THE PEOPLE, Plаintiff and Respondent, v. SEAN J. MURPHY, Defendant and Appellant.
Crim. No. 15221
In Bank.
Nov. 27, 1972.
December 29, 1972
8 Cal.3d 349
Robert E. Burke, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Frederick R. Millar, Jr., Deputy Attorney General, for Plaintiff and Respondent.
OPINION
WRIGHT, C. J.-On October 1, 1969, defendant Sean J. Murphy was charged jointly with Warren O. Saling by indictment with conspiracy to commit first degree murder (
Defendant contends that (1) certain extrajudicial statements made by him which were recorded on a concealed electronic device and photographs of his deceased wife were erroneously and prejudicially received at trial; (2) he was deprived of his constitutional right to рresent a defense; and (3) the exclusion of certain jurors for their unwillingness to impose the death penalty resulted in a “guilt prone” jury and the denial of a fair trial.2 We have determined that these contentions lack merit and therefore have concluded that the judgment as hereinafter modified must be affirmed.
On the evening of August 22, 1969, William Mulhearn was driving on Lopez Canyon Road in the County of Los Angeles and was “flagged down” by defendant. Mulhearn noticed that defendant had blood on his head and T-shirt and observed a woman‘s body lying on the ground near a vehicle. Defendant told Mulhearn that the woman, his wife, had been “beat up” and asked him to call the police.
Deputy Sheriff Jack Boggio, who arrived in response to the call, observed that the woman was dead and that defendant appeared to be injured. Defendant told Boggio that while he was driving southbound on Lopez Canyon Road he observed a red car on the side of the road with two men standing beside it, and he stopped to offer help. The men said they had run
Upon his arrival Deputy Sheriff Barrett Fitzgerald found the lifeless body of Catherine Murphy lying near the Murphy automobile and a pool of blood extending from behind a nearby bush to the body‘s location. Fitzgerald walked north-bound up the canyon road about one quarter of a mile and found on the shoulder of the road fresh impressions left by tires which were similar in measurement and design to those on defendant‘s car. He also found a second set of impressions left by tires similar to those on a maroon 1963 Pontiac which, subsequent investigation disclosed, had been driven by Saling. The officer‘s investigations and conclusions relative to the vehicles driven by defendant and Saling were corroborated by the testimony of a criminalist, who also testified that the maroon Pontiac appeared to have been turned around and driven northbound up the canyon at that point.
An autopsy performed on Catherine Murphy‘s body revealed that she had received five stab wounds, any one of which would have been fatal, and the autopsy surgeon determined that the cause of her death was exsanguination.
Several hours after the homicide Fitzgerald interviewed defendant after advising him of his constitutional rights. Defendant said that he had bеen planning to purchase a house trailer and that Jerry Carnes had informed him that one was for sale in Kagel Canyon. Defendant and his wife drove up Kagel Canyon Road to look for the trailer. Being unable to find it they decided to drive down Lopez Canyon Road (which joins Kagel Canyon Road near the summit of the elevation) on their way home. Defendant then gave essentially the same account he had earlier related to Boggio, but this time he stated that the men who stopped him were driving a 1957 maroon Chevrolet. He added that after he was told to pull off to the side of the road and to stop the car he was further instructed to back up the car to a wide area of the road. Defendant and his wife were then told to alight from the car. One of the two men opened the trunk and removed a tire iron while the other man forced defendant and his wife behind a bush. The man with thе tire iron then came to their location and hit defendant on the head, rendering him unconscious. When he regained consciousness he heard his wife moaning and found her behind the bush.
During the course of his investigation Fitzgerald obtained statements from Jerry and Richard Carnes, Jim and Susie Armstrong and a man named Rodriguez. The Carnes brothers told him that defendant had approached Jerry and asked him if he would become involved in a “rough-up job” which ultimately developed into a plan to murder defendant‘s wife. Jim Armstrong told Fitzgerald that he had been approached by Saling and was offered $300 to steal a car and drive it into Big Tujunga Canyon where it was to be used in a planned hit-and-run accident. Susie Armstrong told Fitzgerald that she was present in her apartment on two occasions when Saling was there and on those occasions she overheard conversations concerning a traffic “accident” which was to take place in Big Tujunga Canyon. The man named Rodriguez told Fitzgerald that he was present on two different occasions when Saling had money and talked about a hit-and-run accident.
On the evening of September 18, 1969, Jerry Carnes telephoned Fitzgerald and asked him to come to Carnes’ apartment for the purpose of listening to a telephone conversation which Carnes was about to have with defendant.3 Fitzgerald listened to the conversation with the aid of an induction coil and, with Carnes’ consent, recorded the conversation with an electronic recording device. On September 19 Jerry Carnes’ brother, Richard, authorized Deputy Sheriff William Allen to conceal a transmitting device in Richard‘s clothing and to intercept and record a conversatiоn between him, his brother and defendant.4
Jerry Carnes was granted immunity from prosecution and testified, contrary to defendant‘s story, that sometime in the latter part of July or early August 1969, defendant telephoned him at the cycle shop where he was employed and asked whether he wanted to “rough somebody up that [sic] owed [defendant] some money.” Carnes replied that he did not do that type of thing but “may [know] somebody that [sic] would.” Defendant subsequently inquired of Carnes’ progress on two occasions. The second
After the phone call Carnes contacted Warren O. Saling, whom he also knew as “Dusty.” Saling told Carnes that he was interested and that he wanted to talk with dеfendant. About one hour later Carnes and defendant went to Saling‘s home. Carnes did not pay close attention to the conversation between defendant and Saling but while driving back to the cycle shop defendant told him they were going to rehearse that afternoon about 2 or 3 p.m., with the plan to be carried out about 8 p.m. that night in Big Tujunga Canyon. Defendant said he was going to drive the victim into the canyon and pretend to have a flat tire. He would then stop the car on the side of the road and have the victim remove the lug nuts while he removed the spare tire from the trunk. Saling would then approach in his car and drive into or over the victim. If he failed the first time he would “just come back and hit ‘em on the head and lay him on the road and run over him.” Carnes was to call the police after the accident, claiming to be a witness. He was eventually told that he would be paid for his role. Carnes said that, during the course of their conversation, defendant said “her” one or two times when referring to the prospective victim.
Later that same day Carnes, Saling, and defendant went to Big Tujunga Canyon in Saling‘s maroon Pontiac and rehearsed as planned. Still later, about 7:45 p.m., Carnes drove to the canyon and parked at his predesignated spot. After about 40 minutes he saw defendant drive into the canyon with a woman in the car. Defendant, waiting for Saling, drove back and forth past Carnes four or five times but Saling did not appear. Carnes left about 9 p.m. and shortly thereafter encountered Saling and Robert “Pokey” Jurgenson as they were driving toward the canyon. Saling stopped and said he was late because the police had detained him and stated he would contact Murphy later. Apparently nothing more was said concerning the execution of the plan. Carnes then went to the home of his girlfriend‘s mother and, thereafter, did not see Saling. Catherine Murphy was killed that Friday evening in Lopez Canyon.5
Carnes heard about the homicide on the Monday following Catherine‘s death. Approximately one week later Richard Carnes brought his brother
Jerry Carnes’ account of the foregoing events was corroborated in a number of significant respects by other testimony and the tape recordings played before the jury. A teller from the bank in which the Murphys deposited their savings testified that on the 15th, 22d and 29th of August 1969, defendant withdrew $100, $300 and $500, respectively. Richard Carnes testified that on one occasion he overheard a conversation between his brother and defendant concerning “somebody getting roughed up.” Richard further testified that about two weeks after the homicide he received $700 from defendant for his brother and Saling. A babysitter for Saling‘s common law wife testified that in August 1969 Jerry Carnes, Robert “Pokey” Jurgenson and defendant visited the Saling residence and conferred with Saling. A former used car dealer for whom Saling occasionally worked testified that about the first week in August 1969 he loaned Saling the maroon Pontiac allegedly used during the perpetration of the murder. The car was returned on the Monday following the homicide. There was other testimony which tended to establish that defendant had reason to bring about his wife‘s death. A woman who lived across the street from the Murphys testified that during 1969 she was having an extramarital affair with defendant which terminated аbout three or four months prior to his wife‘s death. A friend and neighbor of the Murphys related that during the first part of August 1969, defendant and his wife stated that they wished to move from the neighborhood to terminate further relations between defendant and his paramour.
Additionally, it was established that defendant had purchased a $13,850 insurance policy (issued on January 15, 1969) on his wife‘s life naming himself as primary beneficiary. There was evidence, moreover, that defendant had completed the application for the policy without his wife‘s knowledge and had forged her name thereto. There was also evidence from which the reasonable inference could be drawn that defendant had forged his wife‘s name on various cards authorizing the payment of premiums on drafts drawn by the insurance company on funds maintained in the Murphys’ account.
Further testimony established that another insurance company on November 8, 1968, had issued a $10,000 insurance policy, with a double indemnity clause, on the life of Mrs. Murphy with defendant as the primary
As stated, both tape recordings contain extremely damaging admissions which persuasively establish that defendant initiated a conspiracy involving Robert “Pokey” Jurgenson, Jerry Carnes and Warren O. Saling and that Catherine Murphy was killed as a result of that conspiracy.6 The recorded conversations recount in lurid detail many of the events during the killing, the unabashed but cautious attitude of the conspirators, the progress being made by the investigating officers and the manner in which the suspects should conduct themselves in order to frustrate the investigation. Great concern is expressed that they keep their stories consistent. Comment is made that Saling was to “take the rap without involving anybody else” in the event “anything went wrong” and that he was “pretty scared.” Anxiety is expressed when it appeared that Saling had returned from some undesignated place and might still have in his possession “the knife” and the victim‘s credit cards. Defendant indicates that Saling “had everything in his pocket. . . [and defendant had not] laid eyes on the guy since that night.” During one segment defendant relates to Jerry and Richard Carnes that after hearing Jurgenson “was about to shoot [him at the scene of the killing because he was] making him nervous” and after observing that Saling and Jurgenson was not going to “use the gun” аs apparently had been planned, he was convinced that “something [had gone] wrong.” Defendant also states, inconsistently with his statements to the investigating officers, that “I laid her down there---[she was] unconscious at this stage but the blood was still coming from the jugular vein-it looked like you just turned on a faucet in a house.” When Jerry Carnes indicates that he would have been nauseated, defendant mentions that it was for such reason that defendant did not want Jerry to be present. Defendant indicates that he had not “changed one of [his] habits” and that if he were picked up by the police he would “laugh at them” because they did not have the murder weapon, no fingerprints were left on the tire iron, and they simply could
Defendant called only two witnesses to testify on his behalf during the guilt phase of the trial. Charles O‘Neill stated that defendant‘s automobile insurance policy was first sold to him in 1967 and had been renewed yearly since that time; that it was O‘Neill who suggested the accidental death coverage; and that the amount purchased was not the maximum obtainable. Connie Saccomando, a neighbor of the Murphys’ and a close friend of Catherine Murphy, confirmed that the Murphys were having problems with their marriage during 1969, principally because defendant was engaged in an extramarital affair at the time. She further testified that Mrs. Murphy frequently ingested sleeping pills and tranquilizers, that defendant told the witness he was afaid his wife would take an overdose and that on nights when Mrs. Murphy would “wander off” defendant and the witness would go looking for her. With respect to defendant‘s extramarital affair, Mrs. Saccomando testified that defendant had told her he had planned to move and that things seemed to improve between the Murphys after that. On cross-examination she stated that defendant told her that he loved the woman he was seeing and would marry her if he could.
Admissibility of the Tape Recordings of the Conversations with the Carnes Brothers
Defendant initially contеnds that the tape recordings of the conversations between him and the Carnes brothers made on September 18 and 19 were obtained in violation of his Fourth Amendment rights and were erroneously and prejudicially received at trial. We disagree.
Citing Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], defendant argues that prior judicial approval was required in order to lawfully record his conversations with the Carnes brothers.7 It
In Hoffa v. United States (1966) 385 U.S. 293 [17 L.Ed.2d 374, 87 S.Ct. 408], Lopez v. United States (1963) 373 U.S. 427 [10 L.Ed.2d 462, 83 S.Ct. 1381], and On Lee v. United States (1952) 343 U.S. 747 [96 L.Ed. 1270, 72 S.Ct. 967], the Supreme Court upheld convictions based on evidencе obtained by or with the consent of persons in whom the defendants had confided.8 Recently the plurality opinion of United States v. White (1971) 401 U.S. 745 [28 L.Ed.2d 453, 91 S.Ct. 1122] reaffirmed the vitality of those cases, stating, ”Katz . . . [did not] indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.” (Id. at p. 749 [28 L.Ed.2d at p. 457].) It therefore concluded that a search warrant for the purpose of secret surveillance is not required in such circumstances.9
Defendant attempts to distinguish Lopez because there the Internal Revenue agent “was openly that at all times” and the defendant therefore assumed a substantial risk that the agent would refuse the bribe and later reveal it. Under the facts of this case that distinction is not compelling. Here, defendant was well aware of the risk involved in conversing with the Carnes brothers. In fact, the thrust of his conversation was to persuade
Defendant also urges that Lopez may be distinguished on the ground that the tape recording there was not used to supply testimony incapable of cross-examination; rather, it was used to corroborate the testimony of the government agent. He adds that although the Carnes brothers testified, they did not testify to the statements in the recordings and the tapes therefore were not truly corroborative of their testimony. We reject such a wooden approach. When the Carnes brothers testified at trial they were subject to cross-examination about any aspect of the case, including the recorded conversations. While the informant in White did not testify the court observed that “[n]o different result should obtain where . . . the informer disappears and is unavailable at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer.” (United States v. White, supra, 401 U.S. 745, 754 [28 L.Ed.2d 453, 460].)
Since Jerry Carnes requested that his telephone conversation with defendant be recorded and since Richard Carnes consented to wear a transmitter during his conversation with his brother and defendant on September 19, the trial court properly received both recordings.
Defendant argues that the recordings were obtained in violation of his Fifth Amendment (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and Sixth Amendment (Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]) rights. The Miranda decision was prompted in part by a recognition of the dangers inherent in “incommunicado interrogation of individuals in a police-dominated atmosphere.” (384 U.S. at. p. 445 [16 L.Ed.2d at p. 707].) Its main concern is with the psychological impact upon the in-custody suspect whose liberty is being restrained (id. at pp. 448, 449, 455, 457 [16 L.Ed.2d at pp. 708, 709, 712-714]) and its requirements of warning become operative only when the suspect is subjected to “custodial interrogation.”11 (Id. at pp. 444, 478 [16 L.Ed.2d at pp. 706, 726].) Thus when he is taken into actual or constructive custody for the purpose of questioning prior to or after being charged with a crime, the police are required to admonish him in accordance with the guidelines set forth in that decision. Following Miranda (384 U.S. at p. 444, fn. 4 [16 L.Ed.2d at p. 706]), some California cases have determined that a suspect is considered to have been taken into
Although suspicion had focused on defendant at the time of the recordations in the instant case he was not deprived of his freedom of action in any significant way. His statements were voluntary and he was entirely free to refuse to engage the Carnes brothers in a conversation about the crime. (See Doty v. United States (10th Cir. 1969) 416 F.2d 887, 894 (on rehg.); Hurst v. United States (5th Cir. 1967) 370 F.2d 161, 165; United States v. Beno (2d Cir. 1964) 333 F.2d 669, 671; Todisco v. United States (9th Cir. 1961) 298 F.2d 208, 210.) The setting in which this case arises simply does not involve the “custodial interrogation” with which Miranda is concerned.
We additionally reject defendant‘s contention that according to Massiah his Sixth Amendment rights were violated. Defendant appears to make the same argument that was made in Hoffa v. United States, supra, 385 U.S. 293, namely, that because the People had sufficient grounds to arrest him---at which point they were required to observe his Sixth Amendment rights---they should not have been allowed to obtain incriminating statements prior to such arrest without observance of his right to counsel. We note and agree with the observation of the majority in Hoffa that the principles expressed in Massiah do not apply in a pre-indictment setting. (Hoffa v. United States, supra, 385 U.S. at pp. 309-310 [17 L.Ed.2d at pp. 386-387]; see also Wallace v. United States (1969) 412 F.2d 1097, 1101 [134 App.D.C. 50]; Hurst v. United States (5th Cir. 1967) 370 F.2d 161, 165; Rogers v. United States (10th Cir. 1966) 369 F.2d 944, 947; People v. Mabry (1969) 71 Cal.2d 430, 441 [78 Cal.Rptr. 655, 455 P.2d 759]; Ballard v. Superior Court (1966) 64 Cal.2d 159, 170 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416].) In sum, we hold that the procedures employed in obtaining the recorded conversations in this case withstand constitutional scrutiny.
Admissibility of the Photographs of the Victim
Defendant complains that the photographs of his deceased wife were
The People initially pоint out that trial counsel made no objection when the prosecution sought to have the photographs admitted and that the trial judge, therefore, was not afforded the opportunity to exercise his discretion in determining whether the photographs should have been excluded. (See
Defendant relies on People v. Love, supra, 53 Cal.2d 843 in support of the claimed error in receiving the photographs. The defendant in Love was charged with the shotgun murder of his wife. On the issue of penalty the trial court admitted in evidence a photograph showing a front view of the deceased wife lying on a hospital table and a tape recording taken in the hospital emergency room shortiy before she died. The photograph did not show her wound, but did show an expression of pain on her face in death. The sole purpose of playing the recording was to let the jury hear the failing voice and the groans of the deceased while she was dying. The playing of the recording was preceded by the testimony of a doctor that she was in extreme pain, that the blast had severely injured one of her kidneys, and that the pain caused by the passage of blood clots from the kidney into the bladder was probably one of the most painful conditions to which one could be subjected. The prosecution did not suggest that the defendant intended to cause such pain, but it appears that the
It should be noted, however, that this court also held two 8- by 10-inch color photographs of the wife‘s nude body on a hospital table had been properly admitted. The photographs showed a hole about 4 inches in diameter in her back and a large amount of blood on her back, the table, and the hands of the person holding her body. We stated that although the photographic evidence was largely cumulative and might properly have been excluded, the trial court did not abuse its discretion in receiving it.
Here, the photographs of which defendant primarily complains are as follows: (1) A 5- by 7-inch black and white front view of the victim lying on a table. Her eyes are about half open and she is expressionless. She is clad in a blood-stained dress and there is dried blood covering most of her face and neck region. There are a few blood stains on her arms and legs. A knife hole in the dress is visible in the area of a stomach. (2) A 5- by 7-inch black and white back view of the victim lying on the same table. She is nude and two circled stab wounds are visible in the lower back region. No blood stains are visible. (3) An 8- by 8-inch color photograph of the decedent lying on her back on the ground where she was found by investigating officers. The photograph shows the portion of her body above her legs. Her eyes are partially open and she is expressionless. She is clad in a blood-stained dress the bottom of which has been pulled up to expose two stab wounds in her stomach area. There is dried blood covering most of her face and neck region. There are blood stains on her arms. A stab wound is visible in her neck.
Defendant argues that the only conceivable basis for admitting the photographs would have been to illustrate the number and location of his wife‘s wounds, but since they were adequately described by the autopsy surgeon, receipt of the photographs was not necessary. The photographs in this cаse did much more than merely indicate the number and location of Catherine Murphy‘s wounds. One of the arguments made to the jury by the prosecution was that the murder was “rather bizarre” and that it was “no ordinary robbery which resulted from picking up someone
In addition to other grounds justifying the receipt of the photographs they tend to discredit extrajudiciаl statements made by defendant. Shortly after the homicide defendant told one of the investigating officers that when he regained consciousness he went to his wife and they said prayers together. The photographs of the victim‘s condition tended to refute defendant‘s statement to the officer. (See People v. Tolbert (1969) 70 Cal.2d 790, 806 [76 Cal.Rptr. 445, 452 P.2d 661]; People v. Mathis (1965) 63 Cal.2d 416, 423 [46 Cal.Rptr. 785, 406 P.2d 65].)
Although the photographs in this case might be characterized as bloody and gruesome they were relevant to the issues and unlike those in prior cases the admission of which necessitated reversal. (See People v. Cavanaugh (1955) 44 Cal.2d 252, 267-268 [282 P.2d 53].) The trial court did not abuse its discretion in receiving the exhibits.
Alleged Error in Failing to Present Additional Defense Evidence
The evidence presented by the People on the issue of defendant‘s guilt may be characterized as overwhelming. The defense, however, presented only two witnesses during the guilt phase of the trial and three witnesses during the penalty phase. Defendant argues that if defense counsel‘s strategy was to present a “minimal defense,” which he urges constituted “no defense at all,” to gain the sympathy of the jury it was tantamount to a plea of guilty. As such, he contends, the trial judge was required to obtain from him an explicit waiver of his rights in accordance with In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].13 If that was not his strategy, he continues, the absence of an effective defense brings this case within the ambit of People v. Ibarra (1963) 60 Cal.2d 460 [34 Cal.Rptr. 863, 386 P.2d 487], in which case reversal would also be required. These arguments are untenable.
The rationale of Tahl and its offspring is to “assure that the record demonstrably discloses the defendant knows of and voluntarily waives the three specified rights [against self-incrimination, to a jury trial, and to confront adverse witnesses] surrendered by a guilty plea.” (In re Sutherland (1972) 6 Cal.3d 666, 671 [100 Cal.Rptr. 129, 493 P.2d 857]; see People v. Gallegos (1971) 4 Cal.3d 242, 247 [93 Cal.Rptr. 229, 481 P.2d 237].) The mandate of Tahl, however, applies only to pleas of guilty and situations tantamount to a plea of guilty. (See, e.g., In re Mosley (1970) 1 Cal.3d 913, 924-925 [83 Cal.Rptr. 809, 464 P.2d 473] (submission of the case on the transcript of the preliminary hearing which contained primarily incriminating evidence).) Nothing in our decisions following Tahl indicates that the principles expressed therein were intended to apply to jury trials, even where the evidence of guilt is overwhelming. When a defendant undergoes a jury trial any competent defense counsel will inform him of his right to call witnesses on his own behalf, of his right to testify or not to testify, and, in the absence of unusual circumstances, will cross-examine the witnesses for the prosecution. Here, defendant‘s case was tried to a jury. Through counsel he clearly exercised his right of confrontation by cross-examining prosecution witnesses and he took advantage of his right against self-incrimination by not taking the witness stand.
Defendant also contends that because of the compelling evidence of his guilt and because defense counsel failed to present additional evidence of his innoсence, having the practical effect of a plea of guilty, the trial court was required to secure his waiver of the right to offer evidence beyond that which had already been presented. Although there are certain fundamental rights which must be expressly waived in words by the defendant in open court (see, e.g., In re Tahl, supra, 1 Cal.3d 122 (right to jury trial)), the right to present additional evidence during trial is not one of them. The presentation of a particular quantum of evidence may not be characterized as a right; rather it is an event which rests on a tactical decision to be made by counsel. Thus, irrespective of the quantum or quality of evidence of a defendant‘s guilt, the failure to present additional evidence
It appears in the instant case that defendant‘s attorney presented whatever evidence he thought was appropriate under the circumstances.14 In the course of our review of the lengthy record we found no grounds for objections by defendant to either the manner in which his attorney was conducting the case or the decision not to proffer additional evidence at trial if indeed any such evidence was available.15 That the evidence so presented could be described as “minimal” was not the result of defense counsel‘s incompetence as suggested by defendant; it was the concomitant of being faced with compelling evidence of defendant‘s guilt and, perhaps the possibility that any additional evidence would serve to further weaken the defendant‘s case. The record сlearly indicates that the decision not to present additional evidence was tactical.16
Alleged Error in Excluding Jurors Unwilling to Impose the Death Penalty
Defendant finally contends that the exclusion during the guilt trial of
We must again reject the contention not only because of our decision in People v. Anderson, supra, 6 Cal.3d 628 but because we are not willing to accept as decisive the conсlusion of the Jurow study that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. Defendant simply fails to establish the validity of such a claim.18
The judgment, insofar as it provides for the penalty of death, is modified to provide a punishment of life imprisonment and as so modified is affirmed in all other respects. (People v. Anderson, supra, 6 Cal.3d 628.)
Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
McCOMB, J.-I concur in the majority opinion, except that, for the reasons expressed in my dissenting opinion in People v. Anderson, 6 Cal.3d 628, 657 [100 Cal.Rptr. 152, 493 P.2d 880], I dissent from the modification of the judgment.
Appellant‘s petition for a rehearing was denied December 29, 1972.