the instructions concerning reasonable doubt and circumstantial evidence to the issue of degree. Defendant did not submit instructions in this regard but nevertheless contends that “By giving the circumstantial evidence instruction, said instruction discussed the fact of the defendant’s right to acquittal. Since this was not properly before the jury, it is the defendant’s contention that the instructions should have been made more understandable by relating them to the question of first or second degree. ” (Italics added.)
Although in сriminal ■ cases the court must instruct the jury on its own motion as to applicable general legal principles, even though the parties fail to propose such instructions, the court need not render particular instructions as to specific points unless the parties request them or they are essential to a fair trial. (See People v. Jackson (1963)
Defendant’s plea of not guilty remained before the court; all matter in controversy under that plea continued as live issues before the jury. Likewise, instructions which embraced defendant’s “right to acquittal” properly remained before the jury. Neither the court nor defense counsel could withdraw from the jury’s consideration the question of defendant’s innocence without his personal consent. (People v. Rogers (1961)
The general instructions as to circumstantial evidence and reasonable doubt were, moreover, implemented by the following instruction as to the degree of the crime: “When, upon the trial of a charge of murder, the jury is convinced beyond a reasonable doubt that the crime of murder has been сommitted by a defendant, but has a reasonable doubt whether such murder was of the first or second degree, the jury must give to such defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” The court thus apprised the jury that it should consider not merely the issue of first degree murder or acquittal but that, in determining the degree of the crime, it should give defendant the benefit of any doubt. We cannot, therefore, conclude that defendant suffered prejudice in the court’s instructions.
The judgment is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed.
Gibson, C. J., Traynor, J., Schauer, J., Peters, J., and Peek, J., concurred.
Notes
“Mr. Stahl and I are in agreement that if Mr. Joseph Spangler of the Bureau of Criminal Statistics in Sacramento, California, were called to the witness stand he would testify that studies made in the previous three year periods concerning people convicted of first degree murder would he as follows: In the year 1959 there were thirty-two cases of persons paroled. Median time served was 136.5 months; average time served was 144.3 months. In the year 1960 there were sixteen eases of parole. The median time served was 139 months, the average time served 164 months. In the year 1961 there were twenty-two cases of parole. The median time served was 141 months; average time 152 months. These are figures for male prisoners for time served before first parole. The absolute legal minimum for both sexes, men and women, before eligibility for parole is seven calendar years.” As Justice Peters points out in People v. Purvis (1963) ante, pp. 323, 353 [
People v. Hamilton (1963) ante, pp. 105, 135 [
We set forth typical expressions of the cases: "... [T]he Court may instruct the jury as to the consequences of the different penalties that may be imposed so that an intelligent decision may be made. ’ ’ People v. Barclay (1953)
E.g., People v. Byrd (1954)
People v. Chessman (1959)
Lawley v. State (1956)
The ease of first impression in California apparently was People v. Beilly (1929)
In People v. Letourneau (1949)
In People v. Hoyt (1942)
As Justice Schauer has pointed out in People v. Friend (1957)
Seetion 5079 of the Penal Code states that the director of corrections shall provide for a psychiatric and diagnostic clinic and that ‘ The work of the clinic shall include a scientific study of each prisoner, his career and life history, the cause of his criminal acts and recommendations for his care, training and employment with a view to his reformation and to the protection of society. ...” Indeed, the early ease of Roberts v. Duffy (1914)
As one writer put it, ‘ [T]he fact that a person sentenced for life might be released before he may safely be returned to society indicates a weakness in the parole system—not that he ought to have been ex-euted. ” (Knowlton, Problems of Jury Discretion in Capital Cases (1953) 101 U.Pa.L.Rev. 1099, 1119.) See In re Lee (1918)
Many of the jurisdictions that hold it improper for a jury to consider the possibility of parole in deciding punishment do not find error in instructions or arguments relating to parole so long as the trial court specifies that this subject is not a matter for consideration or speculation by the jury. E.g., Lee v. State (1957)
United States v. Fiorito (7th Cir. 1962)
Commonwealth v. Mills (1944)
People v. Sukdol (1926)
E.g., People v. Riser (1956)
State v. Mount (1959)
See fn. 5, supra.
Concurrence Opinion
I would affirm the judgment in its entirety, to wit: (a) finding the defendant guilty of murder in the first degree and (b) fixing the penalty at death.