*1 Nos. 7513. In Bank. Mar. 31, [Crim. 1964.] PEOPLE, Respondent, Plaintiff THE v. RONALD POLK, GREGG, HOWARD GEORGE ANTHONY MATTHEWS, AVERY Appellants. Defendants and *3 Allen, Irving Claude Sugarman O. C. and Ransome M. Smith, appointment by under Supreme Court, for De Appellants. fendants and Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Edsel Haws, Deputy W. Attorney General, for Plaintiff and Respondent. THE COURT. By jury verdicts Polk, defendants Gregg, and guilty Matthews were conspiracy found of kidnap purpose robbery, of Gregg and Polk and were found guilty degree of first murder. On the latter jury count the penalty fixed death, judgments at and were entered ac- cordingly.1 appeals Gregg of The Polk and are automatic (Pen. Code, 1239, subd. (b)); by that of Matthews § is notice duly filed.
By amended Polk, Gregg indictment defendants and conspiracy 1On the count all three defendants were sentenced to state prison prescribed by (Pen. Code, 182, 209.) for the term §§ law. charged in Count I Blonde, Jack were Matthews, one 1962, 31, kid- conspiring together on or about March
with robbery. act it was purpose of As first overt nap for the a billfold alleged robbed Fambro William defendants act was 1962; as a second overt on or about March alleged Neil Sehill of and Blonde robbed defendants May 18,1962. or billfold on about charged kid- defendants with Count II of the indictment purpose robbery, naping and that Fambro for the charged bodily defendants Count III victim harm. suffered charged murdering IV with Fambro. Count purpose robbery, kidnaping for the with Sehill Blonde bodily harm. that the victim suffered (Pen. motions to set aside the indictment Defendants’ denied, plea Code, 995) and each entered a § “gone into guilty. the defendants had their defense” Before against pursuant Blonde2 was dismissed the indictment as 1099, and became a witness for the Penal section he Code IV prosecution. empaneling Counts Prior II therein of the indictment were dismissed charged all defendants as Code, (Pen. on motion of the district day charge trial murder 1385), and on the 13th § against Matthews was dismissed. remaining counts the found the defendants On guilty III be charged, determined the offense Count penalty degree, murder in the first and fixed therefor for new trial or for reduc- death. Motions penalty tion of the were heard and denied. perpetration a series of evidence establishes the weapon, deadly crimes—kidnapings, brutal assaults with murder mutilation of the victim— robberies, armed insofar as each has committed concert these defendants respective charges. guilty A résumé of the been found evidence follows:
Allen first met Cade testified that occasionally On the November and saw them thereafter. 31, 1962, restaurant evening of March or Cade entered a Angeles Dairy Polk, in Los called and saw Lunch sitting approached him and and Matthews at the tables. *4 said, going me cents, 50 then “I’m to make asked to borrow going money.” inquired do When how he some Cade was up shirt, said, got lifted his so, stuff” and “I robbery proceeding pleaded guilty 2In another Blonde had to the Sehill. 221 revealing a Gregg revolver thrust under his belt. up came going get repeated, money.” “We us some When Gregg, Cade next morning following saw on second conversation, wearing was a white sailor’s hat. During part the last of March 1962 William a Fambro, 20- year-old sailor, had been family on leave his Norwalk, report California. He was to to his ship in Bremerton, morning on Washington, April p.m. 1 or 2. At about 9 on March 30 Highway his wife beyond left him on San hoped Fernando, where ship. he to catch a ride to his Before leaving ing he banana sandwich; ate in uniform, he was includ- hat, a white sailor’s $20 had about in his wallet. At p.m. April 5:45 body Fambro’s was discovered down an Highway embankment off 65 in County. Tulare Footprints and other evidence at the scene indicated that two persons body had carried the shoulder road and thrown it over the embankment. Fambro’s wallet was miss- ing, as was his white sailor’s hat. post
A mortem examination showed the cause of death to be three bullet wounds, including one inflicted a bullet passing through pathologist the heart. The testified that a person receiving type of wounds sustained Fambro instantly might would not die but live for several minutes. The jacket bullet holes in powder the victim’s showed burns from the through path muzzle of weapon; of the bullets body indicated that all three shots were fired angle. from the same At the time of the examination Fambro had been dead between 48 72 hours, and, based on the digested partially stomach, condition of the bananas his opinion was pathologist had that he been killed no more eating than three or four hours after them. fly ripped open Fambro’s had been trousers The penis missing, having torn. victim’s several buttons crudely leaving amputated,” “ragged” “rather been body, including condition of the From the wound. pubic found in the area and on of blood the victim’s amount that Fambro been shorts, pathologist concluded had alive penis amputated in such a his manner. the time evening May 15 or testified that on the Jack Blonde Dairy They Polk, Lunch. met Matthews Mercury, drunk in 1953 saw a and decided to drove around car, threw the victim parked Blonde rob him. by jumping “stomped” on his and Polk ground, to They and watch and took wallet both feet. chest with *5 they away. attempted gun Thereafter to obtain a but drove following night The four were unsuccessful. them went “looking person walking, for another to rob.” Polk and Gregg street, on walked one side Matthews and Blonde spotted wagon a 1962 on the other. Blonde Pontiac station following them, and Matthews told him to “act like a partner in queen” (i.e., “female” a male homosexual explained walk relationship). The witness meant to “swishing” from The driver of one’s buttocks side side. picked wagon, Delaney, stopped up a and station Mr. they As entered the car mo- and Matthews. Blonde Blonde follow, for and but the latter tioned Polk driving pretended in to do After around a unable so. search Delaney’s in benzedrine, pepper eyes, threw for Matthews Delaney him four and Blonde stabbed times the chest. escaped car, him, from the but Matthews and chased Blonde down, times, him kicked him and tore his knocked several looking money. They wagon, then took his clothes station Dairy picked up Gregg, Lunch Polk and returned Taking paper plates for a set of license the car. and stole Johnny Keyes them, with the five set out for Francisco San driving. an old a First saw man with cane, Blonde, a and selected as victim. carrying got bar, latter an iron out the car. Matthews, the grabbed the old the cane and iron man, Polk and Matthews through ground. man fell to the air, bar flew wallet and ran back to the car with the victim’s assailants on. drove of the kid- Sehill, paratrooper who was the victim Neil charged robbery act in Count naping and second overt morning midnight (conspiracy), that after on testified I just hitchhiking Highway 99 May 17, 1962, he was on by picked up a new Pontiac when he north of Bakersfield entering only he three wagon. the car first saw station On seat; in the middle the driver front and one people, two wearing sweater, woman, a woman’s appeared be a got in, “her” others. After he referred and was men stirring behind him and saw two heard someone Sehill seat, gas they pulled into minutes later back A few all but serviced, radiator Sehill to have station ear’s slept had Sehill, who adjoining restaurant. into an went sleep. In the in the ear and tried days, remained for two emp- Sehill, and Matthews to rob decided it was restaurant table, on rolled it in a from a shaker pepper tied the returning the car pocket. put in his On it napkin seat, Matthews and entered front and Blonde the middle Sehill, Keyes entered seat either side got in the back. shortly driving testified that thereafter Schill “we were along eighty about miles an hour and the woman—Matthews —said, ‘Neil, you you do know what can do for me?' And I said, ‘No, said, And you taking what?' can start ‘Well, your you all clothes off.’ I said, And ‘Are serious?’ And at pulled this time Blonde my and held knife front of *6 said, ‘Yes, ” going face and she is serious, or else I’m to cut you up.’ grabbed away Sehill blade and the twisted it Blonde; so, Gregg from he turned as to do reached into pocket Then, Sehill’s back and took his wallet. de Sehill “everyone it, swing scribed started to and me, me kick at and compartment pepper glove I believe Polk had taken some out of the my eyes.” and in finally rubbed it Matthews brought stop, everyone the car to a except and Sehill scrambled positions out and took around outside the the of trying car, keep to all the doors shut but one. Matthews stood open at the door hand, saying, “get with a beer bottle in his pipe.” got the lead As out him, Sehill said to Matthews your going “Take you clothes off else to or I’m smash the lunged face.” Sehill forward and hit him in Matthews the bottle, breaking cutting the badly face off a tooth and get his up mouth. When tried Sehill to Matthews kicked his bleeding feet out under Sehill, heavily, from him. But man aged highway escape to by flagging run across the and down passing a car. driving Blonde testified that the continued five to San Francisco, among having divided them the contents of bag. Keyes party Sehill’s wallet and duffel left the San Francisco, remaining city and the four drove around the “looking somebody They for rob.” saw a Mexican walk- ing along they pulled the sidewalk and him into the car. As driving they ring, continued Mm a robbed of Ms watch and clothes, forced him to remove his and turned him out into the except They for street naked to found no victims socks. more although they “hoping Francisco, rob were San they trip Angeles another one.” their return On Los picked hitchhiking Mghway up sailor, turned off the a onto money road, of and robbed of his and the contents side bag.3 his duffel gang, Keyes, pleaded guilty being 3The fifth member of the an accessory robbery prosecution, to the of Sehill. for the He testified and 22á arriving Angeles pres- Blonde and the three
After Los days A later all four defendants were arrested. few ent joint police admitting robbery statement the the of made Delaney, robbery Schill, of other robberies com- the trip to on their San Francisco. The statement was mitted jury. played tape-recorded regarding questioned also Defendants and Blonde were robbery In a series all and murder Fambro. of statements participating except admitted in these crimes. actually trigger pulling accused the others Each penis. weapon amputating victim’s Re- murder cordings played jury. or read to the of the statements Gregg spot police took the where Fambro On June picked up pointed out the outside Bakersfield approximate taken to location where Fambro’s route body police found. returned with On June and demonstrated how he and Polk the murder scene body over the embankment. threw Fambro’s took witness stand and corroborated Each defendant against description perpetrated crimes Schill Sehill’s testimony concerning the other robberies well as Blonde’s trip to San Francisco. surrounding murder, Polk As to events testified Angeles at Los that he and met restaurant on evening agreed they or needed of March 30 “pull suggested jobs together”; money. some *7 jobs?” replied, Gregg asked, kind and Polk “What of “Serv- Gregg agreed, liquor and stores.” and Polk ice stations gun apart- his and car and obtained a from went out stole a they away Gregg were ment. As he with said that drove pull he “jobs” Angeles going any around Los because they do but would head north to was “too hot” there that places they that “looked over a few Polk then testified so. police hot there”; was too out that Fernando but the San places that we they then “eased in Bakersfield out few closing time,” thought hit but found no could about we Highway they continued satisfactory victims; that north something they looking “knock over” when 99 saw up. hitchhiking stopped pick and Polk’s Fambro descriptions robbery his of of the old man with a cane and the robbery materially kidnaping Schill of were identical with testimony of Blonde and Schill himself. of separate proceedings Gregg pleaded guilty 4In had each robbery of Schill.
225 Gregg began story long arguing that and Fambro about how Gregg sergeant service; it took to become a that argument Fambro then drew Polk into and called him dirty began stopped fighting names; car, that Polk with seat, pulled gun the back then Fambro out his and shot they Polk Fambro three times. further testified that as were dragging out of ear took Fambro’s wallet Fambro amputated penis. his
Gregg testified that he and Polk were alone in the ear they Fambro, said, when saw Polk that “That’s one we get right can there.” further testified there that argument no they between them and Fambro but that after Highway turned off he demanded wallet; Fambro’s complied, Fambro and then shot him warning; without amputated penis that Polk drag- Fambro’s ging him from the car. It is contended voir examination dire prospective jurors attorney the district prejudi committed by cial expressing “personal misconduct his opinion,” not evidence, based on the proper penalty. appar as to the It is ent, however, prosecutor merely that the prospective told the jurors that, on anticipated basis what he the evidence yet presented to be show, expected would he to ask for the penalty death improper. stage. should trial reach that This was not (People Spencer, 64, v. 60 Cal.2d 74-76 [31 Cal.Rptr. 782, 134]; People Pike, 383 P.2d v. 70, Cal.2d Cal.Rptr. 664, 372 656].) [22 P.2d Complaint is also made of references in district attorney’s opening statement to the fact that Matthews awas point homosexual. The is without merit. The references were fully testimony Cade, substantiated Sehill, others, and Matthews himself stated on witness stand “queen.” was a testimony Such was relevant to the acquaintance charged issue coconspirators similarity each other and the operandi of their modus continuing conspiracy. evidence principal assignments of error and misconduct advanced all three arise out of the dismissal of trial, the murder day count as to Matthews on 13th open 28, December 1962. The district stated in court Angeles County recently that Los Jail had come records showing that Matthews been attention had incarcerated p.m. 31, between March 1962, and 4:45 on March 1962. *8 On proseeu- that basis the district declared that the pres- that Matthews was doubt tion a reasonable entertained killed, accordingly moved was at time Fambro ent the court as to Matthews.5 The count the murder
to dismiss proceedings were follows: 5The relevant adjournment, specta- but all I think an the Court: we’ll take “The you or are in back of room will remain seated where tors the the you standing until excused until the has left the courthouse and are by in the the officer rear. attorney]: please, Ballantyne district If the Court the “Mr. [the People they to the Court at a motion would like to address have time. adjourn? Court: Before we “The Ballantyne: May now, your Yes, I Mr. Your Honor. make the motion Honor. something Bradley Is this that be made “Mr. can [counsel Polk]: jury? presence ‘ ‘ Ballantyne: it, No, I want to hear Counsel. Mr. the Ballantyne. minute, ‘ ‘ Just a Mr. The Court: ‘ ‘ Ballantyne (Short defense off discussion between record Mr. counsel.) Ballantyne: please, I voir If the Court stated on dire examina- “Mr. tion, position position unequivocal that I an at time as the took my People feeling it that was with reference certainly my Honor, capital time, I that Your that a case. did state at jurors any open and the should consider new evidence mind remained very Honor, beginning case, in. Your that come At the of this should they Angeles thing in Los is first that do is to check when someone crime, jail picked up or on a serious check to ascertain whether suspects custody any in were at that crime took the time Sergeant ease, by place. This was Brooks when he came into the done County Now, John of the Tulare Sheriff’s office. and also Lawrence they jail that that the Records Division of at time were informed all of clear of the time that the crime occurred. the defendants were jail? By you net Court: clear mean “The Ballantyne: jail, correct, They Honor. were not that’s Your “Mr. appears And on face of record on Matthews the date 3/20/62. disturbing up masquerading charge, picked on He was on 3/20/62 charge. apparently charge, masquerading peace And and—or was a Now, Sergeant part at time. record that clerk overlooked a the Brooks—during requested him I check the course the trial checking interrogation on alibi and was the field records records on doing Day, again noted that the defendant and in so he Christmas jail jail phone been in and he made a call to the Matthews had 3/20 jail. days verify many At he had been time he how actually released on informed defendant Matthews 3/31/62. Sergeant immediately Now, Records time Brooks went at mistake, himself, thinking there was a and obtained the record. office jail indicates, Honor, that Matthews was in from Your- The record Now, Your 4:45 until P.M. the afternoon. 3/20/62 3/31/62 Honor- no mistake time? can be about Court: There “The always Ballantyne: possibility is can be—there There “Mr. *9 ’’ justice. granted “in the interests of A motion the motion by argued all three defendants was thereafter in mistrial for jury and denied. of the the absence begun testify that he had to points out before the place, III as to Matthews took of Count dismissal dismissal therefore violated Penal Code that such contends provides that “When two or de- which more section accusatory pleading, included the same the fendants are gone any at time before the defendants have may, into court application prosecuting of the defense, attorney, on the their discharged, may be any defendant to be a direct people.” section, however, ap- That the is not for witness against charge murder plicable The Matthews was not here. grant immunity might so that he to be wit- dismissed routine, by mistake, This it is a is done Tour Honor. almost reflex when jail. stamp, stamp it’s from It bears the a time when man is released the man is bailed out. just inquiry : I “Mr. Price for made a similar [counsel Matthews] night phone partial on the there has been some last verification but yet get necessary to hadn’t been able the record because of we steps. Ballantyne: Now, Honor, brought my “Mr. Tour this was to atten- immediately by Brooks, Officer and I want tion that I think in state my finest traditions of law this enforcement was called to attention very my this fine officer. This was called attention at 10:00 o ’clock morning immediately 25th on the of December. The next I called this to Court, knows, my the attention tion, as the Court and I stated inten- bring that I intended to this out before the matter submitted jury. important think I it’s the most function law enforcement Attorney’s to, all, protect and the District office first of the innocent. Now, time, Honor, my at this Tour is a there reasonable doubt in mind present the defendant Matthews was the time Fambro was predicating upon And I’m not that statement killed. statement of this witness—I have some serious reservations about that. Bradley: please, object going “Mr. If the Court I am to that. Ballantyne: ‘ ‘ Mr. I withdraw that statement. disregard “The Court: is admonished to the last statement Attorney. made the District ‘ ‘ Bradley: should, Mr. If he wants to make I motion feel he but I try argue think don’t he should the case. Ballantyne: Counsel, my “Mr. Tes. I wanted to make case clear on predicating is no my that. There reflection on the witness. I am not position, Honor, testimony witness, Tour predicating of this I am upon documentary proof; it People the document which is it satisfies the complicity that there is a reasonable doubt as to the Matthews murder. Fambro So at this I time would to Honor, like offer this record in predicated upon record, evidence and Tour I would like to Avery move the dismissal of Matthews of Count III of the indict- ment, Fambro, which involves the murder of in the furtherance of justice.’’ People (Pen. Code, 1099); was never ness for § Bather, charge expressly called as such witness. i.e., under justice,’' “in the interests Penal dismissed provides may, that “The court 1385, which Code section prose- upon application or of its own motion either justice, order an cuting attorney, in furtherance of ac- must be reasons of the dismissal set to he dismissed. The tion forth in an order entered upon A minutes.” motion subject that it must limitation under this section is not gone have into their defense. made before the be prejudicial mis that was contend attorney to his motion dis for the make conduct district accompany it with the presence and to miss in the argue 5). They quoted (ante, fn. remarks above expressed personal belief their district guilt murder, effect *10 remaining the defend of since sole charged with ants that crime. of The record this contention. At the outset their refutes
investigation the police the had been informed Becords Angeles County of the that Division of Los Jail none these custody at had time of the murder. defendants Nevertheless, during been the course of the trial the district attor- the jail relevant rec- ney requested Brooks to recheck the Officer according that and discovered The officer did so ords. Angeles County stamp on of the Los time the records Jail custody p.m. until on March had been in 4:45 Matthews jail appears much a to have been as sur- This record 1962. attorney, as to district prise to Matthews’ counsel the for just he had a similar in- told the court that “made counsel partial some verification” of quiry” and “there has been attorney facing may district The dilemma then the the fact. he had easily seen: much of evidence that amassed be the presence the of at prior to trial tended to establish Moreover, jail the record not of murder. was the scene the only of innocence. Not was there proof Matthews’ conclusive the stamp possibility of routine use of time mistake jail (as attorney court), district stated to the on releases possible it the medical that the mur- but under evidence p.m. 4:45 on March 31.6 had occurred after der support possibility 6In of the latter introduced evidence running showing it that Fambro’s watch was when was removed from body examination, post it mortem and that then indicated the at (9:50 p.m. 2, 1962); April watch did correct time on that not run a.m, 3; period April until 7:53 48-hour down had a of operation.
229 meaning discovery jail of of the and relevance The at therefore not so obvious the time as defend- record were now us It not for ants would have believe. was unreasonable having promptly court attorney, district informed the present discovery, to continue to his ease to await developments. however, When, further sub- evidential gave testimony in sequently complete the stand and ac- took jail disclaiming presence record, cord Matthews' scene, the murder it was not for the district unreasonable attorney appropriate to conclude that an case had arisen for Although a motion to dismiss under section Penal Code 1385. proof conclusive, Matthews’ innocence is the evi- is sufficient raise dence a reasonable doubt as to com- his plicity in proper murder. It therefore the district attorney to move for a dismissal. equivalent expression by motion was not the of an personal district Gregg’s belief Polk’s and guilt of murder. The record shows the district attor ney’s upon statements were analysis based of the evi dence. As the trial denying court observed in defendants’ proper motion for mistrial, it was for the know the (See People dismissal and the reason Frahm, therefor. v. Cal.App. 253, 678].) preceding days P. In the [290 jurors significant trial had heard a testimony amount of linking regard murder; Matthews to the due for the orderli subsequent ness their required deliberations being their informed against the dismissal of the murder count Gregg complain, however, him. the motion to presence dismiss should not have been made jury. practice It would have been better had the motion been made and ruled on in jury, the absence of the and such a *11 again course should be followed if presents the situation it (People v. Alverson, 803, Cal.Rptr. Cal.2d self. 60 807 [36 479, present 388 In 711].) P.2d sequence the case the of attorney events was a novel one. When the district undertook jury presence to make motion in the of the there was no objection opposition by formal or counsel for defendants.7 showing part is no prosecu There of bad faith on the of the prejudicial In the appears.8 tor. circumstances no misconduct 7Indeed, disregard after the court admonished to the the district attorney’s credibility Gregg, said, remark as to the of counsel for Polk should, he wants to malee his motion I I but don’t think he “If should feel try argue (Italics added.) to the case.” argument 8For similar reasons there is no merit in Matthews’ dismissing against the murder him count the in district effect expressed personal guilt remaining count, conspiracy. belief in his on the
230 the contends that after dismissal the trial Matthews failing abused in to as court its discretion declare mistrial ground improper proceed to him on the that it was to awith joint conspiracy of and of trial all the count defendants only Gregg on support, the murder count. In is argued original that as an matter it would have been im joint proper to undertake a trial such defendants on such of premise, however, 954 of counts. That is Section untenable. permits joinder the “two more Penal Code of or different together commission,” in connected their and such offenses joinder though charged is even the offenses “do not allowable relate transaction and were committed at differ same to against places victims, ent times and different where importance there is a common element of substantial in their 467, (People Chessman, 52 Cal.2d 492 commission.” P.2d v. [341 679], accord, supra, cited; People Pike, v. cases there 70, People 458, 84; Kemp, v. 55 Cal.2d Cal.2d 475 [11 Cal.Rptr. 361, 913].) 359 P.2d clearly importance
Here a common element of substantial robbery-murder charged in appears, as III was Count conspiracy charged first act More- overt Count I. properly no over, there can be doubt that Matthews charged joint defendant with Polk Count provides: I, 1098 which “When under Penal Code section charged jointly any public more are two or jointly, the court order offense, ... must tried unless be separate if Accordingly, even Matthews had trials.” charged original matter, an been on the murder count as joinder improper de- fact not have rendered or would deny prive the court of discretion motion severance joint charge conspiracy and a com- there were a since importance in mon substantial commission element of Chapman, (People all Cal.2d the crimes. v. [338 accord, 428], cited; People Pike, supra, v. and casesthere P.2d Throughout proceedings the court 70, 85.) 58 Cal.2d keep jury instructed as which pains took evidence conspiracy and on defendant; was limited to which specifically course, instructed to disre- count, gard allegations of the first act overt as Matthews Pambro). is shown (robbery abuse discretion No motion for mistrial. denial of Matthews' complains the trial the court earlier Matthews transcript against a state into evidence allowed implicating given police ment committed on the various robberies murder Pambro
231 May trip May Francisco between 17 and 19, San 1962. present concedes that he was when this statement argues made, opportun- but that he was not afforded ah ity deny against (Cf. People the accusations him. v. Briggs, 385, Cal.Rptr. 417, 58 Cal.2d 407-409 374 P.2d [24 argument 257].) support. lacks factual The record shows taking that on this issue the officer the statement testified as “Q. [by attorney] Now, follows: the district when Matthews brought into the room at the time of the confrontation Polk, and the accusation Mr. was he told at that time he No, sir, could not denials? make A. he was not.” Matthews argues that he was not interrupt. now “allowed” to How- prior putting jury ever, before the court listened to tape recording of the statement and transcript read the attorney pointed thereof. The district out that after the accu- concluded, approximately half elapsed sations a minute (before during Mathews was returned to cell) which time he made no denials whatever; and that on the occasion joint of a (a tape statement taken a month earlier recording played of which had also been court) to the Matthews had repeatedly shown that he was not in the least afraid to inter- rupt and criticize statements of a codefendant. premises In these the court did not allowing err in
subject go evidence to for their consideration. cert, (See v. People Davis, 661, 43 670 801], Cal.2d P.2d [276 581, 905 1241]; People den. 349 U.S. S.Ot. 99 L.Ed. v. [75 Yeager, 452, 40]; Proc., Cal. P. Code Civ. [229 3.) ruling, subd. At the time of the court instructed § necessary the implied on the factual elements to constitute an correctly admission, and “If, admonished them that weighing however, in the conduct or the answer or lack of weigh you answer, really if that and find it doesn’t constitute guilt, then, implied course, you disregard an admission of you accusation, would, course, disregard also conduct in relation to the answer or the accusation.” This repeated by reading the court after admonition was transcript jury, and a formal instruction to the same given. later effect was support It is asserted that does not the evidence finding continuing conspiracy among
jury’s all The record refutes this contention. named defendants. It was jail discovery People’s theory, after records show p.m. ing was incarcerated until 4:45 on March that Matthews evening of March 30 on the eon- 31, kidnapings purpose robbery spired commit n an robbery of Fambro was overt act furtherance of May conspiracy; that on or about 15 Matthews and *13 joined conspiracy; robbery the and the that of Schill Blonde act in furtherance conspiracy. was another overt of the same unnecessary repeat It here all the forth is to evidence set theory supports from above which that and which the continuing properly infer of a could the existence such con- spiracy defendants; enough be between these it will to refer points that of the more salient of evidence. Polk some to himself Gregg to he had with testified the discussion at Dairy concerning money on March 30 their need for Lunch agreement jobs together” “pull and to in areas their some Angeles.9 they other Los Polk further described how than looking and Bakersfield for vic- drove around San Fernando Gregg spotting that hitchhik- tims to testified on Fambro rob. get right ing Highway said, on “That’s one can we again Dairy Gregg met Lunch on there.” Polk and May at the money, 16 and further discussed their need 15 or for agreed Blonde, They to Matthews, this and time with others. looking place (as Gregg a to rob around drive 30), and then robbed a drunk on the had done on March night Gregg, following Polk, Matthews, and sidewalk. The looking person for another to rob.” “out Blonde went wagon, Delaney’s station and Blonde mo- Matthews entered They Gregg and to follow them. all returned tioned to Polk to the together agreed towards Dairy and to drive Lunch, “Well, connection Blonde testified: Francisco. In this San picking up about Frisco, we left discussed it before we [for] that the witness Cade testified that Matthews 9PoIk stresses the fact present on this occasion that the defendants was also were “queen” process doping the obtain “her” car for coffee of of argues using testimony purpose it to commit robberies. Polk this of by jail of be the introduction record shown to erroneous was later relating on March 30 and that it was there Matthews’ incarceration testimony prejudicial error not to strike all of Cade’s fore present However, respect. that Cade when met with Polk testified was Dairy about March testified Lunch on or at the meeting Polk, Gregg, present Blonde, at a and himself Cade May they Dairy Lunch or about at which were “queen” doping purpose process obtain car for “her” attorney argued committing The district robberies. eight had these and the trial Cade or nine months between events memory. in his become and had consolidated the two occasions confused plausible one, apparent argument discrepancy as to weight testimony. only Cade’s dates went Q.What you going hitchhikers. were do? A. Rob them.” As noted all three defendants admitted the series of robberies committed them on trip, Francisco San each of operandi which same modus was used: the defendants spotted driving along, their victim while stopped picked up; acting team, as a then sat him between them rather than the door, bodily threatened him with harm, ports foregoing and robbed amply him. The sup- evidence conspiracy the verdict on the count. During penalty People trial called to the psychiatrist, stand a tric Colett, psychia Dr. who had conducted examinations of Polk and after their arrest. Dr. Colett testified that each defendant committed his various crimes “for kicks” and for money; that neither defendant any signs showed remorse, only but was concerned about happen habitaually what would to himself; that each was anti social in by experience. nature and unable to learn theOn basis of her Dr. examination Colett concluded that each de fendant sociopath was a severe whose chances rehabilita “extremely improbable.” tion argued It is that Dr. *14 Colett’s conclusion coincided with one of the ultimate facts assuming did, expert opinion Even it an is not issue. inad merely missible because it with an coincides ultimate issue of (See e.g., People Cole, fact. 99, v. 47 105 Cal.2d P.2d [301 854, 1435], 56 cited.) A.L.R.2d and cases there prejudicial
We have concluded that
error occurred in
penalty
prosecutor
argument
trial.
made an
and the
gave
court
an instruction similar to the ones which we con
People Morse,
Cal.Rptr. 201,
demned in
v.
jury stated, “Now, [attorney Gregg] Mr. Donahue for brought system out the fact that under our the Adult Au- you imprisonment if men life thority, sentenced has these power parole, you and will be instructed that after 7 years given men, if a life could be sentence, calendar placed these society. Now, saying back on the of our not streets I’m they might this, years, that would do be a few more but Authority they up political could, and Adult are made appointees, they prisons, all administer to few these prisons Department men, to all of in the of Corrections California, cases, and, remember, thousands of State they They through pro- can make didn’t sit these mistakes. ceedings gets distant, and hear this evidence. It rather get you. situation, happened farther from the to what they going terribly concerned about Fambro. Are to be
Mr. that incident years they going ? or 10 from now Are to take a and these back on the streets? Now Dr. chance turn men says they rehabilitated, that us Colett cannot she has told be today type therapy group that the best known used is strongest gravitate therapy. can toward the members strongest in a group, submit that members I prison population toughest and most group in a are impulsive, type that never that Polk is an can vicious; sadistic might place they people they but can fool them change, you responsi- back and I tell this: This is the street, on passed anyone bility of this and this cannot be else requires punish- happen, and that a to see that this does finality society, protect ment of in order to and that is the by giving responsibility jury, a life this because sentence you you that feel that can these Defendants indicate Authority possibly rehabilitated, be the Adult should ’’ take a chance. part “In The court instructed as follows: mak- ing your penalty imposed, you be determination exercising your may, in discretion to choose between different punishments, possible consequence as a consider the law provides that defendant a sentenced either to State may pardoned imprisonment life death or be or have prisoner serving by the sentence reduced Governor eligible may judge may parole. be for A trial life sentence imprisonment. penalty from death to life also reduce ... prisoner imprisoned that a You are instructed under life may paroled has sentence, after he served seven calendar be ’’ years. prejudicial. be to be In errors must deemed These p. ante, Cal.Rptr. People Hines, case of v. recent [37 determining 398], prej- tests clarified the 390 P.2d we Hines, penalty We said sole udicial error trial. “Our into of whether sub- here a determination inquiry devolves from the error, is, substantial deviation standards stantial *15 ’' p. in- Morse, Ante, in has occurred. 170. The established argument case, Hines, as in in the instant structions from the deviation unquestionably constituted substantial Thus, prejudicial error oc- established Morse. standards penalty trial. curred Gregg are reversed insofar judgments to Polk and as The degree In all for first murder. penalty relate to the are judgments to Polk respects other affirmed. Matthews is judgment as to affirmed. The and Dissenting, Concurring SCHAUER, J., Obedient 4%, of the California VI, section of article mandate of the entire “an examination made have I Constitution opinion that including evidence,” and am of cause, more favorable to reasonably probable that a result it is not been reached have would penalty phase. on the committed of error absence for all the case, record Accordingly, on the concurring my and dis explained and documented reasons ante, p. (1964) People v. Hines opinion in senting [37 judgment of from the 398], dissent P.2d I Cal.Rptr. 622, 390 judg entirety each of affirm in its and would reversal the trial court. ments of
McComb,J., concurred. rehearing was for a appellant Matthews petition of April 29, 1964.
denied