*1 Dist., No. 29955. Div. Four. May Second 1978.] [Crim. PEOPLE,
THE Plaintiff and Respondent, SAND,
DOUGLAS Defendant and Appellant.
Counsel Denvir, Defenders, under State Public Quin
Paul Halvonik and appoint- Sevilla, M. Assistant State ment the Court Charles Chief Appeal, *3 Rich, Defender, H. Schulman and S. State Public Edward Tracy Deputy Defenders, Public Defendant and Appellant. General, Winkler, Jack R. Assistant
Evelle J. Chief Younger, Attorney General, General, Moore, S. Norman Clark Assistant Attorney Attorney General, Schwab, H. and Howard J. Sokolow Deputy Attorneys Plaintiff and Respondent.
Opinion information,
KINGSLEY, defendant J. —In a three-count charged committed, the offenses murder with on December having Code, Code, Code, and 187), (Pen. 211) (Pen. (Pen. § § robbery burglary count, were In the murder two items of circumstances 459). § special defendant One item of circumstances was that special alleged alleged. and had committed the murder commission during attempted Penal Code. A commission of a in violation of section 211 robbery item of was that defendant had second circumstances alleged committed the murder the commission and commission during attempted of a in violation of section subdivision of the Penal Code. burglary counts, three with Defendant was found as guilty charged fixed fixed as murder of the first murder robbery being being degree, the first The and the fixed as as the first being degree. degree, burglary were items of to the two respect allegations death sentence on the Defendant received a to be true. found by and was sentenced on murder conviction. robbery law, with for the terms to state convictions prescribed prison burglary Execution of sentence with each other. run the sentences to concurrently convictions was stayed on pending appeal burglary robbery we Defendant has murder conviction. modify from the appealed; it as modified. and affirm judgment Marino, a
The victim of
three offenses was
72-year-old
Angelina
There were
in her
found stabbed
woman. She was
apartment.
wounds,
the stab
In addition to
wounds
stabbing
altogether.
cutting
several areas of trauma which
to be
there were
appeared
produced
that the
had
blunt instrument. There was evidence
victim’s apartment
into and assorted items of
had been removed from
been broken
jewelry
the victim and her
evidence
defendant was
apartment.
against
circumstantial but of a
nature.
primarily
convincing
On
defendant does not advance
contention with
appeal,
respect
of the evidence to sustain the
convictions.
view of this
insufficiency
fact,
forth the evidence introduced
defendant becomes
setting
against
defendant makes three contentions on this
unnecessary. Essentially
exclusion,
to the
of defendant’s
appeal:
prior
guilt phase
who
conscientious
scruples
expressed
against capital
*4
to the extent that
could not vote for the death
punishment
they
penalty
evidence,
of the
amounted to a denial
his
constitutional
irrespective
law,
due
of the
and a
to an
to
laws
right
rights
process
equal protection
trial
that the trial court erred in
(2)
impartial
jury;
permitting
to introduce evidence of defendant’s assault on a
officer
prosecutor
police
that the
defendant’s initial arrest for
drunk in
and (3)
being
public;
sentence of death is
Court’s
invalid
view of the California Supreme
in Rockwell v.
Court
I In the selection of for the of defendant’s jurors guilt phase trial court conducted a voir dire examination of prospective jurors to elicit information as to whether had conscientious designed they the death to such an extent that it would affect scruples against penalty their to and" determine defendant’s ability fairly impartially determine whether circumstances were true or special alleged not. As a examination, result of such voir dire six were jurors prospective excused cause and one alternate sowas excused. prospective juror that, contentions: of the 1973 re makes two (1) light finds the facts vision of sections 190.1 and under which the jury only circumstances, but the of the death alleged special imposition penalty is an act of the cases decided under trial California judge, that, even if it is statute are no and (2) applicable; proper pre-1973 longer to exclude with an unalterable death penalty jurors opposition issue, it error exclude from circumstances determining special We both contentions. them from reject determining guilty phase. that, form, It is trac does not fix a sentence but post-1973 jury However,
finds Code, facts. under section 190.2 the Penal only of the death is once the circum- imposition penalty mandatory special stances have been found to be Even true. not know though juror may force, that his verdict has that conclusive it is naive to argue juror know, does not from fact of a after a verdict of very separate hearing that the verdict on will affect the sentence to guilty, the court and that that sentence well be one of death. imposed by issue has been a matter in widely publicized California for it is not for a trial court to exclude many years; improper from a those whose beliefs in the of the death wrongfulness would cause them to return a circumstances verdict that would avoid of such a sentence. possibility second
(2) The
contention was considered
the California
Supreme
Court in
It is to be noted that the version of Penal Code section 190.1 as did the to a contained same version provision pre-1973 respect for one the issues of both handling preference jury punishment guilt in murder cases. The Thornton that a for both the expression single july does not violate constitutional and the trial trial any punishment version Penal Code section refers to the of defendant pre-1973 rights “ ‘If the defendant was convicted in relevant which provides, part: be the same a trier of fact the issue of shall jury penalty] [on jury, unless, shown, in which cause the court that case discharges good jury ” drawn a new shall be to determine issue of (See penalty....’ Thornton, 738, 753, 11 Cal.3d fn. 10.) supra, provisions pertinent the 1973 version of Penal Code section 190.1 “If the defendant provides: unless, was convicted a of fact shall be the same trier jury, shown, the court cause that in which case a new good discharges jury, juiy shall drawn to determine whether the issue or not are true or true.” not Stats. (Italics added.) (See charged 719, 4, ch. 1298.) § p. a
Defendant
series of studies have reached the conclusion
argues
exclusion,
guilt stage,
jurors opposed
results in a
not
as a whole
penalty,
community
representative
and in
have been
a
convict. Similar
made
overly
arguments
prone
v.
to our
Court and
been
it. (See
have
People
Supreme
rejected by
9 Cal.3d
P.2d
642];
Rhinehart
Cal.Rptr.
If the
Murphy mandated, for the Court is to be it is separate juries Supreme an intermediate court to such rule. appellate adopt II was first on a drunk in arrested charge being pub treatment, he taken to for medical since was lic He was hospital place. *6 that time. After that defendant had refused
bleeding
testifying
sign
treatment,
consent for medical
Ofiicer Markussen was
permitted
defendant,
over
that defendant started
testify,
objection by
appropriate
and
in the chest.
succeeded
officer
kicking
swinging
kicking
The
here seek to
of that evidence
reliance
justify
receipt
People
2
362
III above, we As have out the result of the on the pointed jury finding circumstances was the the trial court of the death imposition by The under which that sentence was has since provision penalty. imposed been held be unconstitutional in Rockwell v. Court Superior Cal.3d him, 556 P.2d As we understand Cal.Rptr. 1101]. General the 1977 revision of the Attorney argues statute, contained in 316 of the Laws of cured the chapter constitutional relied on in Rockwell and that the case should objections be remanded for a new That contention hearing. was made and rejected People Harvey Cal.App.3d we 887]; follow that decision.
The is modified to judgment for life on provide imprisonment I; count the sentences on the other two counts are into that merged Code, sentence (Pen. 669); otherwise the § is affirmed. judgment Files, J.,P. concurred. (Bernard),
JEFFERSON J. —I dissent. The finds no error sufficient to a reversal of majority justify I conviction. do.
I Exclusion, Prior to the Guilt Phase of Trial, Jurors Who Prospective Defendant’s Conscientious Expressed Scruples Against Capital Punishment to the Extent That Could Not They Vote the Death Penalty Irrespective Evidence, Constituted a Denial of Defendant’s Constitutional to Due Process Rights
Law, *7 Laws, Protection the and a Equal Fair and Trial Impartial by Jury for the of defendant’s the trial selecting jurors court guilt phase conducted a voir dire examination of their prospective jurors regarding views on the death Six were excused for cause penalty. prospective jurors result of for cause as a was excused alternate and one juror prospective voir dire examination. court’s since, of section that under It is contention defendant’s provisions trial, at the time of Penal Code in existence 190.1 of the or death to recommend or authorized was not impose required to but find contrasted life for murder as only imprisonment, penalty not, there was or were true whether the allegations special-circumstances dire examination of voir no prospective legal permitting justification death toward the determine their attitude penalty. jurors to the exclusion of out such led that points inquiry that who asserted their conscientious scruples against, toward, would a fair consideration or attitude preclude penalty innocence, or or of whether the defendant’s guilt not; on were true or led to those leaving but who who conscientious death possessed scruples against indicated that would still be able to determine the issues they circumstances, It is the contention of based evidence. and, therefore, that defendant such created inquiry, guilt-prone hence, due denied defendant his constitutional equal process of a made and his to a fair and up right impartial jury protection rights broad cross-section of community. merito- contention this I consider contention. majority rejects
rious. set forth
I with a consideration Witherspoon principles begin 776, 88 S.Ct. 391 U.S. Illinois Witherspoon 1770]. be carried out if the of death cannot declared that a sentence veniremen for it was or recommended chosen by excluding imposed voiced cause because general objections they simply its infliction. No conscientious or expressed religious scruples against at the hands of a tribunal defendant can to death constitutionally put 784-785]; selected.” 522-523 L.Ed.2d at fns. (Id., so pp. pp. omitted.) in a
The essence of
is that
death penalty
Witherspoon
prospective jurors
case
not be
on the
because
excluded from
jury simply
they
serving
voice
to the death
conscien-
objections
penalty,
express
general
simply
infliction,
its
but do
state
tious or
unambig-
religious scruples against
vote
would
they
against
imposition
uously
automatically
*8
no matter what the evidence at trial
reveal.
capital punishment
might
These
were
affirmed Boulden v. Holman
Witherspoon
principles
433,
Defendant of urges procedure questioning prospective jurors relative to their attitudes toward the death and penalty excusing, cause, those who cannot aside their attitudes in the evidence put assessing innocence, as to or denies to a defendant the to a chosen guilt right from a selected cross-section of the in violation of randomly community due and fair constitutional equal process, protection jury-trial rights. that,
Defendant under the of Penal Code sections argues provisions and as existed at time of his they questioning examination on voir dire their views as to the regarding death constituted a irrelevant consideration on issue totally out that the the case bench juiy qualifications. points or determine his innocence of offense only required first, murder, second, truth or falsity allegations respect circumstances. fact, Prior to Penal Code section 190.1 that the trier if provided it were the would life based jury, imprisonment fix the evidence such as presented surrounding crime, and of facts in background history, Penal Code section aggravation mitigation penalty. 190.1 was declared Anderson Cal.3d 628 by I, 493 P.2d to be violative of article section 6 of the Constitution, California which cruel unusual proscribes punishments. However, Code 190.1 Penal section pre-1973 provisions were and a new 190.1 section was added to Penal Code. repealed *9 to be 190.1, of death was the of section 1973 version Under the penalty circumstances of the truth of the the special finding “only upon imposed this 1973 Under the Penal 190.2 in Section enumerated Code].” [of 190.1, of the truth determination Penal Code section version “[t]he the trier shall be made or all charged special any the evidence of fact on presented.” in the was function of the changed radically
It is clear jury had been what its function 190.1 from Penal Code section 1973 version also clear that 190.1. It is Penal Code section version of in the pre-1973 court in enunciated the were Witherspoon Witherspoon principles version of that resembled Illinois statute of an pre-1973 light Illinois had the section since Penal Code California’s jury life as death or for murder either discretion to fix the and penally duty imprisonment.1 therefore, circumstances, essential, it that such was
Under prospective order to be elicited in attitude toward qualify capital punishment juror’s determination, based and make a fair him to sit on and, innocence case of evidence, or in the of defendant’s guilt, guilt clear, however, how a It is not at all prospective appropriate punishment. whatever has attitude toward relevancy capital punishment juror’s 190.1, to determine of Penal Code section under the version post-1972 since the in a murder case to serve such juror’s qualification defendant and the innocence of the to determine or only required circumstances. or truth allegations falsity kinds, no voir dire of various felonies cases involving noncapital attitudes toward their made of is jurors regarding inquiry crimes, be particular imposed punishment other or some be crime robbery, burglary, whether rape, charged circum- of the existence even and though finding felony, aof the court’s results in in the information imposition stances charged valid reason is sentence. No majority, severe suggested by more about me, should questioned none why prospective appears from a case as in a murder robbery, views on distinguished their where the truth or case falsity special-circumstances burglary rape for determination. to the are submitted allegations with two was entrusted remarked: “For in this case the court 1In Witherspoon, first, was innocent or guilty; determine whether the petitioner distinct responsibilities: second, sentence should be imprisonment determine whether his if guilty, omitted.) 782-783]; fn. 391 U.S. death.” (Witherspoon, supra, have been People argue simply Witherspoon principles *10 followed in cases and the that California Court has subsequent Supreme held that a for cause is repeatedly if he excusing prospective juror proper states that he would not vote for the death under circum- penalty any stances, and that even the exclusion of because of improper jurors not, itself, does in and of create an scruples against penalty unfair to of a defendant’s trial. respect guilt phase
This has that would argument validity only upon assumption jurors know that in a murder case where of there are automatically allegations circumstances, the be court will will special penalty impose or life whether the of imprisonment, dependent upon allegations circumstances are found to be But is true or not. this sheer by speculation. know that the majority accepts premise of means for the death
allegations request it asserts that is naive to to But in penalty, argue contrary. such a of is notice adopting premise, majority necessity judicial taking of a matter that is not the of notice. The simply subject judicial majority’s view constitutes a violation of Evidence Code section which provides: “Judicial notice not be taken of matter unless authorized any law.” The of what know required does not by question prospective jurors fall within of matters made the of notice category subject judicial by Evidence Code section 451 or 452.
No trial or is free to take notice of a matter judge, appellate, judicial because he it believes is to simply personally reasonably subject notice, To be the a matter must dispute. fall proper subject judicial within a that is sanctioned or notice either category required judicial by or a This decision. is the essential statutory provision judicial meaning bench, however, Evidence Code section 450. In the case at the majority this of law ignores principle by substituting majority’s personal beliefs for the of Evidence Code section 450. objective requirements cases,
In other than murder it is usual court to CALJIC give No. “In instruction which provides: deliberations your subject is not to be discussed or considered punishment by you. That is a matter which must not affect verdict.” In any way your v. Shannon P.2d Cal.App.2d giving No. 17.42 CALJIC instruction case was burglaiy objected it defendant on the of the defendant. ground suggested guilt “On the it directs the the court stated: such contrary, rejecting suggestion, with a consideration not to involve guilt question that advice a their That is the law. Without may permit penally. accused to be deflected a dread of consideration seeing guilt (Id., at suffer the 306.) statutory punishment.” p. bench,
And the case at in the special-circumstances phase determined, instruction had been a similar after wit, CALJIC This instruction reads: instruction No. 8.86.5. given, is not “In deliberations the punishment your subject *11 not in That is a matter which must discussed or considered any by you. in this as to the affect charged finding way your case.” Court, that, the wake cases, in
It is in the California true Supreme prior exclusion, contention that the has during Witherspoon, rejected case, who are of a death murder trial jurors penally guilt a to the death made jury. impose jury guilt-prone unwilling penalty, 138, 349, 8 503 P.2d In v. Cal.3d 368 (1972) People Murphy Cal.Rptr. [105 to court stated: “He 594], the develop evidentiary hearing requests Jurow, evidence is now available New [citing argument ‘empirical Data on the a “Death on the Guilt Determination Qualified” Jury Effect of 84 Harv.L.Rev. that a from which Process (1971) indicating jury 567] who would are excluded never vote to impose determination [i.e., is a to more jury” “hanging regard guilt likely 7 Similar were made in v. Sirhan (1972) requests People convict].’ 385, Robles, 710, Cal.3d 747-749 497 P.2d v. 1121], Cal.Rptr. People [102 205, 166, In 2 Cal.3d 219 466 P.2d re 710], supra, Cal.Rptr. Arguello [85 13, 633, Cal.2d 16 452 P.2d re 921], 71 (1969) Cal.Rptr. [76 613, 21, 620-621 447 P.2d Anderson 69 Cal.2d (1968) 117], Cal.Rptr. [73 We and were for various reasons. must rejected again reject Anderson, not because of our decision in v. contention only People supra, 6 628 but we are as decisive the Cal.3d because willing accept of the Jurow that the exclusion of conclusion study opposed on issue of results in an unrepresentative jury capital punishment increases the risk of conviction. Defendant simply substantially A such claim.” after establish the fails to validity year Murphy, in similar fashion in v. Rhinehart Court California Supreme spoke 507 P.2d 9 Cal.3d Cal.Rptr. 642]. [107 selection defendant has not established that But even jury though it is at bench resulted in the case guilt-prone jury, my procedures view that those did result in from service procedures on the excluding and identifiable jury large which constitutes segment community, error. In Peters v. 407 U.S. 83, 94, 503-504 L.Ed.2d Kiff (912) S.Ct. 2163], United States Court declared: “When Supreme any large and identifiable service, is excluded from segment community the effect is to remove from the room of human nature qualities varieties of human which is unknown and experience, range unknowable. It is not to assume that the perhaps excluded necessary will vote as a conclude, class order to do, as we group consistently its exclusion of a on human events that deprives perspective may have case that unsuspected (Fn. importance presented.” omitted.)
In Adams v.
Court
Cal.3d
Superior
524 P.2d
the California
court
out that the United States
375],
high
points
Court, in
Williams
Florida
The Adams case as that “before interprets Witherspoon holding exclusion be held there must be a common thread may improper, attitudes, excluded basic of ideas running through group similarity —a its members so that the exclusion experience among prevents juries from a of cross-section 60.) (Id., reflecting community.” p.
In view of the fact of Penal Code sections 190 and provisions as existed at the time of defendant’s made they juror’s consideration, irrelevant attitude regarding of who had a fixed and unalterable exclusion from to an exclusion of an aversion to the death amounted arbitrary identifiable, of citizens. The otherwise ascertainable group eligible of “a meets the test excluded having group certainly Witherspoon-Adams the excluded basic thread common running through similarity group —a
461 so that the exclusion attitudes, its members ideas among experience (Adams, a cross-section of the from community.” juries reflecting prevents 12 Cal.3d 60.) supra, in recommend- in case had no
Since the
responsibility
interest
and no
guilt,
legitimate
finding
ing punishment
be,
is a
should
there
what
punishment
ascertaining
appropriate
had
the state
to establish that
any legitimate
failure
People
cause,
trial
at the
or the
special-
excusing
guilt-phase
purpose
indicated.
v. Louisiana
members
class
(Taylor
phase,
v. Florida
522
L.Ed.2d
95 S.Ct.
Williams
692];
419 U.S.
(1975)
[42
v. Jones
1893];
399 U.S.
L.Ed.2d
S.Ct.
345, 510
P.2d 705].)
Cal.3d
I next consider the
error involved in
effect of the
question
one
at bench. The error is
selection
the case
procedure
employed
the error is
constitutional dimension.
whether
prejudi
determining
reversible,
to whether
cial and
consideration must be given
of defen
rule
error
to mandate
reversal
applies
prejudicial-per-se
or,
conviction,
dant’s
of defendant’s
evidence
guilt,
irrespective
error
deemed
harmless
whether
through application
error
forth in
harmless
standard set
Chapman
California
U.S. 18
87 S.Ct.
rights
error,
18,
705,
...”
386
23
harmless
U.S.
L.Ed.2d
supra,
(Chapman,
[17
of the
indicates that the
710].)
analysis
My
problem
prejudicial-per-se
of error is
in the instant case rather than the harmless-
rule
applicable
forth in
In
constitutional-error
rule set
v. Louisiana
Taylor
Chapman.
690,
groups cannot constitutional community squared concept 690, trial.” 419 U.S. L.Ed.2d 698].) (Taylor, supra, That is there no defendant to show actual necessity prejudice from the is exclusion demonstrated improper jury procedure amply the view set forth in Peters v. 407 U.S. L.Ed.2d Kiff (1912) 93, 92 S.Ct. in which the court stated that “even if there is no tribunal, of actual bias in the this Court has held that due showing is denied that create the or the likelihood process of bias.” The “But added.) Peters court added: (Italics appearance exclusion from service of a substantial and class identifiable citizens has that is too subtle and too potential impact pervasive admit confinement issues cases.” (Peters, particular particular 407 U.S. 94].) supra, Peters, set in it forth is view light my principles Taylor error involved selection procedure employed se, case bench constitutes error because prejudicial per “likelihood or the of bias” created and mandates a appearance thereby, reversal of conviction. judgment
II Evidence That Assaulted the Police Who Arrested Him First Officer on a Minor Is Not Admissible to Charge Consciousness Guilt
Show concedes that it was error the trial court to admit majority evidence that defendant kicked the officer in the chest arresting defendant’s arrest for drunk But the being public place. majority concludes incident was of such little force it that was probative I not prejudicial. disagree.
The admitted evidence had a for to defendant potential great prejudice because of its misuse as character trait or possible propensity evidence, made 1101, inadmissible Evidence Code section subdivision As indicated in (a). 738, v. 11 Thornton Cal.3d 756 467, 523 P.2d where other-crimes evidence offered on Cal.Rptr. the issue of the court remarked that “because the identity, prejudicial effect of manifest, such evidence is the court’s should be discretion always
463 is weak.” if the inference in favor exclusion exercised identity wide 352 the trial section Code Evidence gives judge “Although care in discretion, a discretion that must exercised it is discerning evidence of other-crimes connection with the admissibility question defendant, nature because of offered inherently prejudicial against evidence.” trait and evidence as character of such constituting propensity 302].) v. Gibson Cal.Rptr. Cal.App.3d (People Because of the errors involved in proce- jury-selection prejudicial evidence of in the and in the into dure case bench receipt employed evidence, conviction and I would reverse character-trait judgment trial, so he for a a new remand case new trial. Defendant deserves “relevant, tried on Guerrero can be evidence” (People nonprejudicial P.2d and before a 366]), Cal.3d selected validly jury. Jefferson, J., was was denied June 1978.
A rehearing petition should be granted. petition opinion Appellant’s petition Court was denied 1978. a hearing by Supreme July