*1 1, 1965.] In Bank. No. 7646. Oct. [Crim. PEOPLE, Respondent, THE Plaintiff and v. RICHARD Appellant.
PRICE, Defendant *2 appointment by Weissich, O. under William Appellant. Court, for Defendant Attorney General, Lynch, Harris, Jr., C. Albert W. Thomas Attorneys Kraetzer, Deputy General, F. for Plain- John Respondent. tiff and charged by indictment in PEEK, J. Richard Pricewas Sorensen, I with murder of II Count Charles Count Humphrey, in with murder Hale III with rob- Count bery Sorensen, and in Counts IV against committed Charles guilty by jury He found and V with auto thefts. II, grand V charged Counts, I, IV and and of the crimes offense, pistol, .of a a lesser included as to Count III. theft degree. found to of the first The murders were guilty jury found, plea of not further defendant’s *3 sane the times of the insanity, reason of he was at of of he commissions the offenses which stood convicted. degree penalty phase connection the first the in with On jury punishment at death as to each murder the fixed verdicts pursuant appeal 1239, to section conviction. The is automatic 15, 1963, On March the Penal yet (b), subdivision of Code. accompanied by years age, of a defendant, then not City juvenile, Sikes, a station in the of Jack entered service Dodge leg, with Lodi, a and drove off a shot customer belonging to owner. The California automobile the station immediately notified, Highway Patrol and Officer Charles pursued call. defendant and his the He Sorensen answered per Highway speeds of 85 miles hour. accompliceon 12 at to 90 passing in the During at automobiles the chase defendant shot hoping to and apparently cause accident opposite direction, pursuit. thereby In Rio Vista defendant halt Sorensen’s accomplice fled foot Dodge, and with his the crashed gate of a house. through around the side vacant Officer and through passed gate on foot and as he Sorensen followed of house defendant fired two shots the corner and around killing instantly. officer range, close procured pistol Defendant then the officer’s and with his accomplice patrol High- took car and continued west on way Deputy Humphrey 12. having Sheriff Hale others, and alerted, up high- been way. set a road block of vehicles across the deliberately patrol Defendant speed drove the car at a in per estimated have been excess of 100 hour miles into the blocking causing road, Humphrey. vehicles the death of question sufficiency The defendant does of the evi- support dence the verdict as to each of the crimes of which judgment he stands argued, however, convicted. It is must prejudicially: be reversed because court in (1) erred giving refusing give some and instructions, (2) other in denying change venue, commenting motion for a (3) in allowing and the district attorney to comment defend- testify ant’s failure behalf, (4) receiving his own into incriminating certain evidence statements made apprising the absence of counsel and without defendant of rights, his (5) instructing allowing and evidence and argument penalty phase concerning possibility on the parole in the imprison- event defendant was sentenced to life ment. prosecution con takes issue with each defendant’s charged testimony, except impropriety of the
tentions,
possibility
parole.
argument
relative to the
instructions
forthrightness,
state,
In
with commendable
this connection the
proceedings contravened the rules later
concedes that
Morse,
this court
v.
announced
Cal.Rptr. 201, 388 P.2d
The state’s contention that
33].
however,
prejudicial,
fails to meet
test
the error was not
Cal.Rptr.
People Hamilton,
60 Cal.2d
“any
page
wherein we held at
substantial
P.2d
occurring during
penalty phase
trial,
of the
error
reasonably
penalty,
may
in the death
since it
results
swayed
juror,
prejudicial.
must
deemed to have been
(See
People Hines,
374 Defendant’s initial contention is court erred failing to on People’s instruct its own motion that where the substantially case on rests circumstantial evidence circum entirely guilt
stances must be consistent with and inconsistent any with other However, People’s conclusion. where as here the chiefly evidence, direct case rests such an not instruction is necessary. (See People 55 Malbrough, v. 249 Cal. Cal.2d [10 Rptr. 632, 30].) recounting 359 P.2d Without the evidence say in detail sufficeto that there is more than sufficient direct as to evidencе each the crimes of defendant was improperly convicted aside from the statements into received Thus, the evidence, evidence. instruction on circumstantial request, required. (People which defendant did not Gould, Cal.Rptr. v. 273, 865]; Cal.2d 621 354 P.2d [7 People Zurica, Cal.App.2d 118].) v. 25 [37
A further claim
of error
con
instructions is made in
language
nection with the court’s definition of “malice" in the
7,
4,
Code,1
applied
subdivision
section
the Penal
as
language
the crime murder. The court also
in the
instructed
188 of the Penal
section
Code.2
language
Instructions in the
of both
do not,
sections
with
prejudicial
more,
Gorshen,
(People
out
constitute
error.
v.
492]; People
P.2d
Chavеs,
it that defendant himself language 7, instruction in the of section subdivision may error which have resulted must deemed to be have been invited. change venue, The denial of defendant’s motion for also
urged ground reversal, predicated as for is claimed publicity throughout county undue television and other which impossible it improbable, is further claimed to have made if not impanel objective jury county. Because 4, provides: words, 1Sеetion subdivision "The ‘malice’ and ‘mali ciously’ import injure vex, annoy, person, wish or another or an act, wrongful proof presumption do intent or established either of law.’’ provides: may express implied. 2Seetion 188 "Such malice It express unlawfully is take able when there is manifested a deliberate intention away implied, the life of a It fellow-creature. is when no consider provocation appears, killing attending or when the circumstances malignant heart. show an abandoned *5 not con- likelihood, in all will, circumstances claimed these be served purpose will no useful upon retrial, prevail tinue time. this by comment on his contentiоn, that comments third Defendant’s proscrip fall within the testify in his own behalf failure and prohibited by the Fifth against self-incrimination tion taken. Re appears to be well now Amendments, Fourteenth Court, filed dur States of the United cent decisions (Malloy in accord appeal, are ing of the instant pendency 653]), 1489, 12 L.Ed.2d even Hogan, S.Ct. v. in those situations 378 U.S. [84 confinedwithin the comments are where the California of article I of the in section 13 established limits S.Ct. California, 380 (Griffin U.S. Constitution 14 L.Ed.2d question whether the error further 106]). The meaning of article prejudicial section within was 4% Connecticut, 375 Fahy U.S. of our state Constitution VI requires that reason for 229, 11 L.Ed.2d and S.Ct. (see People v. this time resolved at reversal, need not be 529]) Cal.Rptr. 649, 402 P.2d Bostick, 62 independent reasons for the must be reversed as the error will not recur presumably the heretofore mentioned any on retrial. error remaining contention, reversible Defendant’s in- objections, of certain admission, over from the resulted he was by prior to the time criminating him statements made rights in connec- as to his represented by advised counsel or under circumstances requires exposition of the therewith, tion made. the statements were Following crash into the roadblock on March 15 de- placed for injuries, body and, fendant was treated his in a cast arrest, hospital while under confined to a detentiоn room. returned March 21 The indictment was on and defendant was arraigned appointed on March 1963. Counsel was on that latter date. by Three statements were made defendant and recorded arraignment appointment prior to his and the of counsel. first, made on March 18 while was confined given hospital, was a detailed statement solicited the to the district attorney. statement, This which was recorded record, in shorthand and later transcribed and read into the unequivocal compel recital which would was an finding of acts guilt charged. as to each of the crimes Defendant right rights gen- or of not advised of his counsel his was erally than an аdmonition to the effect that he could other expect leniency no and that his statements could be used against him. attorney A was second statement taken district appointment of counsel date. March before on that made was in This statement was while defendant an ambulance waiting brought arraignment. for into the courthouse Again the record shows that defendant not advised rights any of his or otherwise admonished manner. The expanded upon con- generally the earlier statement statement cerning transpired at which had station the events service before, in Lodi. the statement was recorded in shorthand, As into transcribed and read thе record at the trial. *6 given reporter The third was to a television statement news
who, prior
interview, sought
permission
to the
and obtained
exercising custody
from the officer
over
while he
defendant
hospital.
granting
was
request
to the
Other than
the initial
confined
police
participate
the
in
for the interview
did not
might
manner
While
to con-
whatever.
the statement
be said
general acknowledgment
guilt,
of some
it did not
stitute
the
specifically relate
actions which constitute
defendant’s
charged.
motion
crimes
was recorded on a
interview
picture
by
reporter
a tele-
sound film which
used
the
as
was
objections,
to and
and,
item
over
wаs exhibited
vision news
by
jury.
heard
foregoing
In
occasions on which de-
addition to
three
form,'
and recorded in
fendant ’s
were solicited
some
statements
appointment of
other statements after the
defendant made
of trial
13th of
counsel
before the commencement
on the
and
August,
further
'were made to three
Such
statements
1963.
in
court-appointed alienists who interviewed
defendant
upon
psychiatric examinations
defendant’s
of their
course
'
(Pen.
1027.)
insanity.
Code,
guilty by
plea of
reason of
not
§
request
Although
had directed written
counsel
defendant’s
attorney that
notified
to the district
he be
and
court
examinations, the
were
times of the
interviews
of the
time
knowledge
Each
of counsel.
notification or
conducted without
People
testify
on the
psychiatrists,
by the
was called
of the
extensively as to
guilt
in each
was examined
phase, and
case
necessary mental
had the.
opinion
defendant
whether
capacity
his
being
killing
another human
premeditate of the indictment.
In
charged I and II
Counts
the times
cross-examination the ex-
on both
instances
some
direct
reply
opinion,
his
and in
to the basis for
as
pert was asked
of an
to statements
references
made
thereto
during
psychiatric
related
defendant had
nature which
objections
Specific
examinatiоn.
not
were
made
in-
these
general
stances,
experts’
but a
motion to
testimony
strike the
ground
that
was denied
the statements
merely
were
cumulative to his earlier statements to the district
attorney.
prior
opinion
The ease was tried
to our initial
People
(Cal.)
v. Dorado
requires that we reverse the statements, of other it neverthe- error, any, if the admission admissibility of the other appears comment as to the less may presumed that it While is indicated. statements attorney by the district will will solicited the statements retrial not nothing by People, we have said again be offered guilt admissibility determining on the aid the court reporter or to phasе made of statements psychiatrists. court-appointed in Dorado cannot gen decision be construed Our as a against prohibition the admission into eral evidence of in suspected criminating made one or accused of a statements prohibition upon prosecution therefor. The is crime directed suspect deny or an against procedures which accused due “ long comply methods used process ‘So as the with of law: standards, public police interest for process it is due during interroga encourage admissions confessions ’ ” supra, p. (People Dorado, 354, quot 62 Cal.2d at tion. v. 135, People Garner, ing 57 Cal.2d from v. 680].) 40, 367 P.2d prоcess Massiah, Escobedo, of due Thus denials present based on the fact that Dorado are not counsel was not incriminating suspect made statements, at time the but circumstances, a combination one of which was the Foremost of such of counsel. circumstances is absence the process interrogations police had “carried out eliciting incriminating (People statements. itself to lent supra, pp. Dorado, 353-354.) In Massiah the 62 Cal.2d required by the States United trial was introduced at defendant’s evidence there because agents incriminating had words, “which federal de- his own from him . . .’’in the absence of admoni- liberately elicited Stаtes, (Massiah supra, v. United 377 U.S. or counsel. tions Supreme Court held that in Escobedo the 206.) And carry process police out a of inter- here . . “where as incriminating eliciting state- itself rogations that lends constituting a circumstances together the other with ments” police dur- elicited “no statement process of due denial against him at a criminal may interrogation be used ing the 490-491.) supra, Illinois, 378 U.S. (Escobedo trial.” foregoing basis for the apparent from the It is is statements against use of prohibition of one’s a violation constitu which results action police due process. guaranteed by rights tional *8 noted the As we have statement made defendant wаy police interrogation reporter in no was the result appears wholly voluntary, and hence no reason for but was excluding it. upon showing In Massiah statements excluded were upon police prevailed partner in had the defendant’s engage crime to defendant a discussion of the accusations containing they automobile a radio device while sat police nearby. the conversation to officers transmitted permit us a conclusion The record case before does acting any respect private reporter on behalf that the regard agent prosecution. for In this we of or as an attaсh significance urged by special fact defendant no permission reporter had for the obtained interview exercising custody. police from complicity, Absent evidence of the officer defendant’s statement to the re- the admission of porter infringed right constitutional nor defeated no purpose recent decisions of the States fostered United and of this court. psychiatrists fall under the statements made to the Spencer (1965) post, in In rules announced this court re p. Cal.Rptr. 753, 406 P.2d We summarized 33]. Spencer ruling (1965) ante, pp. 351, v. Anderson Cal.Rptr. 763, 43], stating, 406 P.2d “We held Spencer court-appointed if most recent case . . that psychiatrist guilt may statements at the reveal defendant’s trial, protection defendant should be entitled to the of counsel psychiatric at the inYet, order to avoid the examination. disruption by court-appointed psy- psychiatric examinations safeguards chiatrists, that the we established certain to assure permit presence courts’ refusal to of defendant’s counsel during such an examination not involve a constitu- would deprivation. court-appointed tional psychiatrists Thus we stated permitted repeat should the defendant’s not be guilt specifically statements at the trial unless the defendant placed Moreover, trial his mental condition intо issue. judge jury psychiatrist’s testi- should instruct mony guilt at the defendant’s state- trial which disclosed purpose exposing only ments should for be considered opinion psychiatrist the information based his which the and not as of the statements.” evidence the truth specifically In raised the case, the instant premeditate and deliberate. capacity issue his mental psychiatrists court-appointed properly testify Hence the could *9 bearing as to order to describe their defendant’s statements upon failing In jury his mental to condition. instruct the psychiatrists’ disclosures of defendant’s statements may the not be considered as evidence of truth of state- the сourt, however, provide safeguards the did ments, not the necessary justify constitutionally to the admission of the Accordingly, in psychiatrists’ testimony. limiting absence of the the testimony court-appointed of instruction, the the given psychiatrists as to defendant’s statements the absence right to of counsel defendant’s constitutional counsel. violated prejudicial that state- We conclude the attorney made the to the district ments improperly March were admitted March 18 and give proper that failure to the into evidence and the court’s court-appointed psychia- limiting rendered the instruction concerning testimony defendant’s statement inаdmis- trists’ judgment to each Accordingly, the reversed as count. is sible. Tobriner, J., concurred. Traynor, J., Peters, J., and C. Dissenting. years and four SCHAUER, J.,* One hundred every capital cases, almost is ago ease this court ruled: “In grounds' complain this, the of even when appealed. not We do for the present plausible reason reversal appeal of do responsibility natural of judgment, since a sense the being of a fellow is confided to hands the life counsel whose every legal exhaust resource may well influence him to penalty it of the law. But still from the last save his client is enforced, so as render important the laws should be that guilty of their possible as conviction those as the certain part Judges every disposition of the on the infraction. With to something frequently fails, is this, because do the effort arbitrary or technical or which contravenes some done right omitted power eases prisoner. no in criminal of the Courts merely Judges persuaded judgment, because the are affirm right. judgment any case is If that merits the injuri- presumed proceeding, it is intervenes in error generally prisoner, he is entitled to ous to the privilege for it his constitutional to stand judgment, of the is yet legal rights, very hap- . . . And upon his it often strict pens exception him taken serves no other that the matter sitting assign- under *Retired Associate Justice of ment the Chairman of Judicial Council. justice.” (People purpose (1861) than to defeat v. Williams 187, 193-194.) Today's majority pre- decision Cal. reaches cisely which years same result in the would have reached been (in ago. 1911) Yet meantime of California preclude such technical order reversals added section VI of our to article Constitution.1 4% present form, provides: VI, its article section In “No 4% aside, case, shall be trial granted, set new unless, . . . after an examination of the entire includ cause, ing evidence, opinion the court shall be complained miscarriage justice. error of has in a resulted carefully This court heretofore defined circumstances “ tenably under it could find there had mis been a justice.” carriage of In People (1956) v. Watson 46 Cal.2d 818, page ‘miscarriage P.2d we held “a justice’ only should be declared when court, ‘after cause, including reasonably examination of entire evidence,’ is *10 ‘opinion’ of it probable the is that a result appealing party more to the favorable would have been reached in the absence of error.” the undisputed The facts of at this case bench as stated the “ majority 15, are as On follows: March 1963, . . defendant . City entered a service in station of Lodi, the shot a customer leg, in Dodge the and off drove with a belonging automobile Highway station owner. The California was Patrol immediately notified, and Officer Charles Sorensen answered pursued the He accomplice call. Highway defendant and his on speeds 12 per During at of 85 90 to miles hour. the chase de- passing at opposite fendant shot automobiles in direction, the apparently hoping thereby accident to cause an and halt pursuit. Dodge, Sorensen’s In Rio Vista defendant crashed the accomplice through gate and with his fled on foot and around the side of vacant house. Sorensen followed Officer on foot passed through gate and and around as he of corner fired at range, killing defendant two shots close house instantly. officer 10,1911, "any adopted 1As to October section. stopping limited criminal 4% salutary purely case.” grounds in Its effect reversals on technical noteworthy apply was so that it in 1914 to civil was amended appeals as well as criminal. complete For a more account of the reasons for action elec subsequent retrogression in full
torate cisional and the near de circle in law, (1963) People (dissenting v. see Modesto 59 722 Cal.2d opinion p. seq. 33]); People at 736 et 382 P.2d v. (1861) 187, 194; People (1964) Williams 164 18 61 Cal. Hines Cal.2d (dissenting opinion pp. 398]). Cal.Rptr. 622, 178-179 P.2d pistol procured then the officer’s and with his “Defendаnt High- accomplice patrol ear and continued west took the on Humphrey way Deputy others, having 12. Sheriff Hale and high- up a road of across the alerted, been set block vehicles deliberately patrol speed way. drove car at a Defendant per in excess 100 miles hour into the estimated to been causing blocking road, Humphrey.” the death of vehicles majority question that “defendant does not The note sufficiency support the evidence to the verdict as to each however, argued, It is . . court of the crimes. ... . giving (2) denying (1) instructions, a motion erred ... commenting allowing change venue, (3) in and . . for a testify ., (4) . . comment defendаnt’s failure receiving . . . statements made into evidence instructing allowing ., (5) . . and and evi- concerning parole. penalty phase, . . . ... dence. Upon appear relatively inconsequential what me be ...” constitutionally untenable) grounds, as hereinafter (hence, majority particularized, the the trial court’s reverse (death) fixing penalty murder both as to the as to each and as to adjudication guilt. say state, forth- majority that “the with commendable proceedings rightness, that the the rules concedes contravened People (1964) by this court in Morse announced later Cal.Rptr. 201, P.2d and Cal.2d (1964) prejudicial. (See v. Hines error was 398].) Cal.Rptr. 622, 390 P.2d A reversal on 164 [37 quoted majority penalty phase is indicated. The state- thus inadequate possibly in detail and appears to to be ment me misunderstanding. reading of subject A mere Morse authority is not for the reversal that Morse Hines reveals pointed (see length espe- out Morse court at Hines. In Cal.2d) combination of facts and cially pp. 652-653 expressly affirmatively found it from which circumstances cause, including 653) of the entire *11 (p. : “after examination opinion reasonably proba- the that it is evidence, we are of the penalty defendant as to more favorable to ble that result error.” There been reached absence would have finding сontrast to in In marked Morse is no such Hines. “ says (p. Cal.2d) 170 in Hines of 61 : Our court case [lb] into a determination of whether inquiry here devolves sole from error, is substantial deviation stand- that substantial Morse, occurred. forth in has We have set ards established of the errors under the Morse test. That incidents above seriously questioned. were cannot be deviations substantial
383 prejudicial in the in- that error occurred hold We therefore (Italics Obviously penalty added.) Hines is trial.” stant My gravity as departure Morse. views gross from definitively Hines are stated at of the constitutional error in pages 175 to 182 61 Cal.2d. my conceding in in “that the state is error In belief
proceedings contravened the rules later announced this Morse, People Cal.Rptr. 201, in 631 court v. Cal.2d [36 33], prejudicial.” and that the I 388 P.2d error was am majority justices opinion furthermore of the are in asserting prejudicial. (See that “the error was error People Hines, Cal.Rptr. 622, Cal.2d 390 P.2d [37 phase 398].) penalty A on the is thus indicated.” majority transgress the circumstances here also what to both constitutionally decisionally I have understood be stating established law “the must be reversed guilt phase reception on the as well due into evidence clearly scope statements within the of those People denounced court in later this Dorado, 62 Cal.2d Cal.Rptr. 169, 398 P.2d 361].” “incriminating Such reference statements . . within scope of those later denounced” in majority the Dorado opinion, is irrelevant to the case at bench. It is (if irrelevant apply we California’s Constitution, VI, art. 4½) because § the statements here improperly held been received significant nothing add eyewitness testimony and the real jority opinion evidence circumstances and ultimate facts. The ma
concedes “there is more than sufficient direct evidence as to each the crimes of which defendant was convicted aside from improperly the statements received into evidence.” The stolen automobile, obviously lethal acts of his use of automobile, the dead bodies victims, need no confession or admission from defend killings ant demonstrate that coldly were calculated crimes, perpetrated in deliberate law, defiance destroy intended to gave the brave officerswho their lives in support of the law. As Mr. aptly Justice Burke so states in (62 his dissent to 365) Dorado Cal.2d at the United States p. Escobedo (1964) v. Illinois U.S. 1758, 12 S.Ct. L.Ed.2d Dorado assert edly relies, “stresses that weighed each case must in rela totality tion to the of its own circumstances.” Furthermore, Justice Burke’s dissent in v. Schader (1965) 733-735 401 P.2d *12 holding Dorado, of pertinently declares: “Under confessions, of such statements and improper admission placed voluntarily given, is in the same to have been found involuntary and category of an confession the admission as jury prejudicial is as a matter upon the deemed effect holding in I believe this Dorado compelling reversal. of-law prejudice from and that the which results been error have voluntary not improperly received confession is of an the use necessarily as that of the same from the of involun- held result use States has United Although admission of . in evidence tary . . confession. compel was held to under voluntary confession a present Illinois, particular circumstances Escobedo v. Dorado, ., . . and L.Ed.2d S.Ct. 977] U.S. voluntary equated confessions should be not follow
it does irrespective involuntary of confessions admissions with particular case." of the the circumstance pointed further out his dissent As Burke Schader Justice wording (p. Cal.2d) : of “The exact the California significant: (art. I, criminal §13) itself is ‘In Constitution person compelled shall be . . . prosecutions, . . . . . [no] against himself; (Italics added.) . . .’ to be witness is of the compulsory voluntary; “The the antithesis voluntary compulsion. Surely negates all the of Cali- fornia—including police possess right officers—should cor- voluntary of an to have a confession relative accused judge jury. importantly crime But considered more statements of here—where the defendant nothing consequence certainty quality or or add disregard guilt—to direct quantum of his all and overwhelm- ing evidence, jury and hold that mere fact heard result must in automatic reversal of the un- his statements doubtedly just judgment conviction, appears to me to constitutionally impermissible declare rule of law and to miscarriage justice. effect a lamentable setting penalty is, in my view, of a death an even aside responsibility than initial imposition more solemn of it. penalty grave Imposition taking enough; contemplates it of the is guilty transgressor; the life of the but that is order thereby poten- to deter criminals and save other thе lives Setting inevitably aside tial such a victims. tends (cid:127) thereby to weaken the deterrent effect of the law- and encourage Regrettably, more murders of innocent victims. judgments in cases—particularly criminal reversals of if respect for the too often to weaken all on the merits—tend judicial process. and the law as Escobedo in the case at bench Weighing the entire record this state weigh it—and us as Constitution would weigh cannot find requires it—I VI, 4½) 4 and us to (art. §§ doubting that this defendant ground in fact in law for *13 Highway Patrol Officer deliberately murdered California Deputy Sheriff murdered or that he likewise Sorensen, Charles crimes of the other Humphrey, committed or he Hаle impaneled jury. do by duly Nor guilty he found which was ac doubting defendant was for I tenable basis find believing for process law, of or due corded full measure of justice the trial court. any miscarriage occurred in is the re miscarriage justice I find in this ease only versal this court. court in their judgments the trial
I affirm the would entirety. concurred. J.,
Burke, dissent- Sehauer’s Mr. Justice I concur McCOMB, J. opinion. ing recognized Cali that is type error no I aware am “necessarily being §4½) as (art. VI, fornia’s Constitution prejudicial” per requiring automatically sense of judgment. has Our court superior court of a mitting reversal In cases reversal. ground for automatic create power to no adjudicated—cer pеnalty has been death solemn wherein consequences are other than when imperatively tainly less no always involve a con must appeal question on at stake—the including the record, relativity on the entire based clusion evidence. cheapening give the semblance its court should This that a can implication be auto- even function matic. important the defendant because his life The issue is people important to the of California more stake; it is is at every day every night, at stake lives are because their poten- streets, homes, unless jobs, in their their They of the law. will fear fear are deterred tial killers fidelity of its enforcement. proportion only the law