*1 No. 14848. In Bank. Mar. 1973.] [Crim. PEOPLE,
THE Plaintiff and Respondent, RHINEHART,
STANLEY CARL Defendant and Appellant.
Counsel Horowitz, Court, J. under for De- Edward Supreme appointment fendant Appellant. James, General,
Evelle J. E. Assistant Attor- Attorney William Younger, General, Scherb, Attor- Howard J. Schwab and Lawrence P. ney Deputy General, for Plaintiff neys Respondent.
Opinion THE two counts COURT. Defendant was with by information charged *4 denied, was of murder. His to himself in represent request propria persona and to both His motion to certain not counts. pleaded suppress guilty denied, as was his for evidence motion propria persona privilege use the in the trial a defendant law After library jail. jury, found first of two counts of murder At penalty in guilty degree. counts, both and defendant jury fixed at death for phase, penalty Code, (Pen. was sentenced This is automatic. § appeal accordingly. (b).) subd. afternoon, a
On in the borrowed early friend, black Around Chevrolet from a James Christopher Ashley. Deo, friend, defendant went to the of another apartment George p.m., wanted had a who car. Deo indicated that he friend arriving Ashley’s who some Defendant him he know someone buy might told marijuana. had and said would see. Defendant for sale and marijuana go left, a decided to alfalfa and thereupon pet some having catnip buy sell Deo’s and it as Around 3 defendant returned to shop marijuana. p.m., the same He had the in two sacks. About alleged apartment. “marijuana” time, Deo’s friend was the purchaser, Osborne who Crump, prospective fiancee, arrived, to his a 1967 Pontiac driving light-colored belonging a including had in his $400 Patricia about Crump possession, Graham. of the $10’s. bill and and first one sack $50 $20’s some bought Crump $150, then, for to defendant’s “marijuana” testimony, bought according sacks $135, $285. for total The the other thereafter a shortly paying Deo’s were left at apartment. supposedly containing marijuana Miss at her Crump, employment, after Graham up place picking Crump for around returned Deo’s 5:30 apartment marijuana p.m. a Deo rolled defendant had sold from the substance lit cigarette and then realized had some “good money” that Crump paid marijuana that was not Between 6:15 and 8 p.m., something marijuana.” “good defendant, were made to were unsuccessful. efforts locate but defendant were while he and According driving Ashley’s testimony, sundown, a north on he heard a man in Wilmington just about out, Pontiac call “Rhine- travelling the same direction Wilmington (defendant’s name). hart” was shown a of Miss Graham’s Ashley picture car, and he said that it looked like same car. He said that there vehicle, two drove to Negro male and female. persons Ashley 137th, turn, made a left followed and The Pontiac stopped. behind Defendant out and went over and car. up Ashley’s got pulled talked with the on the He returned to driver’s side Pontiac. person 137th, car and asked that drive down which dead-ends Ashley’s Ashley about two blocks west of made a where cars stopped. Ashley U-turn the dead-end and his car on the south side of 137th stopped east. The Pontiac followed and six seven feet behind facing or stopped Acar. Pontiac Ashley’s white Chevrolet was in back of where the parked stopped. out;
Ashley further testified that defendant told that he was getting that when so, defendant did there was unusual about nothing person- and he normal; went back ality, that defendant appeared entirely *5 Pontiac; toward the left; then (Ashley) and that this it time was dark. getting
Lynn a Rodgers, 15-year-old girl residing 1025 West 137th Street (in the block where the dead-ends), street testified that about a quarter on the nine evening she was for bed. preparing She was out window, of the looking and the reflection of on a car lights attracted her attention. She saw that a Pontiac had backed front in up of her house and a of feet stopped ahead of a couple white Chevrolet on street. Then parked a black Chevrolet drove and up stopped front of the Pontiac. There two appeared inmen the black Negro Chevrolet; and out, one of them walked got Pontiac, over to the and the door on the opened side. Miss passenger’s walked Rodgers from away window, that the assuming person the door on opening, the passenger’s side of the Pontiac was a ride. She said the getting black Chevrolet had been driven off.
As Miss Rodgers window, walked away from the she heard a popping firecrackers, noise like but said there were not more than three She “pops.” turned, window, went back to the and looked out. The door to the Pontiac wide was with his it was and a man back about open, against standing inch side. an from the of the door the left A fell from the edge girl and white view car started under the Chevrolet. The Miss crawling go had man was in because inside he was Rodgers looking profile, car. Miss the time testified that street were on at Rodgers lights that the saw was and man she defendant.
Miss said that the who fell of the car and Rodgers out lady young started under the was Miss calling Rodgers, Chevrolet crawling help. brother, saw with her father and her to their front She went porch. car a had crawled under the and that defendant was gun, girl clicking head, it toward the side of the and “There’s directing nothing girl’s saying, left, else come out gun” why left and don’t nothing “Baby, you direction, there?” in Miss under Defendant turned up Rodgers’ she another view of his face. defendant and walked to Miss turned
According Rodgers’ testimony, said, Pontiac, door, over to the side of the “Move driver’s opened over.” The in the car did move. It looked defendant though not person Miss heard a sound like the an roaring over. pushed Rodgers accelerator and saw what be a human automobile form in the appeared accelerator, fall over. entered the Defendant car after the roaring door, closed the and drove off. brother, Miss on August
Earl testified that Dwayne Rodgers, Rodgers’ 25, 1969, he and his father television and heard some were watching car, A see was under They shots. what jumped up happening. girl he had to her. While was nearby talking talking, hand; head and he about left clicked gun gun by girl’s times. three Street. She Green that she resided at 1016 West 137th
Evelyn testified *6 25, 1969, on four before 9 p.m., home three or minutes came about August Grandee, she Street off of vehicle. As turned towards 137th driving drove were two that came all down 137th Street. She way there cars the behind her. She the her with the cars driveway, down street to following cars, because she in the said that attention to the special paid people front her car in had She her house been several times. burglarized parked (which door the went closed the of and then around and garage garage were in at who been order look the had left in aget people good open) She the car. Mrs. out of light-colored the car. Green saw defendant get While she was heard loud called the police. later some shots or and reports she the fired. The only person on three shots were talking telephone, outside the car was defendant. saw he saw around testimony, again
According Ashley’s friend, around 11:30 or that the home of a and o’clock at evening occurs. went and to a club where together to 91st Western they gambling time, bill. $50 of a At that saw defendant possession Ashley crime officers for the sent to the investigate Police of City Compton arrived after The female victim was moved shortly 9:20 p.m. gunshot to a where died soon arrival. other ambulance she after hospital, Among the at the things, bearing officers found scene crime a slip paper an address number on one side and a series of telephone telephone on the side. Upon numbers other Included was number 774-2658. number, that officers 774-2658 was Dec’s learning George telephone police home, to his was left went residence for him. He not at but looking they word that a that like woman been murdered and would young Mills, Deo, talk with him. Upon receiving message, accompanied by to the went to station. Later Deo went evening, police Compton taken, to which Miss Graham had been he identified her body. hospital search was He was located A made defendant. at finally approxi- 1969, August 5:30 a.m. on bed at his mother’s mately asleep and was he was home told that under arrest for of murder and suspicion was to and dress. get up time a.m. on Pontiac found Some after 9 August corner of at the Pirn and Willowbrook. with his clothing Crump’s body, inside-out, blood-soaked and his turned pockets pants lying wallet, A but no front seat. identification containing Crump’s money, woman’s found the car. was discovered purse were inside No money car, but in the six found in the victim’s pennies pockets. reveals, that distance officers
Testimony among other police things, feet; the curbline home from windows of 49Vz Rodgers’ area is well with modem lights; lighted mercury vapor Pontiac; and that the bullets defendant’s were found on the fingerprints from were fired removed both Miss Graham’s and Crump’s body body the same weapon. officers, an Camarillo, that he conducted
Arthur one of the testified with defendant at 9:30 a.m. August interview approximately officer told the of his Defendant rights. first constitutional advising he went to the house approximately p.m. *7 friend, Primer, of James where met a friend the name his John he there, Later, he borrowed and that John Primer’s brother was too. Ashley, arriving and went to Deo’s Ashley’s George apartment, Chevrolet and p.m. about 20 minutes. He said that after staying approximately there he drove to a and then to a residence on 124th leaving pet shop Avenue, Street off of which residence was the home of Wilmington Angie Driscoll, Sanders. There he met Freddie and the latter’s Ashley, May husband, Donnie. He arrived at and remained until approximately p.m. Brim, 9:30 he p.m. cousin, After drove to the house his leaving, of Wesley on Alondra near Center Street in and there from 9:45 Compton, stayed Primer’s, until 10:45. He then drove back to John where he met again and returned his car. He house until Ashley stayed Primer’s approxi- a.m., 12:30 at which time he mately went home and went to bed and was later arrested.
Defense officer,
Defendant called his behalf a who testified Compton police his interviews with Miss and regarding Mrs. Green on the Rodgers night some killings, showing with their slight discrepancies testimony in court. defense,
Defendant took the stand in his own denied either shooting Miss or Graham and to establish an alibi. He testified Crump, sought car, on the afternoon he had borrowed Ashley’s to to his intending friend’s house and have her follow back go girl and then use her car to do what he did to do. He not to going go house, her but went to Deo’s where Deo mentioned George apartment, that he knew who wanted to somebody some Defendant buy marijuana. told Deo he know might who- some and said somebody marijuana he would and see and then return. He go left and the idea to obtain got “bunk,” some He went bunco. and some meaning pet shop bought and alfalfa and it in two then returned to Deo’s catnip put He bags. where Deo introduced apartment, him to Osborne wanted Crump. Crump see and defendant went outside and back with marijuana, came it; two wanted all bags. so rolled a and Crump try cigarette, weak, smoked them it. said that it was but that it would do. Crump He asked he Deo what he would Deo said not it. thought, Crump buy Outside, nevertheless one bought $150. defendant and bag Crump had another conversation in which asked where he could contact Crump he more, defendant if wanted to some and defendant told him that buy Deo knew where he lived. Defendant further said that after leaving car, heard a horn was be- got Wilmington blowing. Crump him; car, hind and defendant out of his and walked got over stopped, car. He and for the sale of the Crump’s Crump negotiated remaining bag “marijuana,” $135 for Crump it. paid
147 house, half an for about he went his stayed that by Defendant said He and about five minutes. cousin’s house for and then went his hour by eat, house. Ashley to the cousin’s then had to returning something Ashley friend left, telephone, He with his by but on. stayed spoke girl defendant over had a argument her car was not They long but she said running. Later, on her. after which defendant hung up the telephone, Primer, brother house. and Primer’s Mays “Spoody” went to Primer’s went to a and then 20 or 25 minutes were there. Defendant for stayed of the he money club 91st and Western. He used some at gambling home He reached for the sale of the finally received alleged marijuana. or by about 5 5:30 1:30 a.m. and went to bed. He was awakened about officers, station. Defendant who took him to Compton police police for, he knew said he was not told what booked being adding how blood he had made did not know a “bunco” sale. He said he spots small blood on (There on his shoes or shorts. were some spots got very shoes.) defendant’s shorts and one of his mother, Rhinehart, in defendant’s behalf.
Defendant’s Ruth testified bed said that at went to around She defendant was not home when she but that she come in some time 11:30 heard him August between 1 and 1:30 testified the visit from police a.m. She regarding her officers when came to arrest defendant. She said that told they murder, wanted her about defendant was but no officer to spoke informed officers in which bed- murder defendant’s She presence. room defendant could be found and them to search permission gave the house. whom been with
No defendant claimed to have person during 1969, in sub- was called in his behalf to evening testify his he said with that stantiation of alibi. one of the he was Ashley, persons and, testified; but he for the as evening, was called as a witness People, shown, of the hereinabove defendant at the scene testimony put crime time of the shootings.
Defendant contends that the trial court erred his motion denying but to this contention. there no merit propria persona, appear counsel, Before a defendant to waive his may right permitted himself trial court must determine he is competent represent Williams, (People v. 2 (13) Cal.3d 1008]) of his
P.2d and has an conception intelligent consequences Robles, (People (9) act 710]). “The (10), As stated this court in Robles at page trial competence
determination the defendant’s judge *9 waive counsel involves an exercise of discretion the trial which judge in the absence of an abuse of discretion will not be disturbed on appeal.” case,
In the the record shows that defendant’s motion present original 1969, was heard at sessions on and and on September November the trial court considered defendant’s again request that he be allowed to himself. The trial court made represent inquiries with to defendant’s respect and observed his background undoubtedly himself, actions in court to determine his fitness and no abuse to represent of discretion been has shown. the course of
During defendant made it clear that proceedings, the nature and recognized seriousness of him charges against Johnson, to which punishment (In he could be re possible subjected. James, 420]; re P.2d In [16] [42 38 Cal.2d 596].) The basis for his motion [9] [240 rep resent himself was that he did not want to be an attorney represented by office, from the defender’s because public he believed no competent would, rather, would remain there attorney but into go private practice, where he could earn more supposedly money. the first motion,
At hearing defendant’s the trial referred to the court fact that defendant had asked if another he could previously judge repre- sent himself. In to the court’s response trial if that was what he inquiry do, “Well, wanted P.D., I don’t stated: want no no Public Defender, reason, Your Honor.” When the trial court asked his defend- ant none said: “Because not and this them—they’re just capable, life, and I don’t think one involving my just of them would any capable after I seen these trucks around here. I couldn’t have a enough dump there with man life. I’d up my rather do After defendant made myself.” it statement, this the trial court commented on the of the training deputy defender defendant and out that public appointed represent pointed he had had had approximately years’ many experience, represented cases, in murder and was an able persons extremely attorney. (defendant
The trial court asked defendant what he had schooling finished school in about six to the time of high years prior (defend- hearing) questioned regarding experience Army assault, once ant in a himself court on represented military charge but had had to ascer- law). no in the The trial court then training sought tain not the would ask for whether or attorney People prosecuting the death indicated he did not When the penalty. attorney prosecuting know, “Well, trial court I am to trail this until tomorrow stated: going Rhinehart, here, but I Mr. with no motion morning, prejudice your extent, the facts of I have to know without into think to- some getting case, what—how serious this is.” just At held the after the attorney the hearing following prosecuting day, that, summarized the trial court indicated in view the evidence seriousness of the drastic consequences *10 charge potential defendant, defendant was not a case could involve for he felt that to defendant to himself. The trial court then out position represent pointed his need for a skilled advocate. great very followed,
In a discussion which dissatisfaction with defendant indicated at the him defender representation given by public deputy prelim- but hearing. to he felt should have been asked inary Referring questions not, said, he “. . . Like the which she’s girl’s testimony, supposed to have seen me from a hundred feet me away, recognized by profile.” defendant, “Well, The trial court cautioned I want to immediately you be careful.” very defendant’s need for skilled advocate Again stressing of the court to see that he had responsibility adequate representa- tion, the trial court denied defendant’s motion.
On November that he be defendant again requested per- time, “Well, feel, mitted himself. At that I due represent stated: just crime, I magnitude that the Public Defender that have is not this I think capable really case because of a case load. handling heavy I should have the defend right to or have a State- per, myself, pro The trial court appointed then attorney.” questioned public deputy defender and determined that he had time to devote to defend- adequate case. ant’s At the conclusion of the trial court nevertheless hearing, stated, “Well, I will on this and it some further Mr. pass give thought, however, Later same Rhinehart.” the trial court denied defendant’s day, motion. desire
Defendant’s to defend himself on the that he did not ground want an attorney the office of the Public Defender of Los Angeles him is not a sufficient basis for his motion County represent granting Adamson, People himself. As out this court in v. represent pointed 13], “This court can take notice judicial [16] [210 difficult . . that it find more . would in California any lawyers or better criminal cases than the Public experienced qualified defending Los Defender of and his staff.” Angeles County
Furthermore, course of the as hereinabove appears, during proceed- defendant admis- on the ings making apparently verge damaging
ISO sions; and the court could have considered this factor in determin- properly did not have ing himself. capability representing Finally, unlike People King, the situation in Cal.App.2d 336], defendant, where the record showed that the who was 38 old, articulate, years “reasonably more clear and than grammatical some members of the Bar 785), in his off-the-cuff (p. responses” did not in a speak correct manner or with grammatically himself express This, also, clarity. with great was a factor which together youth, trial court may have considered.1 properly
Defendant further contends that the trial court abused its discretion denying permission However, to use the law jail’s library. pointed Harrell, In out in re 640], 2 Cal.3d 470 P.2d *11 an inmate in a has no prison to the use of a law is right library except to insure access necessary to the courts. since defendant was Accordingly, counsel, and no represented by was made that counsel showing needed law, assistance in the the trial did researching court not abuse its discretion in defendant denying (See People to use the law permission v. library. Mattson, 777, 795, 51 Cal.2d 937].) 797 P.2d [336
Defendant next contends that his motion to to section suppress, pursuant Code, 1538.5 of denied, the Penal the but record shows improperly that the trial court’s action was warranted. In its the evidence fully totality, at the on defendant’s hearing motion shows that the had police ample prob- able cause to arrest him. From the of detectives on testimony working case, it that to appears defendant’s arrest Miss had prior told the Rodgers detectives that 25, 1969, after shortly 9 p.m. she had seen two cars come onto 137th and Street almost across from her resi- stop directly dence; that one of Chevrolet, them was a 1957 black and the other was a Pontiac; late model blue that she saw a male in his late teens or Negro early 20’s, tall, six over three, feet six feet two or probably heavy having muscular build and in excess weighing with dark com- pounds, and with plexion hair ain medium natural hair out of the 1957 style, get black Pontiac; Chevrolet and enter that she heard some and shots saw a female it; out of person get the Pontiac and under a car behind crawl that the male Negro hand; there with a in his in standing that gun above, pointed 1As out ample support there is in the record for the exercise of trial denying right the persona. court’s discretion in proceed propria noted, People It be incidentally, Sharp, should that this court v. 489], People Siegenthaler, 7 Cal.3d 499], 499 P.2d held that there no constitutional right self-representation, scene; the black Chevrolet left she saw the male meantime had then back like a Pontiac and that looked Negro go push away something seat; over, male in the driver’s and that that and the person person flopped Negro into Pontiac and got drove away.
The detectives further testified that a with a num- telephone slip paper scene; ber written on it had been found at the that an officer had gone Deo, the home of George to whom the number telephone belonged, trying him, him; to locate and had left word that the to talk with wanted police Deo, dressed, neatly came station at Compton police approxi- mately p.m. August later went to the viewed hospital, victim, Graham, of the female body and identified it as Patricia whom station, he knew that when Deo returned to he said personally; the police x that the one he could think of only who would do such a would thing defendant; this, and that when asked said Deo that defend- why thought ant had a friend, violent and owed Miss temper Graham’s Osborne boy some Crump, which had been to collect from defendant money, they trying that he himself evening, had tried to them find defendant and help either taken them over to house of defendant’s mother or directed them there, and that and Miss Graham Crump car. her together
The detectives further testified that Deo informed them that Miss Gra Street, ham’s mother lived at an address on 156th interviewed the *12 mother there around 3 a.m. on at which time ob August they tained the car, model, on Miss Graham’s late silver pink slip which a blue, Pontiac; two-door said Deo he had seen in a 1957 black Chevrolet earlier that that after Deo mentioned defendant evening; aas checked possible suspect, records and found an incident they police defendant, card on arrests, several which card a showing gave description adult, of defendant three, as a male Negro, or 24 of six feet years age, hair, black pounds, brown tried them Deo to1 locate eyes; help defendant and informed be them found at his might possibly Street; mother’s at home Graham that defendant was found and arrested there around 5:30 a.m. on 1969. Ross, stated in People
As 69-70 P.2d “A officer a arrest without a warrant when- peace may 606]: person he ever has reasonable cause to believe that the to be arrested has person committed a felony. ‘Reasonable is defined as cause’ that state [Citation.] of facts as would lead man of care and to believe and ordinary prudence an entertain honest and that the conscientiously strong suspicion person aof crime. No exact guilty formula exists for rea- determining [Citations.] cause, sonable and each case must decided on the facts and circum- stances to the time officers presented act.” required case, crime,
In the since Deo had not seen defendant commit present statement, uncorroborated, his if would not be sufficient to provide prob- Court, (See able cause Superior for the arrest. Mann v. 3 Cal.3d 6-7 (1) However, 468].) as hereinabove appears, corroborated, Deo’s statement was as a result of which officers were entitled to on it.2 rely circumstances,
Under all the we hold that there was ample probable cause arrest defendant at the time was and that the he taken into custody evidence seized the officers at the time of his arrest of only (consisting several them), items of defendant’s with small blood clothing spots victims, well as his statements and on the car of one fingerprints received in evidence. properly Defendant next contends that the trial court erred in not granting victim, or mistrial when a witness indicated that the admonishing jury Graham, Miss worked in the office of Miss While “Congressman Bradley.” Graham’s sister was she was about Miss Graham’s testifying, questioned work hours and the location her In she answering, place employment. mentioned that the victim worked in inadvertently “Congressman Bradley’s” office. with,
To begin witness as “Con- referred Bradley incorrectly Mr. addition, when gressman,” is a councilman. she men- actually In never tioned Mr. first name Bradley’s and did not as to what Miss Gra- testify did circumstances, ham in his office. Under the no resulted prejudice was, her who her sister’s used mentioning since she employer particularly title, is, instead In wrong any of “Councilman.” “Congressman” event, since the case against defendant was error this very strong, any would have been respect clearly nonprejudicial. error in constitutional trial court committed that the
Defendant urges *13 of a line- rather than means by his identification by photographs, permitting held, but three witnesses was counsel. No lineup and in the absence of up, arrest, while he was in were, defendant’s after the of the shootings at scene be recalled cause. People blue Pontiac involved that of People the Probable People defendant 2For victim, (See People v. v. defendant; v. instance, cause can also be Mitchell, in a black Chandler, Schader, Miss that Miss Graham, the and resemblance 251 v. 1957 Chevrolet description which Miss Rodgers at the scene of Prather, Cal.2d Cal.App.2d Cal.App.2d owned supplied had seen 268 a late model of a 641, during the afternoon by Cal.App.2d the the a black party 644 [2a] crime, matching description of Rodgers gave [4] blue Pontiac to a [1] [68 1957 Chevrolet [59 748, and it had been Cal.Rptr. suspect Cal.Rptr. 752 of and that Deo is a [4] 193, the 677].) Also, day [74 factor in and a late suspect 645].) 401 determined of Cal.Rptr. vehicles. the murder. had seen probable matched model it will 665]; (See that 82]; counsel, the of his shown a of six and in absence series custody photo the three of one of defendant. selected including Lynn Rodgers graphs, defendant, had the she the of man resembling including one photographs, three, defendant’s. Evelyn seen. Earl likewise selected Rodgers including two, latter one “for sure” and another as a The Green picked “possibility.” at a was defendant’s There is no to counsel photograph. right photo identification, denial from the and no of due resulted graphic process pro-. Lawrence, (1) followed (People cedure here. 212].) 481 P.2d
Defendant contends that the of misconduct prosecutor guilty statement. Vernon Edward Smith had testified at the pre opening 4, 1969, on state liminary hearing September incriminating potentially were made to him after the latter’s arrest and while by ments statement, cellmates.3 In his state the referred these opening prosecutor and to Smith’s A before ments or so the day People anticipated testimony. to rest their case in an the ready March investigator district office Smith and learned that he had attorney’s interviewed recanted on his statements would not to the same effect at the trial. prior testify Smith was not stand. the put case,
Just before the the outside the resting prosecutor, People’s presence evidence, the offered jury, into to show his faith made good having statement, statements in his opening part transcript preliminary The hearing. the statements testified Smith that transcript, showing by time, was read but not shown or read to the The judge jury. prose- cutor that recanted, Smith explained had but he offered to him on put stand if defense counsel anyway desired.
The had prosecutor not dwelt at on the issue in his state- length opening ment, and the trial court been an out that had told that pointed jury statement was not evidence and that he had watched the opening jurors carefully during statement and had had seen that none of them opening taken notes. The trial court that to Smith on the stand suggested would put only emphasize fact he had said on another occasion something 3Smith jail testified a Compton shared cell at two with defendant and inmates; other that on he was taken from cell to have con officers, versation with police one of the he did but that not have the conversation because the brought going just officer who was to talk with him learned as Smith located; into the interview body room that a car dead been with *14 cell, when he was returned to his so go immediately that officer out could investigate, generally soon; why brought mentioned he had been so that back (The defendant asked if the car had been found on with Willowbrook. Pontiac Crump’s body Piru.) was found at the comer of Willowbrook and
154 Defendant’s motion defendant’s cause. been to that would have prejudicial a mistrial was then denied. for be a dishonest act or an attempt per has been defined to
Misconduct meth or the court or the use of by deception reprehensible suade jury 206]; Asta, (See People v. 251 86 Cal.Rptr. ods. Cal.App.2d [16] [59 People v. Baker, Cal.App.2d 724 [9] [24 Cal.Rptr. 691].) mis existence of burden is on the defendant to show the The of proof Asta, 64, 87.) (See People supra, conduct. v. 251 Cal.App.2d which in an statement testimony is not misconduct to refer It opening the state faith is shown or is unable to unless bad a prosecutor produce, People v. (See an it evidence. ment is made without intent to support by Green, 136]; People v. Berryman, 6 P.2d [1] [57 when, true 744].) This particularly Cal.App.2d Cal.Rptr. [16] [45 his case, told the statements as in the has jury present prosecutor Williams, Cal. (See People, v. are not considered to be evidence. them 740].) App.2d
The to interview to the time failure Smith prosecution’s prior faith, had a does not show bad since the statement prosecution opening to assume that Smith’s at the trial would right testimony correspond the circum under at the Under oath testimony preliminary hearing. stances, there acted in bad faith or has been no the prosecutor showing improperly. erred in refusing
Defendant further contends that the trial court trial, introduced an instruction on At the to give manslaughter. People in the evidence the murders were cold-blooded homicides committed of a but defendant contended that he was not even course robbery, present now crimes, an alibi. He at and he introduced evidence of the scene however, that since there was evidence that Crump sought argues, be inferred that because he owed and since it could money, some Crump sale,” witness had with a “bunco and one him because of angry Crump before the shots were heard a commotion the car (talking) going just fired, could have concluded that initiated quarrel jury Crump acted in heat of (defendant) passion.
As stated this court in People Williams, 71 Cal.2d 614, 624 [9] 65, as an element of “Adequate provocation 633]: demonstrated; it cannot be must voluntary manslaughter affirmatively Since instructions left defendant’s speculation.” theory manslaughter instructions on purely speculative, manslaughter requested refused. properly
155 the selecting Defendant of method of questions propriety At that was in effect. in this state the time death juries during penalty it time, made it was a who excuse for cause permissible juror prospective death under any clear would never unmistakably penalty impose Tahl, 577, (See 122, circumstances. In re Cal.3d Cal.Rptr. 1 136-137 [81 Nicolaus, 449]; People 866, P.2d v. 65 Cal.2d Cal.Rptr. [15] [56 635, selection, 787].) 423 P.2d Defendant a method of contends that such case, in his in used results a guilt-oriented jury. Illinois, Witherspoon v. admits that 391 U.S.
Although 1770], L.Ed.2d of 88 S.Ct. stated no study any [20 time, existed value on the issue at that he refers a made study probative Witherspoon, Qualified” Jury since New Data on the a “Death of Effect the Guilt Determination Process L. Jurow in 84 Harvard Law by George Review that this his argues study contention. supports A of this perusal limited as it is to the sociological study, responses volunteer all participants, of whom worked in New York for the Sperry Rand does not convince this of the Corporation, court that reconsideration Witherspoon enunciated in is principles called for reason of study. weak, The author himself admits is in that the study participants would; acted instead of as a like individually there was no group jury as in real there is jury; in responsibility difficulty describing “typical tests, of the juror”; order and of the problem the paying timing and the participants, (See use of “volunteers” all uncertain. pp. of 84 Harv.L.Rev.) 596-597 there is no merit
Although contentions any defendant’s hereinabove discussed, is, Anderson, there in view of People this court’s in v. decision Cal.3d 628 880], 493 P.2d merit to his further con- tention that the death violates our penalty state constitutional provision cruel or unusual modified against is punishment. Accordingly, judgment and, modified, for life provide imprisonment so affirmed. McCOMB, that, J I concur majority opinion, except Anderson, 6 People reasons expressed my dissenting opinion 880], I dissent from the modifica tion judgment.