People v. Sirhan

No. 14026. Bank. June In [Crim. 1972.] PEOPLE,

THE Plaintiff and Respondent, SIRHAN,

SIRHAN BISHARA Defendant and Appellant.

Counsel Jabara, McKissack, Rus- Grant Luke Abdeen Cooper, E. Shibley, George Goldin, and Ernest Godfrey Isaac Parsons, sell E. Martha Mundy, Robert L. for Defendant and Graves Appellant. General, James, Younger,

Evelle J. William Assistant Attorney Attorney E. General, General, and Ronald M. for Plaintiff Deputy Attorney George, and Respondent.

Opinion BURKE, A jury J. found defendant of first murder of guilty degree Senator and at Robert fixed death for that crime. Kennedy penalty The also found defendant on five counts assault with jury guilty charging Schrade, with intent to commit murder Paul Irwin deadly weapon upon Stroll, Weisel, and Ira Goldstein William Elizabeth Evans respectively, and on counts. The court denied those prison imposed sentences trial, motion for a new automatic is now us. defendant’s before appeal Code, (Pen. (b).) subd. § (1)

Defendant contends that the death is cruel or unusual penalty punish- ment; (2) in view of of his the evidence proof diminished capacity conviction; insufficient to (3) first murder he was denied degree support a fair trial as a result of certain (4) his to be secure publicity; right against unreasonable searches and seizures his self-incrimina- against privilege tion were violated of evidence found in his bedroom and receipt in his yard; (5) admitted; other evidence (6) his constitu- erroneously tional rights were violated by having initiated prosecution information; indictment rather than an (7) the court erred in failing hold an evidentiary hearing whether the exclusion veniremen opposed to the death results in an penalty on the issue unrepresentative jury guilt or conviction; substantially increases risk of (8) petit grand juries were selected.1 illegally Anderson,

People Cal.3d 628 880], P.2d Cal.Rptr. holds that the death violates penalty our state constitutional provision cruel against (Cal. I, unusual Const., 6). art. punishment The first of § defendant’s contentions thus is meritorious. have We concluded that the other contentions set forth above cannot be and that the upheld judgment should be modified to for life provide and as so modified imprisonment affirmed.

At the trial was that defendant fired shot that killed undisputed Senator Kennedy. evidence also established that he conclusively shot the victims of the assault counts. The defense relied principal upon defendant was that of diminished Extensive evidence was capacity. pre- sented of the circumstances and of defendant’s surrounding shootings condition, mental which evidence bemay summarized as follows: About 8:30 on June p.m. two before defendant shot Sen- days ator Kennedy, senator made a speech the Coconut Grove at the 1 defendant also contends that the court abused rejected its discretion when it offer to plead guilty degree to first punishment murder with imprisonment fixed life reasons, claim, for several punishment in addition to the cruel or unusual penalty the death in view set should be It is unnecessary aside. to reach these contentions Anderson, holding of our Cal.3d 628 880], P.2d penalty that the death is unconstitutional. which he delivered a second Hotel in Los following

Ambassador Angeles, outside the hotel. seen at the hotel about 8:45 Defendant was speech A after the senator’s second half hour or night less acquaintance. kitchen near saw a who looked like defendant a hostess man speech the Coconut Grove. at a firing gun defendant

During on June day practiced on several for and had also range ranges several hours practiced shooting fire with the .22 revolver occasions. On June 4 he engaged prior rapid he used a kill The revolver had been few hours later to Senator Kennedy. obtained when his brother Munir by defendant in February paid fellow for it. employee

A at the on June 4 testified who talked with defendant gun range person that defendant with his gun,” stated he on a hunting “going go trip hunting he told defendant it was not to use for permissible pistols “Well, said, I know “because of the and that defendant don’t accuracy,” about that. It could kill a dog.” included

About 10 or 11 on whose duties secretary June p.m. that unauthorized were not near the Ballroom of Embassy seeing persons Hotel, saw him. who Ambassador defendant near that room and asked was, and he turned walked toward the doors into leading ballroom. before em- on the same defendant asked hotel

Shortly midnight day if to come Senator ployees Kennedy going through pantry, did told him that not know. One observed they employees defendant for about a half hour in the noticed unusual nothing pantry about his manner activity.

About in the June Senator made midnight Kennedy speech Ballroom as a Democratic candidate Embassy announcing victory in the he and his California president primary. Following speech Room, was then toward the hotel’s Colonial which entourage proceeded used as a room. En route the senator in the being press pantry stopped to shake hands with the darted toward kitchen staff. Suddenly senator, revolver, out a and fired several shots. The senator pulled him, Schrade, a man Paul fell. Pandemonium ensued. adjacent A hand hotel defendant around the wrist of the grabbed employee hand, defendant, but who was still able to move that gun, holding Stroll, Weisel, continued Elizabeth Evans and Irwin William shooting. Ira in the Goldstein were Several gunfire. injured joined persons defendant, and succeeded in and one took the gun struggle restraining it?,” something did do defendant replied from. him. asked “Why you When to the effect “I can explain.” He he underwent surgery.

The senator to a where was taken hospital surgeon, the to the According autopsy died on June 1968. subsequently cause of death was a wound “to the mastoid” gunshot right penetrated wounds, brain; one additional senator also received two gunshot indicated in an and another lower. testimony armpit slightly Expert head when the an inch and a or less from the gun was half senator’s fatal inches when bullet was fired and in contact him or within a few with the other wounds were inflicted.

Around the time senator was taken to the that the hospital police defendant, officers, arrived at the hotel and took of defendant. Two custody and Jesse En route Unruh into car drove to station. got police the officers advised defendant his constitutional rights. Subsequently Unruh asked defendant did shoot him?” and dеfendant “Why you replied “You think I am think I will tell can use it as You so crazy? you you evidence me?” Unruh also heard defendant “I did it for against say my intoxicated, Unruh believed country.” that defendant was not police officers who were with at the defendant time of his arrest or there- shortly after reached the same conclusion. station, arrived at the a.m., after defendant police

About minutes 12:45 was with that he officer estimated Officer Jordan. The he seen stated that on this occasion. Jordan and five hours defendant between four many years and that officer’s irrational defendant never appeared the most alert intelligent people defendant was on the force “one himself identified Jordan interrogate.” initially I have ever attempted The officer then received his name but no response. and asked defendant defendant, after asking defendant his constitutional rights, advised Jordan, Defendant, to remain silent. indicated he wished few questions, than the matters other discussed various and other officers subsequently jury. case. of the conversations played Tapes a news- including items on defendant’s found various person, police Kennedy Senator noted that in a recent article which in speech part paper to meet the threat arms if necessary’ aid to Israel ‘with “favored Soviets.” he he told defendant that on occasion testified one

A trash collector and that election in the Kennedy going primary vote I’m for? Because for that son-of-a-b to vote do want you “What replied the witness admitted On cross-examination him.” on shooting planning he stated he would testify when asked if the assassination that following so much because hated Sirhan take the oath “would not want to [he] convicted.” would do to-see him. anything [he] police documents found also introduced The prosecution hand- defendant’s statements in documents contain defendant’s home. The alia, Senator killing inter including, matters writing various regarding Kennedy.2 behalf, shot Senator admitted

Defendant, having own in his testifying con- done so. He having he did not remember but claimed that Kennedy, ceded, however, Kennedy wilfully, “I killed Robert premedi- that he stated in which (The context aforethought.” of malice with twenty years tatively, herein.) Defendant further testified forth later this statement was made is set he, victims of the assault have,” doubt that shot the or had no he “must counts. 5, was as follows: June 4 and account of what on transpired

Defendant’s like the entries June but did not intended to to the races on He go a gun range, took his revolver to decided instead. target shooting to He go ammunition, until about at the range route to and stayed en buy stopping not the who engaged there but was shooting person He p.m. practiced occasions and to on several gun fire. He had gone ranges prior rapid interested . . . because he “liked to” and “was with the gun practiced first interest in . . . He .an target practicing perfection.” developed school cadet He did not recall making as a of a guns high, corps. member his have “it might a statement about He said dog. [apparently killing animal,” have in mind kill an but did not gun] is to he enough strong to eat and he range, Senator After killing Kennedy. leaving stopped Israel, which made an article march for concerning saw subsequently but found area the march was scheduled him He drove to the where angry. head- it the drive he Thomas Kuchel’s was not on that date. On passed at the and went in. There someone mentioned “bigger party” quarters was, defend- did whose Ambassador. not mention The person party went be a He Kennedy night. ant did know there was to not party Ambassador, Zionists, and started to drink. He was mad at to does not how two Tom about an hour. He recall bought Collins during felt and returned drinks he had that After a he evening. high while many his to car home but was afraid to because of condition go to drive his and decided return the hotel for coffee. did recall but as a of what gun

He result up subsequently picking fully more hereinafter in connection 2The contents documents are set forth with discussion defendаnt’s claim that the admission of the documents improper. to the Ambas- he he have done returning realized must so. Upon transpired sador, The next thing he found some and talked with a girl. coffee remembered he was choked. being come

He did not Kennedy remember asking anyone going “where would through” [Kennedy] did not know if he asked “what time but there.” He did not remember it for “Jesse country” “I saying my did Unruh the state- must have been correct made saying [defendant car, He his consti- recalled into the advised of getting being police ment].” tutional rights, various other matters his arrest. following

Defendant also Hotel June admitted Ambassador having gone 2 where he heard but denied been in the Senator Kennedy speak having kitchen that like but night. He stated that the senator “looked a saint” that defendant still had in the back of his a broadcast in which the mind senator committed himself to bombers to' Israel. sending jet

Defendant denied made the statement the trash collector having to' regarding killing Senator Kennedy.

Defendant further testified his as follows: He regarding background Jerusalem, Arab. Palestinian He was bom in in New and in he and his family moved to Old Jerusalem where remained until they coming to the United in States his in Old Throughout eight 1956. years there Jerusalem were intermittent He attended school there. bombings. lived family His in Old whole under conditions Jerusalem the poor [e.g., resided family in one room with toilet He grossly inadequate facilities]. was told were they as were “The Jews kicked us out living they because of our home.” He was also told of a which massacre in 250' includ- people ing in blood in slaughtered children cold the Jews. While living Old water, Jerusalem he went to a well for and the bucket some when came it contained a hand and it sickened occasion him. On one he saw up remains of a he knew. In he heard about exploded grocer aggres- sion Israel against Arabs in the Suez About a Canal. after year they came to United his father States returned Jordan. In 1963 defendant from graduated high school attended college subsequently but was dismissed in 1965 after classes. He missing thereafter worked with horses but left his and did not find job another job year. occult, He read available on Arab-Israel conflict and on the everything he which became interested in 1965. He the Rosicmcian Order joined in 1965. He several such as performed concentrating experiments mirror and face of Robert instead of own. seeing Kennedy his

Defendant also described in detail his views the Arab-Israel regarding conflict and his hatred of the Zionists. bomb- regarding evidence defense

Additional was introduced there, the various defendant resided in Old Jerusalem during ings period childhood, living his condi- during poor matters saw gruesome saw witnesses also testified city. tions in Several defense with a hand on the of June 1968. night defendant drink in his defendant called to the his defense of diminished In capacity support Marcus, (a M.D. stand two Eric psychiatrist) psychiatrists court-appointed M.D.; administered Diamond, Bernard who two psycho- psychologists Schorr) Martin (Drs. tests to defendant Richardson logical Orville administered, evaluated, to defendant and four who tests psychologists Howard, (Drs. by Dr. Richardson Dr. Schorr William Stephen and/or Crain, Vos). Seward, and De Georgene George the alleged Marcus testified the time of

Doctors and Diamond that at and Dr. Diamond further murder defendant was a schizophrenic, paranoid restrictive con- stated that defendant was then a “dissociated state of . . . condition.” According sciousness as a consequence psychotic [his] lacked, the to both mean- maturely psychiatrists, capacity act of murder and reflect ingfully upon gravity contemplated his in with the duties to his to actions accord comprehend duty govern law, and They reasons for their conclusion. imposed explained testified, manifestations of further and concerning origin, development, the illness. Schorr, Crain, De likewise testified Richardson,

Doctors Vos and Seward Schorr, and, that defendant was a to Dr. paranoid schizophrenic, according a went into dissociate state before Doctors Rich- defendant the shоoting. ardson and with the that defendant lacked Schorr also agreed psychiatrists of his gravity to reflect maturely meaningfully capacity upon act of murder and harbor aforethought. to- malice contemplated Dr. Howard concluded that defendant features” and is has “paranoid i.e., “a borderline a “who can in and. out of go psychotic person,” person . . . relative ... in on the minor stresses daily psychosis, depending life.” M.D., Pollack,

In rebuttal called to Seymour stand prosecution and law at of Southern California. professor psychiatry University times, Pollack defendant about 24 hours Dr. interviewed eight spending with first him. The such interview was on 1969. doctor January courtroom, during also observed defendant preliminary proceedings June and. the trial. In addition he interviewed began during members of defendant’s reviewed the ‍​​​‌​‌​‌​‌‌​​​​​​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌‌‌‌‌​​​​‍given by tests family; psychological matters other and numerous defendant and Schorr to Richardson Drs. defendant’s conversations jury tapes such as the grand transcript other conference with psychiatrists and attended his after apprehension; Dr. Pollack spent the case. The overall time concerning and psychologists 200 hours. was close to on the case was not Defendant Dr. Pollack testified: his diagnosis,

With respect signs were “no observable or i.e., symptoms there “clinically psychotic,” aas allow psychiatrist to a and of a kind that would [the witness] degree There was ill aas mentally person.” say psychotic [defendant] insufficient schizophrenia.3 proof is, Pollack, was at hand, Dr.

On the according other that,” ill and mentally “some time before the time of the and for killing i.e., substantial, of a disturbed, illness was and his mental emotionally that is not in most of the degree kind population. present Dr. Pollack concluded that defendant is a which paranoid personality, is not a but a of mental psychosis form in which there illness is an exaggera- tion of certain personality characteristics. Such is more personality suspicious sensitive than most “takes more people, things personally to a greater than degree and tends to collect average person,” grievances.

Dr. Pollack testified that defendant also is “a borderline schizophrenic,” i.e., “a who has ... person or shows some minimal evidence of peculiar- ity his . thinking, have, . . but who doesn’t feeling who hasn’t shown . . . clnical any signs symptoms psychosis.” According Pollack, Dr. there are indications that defendant has “a psychotic person- structure,” ality and a with such a person structure not “held together as well” and becomes “more easily than ordinary.” unglued demonstrated,

Dr. Pollack further stated: Defendant evidence of psy- chosis in the However, tests. psychological in the interviews he did not have the degree of that the would have personality disorganization doctor expected tests, from the although interviews revealed matters specified example, indicating of For possibility the interviews psychosis. during after the initial ones defendant exhibited a of with degree paranoid thinking accompanying emotional that led the witness to responses suspect there were psychotic characteristics in his paranoid personality. “[T]he respect 3With schizophrenia, to the doctor stated: He found no defendant evidence psychotic had autism, peculiarity thinking. delusions or Nor did display defendant a state in which largely an individual lives within In this connection the doctor himself. gone having noted as having matters such defendant’s to the racetrack and worked several months in did not find 1968. Dr. Pollack also that defendant symptoms schizophrenia, exhibited two namely splitting other a marked between acting his emotional life and ambivalence. notebooks,

element” defendant’s but Dr. did not strong Pollack quite believe that notebooks were evidence of since he found none psychosis of the would therein that have been “more definite peculiarities proof The doctor believed the being clinically psychotic.” repetitious [defendant’s] statements in to Senatоr were writing relating killing Kennedy examples to defendant’s “his to attempts strengthen courage carry capability [and] out his intention kill was “the Part not Kennedy.” writing writing of a mature mind.” He that had he healthy acknowledged many spent additional hours with defendant it is more definite possible probable evidence would been have found.4 psychosis Dr: Pollack traced defendant’s life and the effect of various history stated, alia, incidents him. He upon inter that “defendant’s personality it was standard as on June was related to-the he had experiences all, as a boy, in Jerusalem these experiences substantially significantly, affected him to a extent and certain were related to- what he did.” Dr. Pollack stated that he believed that defendant was to the turmoil exposed and violence that the Arab-Jewish conflict but that he had accompanied no material that defendant had than others in his any greater exposure and that family community there were times many reasonably secure. Dr. Pollack believed that of defendant’s life spite early experiences than, “into him a much stronger others believe developed person be,” “these although to some left vulnerable experiences degree [him] in the of this development character formation . . . .” subsequent

Dr. Pollack “I further testified that believe the assassination of Senator Robert reasons with which Kennedy triggered by political [defendant] was highly I believe emotionally that Sirhan focused on Senator charged; die, Robert as an individual who should Kennedy because of only Kennedy Israel the bombers that death give jet would cause promise Arabs, thousands in Sirhan’s but also because wanted Sirhan opinion, the world to . . see . how our United States in the strongly policy pro-Israel-anti-Arab movement in . . . of our Government’s spite pro- fessed interest for the and world . . . saw underdog, justice” “Sirhan himself and, as defender of Arab cause as an individual who through 4Dr. Pollack that indicated he had not asked more because time with defendant аt the longer Dr. conference Diamond led to him believe that Dr. Diamond “no However, wanted to participate.” [him] at the conference Dr. Pollack that stated [interviewing “I don’t think going majorly productive defendant to be further] be, quite because he continues to and I think he will for some time . . . defensive I still. know he is aware of to very the circumstances. He much . does not want . . crazy be seen as a perceived He wants his act to as that Arab fellow. be of an nationalist who committed the He be seen assassination. would rather that he this way go gas and to crazy chamber than be seen as a man. . . .” to . also . . and to the Arab plight attention would world act bring this of success.” his materialize fantasy Sirhan’s mental Kennedy, shot testified, when Sirhan “In my

He opinion maturely to extent of diminished capacity was not to capacity impaired the gravity upon and reflect and deliberate and meaningfully premeditate “did not that Sirhan and the Senator” shooting act of of contemplated aforethought.” malice to harbor capacity . . . diminished mental have “functions” the following he considered that The doctor explained of altered evidence any found no He conclusions: reaching foregoing to state, indicated various matters and or dissociate state of consciousness showed of eyewitnesses For testimony contrary. example, record- and tape asked him aware of significance questions deal of “a indicated great at the station his ings conversations police attention substantial his was no impairment There reasoning ability.” manner), percep- (i.e., meaningful to attend his environment in to ability manner, using in a (i.e., meaningful past to ability objects tion perceive but to to know (i.e., ap- not simply understanding ability experiences), sense”), to associate ideas logically, “in a fuller ability preciate was becom- disturbed.” He “not that freedom choice. His emotions substantial evidence but there was no more irritable ing explosive (i.e., his ability that “this was an His foresight impulsive explosion.” intact, the same look forward and reasonably plan) appeared true his regarding memory. continuum, from ranging Dr. Pollack stated that mental is on a capacity attain); (close (which none zero to absence of capacity) percent draw the wants to are not as to where society psychiatrists specialists line, considered if individual is but that he say as “can psychiatrist it should be . these functions to have . . substantial any impairment of any below 50 and those with substantial impairment percent” persons recited functions would have diminished capacity. illness defendant’s mental Pollack further Dr. testified opinion that it related to what he did but not “affected” “some” “enough” stated, Dr. Pollack In a to the district attorney assassination. report in that his assassination mental was related his act of “Sirhan’s illness in the went those of a normal personality convictions paranoid beyond a sub- be considered citizen .... mental illness should average This . .” . stantial factor on the issue of mitigating penalty. believed it was “good” testified that defendant

Dr. Pollack also when made to kill Senator and had belief “right” Kennedy fact, asked, “As a matter of counsel then entries in his notebooks. Defense he?”, it, it was didn’t and felt his almost to do Dr. Pollack duty replied, “Almost, As an Arab he that it would felt was his that he yes. duty, to looked the Arab world and that he would be considered a hero.” by up that Dr. Pollack indicated he did not defendant’s that it consider belief and a and to kill the senator delusion stated that “it’s there “right” “good.” I a think difference exists between the other and major psychiatrists He testified no evidence of himself myself.”5 to believing gave abe chosen God by to kill whom he as the Kennedy regarded person devil—that such a belief would have been a delusion. Dr. Pollack further testified that act defendant did not to be because his expect punished view in and his others the senator’s views about Arab-. Kennedy having conflict Israel were murderers. a

Leonard clinical was also called rebuttal Olinger, psychologist, by He contacted after prosecution. on the prosecution concluding basis of news Dr. some of Schorr’s was unwarranted reports testimony the material it. The furnished Dr. presented support prosecution with, Olinger other the tests to defendant Drs. Schorr given among things, and far as Richardson. So Dr. never examined appears Olinger personally defendant. After various to defendant’s criticizing given interpretations test other witnesses and responses by administering techniques employed tests, of the certain Dr. Olinger stated that his from opinion appeared the tests that defendant was borderline with “a schizophrenic primary neurotic features.” He stated that on basis of demonstrated capacity tests, could such individual maturely meaningfully pre- meditate deliberate to the act commit of murder. He further stated that the tests defendant had suggest capacity duty comprehend conform it to the dictates of society. Degree Sufficiency Support Evidence to

1. First Murder Conviction Defendant contends that in view of of his diminished ca proof the evidence is insufficient to pacity his conviction of first degree support murder that he should have been convicted of or at most manslaughter second degree murder.

“ ‘It has been settled under the Wells-Gorshen long rule of dimin- ished that in cases than where capacity other those a murder is felony charged, if, defendant cannot be convicted of of the murder first degree time offense, he under a mental alleged dis- operating ability legal insanity him with amounting acting from prevented was, false, Pollack among things, 5Dr. described delusion as belief that other illogical, quite fixed.

727 ” v. (People and deliberation.’ or with aforethought premeditation malice 925], Risenhoover, 533, 39, 447 P.2d quoting Cal.2d 51 70 Cal.Rptr. 228, Ford, 41, P.2d Cal.2d People v. 54-55 Cal.Rptr. from 132].) evidence, the other things, expert recited including, among

The circumstances and introduced the testimony prosecution proof crime, finding the jury’s the sufficient to implied is surrounding support People (Cf. defendant committed the with malice aforethought. that killing Goedecke, Risenhoover, 39, 51; v. 65 Cal.2d supra, People Cal.2d 1213]; 423 P.2d A.L.R.3d 854 et seq. Cal.Rptr. Nicolaus, 635, 423 People P.2d 65 Cal.2d 869-878 [56 the that 787].) It defense counsel told jury noted that the trial may and a second in his the evidence law murder justified degree opinion conviction. the

We turn to whether the evidence is also sufficient to support next wilful, and the was deliberate murder finding jury’s implied pre- meditated. of and was elucidated deliberation meaning premeditation Wolff, 959], a 61 Cal.2d 821-822 P.2d [40 Cal.Rptr.

case a a form of schizo- who had involving 15-year-old boy permanent was and testimony charged phrenia according psychiatric undisputed with the of his true test “must include murder mother. stated Wolff maturely of . . . consideration . . extent which . defendant could . act. . meaningfully and of . his contemplated upon gravity reflect .. . defendant had time to ma- Certainly any normal person ample and to arrive at act and turely reflect his appreciatively upon contemplated cold, a did this in sense— deliberated and conclusion. He premeditated But, and to-the extent of which he full apparently capable. indisputably mature, record, is this defendant was not and not a noftnal fully well mentally He knew the difference between right wrong; person. knew it But intended act was and nevertheless carried out. wrong extent of his it and its understanding, reflection consequences, upon added], to have enormity with the evil appears [italics realization of been of moral relevant to materially—as turpi- appraising quantum tude and had detached.” theretofore pointed depravity—vague Wolff “ (at 820) out intentional homicides into murder p. ‘Dividing of human nature. voluntary manslaughter recognition infirmity recogni- is degrees two dividing murder into Again further the-offense personal turpitude quantum in the tion of that infirmity of difference by “any homicide is claimed that the . . . \W]hen offenders. deliberate, willful, premeditated killing” kind there is neces- other sity appraisal something an involves more than the ascertainment which for objective Holt, 59, [People (153 21); . . . v. 25 Cal.2d P.2d of italics facts. ” Bassett, (See 2d et also 69 Cal. seq. added.]’ Nicolaus, 777]; People supra, P.2d 65 Cal.2d Goedecke, 866, 876-578; People supra, 855-858.) 65 Cal.2d Here, had and, defendant time to reflect the ample upon killing, although the evidence is the heretofore summarized evidence constitutes conflicting, substantial that at the time of the was not a proof shooting defendant state, Also, ain dissociate or intoxicated. as we paranoid schizophrenic, seen, Pollack, have who Dr. examined defendant on occasions as eight well as extensive reviewed materials interviewed members having ill, defendant’s testified that was de- family, mentally although fendant did have aforethought not diminished to harbor malice or capacity maturely to reflect of his meaningfully gravity upon contemplated act, and the doctor reasons There was explained conclusions. motivated, also evidence that the assassination and defend- was politically are, course, ant’s actions in out crime additional carrying proof his then mental state. In addition a witness who observed defendant lay for about a half hour shortly before the noticed unusual killing nothing about defendant’s or with de- manner officer who was activity, fendant for several hours after found him alert shortly killing highly and intelligent.

We conclude that the evidence is to the first sufficient support degree murder conviction. Alleged

2. Denial Publicity Fair Trial as a Result

Defendant contends as result of trial publicity during he was denied his to an in violation of the due right impartial jury process clause of the Fourteenth Amendment of the federal Constitution. 5,1969,

On the regular was sworn. On February jury February a motion to enter a guilty first murder degree plea provided defendant receive life made denied. was in chambers and imprisonment The court ordered that the record the motion sealed. On pertaining 11, 1969, the February alternates were sworn. The court did not at this time jurors and alternates sequester and instead allowed them to return their homes until the The court admonished them following evening.6 regard 6Comments of the court indicate that the reason decision for its in this did jurors during want to be alternates confined in a hotel February 11 February holiday. afternoon of or any and “not to read anyone the case with newspaper not to discuss to this broadcast related or radio any . TV . . article listen any are to case, you or hear such report, and if see should you inadvertently deliberations.” your it and not it to influence disregard you permit Times Los Angeles an article On appeared February Likely—Defense Appears Now Guilty Plea the headline “Sirhan bearing added.) Trial, (Italics Avert Sentence.” Shorten Death Could Shift that defendant learned stated, that: things, “[I]t article other among of Sen. murder first-degree in slaying to plead guilty will probably lawyers to the change of three willingness “The Kennedy”; Robert F. defense that, evi- while on conviction psychiatric said to be based- their the plea jury a not hope could they dence not a death would warrant penalty, for murder”; in-chambers had been an: first-degree than verdict less there and, “both although between defense and lawyers, discussion prosecution Times reason the the meeting,” about the for sides were uncommunicative (Italics . was discussed.” . . in had “learned that possible change plea added.) broadcast The KFWB

The radio article received newspaper coverage. the Los Times Angeles when morning “. . arose this stated: . Speculation himself at the mercy said his change putting Sirhan would plea, probably that Sirhan . . . not the claims would discuss jury. newspaper Cooper to guilty hopes himself was the one wanted to change plea who and KNX death.” KMPC sentenced to life instead of being imprisonment counsel that contained statements. Defense represented broadcasts similar there the matter. coverage was also-television

The on the publicity subject was massive. In trial the words judge, hour; knows it “Everybody has been on radio it been in the has every the Times . .” newspapers, ... in the .'. certainly most important spot On February moved a mistrial the ground on defendant that not could receive fair trial as result of the article newspaper radio and subsequent television Both defense counsel and coverage. the prosecution assured the court that had not been the source they article, information in the court stated it was certain its staff had not revealed the At information. defendant’s the twelve request jurors six alternates were then in chambers questioned concerning individually the matter.7

With the 12 be may who rendered verdicts respect jurors urging 7In that he points part responses was denied a fair trial defendant to the jurors of two replaced jury guilt who were before the retired for deliberations at body had read the of the Times article.

inferred from the record none of a had read comments only general heard or either or nothing Several not a trial.” such there was thought going nature as “[a friend] four, however, on the least had Times headline or heard radio At seen the or a or television that defendant “was comment pleading guilty” plead “pled guilty” going or “was such as acquaintance additional guilty,” and at indicated that had also heard certain they least two statements, plea guilty viewed which have been as might suggesting degree murder.8 aside was to stated that could set they any Several first decide the evidence had heard read and the case they solely thing in court and law as court. produced given by mistrial, court, stated trial the motion for a “practically denying if said the Court they everyone, everyone’s responses questions could set aside if did them and decide case these matters hear to them on the in court and the law as stated evidence here only produced court].” [the new the a motion a trial on At the conclusion of trial defendant made for others, the that denial motion for a mistrial de- ground, of his among denied a him of an and the the motion for court prived impartial jury, new trial.

“Due that process requires the accused receive a trial an im partial free jury from outside influences. Given the of pervasiveness modern communications and the of difficulty effacing prejudicial pub from of licity minds the trial jurors, courts must take meas strong ures to ensure that the balance is never against the weighed accused. And appellate tribunals have the duty make an evaluation of independent Maxwell, (Sheppard circumstances.” v. 333, 384 U.S. 362 L.Ed.2d [16 600, 620, 1507]; 86 Wisconsin, S.Ct. see Groppi 505, also v. 400 U.S. 508 trial and two jurors. who 11, 1969, alternates never became February jurors On and alternates were admonished among yourselves “not to converse ... on this anything or pertaining matter the are it. You not to express opinion form or until is finally you matter submitted to that purpose.” No claim made that question four by discussing violated the anything admonition pertaining to the any case juror, 664; with presumably they (Evid. Code, did not § do so Sparks, 306, 682]). 257 Cal.App.2d Cal.Rptr. appear 309 It thus does not that [64 they whatever read or heard deprived right could have impartial defendant of his to an jury. juror stated guilty 8One “Someone plea something mentioned about a like “Well, you may that” and that several said be responses there for of week.” The juror KFWB, another show heard “about this case” on and from the state previously quoted ments might specu KFWB broadcast be inferred degree guilty lation concerned a of plea murder. first

731 Court, Cal.2d 68 490]; Superior Maine 574, 571, 91 S.Ct. L.Ed.2d [27 372].) 724, 438 P.2d 382, 384-385 [66 a show most cases claims of due deprivations In involving process Texas, (see Estes v. of to the accused is identifiable ing required prejudice 543, 549-550, 1628]), but 381 U.S. 542-543 L.Ed.2d S.Ct [14 circumstances, to the there is such a of under some probability prejudice Maxwell, supra, Sheppard accused is presumed. (E.g., prejudice from of 384 U.S. L.Ed.2d prejudice 614] [probability Texas, circumstances”]; supra, 381 U.S. 532 Estes v. of “totality [prob trial]; Turner v. ability televising broadcasting from prejudice Louisiana, 424, 429, 379 U.S. L.Ed.2d 85 S.Ct. [prob 546] as witnesses also serving jury from ability prejudice key prosecution Louisiana, trial]; Rideau v. U.S. L.Ed shephеrds during ex 2d from television S.Ct. [probability prejudice 1417] and in to the posing community “repeatedly spectacle depth [the with which he was in detail to the crimes personally confessing accused] later to be charged.”]) nor a

Here neither to defendant from the probability prejudice publicity record, thereof is that the shown even if it assumed jurors unable to the matters had heard or seen relating guilty disregard defendant.9 plea by as the

Insofar had heard or jurors ‍​​​‌​‌​‌​‌‌​​​​​​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌‌‌‌‌​​​​‍(1) read only guilty plea defendant without indication of any whether it was to first murder degree or to lesser (2) crime or statements of nature, an even more isit general that defendant unlikely was prejudiced by their aware of the fore- being since at the going trial defense counsel made it clear to the that the jury defense was not an seeking that acquittal the sole issue was whether defendant was murder, first guilty murder, degree second degree manslaughter.10 matters heard or read some of the by jurors juror’s 9A regarding ability declaration impartially to act set or to aside what he has heard solely or seen and decide the case on the evidence received at the trial is, course, Dowd, (see, not controlling e.g., under all circumstances Irvin 366 v. 717, 751, 759, 1639]; States, 728 U.S. [6 L.Ed.2d 81 Marshall S.Ct. v. United 360 1250, 1251-1252, 310, Tidwell, 1171]; U.S. People 312-313 L.Ed.2d [3 79 S.Ct. v. 62, 3 748]), Cal.3d 73 Cal.Rptr.44, 473 [89 P.2d nor can it be all assumed under jurors (see, disregard circumstances will follow instructions to certain matters States, e.g., 476, 479-486, 123, Bruton v. United 391 U.S. 126-137 L.Ed.2d 88 [20 Denno, 1620]; 368, 908, 922-923, S.Ct. Jackson v. 378 U.S. 388-389 L.Ed.2d [12 Aranda, 1774, 1205]; 518, 525-526, People 84 1 528-529 S.Ct. A.L.R.3d v. 63 Cal.2d 353, 265]). Cal.Rptr. 407 P.2d [47 stated, at 10Defense counsel the time of his motion for mistrial “Defendant has seeking jury examining acquittal, told an this on voir dire . . . that we are 732 thus not inconsistent with the of defense at the counsel trial. position defendant’s,

Although part own indicated that was uncon- testimony at scious of the time and the was jury instructed un- killing regarding defense, as a consciousness there was abundant that he complete was proof not then unconscious as was defense counsel in impliedly recognized by that he was not an advising jury seeking acquittal.

Furthermore, it is significant that at the defense trial counsel introduced another, evidence later occasion the trial when defendant at- during to murder, first degree to tempted plead guilty psychiatrists testimony by also referred to that later and on cross-examination defendant attempt, admitted stated “I killed having Robert Kennedy wilfully, premeditatively, California, (Cf. with twenty years malice Stroble aforethought.”11 343 181, 599], U.S. 195 L.Ed. 72 S.Ct. wherein the defendant claimed he had been denied due certain news process by reports, the court stated in “It part, significant ... confession was which one of the most of the features accounts prominent newspaper . . Tahl, . itself”; introduced in evidence at the trial see People v. 65 719, 318, L., Cal.2d 246]; 731 P.2d 56 J. & Cal.Rptr. Crim. C. S., 13-14; P. see A.B.A. Standards Fair Trial pp. generally to Relating Press, Free Draft, 1967, 3.5, Final (f), December Proposed §§ subd. 3.6; C.J.S., Law, 24B 244.) Criminal subd. (c), Under the cir- p. § cumstances defendant was not the information of which prejudiced some were aware jurors regarding guilty undesignated crime plea Jacobson, more (Cf. People or matters an even nature. general Cotter, 555]; Cal.2d 330-331 P.2d [46 Cal.Rptr. 63 Cal.2d 397-398 P.2d [vacated 862] (18 1035)].) ground, another 386 U.S. L.Ed.2d S.Ct. v/as he Nor additional statements heard two or any more prejudiced from which have jurors inferred they might guilty plea degree murder since the evidence received the trial showed the first later attempt plead guilty first murder the above stated degree admission. Louisiana, 723,

This case differs from Rideau v. supra, 373 U.S. wherein the court as immaterial fact regarded the that evidence similar apparently but that had to degree, determine whether was murder in the first murder in degree manslaughter; closing argument the second only that’s the In his issue.” guilt at the asking acquittal” trial counsel stated defense that “we are not for an and justifies that “I feel that the a guilty evidence and the law verdict of of murder ... degree. of the second .” . . admitting that the erred of the quoted 11 Defendant contends court in the evidence but, see, admission, as regard. we shall the did not court err in this a conviction invalid Rideau held the trial. was received the publicity a of venue was а for a change of motion the that the denial ground been exposed had community of where the repeatedly denial due process confessed to the which the defendant of film in television broadcasts a the who convicted charged. jurors with which he was later Three crimes Rideau, According of the broadcasts. had seen at least one so ex- a community pervasively in court “Any subsequent proceedings It in formality.” a be but a hollow appears to such could posed spectacle the defendant were trial other confessions by Rideau dissent that at the the that fact as im- evidence, court regarded received but the apparently Here, had however, of which the jurors knowledge material. publicity home-viewed con- than a have far less on juror would damaging impact court proceedings would render necessarily fession subsequent “but hollow formality.” Asserted Right

3. Violation to Be Against Secure Unreasonable of

Searches and Privilege Against Seizures Self-incrimination Defendant contends that his to be right secure unreasonable against Const., searches and (U.S. Amends.; Const., seizures 4th and 14th Cal. I, 19), art. Const., § privilege against (U.S. self-incrimination 5th and Amends.) 14th violated by introduction by prosecution (1) several from two of his pages notebooks and an that were envelope found in his bedroom on June and (2) an that was found envelope in a box trash in the of his yard rear residence on June 1968.12

The contends, alia, General Attorney inter that defendant is pre cluded from claiming of the evidence receipt was error foregoing since the remaining pages notebooks were introduced into evidence by defense and the defense used the entire notebooks envelopes as proof diminished asserts that General capacity. Attorney pages offered defense were more than “those damaging offered portions” prosecution “from the standpoint showing praise [defendant’s] communism and hatred toward this stated in country, occasionally pro- Amendment, Ohio, Fourth 12The made applicаble to the states Fourteenth Amendment (Mapp 1081, 1089-1091, 367 U.S. 655-657 L.Ed.2d S.Ct. 1684]), houses, provides, right people “The persons, be secure their effects, papers, against unreasonable searches and seizures shall not be vio . . .” lated . I, substantially Article section the California Constitution contains similar provision. The Fifth provides: person compelled any Amendment “No . . . shall against applicable criminal case to be a himself . is made witness . . .” This clause by (Malloy Hogan, the states to the 378 3 Fourteenth Amendment. U.S. [12 653, 656, 1489].) L.Ed.2d S.Ct. assassina- to to resort terms, political willingness

fane and [defendant’s] de- the by introduction tion,”13 that the General claims and the Attorney of introduction the of by fense the was not prosecution’s pages impelled to use of the defense if a desire evidence but by, anything, the subject diminished capacity. its the notebooks support defense is, course, “It to difficult the unravel considerations that might many States, led” (See have the defense to offer the Harrison v. United pages. However, 392 U.S. L.Ed.2d 2008].) 88 S.Ct. we believe that there is at least a reasonable that their intro possibility duction was impelled introduction of of the by prosecution’s part Quicke, (See People notebooks. 71 Cal.2d Cal.Rptr. 787]; P.2d Spencer, 66 Cal.2d 715].) 424 P.2d It after the was'only prosecution introduced of the part notebooks over that the objection, defense introduced the remaining pages. When defense counsel offered evidence the first of one notebook page stated he did so “For the all of purpose showing writings [defendant’s] and to that have heretofore been offered in evidence explain pages . . . .” he did not Presumably have a different other purpose pages. The defense have may been show by to that the introduced seeking pages the prosecution, when viewed in the context of the in their notebooks be should entirety, considered as declarations by jury containing merely of a unbalanced mentally Under the we satisfied circumstances are person. that defendant by did introducing of the notebooks remaining pages not waive right to contend on that the the evi- introduction of appeal example, 13For pages (which one by of the been ex introduced the defense had by cluded it) the trial court prosecution when the attempted introduce stated in part “I advocate president overthrow the current of the fucken United \sic\ States of I yet—but America. I plans compose have no absolute soon will some. am poor—This country’s propaganda says country that she is the best in the world—I experienced have not yet. firmly support this communist cause and its ... I Russian, Chinese, Albanian, people—wether Hungarian or whoever—Workers [sic] unite, you nothing your World chains and world have to loose but [sic] win.” pages stated, by Other introduced the defense “2 June 67 ... A Declaration of Against War necessary America events, ... When in the course of human it has become equalize for me to revenge and seek for all the inhuman treatment com- against by mitted me the American people the manifestation of this Declaration will (s) be executed its purporter $2000 as soon as he is [sic] able command .. . .. and to acquire . declaration firearms party some The victims of the .... in favor of this be president, or are will now—the vice etc—down the ladder. time will chosen at the author convenience of accused . . the author . expresses very bluntly his wishes he wants be recorded historians as the triggered who man off the war begin uphold last . . must to work on . Sirhan [sic] solving glorious the problems assassinating president and difficulties of the 36th United States.” Zavala, 239 Cal. (See, was error. e.g., dence by prosecution 732, 129].) App.2d use defendant that any by General has cited no authority

The Attorney thereto was overruled a defense objection after subject evidence seem that and it would not from error on bars defendant claiming appeal, it would have that effect. contentions. of defendant’s to consider the merits necessary

It thus 5, June A. Search and Seizurе on Alleged Illegal obtained in the June the evidence

A motion to suppress pretrial and that the search seizure search was made on the ground At the an evidentiary hearing. denied unlawful. motion was following Defendant in effect evidence was also received on the matter. bearing trial and the made a second “objection,” motion to making suppress was overruled. “objection” Munir, brothers, and Adel

On the defendant’s June morning in connection with seeing picture upon newspaper station, was interviewed went where Adel shooting, Kennedy police Brandt, officer one made the search. The of the officers who Sergeant same morning then knew that senator had been shot earlier that Democratic aware that the senator was successful was presumably knew The officer further candidate President in California primary. that the knew that suspect’s was in suspect custody apparently officer of the had not been revealed. Adel advised the theretofore identity brothers, (Adel), and stated that he his two younger identity suspect’s Munir, at a address in Pasadena Sirhan and their mother lived specified asked if could they and that was in another The officer their father country. home, search the far as he was concerned [they] Adel “as replied could, asked if he wanted the however was his mother’s house.”14 When not know what to call her for Adel that she did police replied permission, had and he did not want to alarm her. happened Adel, Brandt, then went two other officers and

Sergeant accompanied residence, Brandt about a.m. on June 1968. Sirhan 10:30 arriving testified that in evidence possible conspiracy “were interested stated He there that were not yet custody.” other might people any engaged which “indicated nothing there was [defendant] evidence was not a but that there was no “there conspiracy.” conspiracy” mother deeded when he part owner of the house until 14Adel property her as the sole owner. be- the asked whiсh bedroom Adel admitted the officers into house. They to, defendant, a back bedroom. There and Adel directed them to longed and found an the officers a closed table drawer envelope dressing opened On of like his brother was.” the notation “RFK must bearing disposed to' see notebook. sight They opened the floor in saw closed they plain downfall, cbntents; an attack it contained a of America’s its prediction leaders, with those leaders. its and comments to “doing away” upon relating looked On the table saw a second notebook which they top dressing it, and in it were notations “like school book.” looked They through such as “R.F.K. must be and “Ambassador must Goldberg assassinated” die.” the fore- The the two notebooks containing from pages envelope the The comments were introduced into evidence prosecution. going by on as de- the the notebooks was identified handwriting envelope fendant’s. warrant, the search the burden was on the

Since was without a People Edwards, 1096, v. Cal.2d (People show therefor. 71 justification proper 842, 713]; Henry, Cal.2d People 1099 458 v. 65 P.2d Cal.Rptr. [80 Haven, 557]; People 845 Cal.2d 423 P.2d Cal.Rptr. [56 927].) trial court one relied theory 381 P.2d In the Cal.Rptr. consent, the Adel’s and the trial court upon People upheld Adel, search on that the officers had the consent of “one ground believed . . . could conscientiously authority.” reasonably grant Defendant on that Adel had neither actual nor argues appeal apparent to consent to' a search of notebooks and dresser authority defendant’s not, however, drawer. heed the search can be We whether sus- consider consent, since, see, tained on the basis of Adel’s as we shall the search lawful another upon ground. asserts that there was a Attorney emergency General pressing the existence of a to assassinate

ascertain possible conspiracy presidential officials, candidates or and he relies on the high government emergency hand, Defendant, to the warrant argues other exception requirement. search, that no was shown and he testi- emergency justifying points that the officers mony had no-evidence of a conspiracy.

As a matter it is to consider whether the necessary preliminary was relied the trial court. emergency theory upon People cannot introduce for the first time in the Ordinarily appel People defendant, late court to' a search since the entitled theory justify being to assume that the for the search is that ad only purported justification vanced has no reason to cross-examine prosecutor, prosecution witnesses and evidence of his own to rebut the argued adduce theory (Simon), Superior Court (People court. first time in appellate Miller, 1205]; ante, P.2d Cal.Rptr. p. ante, 1228].) at the Here 496 P.2d p. theory. enunciated clearly a new trial the motion for prosecutor where to any directed us place has not General Attorney Although court, we believe trial forth in the set was theretofore theory explicitly the of witnesses during and examination the remarks that prosecutor’s sufficient notice trial gave on the motion to hearing suppress no defendant makes that theory,15 was on that the relying prosecutor for trial at the motion new Although to the on argument contrary appeal. suggestion,” “new apparently defense counsel referred the prosecution’s that the defense no claim to the in he made referring theory question, out which he brought in and his cross-examination was taken by surprise We that he was not. of a suggests that there was no evidence conspiracy from, the on theory the not barred urging appeal. conclude that are a valid whether the theory to a consideration of We turn next States, 440- L.Ed. Johnson v. United 333 U.S. 14-15 one. In [92 violations, the court 367], law a case narcotics involving 68 S.Ct. which, balancing circumstances in on declared that “There are exceptional it may right the for effective enforcement the privacy, need law against be with.” be a for search may contended that warrant magistrate’s dispensed there court circumstances were The concluded that such present, “ search take The . . . No stating fleeing likely flight. suspect evidence or vehicle. No was of not of a movable premises, permanent . . .” destruction . contraband was threatened with removal or States, doctrine in Johnson 10, 14-15, v. United supra, 333 U.S. has been repeatedly reiterated United States (See, Court. Supreme Louisiana, Vale e.g., 409, 413-414, U.S. 34-35 L.Ed.2d prosecution’s 15The points and authorities filed opposition in the trial court in suppress defendant’s motion to solely However, related to Adel’s at consent. hearing on prosecution testimony that motion the elicited the from Officer Brandt that “were interested possible might in evidence of conspiracy in that there be people yet other that custody,” during argument were not at oral time prosecution, consent, regarding in addition to remarks stated we Adel’s “Here attempted had figure. suspect During ... an a a prominent public assassination of We have custody give identifying who refused to even . . . information ....’’ stated, prosecution trial the “I officers . . acted submit . . . the . reason ; ably emergency in reliance upon the consent . . that there ... . [Adel] time, taking picture into account I situation existence the total factual though unreasonably. think it acted . . .” cannot said that the officers Even object appear foregoing prosecution does not from the that the mentioned (the Kennedy possible conspiracy alone or of a number assassination of Senator leaders) prominent political it must been obvious to defense counsel have object. prosecution contemplated the latter L.Ed. 1969];16 Jeffers, States v. 342 U.S. 51-52 United 90 S.Ct. States, 451, 64-65, 93]; v. United 335 U.S. McDonald 72 S.Ct. McDonald, involved supra, which 191].) L.Ed. 69 S.Ct. In emer- court, that no a after concluding the crime of carrying lottery, search, stated, dealing are not with “We there gency appeared justifying function. high оf a search warrant serves formalities. The presence interposed Amendment has grave emergency, Absent some the Fourth to shield and the This was not done magistrate police. between the citizen It was activities. the home a haven illegal nor to make safe criminals the need to invade the might weigh done so mind objective privacy that an . cannot be to that constitutional enforce the law. . . true in order to We showing of a search warrant without and excuse the absence requirement that the the constitutional mandate exemption who seek those from added; imperative.” (Italics that course exigencies the situation made 443, Coolidge Hampshire, v. 403 U.S. 445 L.Ed.2d see also New [29 752, California, 564, 570, 2022]; v. 761 Chimel 395 U.S. [23 91 S.Ct. 2034].) L.Ed.2d 89 S.Ct. 787-788, 782; 294, Hayden, v. L.Ed.2d

Warden 387 U.S. 298-300 [18 87 held of the situation made course S.Ct. that “the exigencies 1642] [the there case the informed In that police followed] imperative.” an had and that the had entered armed taken robbery place suspect it, five before reached they address less than minutes specified the house court “acted when entered they stated that the police reasonably had been to search for a man of the began given description for had used them.” which he in the or use robbery might against weapons Smith, (See People 779, 382, also v. 63 Cal.2d P.2d 797 409 Cal.Rptr. [48 1353, 2119); (18 den. 388 U.S. L.Ed.2d 87 S.Ct. rehg. 913 222] [cert. 211, 13)]; People Terry, v. (19 den. 389 U.S. L.Ed.2d 88 S.Ct. 70 893 410, 460, Cal.2d 424 454 P.2d den. 399 U.S. 911 Cal.Rptr. [77 36] [cert. (26 566, 2205); (27 L.Ed.2d den. 90 S.Ct. 400 U.S. 858 L.Ed.2d rehg. 26)].) 91 S.Ct. where

The has also been in cases emergency exigency theory applied the officers’ conduct was life and motive of prompted preserving v. (See, People to’ for that reasonably necessary e.g., appeared purpose. Roberts, Cal.2d heard sound as 47 374 P.2d [police moaning [303 721] distress, if in entered in several from defendant’s looked person apartment, rooms, kitchen]; People Superior v. found evidence in sight plain 16Vale, supra, concluding exceptional presented, that an situation was not there goods part, ultimately process stated in “The seized were not in the of destruction.” States, supra, lаnguage 333 quoted This differs from that Johnson v. United above in 416]). 10, 14-15, (at pointed p. p. as the Vale 39 U.S. dissent in out L.Ed.2d [26

739 Court (Peebles) sug Cal.App.3d Cal.Rptr. [85 803] [circumstances an held gesting an bomb in unexploded possibility apartment Gomez, search]; People constitute circumstances exigent justifying 781, 782-783 searched Cal.App.2d pockets 616] [officer of unconscious for what man having discovering convulsions purpose him].) with wrong

The General that the Attorney “exigencies of situation” in this urges case likewise made it officers to follow the course imperative they took. The heretofore recited evidence indicates that the believed officers that there might be a none of the officers men- although conspiracy, tioned the thereof object they undoubtedly obvious contemplated possi- of a bility to assassinate leaders in this It conspiracy also political country. bemay inferred from the recited evidence that believed that an emer- gency existed and that action on their prompt part necessary.17

Their beliefs were entirely reasonable. The crime was one enormous gravity, and the of the offense” is “gravity factor to take appropriate Schader, (See into consideration. 62 Cal. 2d Cal. 665], P.2d from a Rptr. dissent Justice Jackson by Mr. quoting States, Brinegar United 338 U.S. L.Ed. 1302].) 69 S.Ct. candidate, victim was a and a major presidential crime of violence had been committed him. already The crime against thus involved far more than idle threats. the possibly Although officers did not have reasonable cause to believe that the house contained evidence of a conspiracy leaders, to assassinate we believe that prominent political the mere that there be possibility might such evidence in the house fully warranted the officers’ actions. It not difficult what would envisage have been the effect on this nation if several more assassinations political had followed that of Senator Kennedy. Today per when assassinations of sons of have prоminence been committed in this repeatedly country,18 is essential that law enforcement officers be allowed take fast action in their endeavors to combat such crimes. “ must, course,

The search scope tied to and ‘strictly justified 17Brandt testified that superior regarding his conferred with officer a search of the home and was advised “to search the if we home had consent Adel.” of . . . foregoing, however, does not show that the officers did not believe was an there emergency. they appear acting Rather to have been with abundant caution. Attorney judicial request “only 18Pursuant to the General’s we take notice two Kennedy] months King, assassination of Senator Reverend Martin Luther [before Jr., assassinated, years previously had been and less than five victim’s brother, (See 452, 459; Code, (h), Kennedy.” President F. § § John Evid. subd. Almanac.) 1971 World by’ circumstances which rendered its initiation permissible. [Citations.]” Ohio, (Terry 1, v. 1868].) 392 U.S. L.Ed.2d 88 S.Ct. 19 [20 Officer Brandt testified that after they Adel admitted them into the house began “a and that general search” went there to determine both “whether or not there was else involved in anyone [the crime]” “whether or not were other that would any things there be relative to the crime.” if Even circumstances in exigent this case made lawful warrantless search for evidence of a only to' assassinate possible conspiracy leaders, prominent it is clear political from record that the officers (See Hayden, for such Warden v. searching supra, 294, evidence. 387 U.S. 782, 299-300 787-788].) L.Ed.2d aOnly [18 search in house thorough could insure that there was no evidence therein of such a conspiracy.

Defendant’s to the objection notebooks found in bed envelope room and his motion to pre-trial evidence were on suppress grounds other than notebooks and were “communicative” or envelope “testimonial” nature so their nature very them from precluded being of a object reasonable search (See and seizure. v. Hayden, Warden supra, 294, 387 U.S. 782, 789-790]; 302-303 People L.Ed.2d [18 Thayer, 635, 63 Cal.2d 780, 642-643 408 P.2d Cal.Rptr. [47 108] [cert. den. 384 (16 361, U.S. 908 L.Ed.2d 1342)]; A.L.I., 86 S.Ct. see generally A Model Code Procedure, of Pre-arraignment Official Draft Proposed No. 1972) 210.3, 34-36.)19 (April § The issue pp. whether the very nature of the notebooks and them envelope from being precluded object of a reasonable search and seizure therefore will not be reviewed on appeal. (Evid. 353; Code, Floyd, § 1 Cal.3d Cal.Rptr. 64]; 464 P.2d People v. De Santiago, 71 Cal.2d Cal.Rptr. 353]; 453 P.2d People Washington, Cal.2d 479].) 458 P.2d Even defendant’s if memorandum in of his support 19When the bedroom, evidence found together in defendant’s with the evidence box, found in the trash stated, were offered object defense counsel “I to the introduc tion of each of the first, grounds, exhibits on they ... that have been obtained in violation of this, defendant’s rights, constitutional in that it was not a reasonable this, search or a anything first, warrant; seizure of they in that did not have a search second, they warrant; that third, had to time obtain a search there was not search; fourth, reasonable nor probable cause to make the did not have the permission himself, defendant’s to make the search and the defendant had been he asked, it; fifth, objected would have to the consent of his brother was not his consent nor given brother, . . . would he have consent to his and brother not his was clothed authority with did authority give nor he have permission ostensible to to search the defendant,” private rooms of the and incorporated part defense counsel as of objection argument his points presented and and at authorities the time of motion suppress to argument points the evidence in found defendant’s bedroom. The and and incorporated specify subject authorities thus did not to the items were not search and very seizure due to their nature. issue, a timely did not this constitute a raised that motion for new trial evidence on that ground. motion to exclude the the evidence admitting did err in conclude that the trial court not

We in found defendant’s bedroom.

B. and on June Illegal Search Seizure Alleged evidence, an over objection, The introduсed into prosecution defendant’s) “RFK stating as (identified ‍​​​‌​‌​‌​‌‌​​​​​​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌‌‌‌‌​​​​‍on which envelope writing appears soon Kennedy must be . . Robert must . disposed Fitzgerald properly . . die die . .” die die who Young,

The was on June Police Officer found envelope had the was to at the of the Sirhan residence” and rear “assigned security Young to< duty guarding away. unauthorized place keep persons rear at yard, testified that made a “search” of the Sirhan residence back of there a the rear which boxes of trash were in fence. Several a box of yard, stated that he found the in Young “laying envelope trash . .... There was lots of . . and this was garbage, partly papers folded wadded asked the trash.” lying in When up, subsequently whether when he made . . “a search . whatever looking [he] [he] find,” could . . . officer “Not at the I moment. had cup replied, paper coffee, and I is walked here over there it in trash drop seeing trash, bit more able quite hadn’t been the trashman apparently I enve- get yet, and threw it in the trash and I this that when noticed and it had on it.” out looked lope writing curiosity, He picked up it, and later delivered toit another officer. burden is warrant. did have a search Young

Officer (People without a warrant. a search or seizure justify prosecution Marshall, 1096, 1099; Cal.2d Edwards, People v. supra, 71 Cal.2d 665].) At the trial the prosecution, P.2d Cal.Rptr. Bly, burden, People v. 191 Cal.App.2d its relied upon sustain seeking 542], “It can be said hardly which states illegal search to the trash are object discarded can papers trial in defendant’s Bly, however, after seizure.” was disapproved Edwards, supra, 1105. page a search of the contents during marijuana In Edwards officers found the defendant's backyard trash that were area” behind cans “open were thus required few the back door. The residence, feet from officers to make the search. in order the defendant’s trespass upon property in the recep- not visible without “rummaging” itself was marijuana deter- test to be declared that the applied tacle. Edwards appropriate, was “whether the seizure an search and illegal whether there was mining 742 so, and, if has exhibited reasonable

person expectation privacy, has governmental whether been violated unreasonable by expectation intrusion” and that under that test the search was unlawful. Krivda, People v. 5

We set in Edwards in applied forth principles 357, 62, Cal.3d 365 P.2d 486 Cal.Rptr. granted, [96 [cert. 1262] (31 1307)]. 405 U.S. 92 There contra 1039 L.Ed.2d S.Ct. band was concealed in sacks within trash and was not visible barrels paper contents; without the barrels’ barrels searching emptying through on the to the collection. We placed adjacent sidewalk for parkway held that defendants had a reasonable that their privacy expectation, trash would not be over rummaged through acting picked police without a warrant that this violated unreasonable expectation governmental intrusion.20 Krivda, case,

In the instant unlike Edwards and did officer not find the evidence the trash. Officer through Although rummaging used the word Young “search” in his describing discovery envelope, his heretofore recited indicates testimony that at least part envelope was visible without any moved. object being

“It has long been settled that objects in the view of falling plain an officer who be right has in the have that to- view are position subject California, seizure and be introduced v. may in evidence. Ker 374 U.S. Lee, (1963); 42-43 United States (1927); v. 274 U.S. Hester v. 559 States, States, United (Harris 265 U.S. (1924).” 57 United v. U.S. 992].) L.Ed.2d 88 S.Ct. Even if officer may have committed a trespass, observations of matters in view plain are (See, under some circumstances Terry, admissible. supra, 70 e.g., 911; Cal.2d 858]; 427-428 den. U.S. den. 400 U.S. rehg. [cert. People King, 461]; People 725-727 Cal.App.3d Cal.Rptr. Willard, 734].) Cal.App.2d et seq.

Here the officer who found the stationed the rear envelope yard of Sirhan residence to intruders away. Defendant’s mother keep house,21 brothers in the lived others went undoubtedly into the rear On each side of yard. Sirhan residence was house another close thereto. Under proximity the circumstances defendant did rejected 20 Krivdа also the contention that principles in Edwards should applied prospectively only. 21After the assassination place," defendant’s mother was taken to “another where stayed she days returning several before home. his rear view in in objects plain as to of privacy exhibit an expectation People (Cf. been unreasonable. would have and such yard, any expectation 129]; 460 P.2d Bradley, 83-84 v. Cal.3d 724, 725-726.) supra, King, v. 5 Cal.App.3d a while the officers Bradley, supra, pursuing 1 Cal.3d People v.

In area.” a “rear in yard plants discovered marijuana felony investigation street; which a driveway faced the a house that The consisted of premises house; the a at the rear of of terminated in garage was east the house and and residence, of the garage; attached to rear which was defendant’s The extent residence. the west defendant’s a “fenced-in yard” large were marijuana v/ere not shown. The plants and manner of fencing least it be inferred that at part and could foliage, covered by partially a within tree. anyone plants view of foot was in plain plants door to which presumably located a scant feet from defendant’s house, came, as well as defendant's and front and others delivery men house, had access to yard. apparently People King, the officers in the course supra,

In Cal.App.3d home to the rear edge walked a a investigating felony driveway by up in the sight where observed in plain house stolen property be from sidewalk but back stolen could not seen yard. The property inferred) (the court windows of could be from the from driveway seen adjacent buildings. are in this case there differences the facts between

Although manifestly Bradley King, do our those not warrant in differences opinion Bradley King in sight different result here than as to objects plain the back yard.

What on visible Officer Young was before writing envelope picked it its is examined exterior surfaces not the record.22 established up However, conduct in this did not a search Young’s regard since (see violate the which relied justifiably privacy upon Katz States, 507]) United 389 U.S. L.Ed.2d 88 S.Ct. United We four States Court have de recognize justices Supreme that a clared limit view doctrine that the of the discovery plain Coolidge Hampshire, (See must inadvertent. New evidence U.S. 564, 585-586, if there 2022].) 469-471 L.Ed.2d 91 S.Ct. Even is such here it be inferred may from the heretofore recited requirement, evidence Young’s discovery of the was inadvertent. In this envelope stated, envelope, “partly up, lying 22The as heretofore and wadded folded scribbling writing envelope trash.” on the mere the such Some consists of words “disposed as properly.” case, Coolidge, unlike there was not “advance of the police knowledge existence and evidence, location of the it, intention to seize and. the police ample (403 opportunity warrant.” obtaining U.S. at L.Ed.2d p. 592].) p. Defendant’s to the was on. other than that grounds objection envelope “testimonial” in nature so- that its was “communicative” or envelope object nature it from of reasonable search and very being precluded (see 294, 302-303; Hayden, supra, seizure Warden v. 387 U.S. 642-643; Thayer, supra, A.L.I., 63 Cal.2d see Model Code generally Procedure, 1.03). supra, The issue whether the enve- Pre-arraignment § nature of a reasonable search from lope’s very being object precluded and seizure will be therefore not reviewed on appeal.

We conclude that the court did not err in found admitting envelope in the yard.

4. Other Respect Claims Error with to Admission Evidence

Defendant contends that it was error to admit testimony admission him since admission was made in the context of an offer admitted, direct examination defendant shot plead guilty. having On stated, Senator but “I Kennedy don’t remember him.” On cross- shooting examination of defendant after the elicited that de testimony prosecution fendant was neither nor sorry following the senator dead the proud “Q. No, sir, occurred: But are not A. because I questioning you sorry? Q. sir, Well, have no of—no exact way knowledge, shot him. having other day here in right this courtroom did T killed Robert you say: Kennedy with wilfully, aforethought' malice premeditatively, twenty years Yes, sir, —did that? A. I did.” you say Defense counsel made objection no- to the admission on the now but stated that he would ground urged bring out on redirect the circumstances. surrounding

Thereafter on redirect examination of defendant defense counsel elicited testimony that those showing circumstances were as follows: counsel,

During outside proceedings defense presence jury informed the court of a disagreement between himself and defendant re- of certain garding calling and stated witnesses that defendant desired to address the court. Defendant then stated that he wanted to guilty plead to first murder. degree The court asked him what he wanted do about and he “I penalty, executed, will ask sir.” The court replied, “this,” why wanted to do inquired and he answered “That is my pre- “No, stated, Now, rogative.” court it isn’t. when we come to accepting a plea, you have to me a reason.” give Defendant then “I killed stated of malice twenty years with Robert Kennedy wilfully, premeditatively, aforethought; why.” would stated it testified that: The court

Defendant further subsequently defendant, among things, told other the The court also accept plea. being would result in his further him in the trial by any interruptions the time his over attorneys restrained. Defendant was at the with angry above stated disagreement. to the

Since no at trial on the now objection ground urged made the error on admission, the from claim of making defendant is precluded rule, to course, relating It is the general questions appeal. be absent a the of evidence will not reviewed admissibility appeal be trial the to ground sought and in the court on specific timely objection 1259; 353; Code, Floyd, v. (Evid. Code, People Pen. urged on § § appeal. 22; 694, 18, supra, 717; People Santiago, supra, 1 Cal.3d v. De 71 Cal.2d People Washington, 1061, v. Cal.2d supra, 71 1083.

Furthermore, circum the admission admissible under the withdrawn of this case. of an offer to or of a stances Evidence plead guilty Code, 1153; Pen. (Evid. is made guilty by inadmissible statutes. § plea Code, 1192.4; 551, People Quinn, 61 554-555 Cal.Rptr. v. Cal.2d § 105, 393, Hamilton, 705]; People 393 P.2d v. 60 Cal.2d 112-114 [32 Wilson, v. 412]; People 383 P.2d 60 Cal.2d 155-156 Cal.Rptr. 452].)23 The of the statutes P.2d obvious purpose is to the the of criminal by interest settlement public encouraging promote Quinn, supra; cases (See People without a trial. the necessity Wilson, Hamilton, supra; supra with People so stating respect [each Code, to it seems that the 1192.4].) Pen. view of clear In purpose § bona Legislature intended to withdrawn solely guilty exclude pleas fide offers to did not intend exclude an by angry to outbursts guilty plead the of a defendant trial even if an desire during accompanied by expression outbursts, course, Such lead to settlement would not plead guilty. guilty, with provides plea 23Evidence Code a later section 1153 “Evidence of crime, drawn, charged plead guilty any or to other or of offer defendant to the crime any . .” made in a action is inadmissible in action . . criminal trial, provided: “If 1192.4, at Sirhan’s as it read the time of Penal Code section 1192.1, this 1192.3 of 1192.2 or plea guilty pursuant the code Section defendant’s court, approved by the attorney accepted be not the prosecuting may received plea not be plea deemed so withdrawn withdrawn .... shall . . .” any action . evidence in criminal . . . 1192.3, a question, permitted through time in Code sections 1192.1 Penal degree punishment crime plea specifying defendant to enter conditional could approved by the court accepted by the prosecutor and when than punishment higher by more severe degree of crime or punished not be plea. in the specified of the criminal case without a trial would not end trial ordinarily but instead would it. Here it is merely that Sirhan’s admis- disrupt apparent sion was made such during an outburst rather than a bona fide during offer to guilty.24 plead Defendant also of the evidence show appears receipt complain that,

ing his circumstances admission but since evidence surrounding was introduced defense counsel defеndant not now may complain. Moran, (People v. 763]; 1 Cal.3d 463 P.2d [83 Cal.Rptr. People v. Feldkamp, 51 Cal.2d 632].) Moreover, P.2d to be that the evidence complaint appears was inadmissible since consti tuted an offer to and for the guilty, reason heretofore plead stated rule does not exclusionary to-the evidence in apply question.

5. Claim that Rights Constitutional Were by Violated Defendant’s

Having by Prosecution Initiated an Indictment Rather an Than Information

Defendant contends that he was denied due process equal protec- tion because the prosecution was initiated by an indictment rather than an information. He notes that a defendant who is proceeded against by way an information has certain rights (e.g., counsel at right prelimi- (Pen. Code, 858, nary hearing 860; Jennings Superior § § 859 see v. Court, 867, 66 Cal.2d 874 440, 304]), Cal.Rptr. 428 P.2d [59 confront (Pen. Code, cross-examine 865), witnesses § evidence present (Pen. Code, 866; Court, Jennings see v. Superior supra, 880), § p. are rights not accorded comparable to a defendant (see who- is indicted Code, 939.7; Pen. People Rojas, v. 2 767, § 771 Cal.App.3d [82 Cal.Rptr. 862]; People v. Dupree, 60, 156 64-65 39]; People P.2d Cal.App.2d [319 Dale, 370, v. 79 870]; 376 Witkin, P.2d Cal.App.2d Cal. [179 Criminal 166-167), Procedure (1963) and that no pp. standards guide prosecutor in between the selecting two alternative procedures. use of

The indictments in all cases warranting serious punishment States, (Smith the rule at common law 1, v. United 360 U.S. L.Ed.2d 9 [3 1041, 1047, 991]), 79 S.Ct. and is in certain federal required prosecutions Fifth Amendment of the federal Constitution. It has long state, however, been rule this that felonies may prosecuted by either (Cal. indictment or Const., I, 8; information. Code, art. Pen. § 739, 682, 737, 949.) § § 917 there Although are differences between the two procedures, defendant who is proceeded against by indictment 24It is thus unnecessary to consider whether admissions made a defendant the context of a plead bona fide offer to guilty come within exclusionary rule of Evidence Code section 1153 and Penal Code section 1192.4.

747 Wells, re 20 (In Cal.App.3d due protection. is not denied equal process Peаrce, 984, 986-989 1]; People v. 8 640, Cal.App.3d 649 Cal.Rptr. [98 359, Newton, Cal. 388 814]; v. 8 People [87 Cal.App.3d Cal.Rptr. [87 771; v. 767, 394]; Rojas, supra, 2 People Cal.App.3d Rptr. 197].) It does Flores, similarly 65-66 Cal.Rptr. 276 [81 Cal.App.2d an information rather due to initiate a not violate prosecution process California, L.Ed. U.S. 538 (Hurtado 110 [28 an indictment. than 111, 292]; Terry, In re Cal.3d [95 S.Ct. 31,484 1375].) P.2d it was relies cases in which of his contention defendant

In upon support contained classifications were that constitutionally held impermissible Florida, McLaughlin v. or rule there in (e.g., legislation question race]; based on U.S. 184 L.Ed.2d 85 S.Ct. 283] [classification California, Douglas U.S. 353 L.Ed.2d ‍​​​‌​‌​‌​‌‌​​​​​​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌‌‌‌‌​​​​‍83 S.Ct. 814] [classi- Oklahoma, L.Ed. Skinner v. 316 U.S. 535 fication based on indigency]; under certain sterilization S.Ct. requiring 1110] [classification convicted of but not of those convicted circumstances larceny persons embezzlement]). which do not contain concern us here provisions such a classification. in Evidentiary Hearing

6. Asserted Error Failure to Hold in Defendant contends that the erred to hold an court refusing the exclusion of evidentiary hearing on whether veniremen question to the death results in an opposed jury penalty unrepresentative issue of guilt or increases the risk of conviction. After the substantially death was returned such and stated penalty hearing requested Zeisel, witness, that he wished to call at the one Hans only professor School, Law him to offer some “docu University Chicago through (the ments” exact nature of not After defendant which was specified). outlined the substance of the court general testimony, Zeisel’s proffered denied the motion. Defendant then had marked for identification docu ment entitled “Some Data on Juror Attitudes Toward Punishment” Capital (1968) Zeisel, stated, “a which, defendant contained more specific offer of Zeisel’s The of the document proof” regarding testimony. portion with whether a attitude towards dealing specifically juror’s punish capital ment affects his determination states that it contains an regarding guilt data” in a “improved analysis the author briefly on which reported “Some of Criminal preliminary Insights into the manusсript, Operation (Confidential Draft, 1957). Juries” First November That manu preliminary Witherspoon. (See was before the United States script Court in Supreme Illinois, Witherspoon 510, 517, 391 U.S. fn. 10 L.Ed.2d 88 S.Ct. 1770].) Other document instant portions presented trial contained matters such as data on certain characteristics that might who have distinguish jurors scruples against death from those penalty who do not (e.g., statistics regarding approval capital punishment race, sex). age, Illinois,

Witherspoon supra, U.S. left undecided the question whether the exclusion of veniremen neces opposed punishment capital sitates aside the setting as to The judgment guilt.25 in case petitioner cited (1) two surveys (2) a total of involving 387 students and the prelimi Zeisel, nary contained the manuscript by which of a study results based 1,248 with interviews upon New York and The jurors Chicago. court stated, “The data adduced . . . too tentative petitioner are fragmentary establish that to the death jurors tend opposed penalty to favor the in the determination of prosecution footnote 11 guilt,” stated in part during there under review post-conviction proceeding no was made submit request evidence on the matter and that “We can therefore, only speculate, as to the meaning terms used precise those studies, the accuracy of the and the techniques employed, validity Carolina, of the generalizations Bumper made.” also (See North U.S. 1788].) L.Ed.2d 88 S.Ct. Anderson, In petitioners re Cal.2d claim, 117],

447 P.2d an requested evidentiary hearing their regarding the exclusion of veniremen results in capital opposed punishment on the issue of unrepresentative jury guilt substantially increases the conviction, risk of and we denied the on the request ground then not for such a ready and that the hearing had study they underway did not warrant what would amount to an indeterminate of stay the judicial process. We denied other similar subsequently on the ground, requests that the did not state petitioner whether or not he was for an prepared evidentiary hearing gave no indication of the naturе of the evidence Robles, (People intended to introduce. 205, 2 Cal.3d 219 Cal. 166, 710]; 466 P.2d People v. Rptr. Brawley, 277, 1 Cal.3d 298 [82 25Witherspoon (fn. 18, L.Ed.2d, p. 784]), declared p. 520 [20 that “in some future a casé” by jury defendant convicted a the only from which state had excluded those prospective jurors who stated that returning would not even consider a death penalty “might still attempt to jury establish that the was less than neutral with that, guilt. respect effort, to If he were to succeed question in the then would arise whether the submitting capable State’s interest penalty jury the issue to in a imposing capital punishment may expense be vindicated at the of the defendant’s completely guilt interest in a innocence—given fair determination of possibility the trial, accommodating using jury both interests means of a bifurcated one to guilt decide punishment.” and another to fix

749 441, P.2d den. (27 461 400 U.S. L.Ed.2d. 993 Cal.Rptr. 361] [cert. Eli, re 462)]; 91 In Cal.2d 454 S.Ct. 218 P.2d Cal.Rptr. (24 589)]; In den. 396 L.Ed.2d S.Ct. re U.S. 337] [cert. Arguello, 921].) Cal.2d P.2d Eli, Anderson, Robles, Brawley, The instant case differs from Arguello in that here stated that he was eviden prepared the nature of the evidence he tiary hearing general intended specified Witherspoon introduce. The case also differs that a was from in request However, made the in lower court to submit evidence on the matter. in our the court err did not in the since defendant’s opinion denying request, offer of was insufficient such a hearing. Although hearing proof require have as eliminated uncertainties to matters with might which respect Witherspoon Court in it could stated such Supreme as only speculate case, of terms in the studies meaning before the Court Supreme offer failed show that the proof data which Zeisel based upon was significantly more substantial than that adduced opinion by the Witherspoon. petitioner To the contrary data relied Zeisel upon to whether a attitude relating juror’s toward the death specifically penalty affects his guilt determination was same regarding data was in his analyzed which was manuscript, before the preliminary Supreme Court in Witherspoon.

7. Attacks Petit and Juries Grand

A. Petit Jury

Defendаnt contends that since voter lists were registration used as the sole source of jurors, he was petit convicted jury was Before unconstitutionally selected. the trial a motion to quash petit jury made, based panel the claim that part upon the jury commissioners failed to utilize sources of names of jurors that would prospective give best chance of assuring cross-section representative community. At the hearing on the motion evidence names presented jurors were obtained by random selection solely from of voters’ list. registrar

The use voter registration lists as sole source of jurors Gibbs, not (People invalid 526, 12 constitutionally v. 538-539 Cal.App.3d 866]; Court, 612, Justice Cal.Rptr. [90 273 Cal.App.2d Ganz .623 v. Hess, 348]; 642, v. People 104 Cal.Rptr. [78 669-670 Cal.App.2d [234 P.2d dism. for want of [app. substantial federal 65] 342 U.S. 880 question, S.Ct, (96 White, 661, 177)]; People L.Ed. 740, 72 see v. 43 Cal.2d 749 875, P.2d (100 774, den. 350 U.S. 876 L.Ed. 9] [cert. 76 S.Ct. 120)]), at least in absence use of those lists showing 750 or class of a ‘cognizable exclusion of group the systematic resulted “in ” 344, Dangler (5th Cir.) 422 F.2d (United v. States citizens’

qualified 419, Cir.) 413 421 den. 396 345; Camp (5th F.2d [cert. v. United States 451)]; (5th v. States 434, Grimes United (24 L.Ed.2d 90 S.Ct. U.S. 968 (21 U.S. L.Ed.2d S.Ct. den. 393 825 89 Cir.) F.2d [cert. of such voter 87)]),26 there was “discrimination in compiling Cir.) F.2d (9th States v. Parker (United lists.” registration v. United 155)]; Gorin (27 L.Ed.2d 91 S.Ct. den. 400 U.S. 910 [cert. 641, 644; People Lynch, v. in accord 14 Cal. (1st Cir.) 313 F.2d States Newton, 411]; People Cal.App.3d Cal.Rptr. App.3d 394].) 359, 389-390 on his showing did not make such the hearing

Defendant but asserts in brief appeal to petit jury panel motion quash indicate that black members knowledge “Statistics and people, common and generally white of other racial minority groups, people poor people have less on voter lists formal education much with less representation income, do white businessmen than people, people higher greater education to a The undergone degree. who have formal people North, in the black twenty indicates that between voting lags data rely Appellant . . . cent behind white ... voting. thirty per forced data, to Los this which does not refer or upon Angeles apply specifically Registrar alone, Jury neither the Commissioner nor sinсe County added.) composition (Italics to the their lists.” keep Voters as any statistics state, he desires that this does not so Although defendant presumably facts that are common alleged assertedly court take notice of judicial Code, 459.) subd. (See Attorney Evid. knowledge. (g), § § are that the facts not common alleged knowledge, General asserts we agree. “data” in his

The “statistics” and referred brief on on his to> hearing were not introduced at motion quash petit appeal but defendant claims that in the jury panel, appear transcript A-232902, Castro, and he Los Court Crim. Angeles Superior effect, citation of that the' trial court erred without argues authority, However, of that we need not consider taking notice judicial transcript. since the matter of notice it seems from defendant’s quoted judicial apparent “data” refers to- do not “statistics” and relate allegation been Los Thus even had evidence thereof introduced County. Angeles register “cognizable group.” 26Those do not considered a who choose cannot States, supra, (United Dangler, supra, Camp Grimes v. United States v. United States, supra.) would to the jury the hearing panel the on motion quash petit exclusion there was systematic Angeles County have that in Los established the citizens discrimination in of or of a or class cognizable group qualified lists. of voter registration the compiling alleged certain facts further contends that in view of

Defendant under the federal Consti it is a of due and denial process protection equal of the court to be selected tution for for the central district jurors superior whereas, de according voter lists for the entire registration county, from fendant, district of that court are selected from veniremen for other every this basis before that district was not only. jury challenged petit panel a a basis juror was sworn. the contention is not made Although literally statute,27 for a to the a constitutes challenge such jury by challenge panel Carter, (cf. method of People the contention apрropriate raising Cal.2d 477]), 568-569 364 P.2d assuming Cal.Rptr.

there basis for is it. Defendant asserts that was made any argument the Castro, in the supra, Los Court transcript Superior Angeles A-232902, Crim. de that the Castro the “adopted transcript fense.” It that at the a time motion for new trial defense appears counsel judicial notice be taken of the requested Castro con transcript indictment, nection With motion that the de court quash clined to do so. The action defense did foregoing counsel manifestly not constitute a court, raising contention in trial present even if the contention had been made at the time the motion for a new trial it would not have been within in Penal sec .time Code specified tion which “A to the provides; must taken challenge before panel a is juror sworn . . . Furthermore, .” facts in defendant’s are alleged brief relied by him the contention are not upon shown support “ record, and it is settled that ‘on direct from judgment appeal court will reviewing not consider matters outside record ....’” (People Gardner, 71 Cal.2d 854-855 457 P.2d 575].) Defendant claims the facts in the Castro appear transcript presumably seeks to have us However, take judicial notice of that transcript. the device of our judicial notice taking “in no relieves way responsibility had for raising his challenge in the court below.” Code 27Penal section provides: challenge panel “A to the can be founded only on a departure material prescribed respect drawing from the forms to the actions, and marshal, constable, jury sheriff, return in civil or on the intentional omission officer, or jurors other to summon or. more of one drawn.” Defendant does not contend any departure there material form intentional omission summon.

752 Neal, 826, 836-837 Cal.Rptr. 65] [cert. v.

(People Cal.App.2d that 387)].) S.Ct. We conclude (24 L.Ed.2d den. U.S. 946 Gardner, v. People supra; v. (See People the before us. issue is not properly v. Schader, 841]; People 457 P.2d Cal.2d Neal, supra)

B. Grand Jury was, the ground,

A the indictment made on motion to quash others, inherently a means that that the “Grand was selected Jury among races, to and persons minority discriminated against persons groups Mexican, descent, as wit: such ancestry Spanish, Persons foreign Arabian, Oriental, other and the motion similar identifiable groups,” court is a Palestinian Arab descent. The in that defendant alleged part an evidentiary hearing. denied the motion after nominees, there defendant asserts that jury On in appeal grand selecting Ameri- surnamed Mexican discrimination “Spanish purposeful against cans,” also a set in the he class forth motion.28 Although expressly on “racial have been under- asserts that minorities” appeal “chronically he on Grand represented County points Los Jury,” nothing Angeles class constitute identifiable “racial minorities” as whole showing Texas, (see Los 347 U.S. 478-479 Angeles County Hernandez 667]), dis- or have been unconstitutionally L.Ed. 74 S.Ct. criminated against.

Extended consideration of defendant’s the asserted argument regarding is un- against discrimination surnamed Mexican Americans” “Spanish and, since he is not member of as hereinafter necessary group transcripts support argument large upon part 28In of his defendant relies Castro, A-232902, Angeles Superior and exhibits in Los Court Crim. Montez, Angeles Superior those People cases were not introduced into evidence at the instant Crim. The records in Los Court A-244906. the hear proceedings. Before indictment, ing were had between quash on Sirhan’s motion to discussions and, although transcript, regarding point counsel one court and court stated Castro used, subsequent it had transcript the Castro understood court, during hearing quash the motion to remarks of before indictment, transcript “stay away from” made it wanted to clear that court for a defense call instead. At the time the motion to have counsel witnesses judicial take notice of the Castro defense asked the court new trial counsel grand declined challenge jury, to the and the court transcript in connection with his so, part stating transcript] to make Castro proper “I feel it is [the do don’t Court, my ruling consider that original did not examine or to because the record judicial apparently us take notice .” now seeks have evidence. the . Defendant . judicial records, authority concerning although cites no and Montez Castro light of judicial notice in us to the matter of unnecessary It is consider notice. disposition our of the assertion. discussed, Kiff, rule v. new announced in Peters 407 U.S. 493 [33 83, defendant, (i.e., L.Ed.2d S.Ct. that a whatever his 92 2163] race, race his conviction that may challenge some grounds arbitrarily him) excluded from the indicted does grand jury that not case, this in govern which was instituted before the Peters proceeding decision was announced. White, 740, v.

People supra, 43 875, Cal.2d den. 350 U.S. 753 [cert. 876], states, which “It involved is challenge gen petit jury panel, rule, recognized that as a errors erally general irregularities making list not the list is will invalidate when the not a up jury person objecting member of the against.” discriminated That rule has been group repeatedly in cases applied (Salis attacks or involving grand juries juries. upon petit Breazeale, bury (5th 50, 51; v. Cir.) Grimes 406 F.2d 291 v. Woodruff Wells, 997]; 640, 130 401 In re F.Supp. F.2d 20 649 Cal.App.3d [affd. Court, 1]; 612, v. supra, Justice 273 [98 619- Ganz Cal.App.2d State, 621; Butler 631, 634-635]; v. 285 Ala. So.2d Blanton v. 387 [232 State, 373, 249 (28 Ark. 181 S.W.2d den. 401 U.S. 1003 [458 376] [cert. 539, Lea, 1240)]; L.Ed.2d v. 169, 91 S.Ct. State 228 La. 724 So.2d [84 869, (100 655)]; den. 170-171] 350. U.S. 1007 L.Ed. 76 S.Ct. see [cert. Witkin, 324-325, Cal. (1963) Criminal Procedure and 1969 pp. § 117-118.) An Supp., to the rule exist if exception general may § pp. it that the defendant was appears the asserted dis by prejudiced purposeful (see, Breazeale, supra, 132; crimination v. v. e.g., at p. Ganz Woodruff Court, supra, Justice but here defendant such nothing showing points prejudice.29 White, supra,

After 43 Cal.2d and the above cited decided, cases in accord with White were the United States Court Supreme filed its decision v. Kiff, supra, in Peters 407 U.S. 493 [June 1972]. The decision in Peters was rendered after the in the instant long proceeding case was instituted and case In tried. Peters the alleged petitioner Negroes excluded systematically from the that indicted grand jury him and the that convicted him in a court. The court’s petit jury Georgia judgment Marshall, in that case was announced in an Justice opinion by joined in Justices and Stewart. Justice Marshall declared that Douglas 29Defendant expressing viewpoint cites cases a different as to whether a defendant may complain group assertedly unconstitutionally if he is not a member of a excluded State, Madison, (Allen 711]; 110 Ga. 56 S.E.2d 265 State Md. 885]; State, 268, 270-271, A.2d Walter v. 208 Ind. N.E. A.L.R. 607]; Cir.) (5th see Labat v. Bennett 365 F.2d den. 386 U.S. [cert. (18 1303)]), L.Ed.2d thé followed in this 87 S.Ct. but rule has been set state forth above. race, a criminal defendant has standing challenge

“whatever on the arbitrarily used to select his grand jury, ground system petit race, him denies thereby excludes from service members of any indicated that the defendant need due and Justice Marshall process,” of actual harm. proof present White,

A Peters Justice Justices joined concurring opinion Powell, Brennan and that he would the states implement policy on of race federal statute which citizens disqualifying grounds prohibits man, on the white “to his conviction challenge a by permitting petitioner, the that excluded the grand jury from grounds Negroes arbitrarily view, that now is and it is time we indicted him.- This the better proceedings governing in this case and the standard criminal it as recognize added.) White had theretofore (Italics instituted Justice hereafter.” a conviction Court aside recognized setting “there is no case this the for of citizens from service where exclusions of a class arbitrary jury “the of not a of the excluded class” and courts defendant was member view, have constitutional accepted rejected appeal, reflecting generally claims such as here.” petitioner presents Justices by dissent in Peters Chief joined

A Justice Burger, ac- that exclusions from juries Blackmun and after Rehnquist, noting unlawful, such are that “The real is whether count of race states issue absent demonstration voids a criminal conviction any illegality necessarily accused,” to the or basis prejudice, prejudice presuming absent dissent have that effect believed that the did not evidently illegality a such demonstration. Peters Justice Marshall nor Chief Justice expressed

Neither Burger new with Justice White’s on retroactivity disagreement position White’s posi- rule in Peters or discussed that issue. In our Justice opinion followed, and tion as to should be we it. adopt retroactivity review Defendant also nomination and contends that the pro non is of a (1) grand jurors judiciary performance spective Ill, ‍​​​‌​‌​‌​‌‌​​​​​​​‌​‌‌​‌‌​​‌‌‌​‌​‌​​​‌‌‌‌‌‌‌​​​​‍(art. doctrine function in violation of judicial powers separation Const.) (2) Cal. inconsistent with the detachment “judicial is policy lies the federal doctrine, which behind that violates neutrality,” state, there so Constitution. defendant does not Although presumably regards fore the indictment as invalid. Defendant’s motion quash

755 Tipton, People did In indictment not raise the contentions.30 foregoing 330], 104 P.2d to set aside a where motion Cal.App.2d which judgment was made on the that the indicted the ground jury grand stated, defendant was court illegal, an indictment ap- “[W]here on its face and defendant or move to set pears regular demur fails aside, he waives any irregularities in the organization impanelment Dale, People 370, 375; (See supra, also grand jury.” Cal.App.2d 794]; People Meraviglia, v. God- P. Cal.App. frey, 1031].) P. raise Cal.App. Similarly failing indictment, the above contentions in his motion quash from them on making precluded appeal. is modified to life judgment punishment provide imprisonment instead of death for murder and as so modified is affirmed. J., Tobriner, J., Peters, J., Mosk, J., C. Sullivan, J.,

Wright, concurred.

McCOMB, J. that, I concur in for the reasons opinion, except ex Anderson, pressed my People v. dissenting 6 Cal.3d opinion 880], 493 P.2d I dissent from the proposed modification the judgment. for a

Appellant’s petition denied rehearing 1972. July 30Defendant that are made transcript asserts contentions Castro and he “adopted that transcript.” hearing theAt on the motion for a new trial defense judicial requested counsel notice be" transcript taken of Castro in connection with indictment, quash motion which motion was based on the assertion that specified groups unconstitutionally against. Apart discriminated from the matter timeliness, foregoing manifestly raising did not present constitute con tentions in the trial court.

Case Details

Case Name: People v. Sirhan

Court Name: California Supreme Court

Date Published: Jun 16, 1972

Citation: 497 P.2d 1121

Docket Number: Crim. 14026

Court Abbreviation: Cal.