*1 No. 8309. Third Dist. Feb. [Crim. 1979.] PEOPLE,
THE Plaintiff and Respondent, al.,
JOSEPH MICHAEL REMIRO et Defendants and Appellants.
Counsel Turner, Garbolino,
Richard K. James D. under appointments Court of Defendants Alan V. Pineschi and Katherine Mader for Appeal, and Appellants. General, Jack R.
Evelle J. George Deukmejian, Attorneys Younger, General, Winkler, Philibosian, H. Chief Assistant Robert Attorneys General, Just, Joel Arnold O. Assistant Charles P. E. Overoye, Attorney Jensen, Keller, General, Lowell and Eddie T. D. Carey Attorneys Deputy Meehan, John Assistant District District J. Attorney, Attorney, Plaintiff and Respondent.
Opinion PUGLIA, P. J.Defendants murder convicted first degree Oakland School Marcus Foster and attempted Superintendent murder of Foster’s Robert Blackburn. The trial deputy superintendent was the record is are voluminous and contentions numerous. lengthy, For affirm as to reasons which will we shall appear, judgment reverse defendant Remiro and as to defendant Little.
A of facts overall context for the discussion. brief will summary provide with will be set Additional facts forth as necessary conjunction treatment of the several contentions. separate 6, 1973,
In Marcus November Superintendent early evening he from his office to killed ambush as walked Foster was shot and from his automobile after school board meeting. Deputy superintendent time, Blackburn, Robert who was with Foster seriously Bullets removed from Foster’s had wounded blast. body shotgun with The authorities out in and filled been hollowed cyanide. tip no bullets. made mention use cyanide public *7 station area and a radio
On November several bay newspapers the so-called with identical documents received originate purporting a of a document bore Liberation (SLA). drawing Army Symbionese SLA; letters entitled “Com- below were the seven-headed cobra which 1,” No. the document to order the munique execution of purported Foster and Blackburn bullets and at by cyanide inveighed length against, others, Board, the Oakland School the “fascist class” and among ruling the fascist of Amerika government [sic].”
In 10, 1974, a Chevrolet van driven early morning January by defendant Little in which defendant Remiro was a passenger stopped a officer in Concord. In the confronta- investigation by police ensuing tion, Remiro fired several shots the officer from a .380 automatic pistol. Remiro immediate but Little was arrested and the escaped apprehension van seized. Inside the van were SLA documents. Later that morning Remiro was arrested. He was armed with a Walther .380 automatic pistol. This was established at trial as the which fired five of pistol gun bullets removed from Foster’s and .380 shells found body eight expended at the murder scene. One of the bullets removed from Foster’s body another bullet and shell found at the murder scene were empty possibly fired from a .38 caliber Rossi revolver owned Little. 10, 1974, firemen a fire of early
.In evening January extinguished at a house near Concord close to the site where Little incendiary origin and Remiro had been earlier that in the Chevrolet van. stopped morning firearms, the items discovered in the Concord house were Among ammunition, shells which had been fired from the .380 Walther empty Rossi, cocktails, and the .38 caliber bombs and Molotov several SLA pipe No. 1 from “communiques” (including original Communique which the received the news media had been copies duplicated), list names and addresses of the five news typewritten containing sent, to which No. 1 had been a hand-drawn organizations Communique scene, of the Foster ambush-murder Oakland School District map out, from which Foster’s had been tom publications photograph document the time and date of the school board containing meeting killed, which Foster had been bullets similar to those following cyanide made, which killed and the with Foster materials which and a they shell which had been fired from or at least worked shotgun through same which wounded Blackburn. of both defend- shotgun Fingerprints ants and of avowed SLA DeFreeze, members Donald Patricia “Mis- moon” were found on various documents Soltysik, Nancy Ling Perry seized in the house. A wallet identification containing personal papers Little and other his name were found in a bedroom of the papers bearing Concord house. *8 Chevrolet van to
The N. G. the maiden name of registered Ling, Both defendants had been observed on the Perry. Nancy Ling working The house van in the Concord house. had been rented to driveway and Little the aliases and DeVoto. Nancy Ling Perry using Nancy George Both defendants had been seen around the property during past several months. Each of them carried house. keys with other
Both defendants were shown to have been associated DeFreeze, two avowed SLA members years, including during past Atwood, Hall and Willie Wolfe. The Camilla Soltysik, Perry, Angela 1974 when the house from which individuals latter six May perished in a battle fire and was were Los gun caught engaging Angeles police they house, incinerated. Found in the ashes of the Los Angeles completely outstretched hand of the dead was Little’s next to the Nancy Ling Perry, revolver; rifles, Rossi also found were a number of sawed-off .38 caliber of which had earlier barrels been recovered from the separated house, Concord which Remiro had in Oakland in shotgun purchased and various other and ammunition. Several of the guns weapons the Los found in ruins had fired some of the shells Angeles expended which had been found in the Concord house. that even defendants not prosecutor sought prove though may men,
have been the of a members criminal combination trigger they which and executed the of Foster and Blackburn as planned shootings war, of a in the words of the SLA part larger conspiracy wage manifesto, Government, on the “Fascist United States The Facist [sic] Class” and their means of terroristic acts Capitalist supporters by murder and members of officials including prominent kidnapping violent community, promoting thereby fomenting upheaval revolutionary change. 46 court defendant testified. a trial which consumed
Neither Following 137 different witnesses were over 71 calendar in which days days spread evidence, defendants were each and over 500 exhibits offered into called murder. of first murder and convicted degree attempted
I. Gainer Instruction far the most troublesome numerous contentions raised by By an instruction to the and later defendants involves given deliberating jury Court Gainer Cal.3d disapproved by Supreme 861, 566 P.2d decided more than two after 997], years *9 The instruction is referred as the trial in this case. frequently in which it or the “Allen” instruction after case “dynamite charge” L.Ed. States 164 U.S. was first Allen United approved, 528, 17 S.Ct. 154], on 1975. After submitted to the
This case was juiy May having a.m., at 9 reconvened in the courtroom deliberated days, jury took June place: following proceedings are their The record reflect “The Court: jurors present may are in court. accused and the two persons present places, proper Foreman, that the had to me “Mr. figure yesterday juiy you reported course, it is to admonish and once I—of ballotted my duty you [sic]; again Court, else other than the are as well as counsel and that anyone juiy, leans, whether for innocence or for to know how the not entitled jury verdicts. this case the Court but in eight gave you possible guilt, “First, has voted on more than I’d like to know whether or not jury one of those? Honor, verdicts, has Your
“Foreman: eight possible jury two and two. rejected adopted words, In other a unanimous as to have
“The Court: you opinion two, is correct? correct, That Your Honor.
“Foreman: is “The Court: And two have is that true? you rejected, correct.- “Foreman: That is vote on Can tell me this: Do these that
“The Court: Okay. you you to one or both of the defendants? pertain Honor,— reached, Your The verdicts which the has
“Foreman: jury I want to know know which ones. I don’t want to “The Court: just whether— concern a defendant. Both
“Foreman: single to one of the Those that have resolved I see. “The Court: pertain you defendants, that correct? is correct, That is Your Honor.
“Foreman: And, it, to the other I take other two tfye “The Court: pertain [sic] defendant? correct, Honor, Your the most recent That is Your Honor.
“Foreman: of three to was taken reflected numerical count ballot which yesterday nine. *10 there a
“I the is of the be believe may potential jury opinion or instruction the we would further and guidance impasse, appreciate any want to Court give. might Well, I’m to a that has been to read statement
“The going you Court: cases, to be to in other and of assistance may you, helpful juries possibly and it is as follows:...” counsel, read contain- the court then an instruction
Without consulting both the features condemned in ing objectionable expressly Gainer, i.e., to to their reevaluate admonition minority jurors positions at in of the views of the and an assertion that the case some light majority time decided.1 must be a cases “In 1The text of the instruction as follows: given large proportion complete
and, cases, in absolute cannot be attained or all certainty perhaps, strictly speaking, expected. must, verdict, course, a own the verdict to which be his juror “Although agrees convictions, or her of his and not in the conclusion of his acquiescence result fellows, own a mere result, twelve a unanimous must examine in order to minds to yet bring you candor, with a deference to the submitted to and with and questions proper regard you of each other. opinions decided, that the case time be that future are selected “You should consider must some you be in the same selected, and from the from which must manner same source any jury ever men and there is no reason to the case will be to twelve submitted suppose it, or women more more decide or that more impartial, more or to intelligent, competent clearer this view it is or evidence will be on the one side or the other. And with produced case, if do so. to decide the can your duty you conscientiously “In the law the burden of order to make a decision more imposes proof practicable, a to a moral and beyond State to establish of their case upon reasonable every part certainty doubt, of it and the me—and if in any you State California—pardon part doubt, benefit of and must be are left in the defendant is entitled to the the doubt acquitted. each other’s to respect opinions, “But conferring together, you ought pay proper arguments. to be convinced to each other’s and listen with a disposition “And, conviction, hand, are number of for your the other if much of the larger panel her in his or own mind is reasonable consider whether a doubt a one, should dissenting juror men or women many have equally which no the minds upon makes impression honest, herself, the same evidence with and to heard himself or equally intelligent at the truth and under the sanction and desire to arrive equal with the same attention the same oath. hand, ask ought seriously “On the if a are for majority acquittal, minority other not to the correctness of not and doubt ought themselves whether they may reasonably associated, those with are which is not concurred in most of whom they judgment evidence which fails to conviction carry and distrust the the minds of their fellows. or of that weight sufficiency behind coming “This is as a rationale suggestion theory jurors given you . or the other. . .” to decision one way At 6:30 then resumed Deliberations extending throughout day. After returned to the courtroom. some on June jury p.m. instructions, discussion, two CALJIC Nos. 1.00 and the court reread indicated that the instructions were sufficient 17.40.2 The foreman At retired. resume deliberations. 6:37 asked to p.m., jurors They were to the at 7:04 at which time verdicts returned court guilty p.m. murder and rendered each defendant first degree attempted against 8, 1975; were June those The verdicts Remiro dated murder. against was read in its June 1975. Each verdict Little were dated against each and the affirming individually polled, entirety jurors her own. verdicts as his or *11 31, 1977,
On
the
Court decided
August
Supreme
People
Gainer,
“as a
declared rule of criminal
supra, holding
judicially
proce
dure”
Cal.3d at
that the
of an
(19
852)
instruction
p.
giving
Allen-type
to reexamine their
views in
encouraging minority jurors
independent
error,
the
of
constitutes
and because of the
majority position
light
difficulties inherent
in
to ascertain from a
record
attempting
given
occur,
whether
did in fact
the error is deemed
be
reversible
prejudice
Gainer,
se.
19 Cal.3d at
The Gainer
854-855.)
per
supra,
pp.
court also held that
that the case at some time must be
informing
jury
the law and therefore
decided misstates
constitutes error (at
852),
p.
Furthermore,
not
se
albeit
Gainer decision is
855).
per
prejudicial (p.
date,
31,
not
made
to all cases
final as of its
applicable
yet
August
We are of
to follow the
as we
853).
course bound
Gainer decision
are
(p.
Sales,
(Auto
all other decisions of our
Court.
Inc. v.
Supreme
Equity
450,
321,
Court
57 Cal.2d
It is of course for Remiro that the as counsel possible, speculates, jury deliberations on the Remiro verdicts after the Allen instruction reopened however, theoretical finds no given; only, possibility, support the record. If it deliberations must of have been reopened, necessity *12 8th, June Yet on 9th. the Remiro verdicts were dated June and that date was affirmed in court each The was instructed to date open by juror. jury the verdicts as soon as and we must that official agreed upon presume Code, has been (Evid. 664). § duty performed
We that our of the vel non of Gainer on emphasize analysis impact Remiro’s does not constitute an “to the appeal gauge attempt precise effect” Cal.3d at (19 on the of the erroneous 854) admonition to p. jury an exercise forbidden to courts the Gainer minority jurors, by appellate Rather, decision demonstrates, find, the record 855). and we so that (p. effect, erroneous instruction could have had no or prejudicial
otherwise, on the Remiro because the time it was appeal simply given had its deliberations and arrived verdicts of jury completed guilty as to Remiro.
Defendant Little’s situation is from that of sufficiently distinguishable decision, that he will of the Gainer Remiro the benefit fortuitously reap it but because has ordained it. For not because chance justice requires our of criminal has been noted less for many years, system justice for decisions often than Judicial instability. abruptly predictability them with new discard rules. long-established procedures replace which were these new rules are then to cases Typically, applied appeal earlier tried in reliance the then but now discredited rule. upon existing words, are to the benefit of the defendant and the rules
In other changed has been The after the the detriment game played. none is the ex facto creation of error where inevitable consequence post exist, and the unfortunate reversal of convictions otherwise would many affirmed. been These occurrences that would otherwise have assuredly cost in confidence in the exact a considerable loss public judicial drain on not to mention economic funds very tangible public system, from the retrial of these cases. And confidence is even resulting public events render retrial or further eroded when intervening impossible futile. instant case an all too common retroactive example provides trial of the of a fashioned rule announced after judicially
application however, Here, trial in 1975. The inordinate case. length brief and the time trial consequent required by parties of this It is record on have voluminous delayed finality judgment. appeal had involved a than a little ironic that if this case more typical felony or conviction, a run-of-the-mill case of burglary, robbery example, concluded and the theft, if would have been judgment any, appeal, decided and final before Gainer was would have been all likelihood from its retroactive would have been insulated therefore sweep. of the Gainer decision
We do not wisdom substantively, challenge to effect in the or the courts law duty appropriate changes right however, We do law decision. natural respectfully suggest, by judicial Little would not be affronted the conviction and under punishment established, then since he was tried under sanctioned this fairly judgment, to effect it must be Surely possible orderly change judicial procedures. *13 the attendant that has wreaked without procedures carnage retroactivity decades, over the two in which the past period judicial landscape, so cluttered much as a has been with giant resembling nothing junkyard, of convictions won but sacrificed to the fetish of our the wreckage fairly courts for wisdom. The tarnished of the after-acquired highest image is in attributable to the destabiliz- socially judiciary today significant part of convictions for failure to effect of wholesale reversals criminal ing with that did not even exist at the time of trial. rules Certainly comply for the of a maintenance system largely responsible public acceptance no than the of individual is less rights rights important protection themselves. trials were infected with what we now in California whose others
Many and are still under error” have been to be “Gainer know being punished was decided. final before Gainer More valid which became judgments over, of the federal other states and most system parts judicial many Gainer, the Allen instruction now supra, even type approve Clark, will That Little J.)). Cal.3d at 860 (dis. escape opn. p. conviction and under this at least altogether perhaps punishment with random luck. with than has less to do therefore justice attracted as this case has Inasmuch great public understandably concern, in some detail we have taken why interest explain pains We now must be reversed. of one of the defendants the conviction to that distasteful task. proceed error General’s claim of invited
We predicated reject Attorney counsel that a written consent of Little’s copy express upon the trial court be instruction Allen jury by provided already given after the came room. Counsel’s consent take into immediately jury counsel, instruction to the read the Allen without trial judge, consulting was error (see known that the instruction Even if counsel had jury. no
Gainer, cited he had thereat), and cases opportunity p. 842, fn. the time counsel was read 2). before the instruction By (p. object for the it the instruction to a written if he jury was asked copy objected Moreover, the had been taken. the action late to too already object; that counsel’s assent or even show record does not suggest affirmatively of tactics. a conscious choice manifested the Allen the error in further contends that giving
Respondent later admonition to the court’s was rendered harmless instruction it was not because not to surrender opinion merely independent jurors instructed It true that the trial is judge shared majority jurors. ante, fn. less than an hour 820) CALJIC No. 17.40 (see terms p. returned, as he had earlier so instructed
before the verdicts were just Thus, received an deliberations. commenced its before the jury jury erroneous to the por instruction contradictory prejudicially essentially latter was and after the instruction both before tions of the Allen given. between from the close to infer
We are proximity primarily urged curative instruction the second the verdicts and return of *14 into the deliberations introduced considerations impermissible We decline to were neutralized. instruction indulge suggested Allen it is however, court inference, as the Gainer because recognized, effect” record “to on an precise gauge appellate impossible on the erroneous instruction Gainer, 854) 19 Cal.3d at p. supra, was not cannot assume improperly we jury Accordingly, jury. instruction in Allen its deliberations as to influenced Little. For reasons, Little must be these reversed. judgment against Suppress
II. Motion Evidence all defendants In a days, sought suppress hearing lasting pretrial were accosted detention after as a result of their obtained they evidence Concord house and van, in the all evidence seized in the Chevrolet Their in a search. removed from their certain evidence booking persons were denied. motions 10, 1974, Concord Police
At about 1:30 a.m. January Sergeant car a residential his unmarked David police through driving Duge Chevrolet van he observed slowly reddish-orange neighborhood; the intersection and at a stop stop sign, proceed through approach at about 10 to 15 miles hour in a 25-mile hour continue slowly per per zone. at a distance as the van traveled in a circle followed Duge slowly area for the had worked the Duge past throughout neighborhood. and was with local traffic He knew that on months familiar eight patterns. on the street at this hour were usually purposefully weeknights people headed home from a shift at work. also knew that a swing Duge large number of residential and automobile and thefts had been burglaries He knew were often in the vans used in neighborhood. reported was familiar with vehicles which the area Duge frequented burglaries. him; were van was unfamiliar to its slow and circular route and this speed in for a or theft. of a “casing” preparation burglary suggestive operation the van had traveled full circle and reached when point Accordingly, it, over. noticed the vehicle at which he had first Duge pulled for his uniform, the driver and asked operator’s approached Duge, driver, Little, a California driver’s license tendered license. bearing address; an he asked James Scalise” and Oakland the name “Robert why to talk to Little about his he wanted he was stopped. Duge replied being no The officer then asked the Little reply. driving; gave suspicious identification; Remiro, a driver’s for some Remiro produced passenger, Little told license his own name and Oakland address. Sgt. bearing he and Remiro were for a friend the area. When looking Duge Little muttered asked for the friend’s identity, something unintelligible; for “DeVoto” on asked he when they looking again replied Court. Defendants had driven Sutherland Court as Sutherland just past lost, them. to be neither was following Although claiming Duge defendant asked the officer for assistance. *15 on ran check to his car where he a warrant returned
Duge patrol Remiro, had the “Scalise” and the check and cross-directory dispatcher minutes the for a on Sutherland Court. Within DeVoto dispatcher and the under name no warrants either there were outstanding reported Court. no DeVoto Sutherland showed directory and a rate of theft Concord burglary knew that experiences high
Duge then flee back in the suburbs and who “hit” committed out-of-towners ad- with out-of-town like Oakland. Confronted urban areas to large Court, the and on Sutherland dresses, absence of a DeVoto the apparent him, decided to talk to the known to other information passenger. Duge vehicle, on the window He the side tapped approached passenger talk to Remiro out so he could him. and asked Remiro stepped step out. cover unit not arrived feared for his because his had safety yet
Duge he at that and was outnumbered least one with the person possibility asked more were from his view in the van. concealed Duge Consequently, frisk Remiro if advised him that he was he had and any weapons going on his him. Remiro back and his jacket, revealing stepped pulled open as the handle an automatic a right hip Duge recognized pistol. bulge cover, As Remiro two shots at returned the ran for fired him. Duge Duge fled he fired one fire and shot at two more As Remiro on foot times. from view.
more shot at van speeded away Duge. disappeared call for radio transmitted emergency help. Duge thereafter, van a block or arrived the
As Officer Lee shortly reappeared at Little officers the van arrested defendant so The two away. stopped view a out and Lee observed Little handgun plain pointed gunpoint. the door on cover. Lee the van on the
inside cargo engine opened none. side, and discovered looked inside for passengers, passenger He looked arrived on the scene. Officer Breuker next Concord Police Unaware and saw the van from driver’s side into pistol. into the he looked checked the van Lee had
Officer occupants, already doors, a and took number position pictures showing cargo open the van for Breuker checked he then seized as evidence. which pistol he of the driver’s door evidence of the On additional step shooting. card In the a contained a social of “Scalise.”
found wallet which security he found brown rear bag, crimped engine compartment, paper Breuker observed stack of Inside top large papers; top. bag, Liberation unusual and the sheet bore an drawing “Symbionese legend, *16 loaded, a In a behind driver’s seat was brown bag fully paper Army.” Aware that a itself the rifle. Symbionese group calling break-apart credit for the of an Liberation had claimed assassination Oakland Army official, his observations to officer. Breuker his school reported superior later to was and searched a search The van sealed morning pursuant obtained on the information. warrant strength foregoing Among was a amount of seized under the warrant SLA literature. the items large was and Included in his Little taken to the station booked. police a set of on chain. Remiro was found was a hiding property eight keys on Court and was a vehicle Sutherland behind apprehended parked at 5:30 a.m. on 1974. On his Concord officers about January police was Walther automatic He a .380 transported person pistol. station, booked, a was removed from his and set keys person. police 10, 1974, arrived Costa firemen At 6:26 Contra p.m. County January a structural fire. house located at 1560 Sutherland Court to combat The fire was controlled at 6:29 p.m. that a was informed arrived at 6:31
Fire Spomer p.m. Captain Spomer house and that there had been found inside the can gasoline five-gallon for victims and He the house to look a fire. entered had been flash the house for ventilation as well as to identification up open occupants noted a of smoke. Inside due concentration Spomer strong heavy all to the had been and observed that the doors odor of hallway gasoline removed, a and fire to more thus draft spread facilitating permitting cocktails, He observed Molotov assort- arson. suspected quickly. Spomer floors, stacks of on the ed and ammunition weapons, papers elsewhere, literature on bedroom bathtub revolutionary drawer; identification, desk saw walls. Spomer open Searching 3,No. entitled he document “Communique inside observed Symbion- the execution of concerned ese Liberation communique Army.” Aware of shootout officers, wives, and others. their correctional van, in the of SLA materials and the Officer discovery involving Duge his the Concord Police findings. notified Department Spomer at 1560 arrived Tamborski of the Concord Police Department Captain advised of the 7:30 after Sutherland Court around being suspected p.m. entered the of the SLA material. Tamborski arson and the discovery bedrooms, arson. In one house investigate suspected the name of Russell Tamborski seized wallet and an bearing envelope in the house. noticed a aroma of Jack Little. Tamborski heavy gasoline *17 a minute or two after for his he exited entering. Fearing safety, outside the At that Tamborski was informed the house was point Concord He therefore informed the Contra Costa Sheriff’s limits. city of the arson. Between 7:30 and 8 Tamborski suspected p.m., Department the house a bomb and sheriff’s reentered squad accompanying personnel. was to look for evidence that
Tamborski’s stated reentering purpose to the shootout because at that arson relate point Duge might taken over the Contra Costa Sheriffs had been Depart- investigation house, a inside the Tamborski observed cardboard box ment. While He them out to the bomb two bombs. containing galvanized pipe pointed leader. squad In owner of 1560 Sutherland Court. October
Marion Homer was the Little as 1973, rented the house to and he had Nancy Ling Perry posing the rent on DeVoto” DeVoto. George “George paid Nancy the rent had been November 1973. At the time of fire paid through of 1974. February He informed
Horner arrived at the scene at was approximately p.m. that arson was From information several suspected. provided by neigh- scene, bors at the he determined that to the fire a laden just prior heavily automobile “bottomed on the out” from driveway sped premises tenant, after one of the threw into the passengers, something garage; later moments an blew out the room windows. explosion dining “Nancy DeVoto” had not been seen or heard from since the automobile’s abandoned, the house Horner took departure. Presuming possession Later that he oral and written consent for the premises. evening gave Contra Costa Sheriff’s office and the Oakland Police Department a search of conduct the premises. John of the Oakland Police inwas
Sergeant Agler Department charge Foster murder. In the of the Marcus hours investigation early incident learned Concord shooting January Agler was informed of fire at 1560 involving Sergeant Duge. Agler 10; he was told that SLA Sutherland Court at about January p.m., inside the house. At the scene he was information had been discovered substances and a that arson was and that informed explosive suspected officials and their families the lives of communique threatening prison the consent to search been found inside the house. was shown had Agler executed Homer. existed and that it believed that situation emergency
Although Agler house, he decided nonetheless to inside the delay necessary go the search until warrant could be After search procured. receiving ' items, warrant, and seized a number of went house Agler through in the have been described hereinbefore statement some which facts.
A. Detention of Defendants. *18 the of the van and the intrusiveness
Defendants challenge stop of involvement followed. reasonable the detention that suspicion “[A] a or even will detention” criminal temporary stop though activity justify (In re consistent with lawful C. are also the circumstances activity. Tony 366, 888, 957].) 582 P.2d Officer 21 894 Cal.3d (1978) Duge Cal.Rptr. [148 of the the involvement the because he van suspected possible stopped His in criminal supported suspicions objectively activity. occupants v. Court of the vehicle (Williams slow the Superior unusually speed the of the 709, 712 lateness 489]), 274 (1969) Cal.Rptr. Cal.App.2d [79 619, 622 16 v. (1971) Cal.Rptr. hour Cal.App.3d [94 (People Rosenfeld thefts vehicles in area from 380]), burglaries frequency van circuitous route and the 622), through p. (Rosenfeld, supra, to were “casing” suggesting Duge occupants neighborhood, v. Jackson 268 (1968) to some criminal area activity (People preparatory 306, 310 must be 40]). Strong given Cal.Rptr. weight Cal.App.2d [74 with the area v. Cowman the officer’s (People familiarity experience 109, 117-118 had 223 528]). (1963) Cal.Rptr. Duge Cal.App.2d [35 months; was for he familiar eight generally patroled neighborhood and did not the van which area as with vehicles frequented recognize 799, 273 (1969) v. Court of them Bramlette one (see Superior Cal.App.2d knew that vans were used he 532]); 804 commonly Cal.Rptr. [78 the van was stop legally burglars. investigative professional justified. bounds when extend-
An detention exceeds constitutional investigative is reasonable under the circumstances its ed what justified beyond 555, 559 v. initiation. Court (Willett (1969) Cal.App.3d [83 Superior can be for “No hard and fast rule formulated 22].) determining Cal.Rptr. a detention. The time the reasonableness elapsing during period further situation may justify detention-for-questioning dynamics omitted; search, Pender- detention, or arrest.” (Fn. further investigation, 155].) Court (1971) Cal.Rptr. [93 Superior graft he was with automobile His initial Duge suspected dealing burglars. confrontation with defendants his Both reasonably heightened suspicion. defendants had Oakland addresses fit the suggesting Duge they pattern area; of transient common to the Little’s identification of the predator “friend” for whom he was was the fact he was looking equivocal; looking Court, for Sutherland had driven it did but not the officer’s past request assistance further for At that provided grounds suspicion. point Duge verification and additional information from his radio justified seeking there were no warrants Remiro or dispatcher. Although outstanding “Scalise,” the fact that the residence of a DeVoto on Sutherland Court could not be verified warranted further At this inquiry. point detention had lasted no more than five minutes.
As detention, of a lawful officer part police may request from a vehicle if the circumstances warrant it suspect alight (People Mickelson 59 Cal.2d 380 P.2d is 658]). It warranted where the is officer’s involved. v. Nickles (1970) safety *19 986, 9 991-992 763].) inchoate and Cal.App.3d Cal.Rptr. [88 “[E]ven that it would be for the better officer’s unparticularized suspicion safety for the to is sufficient to such a because passenger alight justify request, out of a minimal vehicle is a intrusion merely stepping upon privacy, . .” v. 216, . Beal 44 221 (1974) (People 272].) Cal.App.3d [118 Cal.Rptr. felons,
In the
of
was
for his
presence
suspected
Duge
apprehensive
His concern was
the fact that he was alone and did
safety.
magnified
not know if there were other
concealed in the rear of the van.
people
circumstances,
Under all the
his decision to frisk Remiro for
weapons
Mickelson,
reasonable.
450-451;
v.
59
at
Cal.2d
supra,
pp.
People
Beal,
v.
44
221;
at
cf.
v.
Court
supra,
p.
People
Superior
186,
7
837,
Cal.3d
208
(Simon) (1972)
B. Prewarrant Search the Van. Police officers search vehicle without warrant where may they has or have reasonable cause believe it contraband evidence crime crime, is itself an of a because there or commission instrumentality no of constitutional is distinction between immediate significance a warrant search and the immobilization vehicle until is obtained. 426-429, 399 v. U.S. 48-52 L.Ed.2d
(Chambers
(1970)
Maroney
[26
Laursen
Cal.3d
90 S.Ct. 1975];
People
425,
When Breuker searched suspect area, in the scene, was at at an armed large suspect possibly custody in and the van had been involved was a in the van there gun pistol believe, did, as Breuker that the van It was therefore reasonable battle. of the crime as well as evidence contained more evidence helpful who was at and known be armed and of Remiro large apprehension Laursen, at Cal.3d 201). (see supra, p. dangerous search of the vehicle. circumstances a warrantless Moreover permitted identification of were not the and the wallet and “Scalise” Little’s gun view the search, of a both been in officer. seizing having plain product at 1560 Court. C. Search of the House Sutherland arrival the fire an hour and a half after the Within department house, and Police Court Fire Captain Sutherland Captain Spomer The fire had entered the house twice. had each Tamborski department under control minutes the fire was at 6:26 arrived brought Although p.m. thereafter, at the scene until 6:30 a unit remained following morning The entries of not case the fire had been extinguished. completely between 6:30 and Tamborski occurred p.m. Spomer Captains 10. January *20 a warrant to a I enter a structure without
Officials extinguish may been time after the blaze has a reasonable and remain fire may warrantless seizure and the cause thereof. The to investigate extinguished in the the fire or evidence while observation of suppress premises v. 436 U.S. (1978) determine cause are constitutional. its (Michigan Tyler 498-499, 486, v. 499, 98 S.Ct. Romero 1942]; L.Ed.2d 509-510 Superior [56 714, 719-720 266 430].) Court (1968) Cal.App.2d Cal.Rptr. [72 into the house were related to The entries of and Tamborski Spomer fire, and the neutralization of conditions therein its control and causes the fire, the the of Molotov rendered even more dangerous by e.g., presence These entries without a warrant were and other cocktails explosives. seize in inside the officers could items view once plain lawfully proper; contraband or evidence. Little’s wallet and the constituted that envelope house; his name constituted evidence occupancy bearing them. Tamborski was seizing accordingly justified
831 Tamborski’s the house second into sheriff’s entry accompanying was bomb other circumstances (see squad additionally justified by exigent 782, 787, 294, v. 298 87 Warden 387 U.S. L.Ed.2d S.Ct. (1967) Hayden [18 The and volatile known in the house bombs 1642]). presence a substances created situation that warrantless emergency justified Court, 716-717; (Romero v. entry Superior supra, Cal.App.2d pp. Court 382-383 (Peebles) (1970) Superior 803]). murder, Moreover Tamborski aware of Foster Remiro, with battle Little and SLA involvement in
Duge’s gun probable both violent incidents and association of Little and the SLA apparent with the Sutherland Court he had also been informed premises; contents of No. 3 the murder of correctional Communique threatening and their families. Thus Tamborski had reason to link the employees house with an criminal crimes, ongoing conspiracy involving gravest both and The actual existence of a such past prospective. conspiracy its murderous had been demonstrated objectives already beyond dispute.
The of the offense is a relevant factor in gravity determining whether an exists. Sirhan Cal.3d emergency 385, 497 P.2d Where circumstances 1121].) [102 Cal.Rptr. reasonably that criminal constitutes an justify apprehension conspiracy imminent threat to life “it is essential law enforcement officers be allowed to take fast action in their endeavors to such crimes.” combat (Ibid.) of evidence of such suspected presence conspiracy Sutherland Court house on the Tamborski’s justified premises entry the seizure of such evidence. (Ibid.) shows,
So far as record the house was not entered until again around a.m. on when of the Oakland Police January Sergeant Agler executed the search warrant for the Defend Department premises.
ant’s sole the warrant is that it is overbroad in objection purporting seizure, alia, authorize the inter material.” *21 “revolutionaiy All that is is reasonable in the in a required particularity description search warrant of to items be seized. v. Barthel 231 (1965) 827, 832 Here the were officers confront- 290].) Cal.Rptr. [42 ed with an such that inordinate well emergency delay might precipitate mortal Under the circumstances a more consequences. precise description of of some the items to seizure could not be subject required. reasonably cert, 1352, 1355, v. den., States Cir. 448 F.2d (United (2d 1971) Scharfman Moreover, 405 919 92 it U.S. L.Ed.2d S.Ct. would be 944].) [30 in unreasonable those circumstances to the officer delay require 832 in more extended where the situation demanded
engage investigation 6 901-902 Court Cal.3d (1972) alacrity (Halpin Superior [101 Mosk, 495 P.2d of Hence the (cone. J.)). generic opn. 1295] of materials” was “revolutionary description adequate. cited
Under circumstances the authorities defendants by imposing to be of more of items seized requirement particularized description a where under warrant First Amendment are involved are rights warrant, be this The materials to seized under revolutionary inapposite. ideas were not for the communicated nor although sought writings, they in connection with have had but for their literary they any properties may of value as a criminal (See evidentiary proof conspiracy. Stanford 476, 485, 431, 437, Texas U.S. fn. L.Ed.2d S.Ct. 506]; United States v. 448 F.2d 1354.) Scharfinan, supra, p. that the warrant invalid in the search was
Assuming arguendo respect defendants, the items seized urged by by Sgt. Agler including so-called materials” nevertheless of a “revolutionary product warrant, bases, lawful aside were other search. the search there Putting i.e., consent, which search and emergency upon Sgt. Agler’s Sutherland Court was premises justified.
1. Emergency. created the existence of a criminal conspiracy emergency imminent threat life been discussed an to human has constituting already into the as for Tamborski’s second premises. justification Captain entry into Foster murder and in was Sgt. Agler charge investigation SLA its activities more with the and than was acquainted intimately and Foster of Tamborski. the details killing Knowledge led aftermath him to contents of No. issued its SLA Communique to assassinate believe the in a SLA engaged conspiracy public officials.3 and its fascist the fascist Board of Education No. 1 notice on 3Communique “serve[d] Warrant on All Members school SLA issued a Death [of
supporters has] [the increase measures security an Oakland District plan and School Supporters” board] in the the murder of and vandalism. But schools to combat violence public Foster, as otherwise have been dismissed No. Communique might Superintendent However, social misfits. the stark bluster group pathetic puerile posturing and sinister concrete ominous aspect, posing it took on reality, especially light *22 and of the School Board death to member Oakland imminent threat of violent every It was a threat who as their in the be might regarded supporters. others community could not and the courts should not ignore. police he the time arrived at Sutherland Court on By January Sgt. Agler knew incident and involving Sgt. consequent shooting Duge one of arrest two whom was armed with a Walther he suspects, pistol; Foster; knew that such had killed had weapon Agler already compared scene at the shootout with those cartridge casings ejected Duge Foster recovered from scene murder and determined firing were the was also that same. aware impressions primers Agler pin had in the van SLA literature been found the Concord Chevy house; in the van he had the literature found with the Foster compared and observed the common use identical seven-headed communique cobras. that was informed devices had been found at the
Agler explosive house; Concord that the fire was of that a tenant of the incendiary origin; exited, had house thrown into the house and before objects departed just fire; it and that no one since had returned to the house. caught also knew that least three were involved Agler with suspects directly the Foster but involvement, two of SLA Little and killing only suspected Remiro, were then in was aware that an SLA custody. Agler communique the execution of correctional officials their families with threatening bullets had been found in house. cyanide the demonstrated of the SLA to out
Considering its capacity cany murderous belief that a in fact designs, Agler’s continuing conspiracy existed to additional murders was In our perpetrate reasonably grounded.
view the and his fellow officers even exigencies confronting Agler Sirhan, more than those described in v. where compelling supra, “the mere there be . . . evidence possibility might conspiracy [of assassinate in the house prominent political fully leaders] [defendant’s] Sirhan, warranted” a search house. 7 Cal.3d at supra, 739.) p.
2. Consent. scene,
After with firemen and at the observers Marion Homer talking took of his and consented to its search. had possession property Sgt. Agler been shown Homer’s written consent he before conducted the warrant search.
Abandoned is to search and seizure without a subject property warrant. United States (Abel U.S. L.Ed.2d *23 834 779,
687, v. 801 80 S.Ct. Smith 63 Cal.2d 683]; (1966) People Cal.Rptr. [48 382, A landlord to a 409 P.2d consent search of 222].) may premises 307, v. abandoned tenant (1969) (People Urfer of Here the owner not himself a law 60].) Cal.Rptr. premises, [79 official, that tenants had enforcement determined his abandoned determination was based on the belief that his This tenants had property. the house and This themselves fired absconded. permanently unlawfully from in turn was based information citizens who conclusion private at the from some the events scene and firemen who were had observed the blaze. in the house to extinguish lawfully v. that here thus unlike
The situation is Tyler, Michigan supra, that law enforcement where it was held L.Ed.2d 486], U.S. [56 and thereon abandonment act not draw a conclusion officials could from their own of arson evidence based investiga- acquired solely upon 505-506 U.S. conducted on (436 tive efforts pp. premises. [56 L.Ed.2d at 495-496].) pp. the trial court found an abandonment of the
Here Sutherland expressly However, not Court it is for that we premises. necessary present purposes of the evidence to that legal sufficiency support pass upon finding, we are of the view that the circumstances known both to Homer because officers, whether or not constituted an abandonment and they law, reasonable, in the faith contemplation justified Sgt. Agler good Homer had consent to search. belief v. Hill authority P.2d 69 Cal.2d 554-555 (1968) 521]; Smith, 63 Cal.2d at Since it is 799.) unreasonable searches supra, p. only unlawful, consent discrete for the that are Horner’s provided justification search. was lawful (1) and search
We conclude that the by Sgt. Agler entry warrant, in reaction a bona fide search (2) under authority the consent of the owner. life pursuant emergency, endangering warrant the known existence of a search despite securing search, either one of two alternate reliance grounds upon search, from would does not detract which alone validity justify Sirhan, 7 Cal.3d at such alternate either supra, p. ground. (People that a can In this area the officer knows 17.) fn. misjudgment experienced retrieved and caution therefore the better of discretion. never be is part
835
of
in the house. Out
electrical
The fire had
system
destroyed
a
search was conducted
flashlight
single light
necessity
items believed to be of
a
evidentiary
Only
portable generator.
supplied by
v.
were
Skelton
value,
which were in
seized (see
of
plain sight,
many
613,
144,
We under circumstances conclude unreasonable in scope. Removed Defendants’ Persons.
D. Seizure of From Keys It that a set was removed from the will be recalled of keys persons These the Concord both defendants when were booked they police. until were retained with each defendant’s personal
keys property Police the same to an officer of the Oakland later relinquished day of them with the locks of who was able match some Department involved The officer did not houses and buildings investigation. a
have search warrant seizure of the keys. authorizing his warrantless and seizure of search of person booking 800, 415 v. Edwards U.S. (1974) is reasonable. States (United property 771, 774-776, v. Ross 1234]; 802-804 L.Ed.2d 94 S.Ct. (1967) [39 254, revd. sub Cal.2d 429 P.2d on other 606], grounds Cal.Rptr. [60 nom., 88 S.Ct. U.S. 470 L.Ed.2d (1968) Ross [20 California into the articles have fallen hands “Once 1850].) police lawfully stolen, if them to see to see have been test examine them if they they may crime, return them to in the have been used commission they at the time of release, them for use as evidence his or preserve prisoner arrested their trial. custody person’s During period police [Citation.] itself, to reasonable effects, are like his inspec person subject personal tion, examination, and test.” Rogers
389-390 559].) court ruled
We the trial denying are satisfied correctly evidence. defendants’ motions to suppress
III. Other Pretrial Motions to Dismiss Indictment. A. Motion *25 as the trial court’s of their motions
Defendants cite error denial pretrial Code, the In the trial court defendants 995.) to dismiss indictment (Pen, § in over 90 to forth set grand jury writing specific “objections” errors are us. The same alleged urged upon testimony.
A the of witnesses are number of prosecutor’s questions grand jury not in evidence. or as facts condemned as Preliminarily leading assuming the that of defendants’ to form it must be said objections many Witkin, Cal. Evidence are well taken. (See not generally, simply question 1155-1162, 1071- Trial, of Evidence at 1966) Introduction §§ ed. (2d pp. Furthermore, to second of the with the 1077.) question respect category to the order of since facts is the nature of an in objection proof, complaint the defendants’ More the so were assumed proved. point, ultimately of of rather than the substance focuses on the form the criticism question substance, have each such to those which some the answer. As objections for, without have been recast to avoid the could calling objection question This of a different or category objection eliciting, response. presumably or thus not relate either to does admissibility competence in The elicited questions. testimony by technically imperfect testimony form is not or to such deficient questions incompetent response 939.6, of Penal Code section subdivision inadmissible within meaning (b).
Nor in cited instances can answers witnesses which most be are characterized defendants as by opinion speculation disregard- or inadmissible. Indeed most such ed as complaints incompetent to more than a the witness’ choice of amount no with defendants quibble words. further some were defective form and that
Granting questions record, into the that some lay crept unqualified opinion granting admissible not defendants thereby. competent, prejudiced was sufficient evidence received grand support jury indictment. to several witnesses of Little was shown
A grand jury single photograph v. Denno if could him. Stovall (1967) who were asked identify Citing they contends the use 1967], L.Ed.2d 87 S.Ct. Little 388 U.S. [18 rendered the in this manner identifications single resulting photograph We no contention. Stovall has impermissibly suggestive. reject to an in-court identification formal application judicial during hearing. v. Wheeler
(See 198].) Moreover, the record demonstrates the identifications witnesses Damstra and Mullin were based on contacts personal previous with Little and were not on the his dependent display photograph. Blackburn,
With witness his respect grand testimony jury identify- tentative, Little’s that Little ing very indicating photograph only one of resembled two assailants whom he had noticed he as scarcely walked them in the Thus Blackburn’s identification past twilight. *26 is of such minimal value as to have a effect
testimony probative negligible the the on overall evidence to the weight presented grand jury.
The indictment is vulnerable the not to criticism that the prosecutor statement, failed to inform the of a to claimed be grand jury exonerating, made Blackburn while in the sedated. The by hospital heavily statement was to effect that one both or of his assailants have may been black. defendants are The rule of (Both Johnson Caucasian.) 32, v. 15 Court Cal.3d 248 (1975) 539 P.2d Superior Cal.Rptr. [124 792] disclosure to a of evidence favorable to the requiring grand jury defendant is to indictments. v. applicable only post-Johnson (People 918, McAlister 54 925-926 (1976) 881]; Cal.App.3d Cal.Rptr. People [126 Snow (1977) 957-958 The 427].) Cal.App.3d Cal.Rptr. [140 instant indictment the Johnson decision over one preceded by year.
Furthermore, failure to disclose the Blackburn not statement did violate defendants’ to due of law. Given circumstances rights process made, under which it was value of statement was probative tenuous; moreover its substance was not inconsistent with extremely of defendants’ as liable theory guilt vicariously coconspirators.
At trial defendants renewed the motion to dismiss the indictment after Blackburn testified did not ask him to did nor prosecutor identify, he either defendant. The trial court denied the renewed identify, properly 997; Code, as motion Waters (Pen. (1975) § untimely event, 46]). In Cal.App.3d Cal.Rptr. any ruling [125 indictment, aon motion to the trial court cannot evaluate the dismiss witness and the his credibility grand jury grand weight jury reference to his later at trial no matter the extent testimony by testimony v. Manson inconsistent the two to which may appear 265]). 167-168 a trial court in to be that the standard Defendants contend applied to test the is the standard should on a motion apply acquit ruling A dismiss. motion of an indictment on motion to evidentiary sufficiency then before court is be “if the evidence should acquit granted of such offense or offenses insufficient to sustain a conviction appeal.” Code, raised defendants should be 1118.1.) (Pen. question § court. addressed to the not this Legislature, we conclude that there was before examination
Upon transcript, to constitute sufficient admissible evidence the grand competent, juiy Code, 995.) cause to indict. (Pen. reasonable and § probable B. Trial in the Vicinage. Right
Defendants moved venue the trial from Alameda successfully Clara, Four counties: Los Santa and Sacra- County. mento, Angeles, Monterey court, were available in which to In the trial case. try defendants transfer to was the *27 Los that it sought Angeles, arguing only of those available which Alameda demo- county County approximated Over defendants’ the trial to was moved Sacramen- graphically. objection, to Defendants contend when it is to that venue County. necessary change trial, to insure an a fair to accused the a drawn from the right jury i.e., occurred, that where the crime vicinage, place requires as as the racial transferee jurisdiction closely approximate possible ethnic mix of the in which the was crime committed. population county trial selected from the residents of the
The
to
aby
right
jury
Fourteenth Amendments to the
is
Sixth and
by
vicinage
guaranteed
9 Cal.3d
federal Constitution
v. Jones (1973)
[108
345, 510 P.2d
be
Since
definition
705]).
by
right may
location,
not
when
exercised
in a fixed
it does
follow an accused
he is
only
crime
The
tried outside the
where the
occurred.
trial
right
jurisdiction
waived;
a
from the
be
it has been
selected
held
jury
may
by
vicinage
been
a successful motion to
venue.
have
waived
States
(United
by
change
cert,
den.,
Cir.
F.2d
In defendants fell far short of any demonstrating significant differences between Sacramento and Los demographic Counties. Angeles 1970 census which showed a non white They produced figures population in Alameda of 21 in Los of 14 County percent, Angeles County percent, and in Sacramento of 10 The 4 differential County percent. percent between Los and Sacramento Counties is not Angeles constitutionally Moreover, shows, concede, as defendants that Los significant. proof trial, defendants’ less Angeles County, preferred place significantly than Alameda heterogenous County.
C. Motion to Panel. Quash Jury
Defendants assert that their constitutional to be tried right by jury drawn from a cross-section of the was in- representative community because the exclusive use of voter fringed lists to registration compile venire from which their was selected resulted jury under- black, on the venire of representation and sumamed Spanish-speaking The latter are deemed poor defendants to people. include those with annual $6,000. incomes of less than Defendants the issue preserved motion before trial appeal timely quash jury panel. motion was denied.
“The use of voter
lists as the sole source of
registration
is
jurors
not
invalid
at least in the
constitutionally
[citations],
absence of a showing
the use of those lists resulted ‘in the
exclusion of a
systematic
’
or class of
citizens”
“cognizable
or that
group
[citations],
there
qualified
was ‘discrimination in the
of such voter
lists.’
compiling
registration
omitted;
Sirhan,
(Fn.
750.) *28 are obtained in
Prospective Sacramento jurors random County by selection from all the voters. Defendants do among not claim registered discrimination in the of those lists. compiling
It
is defendants’ burden to establish
facie the
prima
systematic
exclusion or
of
in the
underrepresentation
cognizable groups
community
a
and that
to be excluded or
is in fact
group alleged
underrepresented
i.e.,
attitudes,
characterized
a
of
cognizable,
ideas or
“similarity
its members so that the exclusion
experience
from
among
prevents juries
a cross-section of the
v.
reflecting
(Adams
Court
community.”
Superior
Cal.3d
(1974)
Defendants to It failed their burden. was shown that in some carry areas Sacramento with concentrations County proportionately higher black, surnamed, and a lower Spanish-speaking poor people, of all those 18 or over therein were percentage age residing registered vote than in the areas with less intense county minority However, black, concentrations. it was not how shown many Spanish- surnamed, or or over resided in those speaking poor people age areas of concentration. Thus defendants’ did hot higher minority proof exclude that an evert in minorities possibility higher percentage to vote areas were than residents surveyed registered percentage 18 or over areas of the Further- registered age nonminority county. more, on is based a defendants’ thesis of underrepresentation compari- statistics, of 1970 son with 1975 voter population figures registration led which one of defendants’ own that anomoly experts opine conclusions from such a be invalid because comparison may totally statistics a within population vary substantially five-year period. black,
In defendants failed to show that summary, Spanish-speaking and surnamed or to vote a lower poor people registered in, rate than the voters percentage remaining county; consequently, defendants have not of those minorities on proved underrepresentation , venire. jury however,
Defendants all who that those reside in the areas with argue; concentrations, all of which are located in the core or high minority city within urban area of Sacramento a constitute County, cognizable class; defendants claim to have of this proved underrepresentation “class” virtue of the fact lower of such residents percentage age 18 or over to vote than other areas of the We do not register county. that a be class can established basis of agree cognizable merely common location McDowell geographical (People 864, 875 shared characteristic 181]). only that, reason, of this “class” is for whatever not the members do choose to vote with same incidence as residents of other areas of the register trait, however, That not does class which county. identify cognizable must be included in a venire if it be is to jury representative.
Sirhan, 7 Cal.3d at fn. 26.) supra, p. trial court denied the defendants’ motion to properly quash
jury panel. Alleged During
IV. Errors Trial in Statement.
A. Misconduct Prosecutor Opening that the In his statement the proof opening prosecutor presaged van in in the Chevrolet was obtained an uncharged robbery engine Remiro in in October 1973 in which a white van committed by Berkeley was stolen. Defendants’ thereto was overruled and a later objection trial, motion for mistrial was Still later in the out of the denied. presence of the offered evidence of the jury, prosecutor robbery disposition an overt act relevant of the loot as to proof conspiracy theory upon tried. The trial court defendants’ which the case was sustained objection did the admission of the evidence. Neither then nor thereafter to or defendants’ move to strike the of the statement offending part opening a curative admonition. request therefor, defendants
Without bases complain they identifying legal observe, We statement. Were prejudiced by prosecutor’s opening however, that the record will not of bad faith or resort support finding on the of the or tactics (See part prosecutor. deceptive reprehensible v. Beivelman 70 Cal.2d 447 P.2d People trial, In the context of this the remarks out for 913].) protracted singled condemnation fade into in with the insignificance comparison quantum evidence of defendants’ Thus failure to request competent guilt. curative admonition constitutes a waiver of claim of error on any appeal. Beivelman, supra.) B. Evidence of SLA Terrorist Conspiracy.
Defendants assert error in over permitting objection of the of which introduce evidence of the broader SLA conspiracy scope murder-assault were but a manifestation. In Foster-Blackburn single introduction of several SLA communi- particular they complain house which reveal attack officials of seized in the Concord plans ques families, their the General Tire and of Corrections and the Department Com- and the Avis Rent-A-Car Rubber Burlingame Company plant of California Board of and to a member University kidnap pany, Also intro- Kaiser Industries Oakland. and an executive of Regents of evidence to show were items duced over defense tending objections in the activities described out the communiques, preparations carrying locations, data of relevant hand-drawn regard- personal including maps surveil- victims and notes preparatory kidnap suggestive ing projected *30 842
lance activities. Defendants insist that evidence the narrow going beyond of the for and of the Foster murder is scope irrelevant plans perpetration and more than prejudicial probative. was not the case was tried on a
Although conspiracy
charged,
Failure to
as a
offense does
conspiracy theory.
charge conspiracy
separate
not
from
that those substantive offenses
preclude
People
proving
which are
were committed in furtherance of a criminal
charged
conspir
70,
v. Pike
58
664,
Cal.2d
88
(1962)
372 P.2d
acy. (People
Cal.Rptr.
[22
nor,
follows,
it
does it
656]);
of
instructions based
preclude
giving
jury
a
1170,
v.
71 Cal.2d
(1969)
conspiracy theory (People Washington
5,
259,
459 P.2d
39 A.L.R.3d
v.
541];
Ditson
Cal.Rptr.
People
[81
Cal.2d
Furthermore, claim, law, to defendants’ neither nor contrary logic common dictates that a criminal embrace experience conspiracy may one criminal act. The of a be as limited only may given conspiracy scope or as as the of criminal minds to unlawful expansive capacity design Manson, combinations. In defendants People supra, Cal.App.3d were a of dimensions far broader than the murders engaged conspiracy with which were The of was the they charged. objective conspiracy war, realization Manson’s fanatical dream of a racial a he cataclysm referred to as “Helter Skelter.” In the admission under the upholding of a to the rule statement Manson to a coconspirator exception hearsay committed, after the had been the Court of coconspirator charged killings stated, “Boundaries of a are not limited Appeal conspiracy substantive crimes committed in furtherance of the agreement. [Par.] Here the amounted to fulfillment of Manson’s . . . conspiracy prophesy. The was the common gist conspiracy comprehended design, however bizarre and fanciful. It not is that the necessary object be carried out or of that conspiracy completed. corollary [Citations.] is that the until continues it is or proposition conspiracy accomplished It abandoned. is obvious that Helter Skelter was never realized and the omitted; Manson, remained . . .” (Fn. conspiracy pending. at 155-156.) pp. supra, bench, in the case Foster
Similarly, slaying Superintendent in a series of terrorist activities step planned only designed the SLA’s avowed violent goal fomenting accomplish upheaval Here, American within in order to effect as society revolutionary change. Manson, the ultimate A achieved. never goals conspirators 4, 1974, credit SLA for the Patricia communique February claiming
843 Hearst and the battle with Los kidnapping, gun Angeles police May 17, 1974, in which six SLA members died both tended to that the prove of which these defendants were members continued in conspiracy existence at least until the date of the Los battle. Angeles gun evidence was relevant and challenged admissible to show the nature and of the which scope to murder conspiracy spawned plans Foster and Blackburn. Evidence of activities both before conspiratorial and after the commission of the offenses was to show charged necessary the commitment of defendants and their to the common coconspirators and their active in the design means intended to participation further its all of which was relevant implementation, to and highly probative defendants’ criminal in the offenses which were culpability charged themselves but one of several means calculated to achieve the common Manson, v. 61 155-156; goal. (People v. supra, Cal.App.3d pp. People Cowan 38 (1940) 231, 239 P.2d 125]; v. Cal.App.2d Wilson [101 People 76 688, (1926) 694 P. v. 781]; Schmidt 33 Cal.App. (1917) People [245 426, 446 P. 555].) Cal.App. [165
There nois merit in defendants’ claim that the value of the probative evidence was Code, its effect. conspiracy (Evid. outweighed by prejudicial The record 352.) § demonstrates that the trial court considered at length trial, defendants’ on this basis at and chose in its objections discretion admit the evidence. The trial court decision evidence admitting over the that it is more than objection will not be prejudicial probative disturbed on absent a of manifest abuse of appeal discretion showing in a v. Wein 69 resulting (1977) miscarriage justice. (People Cal.App.3d 79, 90 No such has been 814].) made here. Cal.Rptr. [137 showing
Defendants claim there was insufficient evidence adduced to prove their in the SLA It is participation well-settled that conspiracy.
the unlawful be inferred agreement from the among conspirators may conduct of defendants out a common mutually carrying illegal , done, the nature of the act purpose, relationship parties, interests and other circumstances alleged conspirators 659, Cockrell 63 Cal.2d (1965) 408 P.2d Cal.Rptr. 116]; [47 v. Johnson 237-238 (1969) People Cal.App.2d 683]; Cal.Rptr. [80 Lynam 202]). Here, the nature of the Foster murder—a coordinated very planned, ambush carried out three persons acting together—points ineluctably to a Remiro’s of one of the Foster conspiracy. ownership possession murder and Little’s of another used weapons ownership weapon possibly Court house the Sutherland defendants’
in the relationships killing, Donald contents, their associations with Ling Perry, and its Nancy *32 Hall, and Patricia Wolfe, Atwood DeFreeze, Camilla Willie Angela of the acts in furtherance of adherence to and their performance Soltysik, manifesto, of and their consciousness in set forth the SLA guilt principles and their with and shoot-out from evidenced Sgt. Duge as flight furnished more than an all from (discussed infra) escape jail attempted basis them to the adequate evidentiary tying conspiracy.4 A than facie stronger existence of a prima showing conspiracy had been made before evidence of acts and declarations in furtherance thereof was admitted. Code, 1223; Evid. (Cf. v. Lawrence § 510-511 The order of 16].) proof thereafter was a matter for the discretion of trial The record judge. reveals no abuse. 4Remiro the .380 Walther used to kill Foster in 1973 at a San purchased pistol July Leandro store. sporting goods Little the .38 caliber Rossi revolver in March 1973from a purchased private party.
bill of sale was made out to a fictitious purchaser. the items of evidence seized in the Concord house was a document entitled Among (sometimes “The Seven Liberation referred to Principles Symbionese Army” manifesto”). herein as means of “SLA It out the credo and of the SLA and the goals spelled them. Little’s were found on several thereof. implementing fingerprints pages were also found two unnumbered communiques—one Little’s on SLA fingerprints a a named Kaiser executive ransom and concerning plan kidnap Corporation another an attack on the Tire and Rubber concerning General Company Burlingame, California, and on a of on a list of officers of the Regents piece paper University of the “Treas. of Bd. of a name and address identified thereon as that containing on other on a list of stores and a book entitled and Markmanship many Regents,” gun admitted evidence were in the Concord house. Remiro’s documents into which seized book, a were found on the and on notebook containing also fingerprints handwritten notes Markmanship which of the Symbionese recited some of the seven principles of the area around the and which also contained a hand-drawn sketch Liberation Army District where offices of the Oakland School Superintendent administrative Unified other was shot. Remiro’s were found on several pieces documentary Foster fingerprints and DeFreeze were seized in the Concord house. Soltysik evidence Fingerprints Perry, on at that location. also found numerous documents seized defendants and the a of evidence association among There was close showing plethora This included evidence that SLA members over a substantial of time. six-named period Prison had assisted DeFreeze to evade after his from Soledad escape Little in apprehension visited an East March 1973and evidence that various combinations of these individuals William on several occasions in 1973 and and weapons. Bay firing range practice-fired Harris also in some of the latter activities. Emily participated As to SLA defendants false identification and acquired examples fealty goals, papers were involved in the rental of and houses intended to serve as sáfe houses for apartments units;” SLA “combat also numerous ammunition for they acquired weapons all in accordance with modus set forth in the SLA stockpiling approved operandi manifesto. C. Evidence Attempt. Escape trial 1, 1975, one month before March began,
On approximately from the Alameda defendants County jail. attempted forcibly escape floor, subdued, to the had knocked a Remiro Before guard they in the lock in the his and inserted them him taken keys eye, gouged floor, locker; Little another to the stabbed him had knocked guard gun with him as throat battered guard repeatedly pencil to reach an alarm to summon help. struggled to exclude all their
At trial defendants regarding sought testimony *33 effect of such evidence the attempt, prejudicial outweighs escape arguing the issue of consciousness of Defendants its value on guilt. probative in other that since were then held for contend they being custody charges other in to the Foster-Blackburn murder-assault (the addition charges in of the with Contra Costa and arose out shoot-out Sgt. County), Duge 16 the occurred almost months after Foster since escape attempt murder, as an therefrom of consciousness of could well be inference guilt as to the Costa then to the ascribed Contra charges County pending also the evidence is case. Defendants Foster-Blackburn urge unduly due to the assaultive nature attempt. inflammatory escape is admissible on from trial Evidence of custody pending escape 362, 2 v. Cal.3d of (1970) issue of consciousness guilt (People Terry 251 409, P.2d v. Burnett (1967) 466 961]; People Cal.Rptr. [85 651, Remoteness 652]). 654-655 escape Cal.Rptr. Cal.App.2d [59 to consciousness of offered from the crime as to which it is prove attempt at v. Cal.3d to not (People Terry, supra, weight, admissibility guilt goes to that to which in as of addition 395); escape charges p. pendency to the likewise is offered to show consciousness guilt goes attempt of the evidence rather than the Perry admissibility weight 129]). 7 Cal.3d 499 P.2d 772-774 (1972) Cal.Rptr. [103 to assault on their was essential Evidence defendants’ jailers prove to assess the effect and and to value attempt escape permit juiy the evidence the issue of consciousness guilt.
The evidence of was admitted. attempted escape properly D. Other Claimed to Be Irrelevant and Evidence Prejudicial. brother, identified his testified and Perry’s Ling, Ling
Gary Nancy at 1560 Sutherland which was seized in a notebook sister’s handwriting Court. The notebook contained a hand-drawn of the Foster ambush map site. was his witness sister’s Ling competent identify handwriting Code, 1416; (Evid. § Williams His relevant 722]). was foundation testimony establishing was notebook’s notebook itself relevant admissibility. proof SLA and the assassinate Foster general conspiracy specific plan
and Blackburn.
Colton Westbrook Association, testified about Black Cultural an outside concerned with the of black group rights prisoners California Medical at Vacaville. Little, Westbrook testified that Facility Willie Wolfe and others attended association in Vacaville in the meetings 1972; DeFreeze, summer of Donald then a inmate at spring prison Vacaville, was an active in the association the time of participant during Little’s attendance. The trial court limited the consideration of jury’s Westbrook’s to the case Little. The testimony against testimony relevant Wolfe, Little, association showing early among DeFreeze who became within a few months thereafter. coconspirators
Wilbur the of Chabot Gun Oakland, Club in Taylor, president laid an foundation for sheets at the club evidentiary sign-in shooting 6, 1973, for several dates from range November 1973. April through on these sheets in various combinations on identical were Appearing days Wolfe, the names of defendants and Willie M. N. Soltysik, Perry, Angela Atwood, William and Harris Harris. was not Emily Taylor personally when of these sheets were any present signed.
The records were admissible under Evidence Code section which authorizes the under the business records to the receipt exception hearsay of a made in the or near rule course of business at the writing regular act, recorded, time of the condition or event when the custodian of records or other witness testifies the document’s and qualified identity when, mode of the court, its of the the sources preparation opinion information, method, and time of are such as its preparation justify admission. of such records is within broad discretion of Admissibility trial court v. Williams (People Cal.App.3d The fact that the who 378]). the record person actually prepared is not called as a witness does not render the document inadmissible Williams, 275). supra, p. Taylor’s testimony foundation for admission sheets. provided adequate sign-in that do not show fact that the sheets conspirators The any sign-in not the to the time at the same only weight, goes necessarily present to show associa- evidence itself tends evidence. The of the admissibility, of the to achieve objects tion of the conspirators preparations relevant. and thus is conspiracy .38 caliber Rossi he sold the testified Thompson
Christopher the Rossi as identified A firearms in March 1973. to Little expert revolver which fired some and as murder weapon weapon possible he ever of whether Court. Sutherland at 1560 found Regardless shells of it was evidence Little’s used purchase weapon, personally was thus The SLA’s testimony in furtherance conduct goals.
relevant. reference to the made brief and Tamborski
Witnesses presence Agler house; Court witness Robert in the Sutherland bombs Manning pipe relevance of the evidence the bomb referred to the arrival of squad. defend- to associate
is clear in with other evidence tending conjunction involvement ants with the Concord house as it that defendants’ suggests to the fanatical the SLA was more than a mere devotion with group’s and in fact extended to arms as called rhetoric amassing participation written credo. organization’s Security
V. at Trial Measures trial was Defendants their infringed by right public charge for a time which order of a sheriff’s security implementation *35 of searching fingerprinting photographing, apparently permitted of is not trial order to the (the part members of seeking entry public 11th on the the court was modified The order record on appeal). trial to delete requirement.5 of defendants’ fingerprinting 46-day day some members of order Defendants assert the discouraged was not “Under and thus the trial the trial from public. attending public to the one which is a trial is normal conditions general public open public under be curtailed of attendance at all times. This special may right but it of the constitutional circumstances without right, infringement in cases of it restricted nor can be be denied cannot except altogether, 17, in trial), a for relief filed (the extraordinary 12th petition day 5On April certain on behalf of alleged Liberties Union seeking the American Civil this court by We denied order. security further to prohibit implementation would-be spectators Lowe, 15181). 3 Civ. (Jordan, et al. on April the petition The most common of these is the
necessity. order necessity preserving interference with the preventing proceedings.” (People Byrnes P.2d 290].) In one of the between court and counsel in this exchanges matter, the court indicated it felt measures other than security remained due to a threat fingerprinting bomb the appropriate Sacramento courthouse received the sheriff after defendants’ County trial, arrival in Sacramento for and the of the SLA and background defendants’ involvement with that It is also from alleged group. apparent trial, the record that the court felt the measures were security necessary for defendants’ own as it had been that certain part protection reported with their persons disagreement political philosophies might attempt entrance to the trial. gain
Furthermore, from the record in ante, Jordan v. Lowe (see fn. 847), p. we note the court could well fear that defendants risk not posed security in terms of the that some of their comrades still at only possibility large maneuver, some sort of rescue but also because might attempt jeweler’s saws were found in defendants’ effects when were transferred from they Alameda to Sacramento Also leaflets were distributed at County. being the courthouse and demonstrations to free urging protests “prisoners war” Little and Remiro. And known members of the Weather Under- which had claimed ground, group and other responsibility bombings violence, acts attended fact, defendants’ trial. In cross- during examination witness Little prosecution Christopher Thompson, attacked him on the witness stand to the verbal physically encouragement of a trial “Kill him! Kill him!” spectator shouting,
In this order was reasonable as an atmosphere security eminently aid in law enforcement’s endeavor to harm to guard against possible defendants, court, the officers of the and trial themselves. Even spectators so, measures, these there was no wholesale exclusion of the despite public from the trial. Defendants’ to a trial were not rights public improperly curtailed. *36 Disposition
VI. The of conviction as to defendant Remiro is judgment affirmed. Because the of the instruction Gainer, condemned in v. giving People constituted se, error the supra, conviction prejudicial as per judgment to defendant Little must be and is reversed.
Paras, J., concurred. under determination that KARLTON, J.* I concur in the majority’s Cal.3d 835 v. Gainer People compulsion I must defendant Little must be reversed.
566 P.2d the conviction of 997], Remiro failure to reverse the dissent from the majority’s respectfully on the same conviction v. condemned in retrial free of the error law a Under People present The cases. issue both the Little and Remiro Gainer, is in required supra, the nor innocence tribunal is neither to this intermediate guilt presented for the nor is a matter whether “Gainer” of the defendants (that jury), been determined the be se reversible (that error should having per the law Our function in this case is to Court). apply explicated Supreme court; so, the Court to trial when we do the proceedings Supreme reversal is required. Gainer, held, Court in terms
In no leaving supra, Supreme room for “in criminal trials Allen instruction ‘should interpretation, ” Gainer, be read in a California courtroom’. never again supra, Gainer, In An instruction was read in this case. at 857.) p. Allen-type would be “to all cases Court determined its ruling Supreme applicable decision.” at This case was 853.) not final as of the date of this (Id., yet p. Gainer, In the court held that
not final as of the date of this decision. yet of the Allen instruction admonishing minority jurors portion 854-855). their is se reversible error (id., reexamine pp. position per case. The three elements an admonition was this Such being given the result seems inevitable. present, rule of Gainer not violate the se” that it does “per argues majority its delibera- had concluded evident that it is
“because jury already the erroneous Remiro before with tions giving respect that the nature of a se It first be observed June 9.” must per instruction court is from se. This is that it is making very rule precluded per Moreover, undertakes. because which the determination majority which a deliberations circumstances under limited may jury’s extremely * of the Judicial Council. Assigned by Chairperson reversed, be and because the believe the conviction of both defendants must Because I otherwise, the various other issues raised by has decided I will not discuss majority extend this such a discussion would merely defendants. Given majority’s ruling, note that I do not for no I simply tolerable limits perceptible purpose. beyond opinion concur in all of the court’s other rulings.
be made of record Silverhart Mount Zion (see, (1971) e.g., Hospital 54 A.L.R.3d at best the 250]) Cal.App.3d Cal.Rptr. majority [98 Indeed, had no effect. infer that the Allen instruction may only examination of the demonstrates that fact. For very majority opinion observes, “The of that defendant was instance majority identity when the verdicts were returned in established circumstantially open . That these were not inaccurate can from the court. . . dates be inferred court’s instruction . . . .” added.) (Italics
Moreover, I cannot concur in the denial that the majority’s giving affected the the Allen instruction its verdict. The jury’s reconsidering that “that theoretical finds no possibility, only, majority argues support rule, no record.” This is a se has burden per appellant Moreover, to demonstrate in the record. whatsoever giving support instruction, itself, from well with doubt the Allen jurors might preclude to the of the verdict but before that the doubt subsequent signing raising final. such doubts recorded and thus became verdict was Again, any be of an admissible affidavit and thus cannot cannot be part subject Zion record. v. Mount (Silverhart supra, Hospital, instruction could The court’s determination “that the erroneous 1022.) We had no effect” is untenable. have certainly may reasonably simply determination, that it did not affect the assume jury’s undoubtedly would such an but such determinations or the record support assumption, are not to us under Gainer. assumptions simply open that, case at least insofar as The makes a majority very persuasive Remiro, reversal, the law not to be se since the Allen defendant per ought is free to use the did not affect the verdict. The instruction majority be; in this case to demonstrate what the law facts ought peculiar however, I is not free to with greatest respect, suggest majority Sales, error doctrine for a se rule (Auto substitute a prejudicial per Equity 369 P.2d Court 57 Cal.2d Inc. v. (1962) Superior not Witkin’s felicitous “we are bound but To use Mr. 937]). phrase, 168- Court Manual on (Witkin, pp. Opinions Appellate gagged.” 169.) decisis,
Aside from stare fails to address a critical majority opinion basis for the se Court per rule—judicial economy. Supreme that the would have a Gainer recognized retroactivity significant partial *38 rather fall on trial It would the courts. chose that impact impact courts.2 than appellate Court, noted conclusion in its “This
The explaining ruling, Supreme criminal of a fertile source of also has the beneficial effect removing of an Were giving Allen-type charge potentially proper, appeals. be to sift the facts and of this would courts state required
appellate to each in which the delivered of case circumstances charge on the whether the undue determine pressure jury charge placed have so in . courts which have banned Allen also done . . Other agree. Gainer, v.
the name of economy. (People supra, appellate [Citations.]” 852-853, Cal.3d at fn. 17.) pp. indicated, I case
As have makes that majority good exception reversal, as to of that rule is se question per appropriate—but the United irrelevant. What Justice Jackson said is concerning argument is true of are States Court our Court: “[They] Supreme Supreme equally infallible, are are but infallible not final because [they] [they] only are final.” Allen U.S. because (Brown [they] Jackson, 469, 533, of J.).) L.Ed. 73 S.Ct. (cone. opn. 397] the reversal of the I concur
Inasmuch as concerning judgment conviction, of of the is not Little extended discussion that opinion portion required. in its issue of Court discussed the retroactivity briefly Supreme and, of the decision was to that the Gainer
decision rectify noting purpose trial,” at infects the error which fact-finding process significantly “judicial instant announced would to the that the rule there determined “apply final as the date of decision.” all cases not this matter and to yet Gainer, is The issue 853.) 19 Cal.3d retroactivity p. supra, as reasonable well one extreme might disagree people complexity, to a situation. criteria to the given application than the “tarnished
I am certain brethren less my majority court’s ensure related our efforts to is high judiciary reputation” our values inherent Constitution consistent with criminal trials under famous determinative doctrine “whose ‘ox is being 2As a trial judge, ” brethren, asked have a different choice—but like no one my I preferred gored,’ might us. *39 be,
fundamental notions of a fair trial. However that our sworn may duty is to I those and cannot but believe that the principles help protect abandonment would of such lead to the principles ultimately only fear, for the courts. We need not I however. people’s justified contempt have confidence in both our courts and our I people. suspect future, in the will be viewed with someday majority’s hyperbole wonder. bemused 23, 1979, March
A for a was denied and the rehearing petitions petition for a Court Remiro respondent hearing Supreme appellant Clark, J., Richardson, J., denied were of the 1979. May should be that the granted. opinion petitions