*1 Aug. 20, 1969.] In Bank. No. 10756. [Crim. Respondent, PEOPLE, THE v. Plaintiff DENNIS Appellant. STANWORTH, Defendant *3 Porlier, appointment J. Vance under Supreme Court, Appellant. for Defendant Lynch,
Thomas Attorney General, Harris, Jr., C. Albert W. Attorney General, Granberg Assistant Deraid E. and Edward O’Brien, Deputy P. Attorneys General, for Plaintiff Re- spondent. Defendant, SULLIVAN, Dennis Stanworth, was J.
charged by with, indictment upon pleas convicted of to, guilty (Pen. of Code, two counts murder 187) ,1 one § kidnaping count commit with harm robbery bodily (§2.09), four of kidnaping (§207), counts three counts of rape (§ 261, 3), perversion forcible subd. one count of sexual (§288a), (§211).2 and one count Pursuant robbery stipulation the trial findings degrees court made as to the the murders transcripts pro- its examination ceedings grand jury before the and determined both murders degree. to be of first The issue penalty for each of the murder counts and kidnaping count of to commit rob- bodily with harm was tried to a bery which fixed the jury on each of the murder counts at death on the kidnaping imprisonment at life count without possibility parole.3 (b).) This (§ 1239', is automatic. subd. pertinent
We set forth facts as disclosed the tran- script proceedings had at the trial the issues of August penalty. 12, 19.65, On p.m., W,4 5:30 years Miss age, employee student nurse and an at a Montgomery Richmond, driving Ward store in was out of the park- store’s ing stop she stopped lot. While at a sign, defendant 1Hereafter, indicated, unless otherwise all section references are Penal Code. charged felony by 2Defendant was first with counts of an indictment August charged filed on assaulting kidnaping 1966. Counts thereof him with with Lee Caree Collison with intent commit murder person. September 12, 1966-, said Miss Collison died on and on September 20, 1966, charging a second indictment was filed *4 with her murder. Additional both details as to forth indictments are set infra. remaining counts, 3On prison defendant was sentenced to state for prescribed by the terms law. Execution of some of these sentences was stayed pending appeal sentences; and until execution the death execu stayed pending appeal tion of service during the other sentences was and may Authority speci sentences that be set the Adult stays permanent fied upon counts. All are to become execution or service stays of those sentences which the are conditioned. 4For living reasons obvious hereafter all references to victims of de fendant’s crimes are initials. car, the street
approached and asked for ride down twice but request, he said was stalled. She refused through open passenger side, window on he reached a knife and the door and entered. He exhibited unlocked if him Miss W she refused to take threatened to use it on parking him to go. he She drove lot where wanted Berkeley. Fields, in Golden Gate produced stopped car, defendant an insu
After Miss W her and her hands behind her back. lated or covered wire bound raped part clothing During of her her. He then removed told W that he sexual intercourse defendant Miss the act of her, put kill his hands around her throat and would have to regained lost When she choked her until she consciousness. promise consciousness, hands,, her defendant untied her permitted her attempt escape, her to dress drove not to trip Montgomery During Ward the return Store. back to children;5 four that he married and had he stated that he was sorry was her; that he what glad was he had not killed again. not do it Defendant happened had and that he would kidnaping raping Miss W.' was convicted on counts of pirn., D, years November about 8:30 Mrs. On along age, walking nearby shop- home a dark road from a passed El As ping field, center in Sobrante. she pick her, throat, held an her seized ice demanded that pulled He she submit to sexual intercourse with him. then hands dragged the'field, her into bound her with an insulated clothing raped wire, tore her her.-Afterwards off forcibly purse he from Mrs. D’s and threatened to kill her.- took $15 him that she had four begged for her life and told chil- She with dren, whereupon he fled across the field As to money. incident, foregoing defendant was convicted on counts of bodily rape and harm, commit with kidnaping to robbery robbery. 13, 1966, p.m., S, years age Miss
On about May student, stopped stop sign at a her car as she high school parking a school lot Richmond. Defendant drove from passenger entered, of her car opened door on the side stomach, her exhibiting Holding a knife. the knife “get did hurt” if she what wanted. her she told would years age married for and had been 5At this time defendant was years. marriage produced defendant had had two children and three His wife's two children marriage. adopted After com a former proceedings urged to divorce him his wife of these mencement interlocutory decree before the commencement and she had obtained an of the trial.
825 He directed her street, to drive onto a side bound her hands behind her back with insulated her wire forced onto the in floorboards the front seat her automobile. He then drove to Point Bichmond on San Francisco and forced her Bay, clothing, onto beach area. He removed her freeing after upon promise her hands her she would not “try any- thing.” He fondled her for while, a short and then removed penis from his trousers and indicated that she was to orally copulate penis mouth, him. He forced his into her back, slapped when choking, she drew her about the face penis and inserted his back into her mouth. Defendant her clothing refused to return and started to-the car. back She eventually high followed him and he drove her back to the trip During school. the return clothing, he returned her consequences threatened her if with serious she called the kidnaping authorities. Defendant was convicted of perversion, and sexual foregoing based on the incident. 1, of August 1966,
On the morning
Susan Muriel Box and
aged
Caree Lee Collison,
years
15 and 14
were
respectively,
hitchhiking along highway
in Pinole.6 Defendant first drove
past them, but
returned
offered
them ride. With the
raping them,
girls
intention
he drove the
Wilson,
Point
overlooking
Bay.
San
He
Pablo
was armed with a .22 caliber
pistol
gun point
girls
and forced the
at
to walk across a field
large bush,
to a
where he had them disrobe. Miss Collison
attempted
escape and
by
defendant forced her to come back
threatening the life of Miss Box.
Miss
When
Collison
returned,
in
probably
defendant shot her
the head
twice. He
performed
then
Miss Box in the
head,
shot
act
body.
sexual
He placed
intercourse
her
Box’s body
Miss
top
bush,
on
of Miss Collison under the
covered
partially
them with
he was
leaving
branches. As
scene he heard one
involving
W,
6The
victims themselves testified
to the incidents
Miss
D
S.
Mrs.
and Miss
Evidence
the offenses committed
Miss Box
physical
crimes,
at
Miss Collison consists of
evidence
the scene
testimony
investigating officers, extrajudicial
by
of the
statements made
testimony during
phase
defendant and his
of the trial.
extrajudicial
No claim is made that defendant’s
statements should have
grounds
People
proscribed
(1965)
been excluded on
in
361],
v. Dorado
62
Cal.Rptr. 169,
(1964)
[42
Cal.2d 338
The bodies were discovered Box was dead. Miss alive 1966. Miss Collison August state. She never recovered consciousness. but a comatose 12,1966. September She died Box almost
The
of Miss
occurred
instantaneously
death
*6
in her
damage
by the
head.
addi-
from
caused
bullet
brain
right
a
leg,
and
she had
head,
in her
tion to wounds
abdomen
sharp-pointed
puncture
by
chest
a
in the left
caused
wound
approximately
blistered area
object,
burned or
penetrating
a
knee,
numerous
and
diameter below one
one-half
inch
hips, right
face, chest,
shoulder,
left
marks on her
scratch
in her
fluid
found
thigh
Seminal
was
and
buttock.
kidnap-
of
of counts
canal. Defendant was convicted
vaginal
Miss
ing, forcibly raping
murdering
Box.
and
pneumonia
bronchial
died from severe
Miss Collison
two bullet wounds
In addition to
to head wounds.
secondary
in her ear which
a
wound
head,
her
there was
third
may
sharp, penetrating
by
by
some
been caused
a bullet
have
infra).
county
(see,
August 3, involving
to mak-
Prior
a Miss G
that
ing
on
“I,
following:
statement,
signed
Dennis
and
defendant read
my
silent,
rights
Stanworth,
my rights to
been advised of
remain
have
attorney,
attorney.
me
I
the State will furnish
to an
with one.
If
afford an
cannot
say
Anything
law.
I
me in a court of
The
can be used
my
signing
following
the statement defendant
Highway Patrol-officers,
office.
own free will.” Prior
written
is of
statement
rights
had
both California
been advised of
County
deputies
San
Mateo
Sheriff’s
12, 1966, during
August
on
the course
The second
was made
statement
County authorities,
investigations
who- had been
Contra Costa
County
request.
meeting
defendant’s
Prior to
snmmnup.fi
Mateo
at
San
represented
with
authorities notified counsel who then
de-
defendant the
County.
proceedings
in San Mateo
Counsel was
fendant
present
advised defendant
criminal
deputy
attorney
interrogation
both
and the
district
rights
at the commencement
his constitutional
the statement.
acknowledged
During
speaking
both
statements defendant
he was
freely
voluntarily,
the trial that
and
request;
testified at
the second state-
voluntarily
it
ment was made at
that he made
“I
because
my
just-I
just
get
it
I
it
couldn’t live with no more.
had
off
chest.
just
wrong
somebody.”
it
I
knew was
had
tell
appears
was
as to
It also
that defendant
cross-examined
certain state
psychiatrist
Although
who
him.
he made to a
had examined
those
ments
record,
appear
appear
it does
statements do not
as matter
that the
arranged
permission
examination was
for and
with the-
conducted
(see
Spencer (1965)
In re
defendant and his
When she refused to kiss him be removed the wire from her *7 pulled and blouse, causing feet at her her to run. scream and away to caught She tried run but he put her and a wire around her again, neck. She screamed her kill threatened to quiet, she was strangled unless and he her with hands. She quieted clothing down and he tore off raped her and her. completed act, After had the her he left on the beach with her hands bound. She freed and herself, dressed loosely made highway her to the notified way the authori- eventually apprehended ties. Defendant was in Miss G’s car a few hours place later. This incident which took in San County Mateo of not among course with offenses which defendant charged was in the Contra proceedings Costa now County before us. (see As stated 2, ante) fn. two previously indictments were returned (No. 10134) the first August defendant: on 18, charging of (No. counts and the second felony; 10173) September 20, 1966, death, after Miss Collison’s charging single the count of her murder. appeared When defendant plea for to the first entry
indictment, suspended the proceedings court the under section (doubt present as sanity) appointed to psychia- two Perretti, to examine defendant as to triste, Dr. Rood and Dr. report subsequent the At present to court. the sanity present sanity, question pursuant stipula- to hearing on the reports parties, tion the the matter was submitted the psychiatrists. The the court found that defend- above two nature presently ant “is sane and understands the proceedings" proceedings be and ordered that the criminal reinstated. day judge, the same
On the same before defendant appeared arraignment upon indictment. the second Coun- for him,7 upon it appointed represent sel his motion to “up provided to to defendant $350 was ordered to choosing. psychiatrist retain a of his own pleas September 29, defendant entered On pleaded He not guilty in the first indictment. charged counts and not those all counts8 reason of guilty insanity and the charging him the various kidnapings counts with pleas robbery.9 of not reason of In view guilty appointed Doctors and Perretti insanity, the court Rood 1027). (§ the same before examine defendant On day appeared arraignment judge, same defendant for plea of not reason second indictment entered guilty by appointed similarly were The above two doctors of insanity. respect charged crime in the defendant in to the to examine thereupon ordered that both The court second indictment. proceedings (No. consolidated for 10173) 10134 and No. purposes of trial. pleas previously withdrew all On November defendant pleas charged all as to counts entered entered guilty previously degrees the issue of the indictments. As stated both the trial court on the tran- of the murders was submitted to proceedings. We have script grand jury examined respects transcript it in accord in all material and find to be provides It hereinbefore recited. sub- with the factual matters finding that the support murders stantial for trial court’s degree. are of the first already ap appointed who had Mr. Vanee Porlier been 7The court appointed
pointed 10134 and who has been counsel No. appeal. represent on this *8 4, charging with with assault Miss Collison defendant 8Count murder, upon motion of the district attor intent to commit ney. was dismissed charged It indictment will be recalled that second of Miss Collison. with the murder insanity plea guilty of not reason Thus defendant entered (forcible rape (murder Box) ; count Miss to of Miss three count one (forcible rape ; (sex perversion Box) ; W) nine Miss count count seven (forcible rape D). S) ; Mrs. count Miss eleven by jury Defendant waived a trial the issue of penalty on raised in kidnaping both murder counts and in the count but jury the court ordered that a be drawn to said issues. As try we above, have all counts, detailed defendant was convicted on prison sentenced to death murder and to on the counts state remaining- (See ante.) on the This counts. fn.
followed.
At the outset we are confronted with defendant’s assertion propria persona right that he has a to dismiss counsel on appeal (see fn. ante) proceed and to in propria persona, he and that has a appeal. to dismiss Throughout this proceedings expressed these defendant has g-uilt and remorse concerning the crimes which having admits commit- freely ted. This has been reflected in manner which he has defended, or has refused defend, against to charges, as is pleas evidenced guilty and his waivers a trial jury on the issues capital raised in the offenses. professed furtherance of his purpose accept punishment to without what he deems to be litigation or unnecessary delay, attempted discharge him appointed counsel below. The record discloses that such efforts part were not based on any dissatisfaction with action any conduct of such counsel or with his abilities skills as an predicated upon but instead were attorney, defendant’s desire represented to be judge all.10 trial advised The defendant as to necessity the reasons for the aof trial on the appears issues of but to have been unsuccessful in persuading defendant to that view.11 Defendant nevertheless following place 10The took in chambers before the commencement of Stanworth, trial: "The first, Court: . .. Mr. Mr. Porlier [defendant’s you you represent counsel] has told me that don’t want him to in this matter. right, "The Defendant: That’s sir. Now, understand, "The Court: Ias is not due to _ dissatisfac ability tion with his or the manner which he wishes handle it. Dependant: No, right. "The "The that’s basically you Court: represented, It is that don’t want right? Dependant: right.’’ "The 11During the That’s judge course of the discussion between trial and de fendant, expressed following in views statements: just "But I purpose don’t understand how—the I mean I this. pleaded guilty; you my give I sign I my confessed. ’ll even I life. ’ll own just death keep garbage warrant. want papers. all this out of the plead "I would like to contest and have no witnesses .no whatsoever my behalf. I don’t want Mr. Porlier cross-examine and I don’t any jurisdiction him want nothing my pick jury. to have over the I don’t want behalf.” just-feel being "I purpose hearing the sole of this is to decide *9 cooperated throughout proceedings the trial and thereafter representation accept, grudgingly, to if his seemed of counsel. initially requested
Defendant and consented to our represent appointment counsel him January to sought appeal immediately by one or this but almost means appeal. purported to On 13 he another frustrate February by appeal”;12 letter to “waive this in a letter dated March permit counsel and him to he asked that the court dismiss his proceed in in propria a letter dated March 13 persona; prior requests, citing his urged us to action on authority take but, impli- right support claimed to to dismiss counsel might not least,, recognizing that he have cation at appeal.13 Nevertheless, on June dismiss an automatic “Voluntary herein a Abandonment filed conforming rule in and Appeal” language otherwise provides pertinent rule Rules Court. That California part any time “appellant may that an dismiss by filing thereof, him or attor- signed an abandonment thereupon requested opposing We that of record.” ney question whether an directed to the counsel submit briefs of an auto- request or dismissal appellant may abandonment instructed appeal. response request that matic just things death, just feel can’t I don’t these whether it’s life or any gained me, out how can he benefit die with of and I don’t feel there any this.” stated, court, alia: “I would 12In his communication to the inter standing decision, ready appeal, to waive and let the all [sic] like this my possible, I want the court to handle remain as is. Should this not be perfunctory my case, I in a fashion then affirm because do brief not to any legal formalities, want a form technical reversal other my any longer necessary. up than hold decision you if would the court time trouble could PLEASE "It save much many grant request and it me months of useless me this would save you Any action would in this direction existence here on Death Row. take Many your deeply appreciated. for would be thanks time. 13Exeerpts "I know this communication follows: that I from are as again, I have dishonored will never see the freedom of the outside world my family’s myself my pain agony not to mention name wish to cause no more expense legal I wife. ... state with fees feeling housing. I I I costs- of cannot describe the that but have you my requests. know that will understand It now that I must seems namely give seek, I insist that this Court me the action that that this my appointed . . Court dismiss counsel . and dismiss the briefs filed my my behalf. ... I that I and I for acts understand alone must suffer my and I understand that with cloud to task I also law holds me actions. .the living my head, please over you cannot continue merciful and give sleep pain suffering me an endless as can soon so hope you I have will be I will that I want no more. understand .... re-trial, any no from no trial or action this Court favorable want, Iáll is die.” to. Ms supporting counsel either to submit a brief position appeal, can step that he dismiss the toor aside.14 Defendant also addressed communication to the Attorney enclosing urged General “Affidavit of Verification” and preparing that it utilized their brief. The hereby document “I stated: ANW DENNIS ST ORTH swear that the conviction which has resulted the sentence of death I my valid. also swear that no violation constitutional rights has place; rights. taken if have I waive those stipulate my that the record of trial is valid and the conten- *10 respondent tions of the are true and that the contentions as put this in my to court briefs have no Opposing merit.” requested, ignor- counsel have submitted their as briefs both ing defendant’s communications to them. 30, 1967,
On June defendant a submitted further document response to this to purporting court be in to our above-men- request tioned and representing for briefs that he had dis- charged his counsel. We construed the document to constitute question not a brief directed to the of defendant’s right appeal also, together to dismiss purported this with the but Appeal,” “Abandonment to constitute a motion to dismiss appointed by counsel for him this court. 12 we On made July denying an order to dismiss motion his counsel. Since that date defendant has communicated with us addi- and, advised, tional occasions we are has communicated with complaining Bar that his has to State counsel failed act in defendant’s best interests. point nothing
We hasten that is in to out there the record upon pro- us, before either an examination of trial court ceedings, appeal, the briefs on matters or other that have been attention, suggest to our that directed which even counsel has in appeal or in conducted the trial defendant’s behalf other competent, professional manner, than and skillful always counsel, part: 14In this in communication to his defendant.states “I being granted your know that brief, all stands between this motion denied is you you telling right Iso am that that I now either state have the appeal to an abandonment of under 38 of Rule the California Rules (or effect), you my Court to that or I want ease. off getting awfully you my denying rights (Constitu- “I am tired me VI) representation adequate by counsel, tional Amendment. when you continually represent appropriate. refuse to me as deem "So, you up either state the facts as I have stated them or draw Supreme Court, you stating motion it and submit to the have been officially eannot submit case, you dismissed wish withdraw from the and that any doing you in this briefs matter because in so would be going against your injustice. doing grave client’s best interests him a relieving consequences the end of defendant of charged. task has difficult crimes Counsel’s been particularly opposition, expressed in view attitudes and of defendant’s patience and times, great at various he has shown objective continuing represent defendant an restraint any that defendant has manner. We unable to discern are complaint represented, that he is we would other than conclude, objective purpose less than if we were his representing representation himself obtaining other relief, any, if anything to which than to frustrate the other might.be appeal.15 pursuant to this entitled
Directing' our attention first defendant’s claimed right appeal case, to dismiss an taken in a death we making express provision can find or rule statute of court no for the sub now asserts. Section (b) any plea provides: upon judgment division “When rendered, appeal by death is taken automatically defendant without action him or counsel.” The any is thus without action taken affirmative defendant, Furthermore or even consent thereto. the statu direct, tory contemplates, explicitly scheme if it does Thus, court. section 1217 review of death cases requires capital crime at the that one convicted of a be held prison appeal,” state decision “pending provides that the trial court fix the date of section 1193 execu- 15Although persisted has in the view that he should suffer *11 penalty nothing imposed, in record or in com the there is the his various suggests legally or that he insane entitled to relief is munications theory capacity. (See (1966) People Conley on Cal.2d 310 v. some of diminished 64 815, Cal.Rptr. 911].) Perretti, 411 P.2d Doctors Eood [49 and pursuant who examined both defendant section stated he was pertinent “Mentally, part: intelligence. alert, Dr. in sane. Eood com stated he is usually objective municative and of normal mood and He is dispassionate reciting offenses, and in his but becomes somewhat tense discussing disintegration loosening when murders. He shows no thought-emotional-reality organization. of his mental He is without hos tility paranoidal interviews, trying attitude to be as and factual memory-aceurato possible. recognizes abnormality He of desires, wrongful obsessions sexual but he that also sees he knew the behavior, nature, ness of . . . He also knew and understood the quality area of wrongfulness problem of his behavior. His was not in the knowledge understanding, but in the area of self-control predispositions nonpsychotic the face of personality abnormal from sexual (and time) responsible, mentally disorder. . . . He is was at the sane and competent trial, to stand and not committable under Section 1368 of the report Penal Code.” Dr. Perretti’s is to same effect. appointed The same pursuant doctors were also to examine defendant pleas guilty by insanity. to his report not reason of In that Dr. stated, my Perretti alia: Stanworth, inter “It is conclusion that Dennis offense, at the legally time of the was sane and he did not have at that symptoms psychosis. my time opinion mental is It that that
833 tion. after a judgment imposing the death “has been penalty appellate affirmed court.” statutory construing provisions relating appeal to an in the case of one capital convicted of a offense, we have held (b) that subdivision imposes upon of section 1239 this duty court “to an examination complete make of the record of the proceedings court, had in the trial to the end that it ascer given tained whether (Peo a fair trial. ...” ple Perry (1939) v. 14 Cal.2d 392 P.2d 124 [94 People A.L.R. said in (1946) We v. Bob Cal.2d Legislature P.2d “The : California has taker 12] extraordinary precaution safeguard- rights those upon imposed , whom the death is by providing ... appeal upon an automatic . . and enjoining . this court an preparation examination of the record of a forma- opinion appear it decision from which should that no miscarriage justice (Italics has resulted.” added.) (29 p. People Figueroa Cal.2d at see also 328; v. (1911) Cal. 80, 81 P. 391].) It is manifest that the state solicitude for its a defendant under sentence of death has not invoked his behalf a right review conviction means of an automatic imposed upon but has a duty also this court make such review. We cannot avoid or abdicate duty merely right provided because desires to waive the for him. In other it has held contexts been that defendant’s waiver or attempted waiver of a it ineffective where would imposed involve also the renunciation of correlative duty Thus in the court. Werwee Cal. v. 704], App.2d purported P.2d where a defendant separated commencing consent that a could after its jury deliberations, it the court stated: “If should be contended nature, occasion, quality of the Dennis Stanworth was aware con- sequences acts; knowledge understanding he then had wrongfulness delusions, of the of his acts. Dennis Stanworth did not fiave having offense, and was time hallucinations at the and was not legally psychotic. his sane, psychosis, . . . He was without at the time of report Dr. offense.” Hood’s that time was to the same effect as Dr. Perretti. Dr. Hood also testified of the defendant at behalf trial. developed He or that defendant had “an stated abnormal sexual inclination being predisposed, abnormally predisposed, in the attitude sense obsessions, physically to sexual sexual with involvement mature ‘ ' having abnormality female. He described defendant as of behavior *12 any abnormality knowing understanding. or The doctor also testified that defendant sane at the time of the commission of murders, mentally charges that was to able understand the cooperate rationally in his defense. a defendant under such circumstances waived his right to separation irregularity jury by claim in the consenting it, our answer right would be that he could not waive the statutory (P. procedure have the 499.) observed.” The court “Although may continued: a rights waive which benefit, exist for his not waive own those which may belong public 500.) generally.” (P. also to the In v. Blake 170 Cal.App.2d man 202], P.2d the court held that deemed a could not be to have waived the upon probation condition had been invalidity aof ‘‘ imposed, reasoning: argument The of this is that fallacy we right privilege dealing are not with a conferred- lawby upon personal litigant for his sole benefit. ¥e are con principle public a policy. cerned with of fundamental The law cannot suffer the state’s interest and concern in the observ ance and policy enforcement through to be thwarted guise personal of waiver right of a by an individual. ‘Any may one advantage waive the of a law intended for his bene fit. But a public law established for a reason cannot be con by private travened agreement.’ (Civ. §3513.)” Code, (P. 598.) We that, therefore hold to defendant’s contrary assertions, application rule 38 has no appeal. automatic That an. rule is addressed ato situation where a having the party, absolute right appeal forego an place, the first retains a coexten- right sive to dismiss it at time for reason or any none contrary, at all. On judgment a defendant under of death not does have an forego election to take appeal. an As we explained, have has been denied oper- him the ation of section 1239 (b). subdivision short, proceeding pursuant (b) to subdivision is appellant’s not an appeal in ordinary sense of rule entirely 38. It is appeal,” “his state, since the too, indisputable has an interest it which appellant extinguish. cannot Accordingly, defendant’s application appeal to dismiss the instant must denied.
There remains the
question
further
whether defend
ant is entitled
discharge
to dismiss or secure the
of his counsel
appointed
represent
appeal.
him on this
One who is
indigent
represented
entitled
to be
constitutionally
criminal,
judgment
counsel on
from convic
(Douglas
tion.
v.
(1963)
835
intelligent
an
waiver of counsel
a
involves
consideration of
the nature of
charge,
the
thé
facts and circumstances
the
ease,
education, experience,
competence
and the
mental
conduct of the accused.
(People v. Chesser
[Citations.]”
(1947 ) 29
822
;
Cal.2d
P.2d
170 A.L.R.
In
[178
246]
(1952)
re
Proceeding the merits, have concluded that we Witherspoon compulsion under the v. Illinois rejected request following 16In the our communication in which he appears; you “Below will find a statement of facts which I consider important be crucial and evidence. “A Statement for the-Becor» Facts is, charged guilty fact “The I did it I am and is no there impartial doubt to that fact. I fair had a trial swear that the conviction which has resulted the sentence death is valid. also my I rights place; swear no that violation of constitutional taken has rights. stipulate my if so I waive those that the record of trial is valid attorney and the contentions district are true and that the con- put my tentions as to this court in briefs have no merit. travesty justice “That it would be a a decision reverse where- question guilt person is person there has no as to the and that same many Anything said times that had a fair trial. else that enters picture (such my briefs) into counsel’s [as] is'irrelevant and imma terial. 1770], U.S. L.Ed.2d S.Ct. we must reverse the judgment penalty imposed insofar as it relates to the for each of jurors murder prospective counts for the reason that certain excused cause in violation of standards
were expounded by Supreme States United Court in that case.
Witherspoon states capital in a is ease jury entitled to have his determined ‘‘ expresses selected such a manner that it conscience question on the ultimate community life death.” (391 p. p. U.S. L.Ed.2d at to insure order persons merely opposition who voice death jury, Supreme are excluded from has Court ruled may that a venireman he makes not be excused for unless cause *14 automatically it “unmistakably clear . . . that would [he] against imposition vote capital punishment without re- gard any to might developed at evidence that be the trial of the p. fn. 21 L.Ed.2d at [20 jurors were excused prospective
In the at bench twelve case opinions with conscientious a result of their for cause as 8.) We deem penalty. (See §1074, subd. respect to the death three, these Of only three the twelve. necessary it to discuss on voir Moore, indicated veniremen, and Mr. Mr. Muldoon two in the death believe did not dire examination that they questioning.17 without further penalty they were excused who were excused Witherspoon six veniremen involved itself they not “believe in they indicated that did for cause when pp. p. 514 L.Ed.2d at (391 at penalty.” U.S. the death them to excuse it was error 780-781].) held that The court return they nevertheless could determining whether without course, entirely possible, of because, “It is a verdict of death capital punishment should that juror a who believes that even abo- irrevocably to its committed is and who be inflicted never views personal subordinate nonetheless lition could complete Mr. Muldoon was follows: dire of as voir 17The “By Muldoon, attorney]: [prosecuting Mr. Q. Hatzenbuhler Mr. opinion against you any sir, death you there, for or have as do sit juror, you being impartial penalty prevent fair from that would juror? impartial Yes, “A. sir. ‘‘ opinion, ? And what is that sir Q. penalty. I death don’t- “A. don’t believe Challenge cause, Your Honor. Hatzenbuhler: for “Mr. “The Court: Do any you questions, Mr. Porlier? want ask No, Your Honor. “Mr. Porlier “The Court: All [defense counsel]: [sic], you right, will be Mr. exesued Muldoon. you being coming morning for so candid with us.” Thank Mr. was examined follows: Moore as “By you Moore, you now, Q. Mr. Hatzenbuhler: Mr. do sit there perceived duty oath as a what he to be his to abide (391 juror pp. at 514- obey and to the law of the state.” U.S. p. 781].) fn. Mr. L.Ed.2d at Since Muldoon and Mr. Moore indicated that did not believe they they death properly could not excused cause penalty having it without been determined that their beliefs would prevent voting impose them from ever death. Inasmuch as that determination was not it made was error for the trial granted prosecution’s
court to have challenge for cause.18 Prospective juror Whipple Eloise indicated on voir dire that she did not believe she “would want to return a death penalty,” and she was excused for cause without further Whipple’s Mrs. examination.19 statement a indicates lack of part desire her responsibility to undertake the incident to proper penalty determination imposed to be recognize unpleasant defendant. We that it best an task to determine whether man should live or die and when that given people the choice most would not want to assume that However, the mere fact burden. that a venireman find it may unpleasant impose difficult to cannot death equated impose with a him refusal under circumstances. states “Unless venireman unam impo automatically would vote biguously capital punishment might sition of no matter what the trial reveal, simply position. it cannot be assumed that that is his (391 p. pp. 781-782].) U.S. at fn. 9 L.Ed.2d at
Witherspoon proper requires, for the exclusion venireman, part an absolute consider the refusal on *15 Whipple’s state imposition penalty, of and Mrs. the death clearly did bring ments her within that standard. She you prevent being have state of mind that would from both fair to People The and to the defendant in this ease ? Well, “A. “Mr. Hatzenbuhlbr: I don’t in believe the death sentence. Challenge cause, for Your Honor. you any questions, “The Do Court: want to ask Mr. Porlier? None, “Mr. Porlier: Your Honor. " right, Moore, you may you : All Mr. The Court be excused. Thank very coming for morning much being and for so candid with us.” 18We, course, of intimate no criticism of the trial court since the in prior stant was tried ease to the time the in decision was announced By Witherspoon. argument reasoning reject Attorney the same we the General’s object that the failure of defense counsel to of the dismissal preclude veniremen for cause should enjoying defendant from the benefits Witherspoon appeal. on this complete 19The voir dire Whipple examination of Mrs. aswas follows: Whipple, “The you Court: Mrs. from where sat the courtroom you could hear the todáy? nature of the issue arewe here to decide “Juror No. 9: Yes. Is ‘ ‘ The anything you : there Court have heard this courtroom erroneously for rules cause. Under the excused therefore in- Witherspoon judgment must be the reversed announced penalty imposed mur- the for each of the sofar as it relates to der counts. retried, proceed we must be the issue Since the guidance defendant for
consider certain contentions court on retrial. the photographic
It is that two show contended exhibits Box, ing nude errone views the of Susan Muriel were body objections. ously admitted in The evidence over objections basis for the claim of error is that view degree plea guilty murder, the finding and the of first photographs meager probative in the on the had value trial prejudicial when effect weighed issue of penalty necessarily resulted their examination claimed to have jury. photographs. depicts have We examined One of them position of Miss Box’s as she was discovered under body body large photo face down and the dis- bush. The lies portion of her left plays legs, buttocks, her her back and up photo her The arm which twisted over back. second morgue. upper back at Miss on her The shows portion Box lying visible, is not her head with the fatal wound but body, legs her wounds over there are visible numerous other arms, including by the bullet the wounds caused The thigh her and entered her abdomen. traversed puncture her also wound in photograph shows second photos made were in an No claim is introduced chest. manner, were unreasonably displayed, were untimely sensational. unduly probative photographs “the value of offered Whether outweighs possible prejudicial is a effect into evidence judicial question for trial court in the exercise of its (1963) (People v. 59 Cal.2d Harrison discretion.” People 665]; see Cal.Rptr. 841, 381 P.2d also v. Sanchez Cal.Rptr. 800], (1967) 65 Cal.2d P.2d grounds, recalled, revd. on other v. Sanchez remittitur Cal.Rptr. 642, 74]; Peo- 451 P.2d 70 Cal.2d today you you juror proper feel not be a in this ease? that makes could Yes, No. believe I would want to return a “Juror 9: sir. don’t penalty. death you any questions, Mr. "The Court: Bo wish Hatzenbuhler? to ask Challenge cause, Your Honor. "Mr. Hatzenbuhler: "The Court: Mr. Porlier? questions, Your Honor. No "Mr. Porlier: *16 you may right, excused, Whipple. "The Court: All Mrs. Thank you coming morning being and for so candid with us.”
839
pie
416,
v. Mathis
63
(1965)
Cal.Rptr.
Cal.2d
423
785, 406
[46
People
P.2d
v. Henderson
;
(1963)
In the instant case the details of what took place at the all murder scene are not at clear. The record explaining contains puncture no direct evidence wound in chest, Miss Box’s body, scratch marks over her numerous position legs, arms and or the twisted her left arm. Such clearly are aggravation matters relevant to the issues photographs the crime and The constitute the most penalty. accurate evidence of these matters and lend to clarity testimony of doctors who testified connection therewith. (People supra, Sanchez, v. 828, remittitur Cal.2d *17 supra, People Sanchez, grounds, v. 70
recalled, revd. on other 562.) Cal.2d photographs are not in man- explained, the
As we have constitute shocking the senses and relevant ner the having probative value in substantial evidence, material phase. proba- When on the such resolution of issues penalty prejudice, may- if the which weighed any, tive value compelled to conclude defendant, wé are resulted to have of indicated us no abuse discretion is record now before the court in favor of the trial determination the necessary supra, Harrison, Cal.2d (People v. 59 receiving photos. the 627.) 622, next failed to Defendant contends that' court- the
fully
jury
instruct the
that evidence of other crimes commit
may
proved beyond a
ted
not be considered as evidence unless
People Terry (1964)
v.
61
137
reasonable doubt.
Cal.2d
[37
"
Cal.Rptr. 605,
381],
Furthermore,
P.2d
390
we stated:
safeguards
trial
same
should
accorded
protect
which
him in
those
the trial
which
defendant
People Hamilton, supra,
129
guilt
page
is established. In
v.
at
(32 Cal.Rptr.
[People
4,
v.
841 prosecution Although submitted confessions. crimes, no other references were direct evidence of incidental might made to matters other crimes. constitute request Defendant did not the instruction here under con sideration. Nevertheless, “the give court has duty general principles instructions on the governing law ease, though requested even parties, (People ...” v. Wade (1959) 53 Cal.Rptr. Cal.2d 334 683, 348 P.2d ; see also v. (1940) Warren 116] Cal.2d 1024].) Although P.2d such a does not always duty extend to include upon specific instructions points developed through (People the trial evidence v. (1963) Jackson Cal.2d Cal.Rptr. 505, 937]), 379 P.2d instruct tion has been required if “it proper is vital to a consideration (People the evidence v. Putnam jury” *18 885, 367]) Cal.2d 890 P.2d if necessary or jury “for the to be fairly charged upon (Peo the fully relevant law” ple Jackson, supra, v. 375, 380). 59 Cal.2d We have distin guished “specific points developed those at the trial” which require do not an request instruction the absence of a by defining “general therefor principles of on law” instructions required on the own motion are court’s as “those principles commonly closely law or connected openly with the facts of the (People Wade, case the court.” before v.
supra,, 322, People 53 Cal.2d 334; Jackson, see v. supra, also 375, People 59 380; Cal.2d v. (1960) Bevins 54 71, Cal.2d 77 Cal.Rptr. 776].) 504, P.2d The case then before the court was, noted, a penalty trial wherein the guilt issue of had been already adjudicated. In resolving the it, sole issue before the trier of only could fact consider evidence “of the sur circumstances crime, rounding background of the defendant’s and his and of aggravation mitigation facts tory, any or (§190.1) prosecution Where the penalty.” submits substantial evidence other bearing crimes as the penalty on particular for the crime or crimes charged, such evidence cannot be deemed to only “specific point bear on developed at the trial” but instead bears principles on “those heavily of law closely openly or connected with commonly facts of the (People Wade, case before the supra, court.” v. 322, 334.) 53 Cal.2d jury Instructions how the may utilize evidence, such including an instruction that it consider may proved those crimes doubt, reasonable are beyond proper therefore vital evidence, of the consideration sponte. the court should so instruct sua Finally, we deal with erroneous instruction prosecutor with has our 'commendable candor called to prov general course instruction attention. jury20 law ince function of the the court stated: “The governed by sentiment, conjecture, sym to be forbids you public opinion, passion, prejudice, other factor pathy, It error other the evidence and law.” to instruct than phase in the of the trial that it cannot be jury penalty pity governed for the defend or influenced sympathy People v. (People v. Polk, supra, 451; ant. 63 Cal.2d Cal.Rptr. 238, 414 (1966) Anderson Cal.2d P.2d purported applications dismiss the
Defendant’s are, each of application and his dismiss counsel judgment is insofar as it relates is, them denied. The reversed imposed in all counts; each murder to the respects judgment is affirmed. other Tobriner, J., concurred. J., Peters, J., and C. Traynor, entirety. judgment affirm its McCOMB, would J. 13.) (Cal. Const., YI, art. § agree with the
MOSK, judgment in the J. I concur guid- the dictum added “for the expressed except views as to ance the court on retrial. v. McClellan my As dissent in discussed not, 871], ante, Cal.Rptr. P.2d it is p. 793 [80 be, proceeding after the should not the law at guilty evidence of other has been found beyond a I would proved must reasonable doubt. *19 crimes court, courts, the course charted return this and trial section provided in Penal Legislature, which Code express simply that the clearly and as words can it 190.1 as “the proceeding is to consider trier fact at the and . . . facts background and any history, No how matter mitigation aggravation penalty.” section, in it a I have to discover often that code yet I read seem mean Any would qualification. limiting facts facts.
Burke, J., concurred. paragraph of language third that found almost 20In identical prior No. revision. CALJIC its