*1 Apr. 19, 6828. In Bank. No. 1962.] [Crim. Respondent, v. ALVA THE Plaintiff and DOYLE PEOPLE, Appellant. Defendant and TERRY, *6 & for Frank Duncan and Katz Duncan Defendant and Appellant. Stanley Mosk, Attorney James, General, William E. As- Attorney General, and Deputy sistant Jack K. At- Weber,
torney Respondent. General, for Plaintiff and Doyle DOOLING, J. Terry Alva Defendants and Ross charged Wilson, Jr., an Edwin information with one robbery conspiracy (10 of to alleged), count commit overt acts robbery, five counts of and the final count of murder of Owings. Prior felony (moral Vernon J. convictions of offenses) alleged against were also each Terry, defendant: 286; violations of Penal Code sections 288 and viola Wilson, of tion Penal section 288. Code Defendants were arraigned; quash Code, (Pen. 858) (Pen.. their motions and to dismiss § Code, 995) thereupon were denied. Defendants entered § pleas guilty prior not each count and denied the convic Terry right appear moved the propria tions. persona then for (Prank counsel;
and with and his Duncan) counsel quash ground Terry on renewed the motion to the was right his to aid of at arraignment. denied counsel time of latter on conflicting (Terry’s motion was heard affidavits against deputy public affidavit those defender and Long officers). police Beach Both two motions were denied. When the was for trial, case called each defendant admitted prior Midway just convictions. in the trial and before case, concluded its defendant Wilson withdrew plea guilty (conspiracy four to counts one and pleas robbery) guilty thereto; rob and and entered the' remaining counts were him dismissed as to and he filed an application probation. thereupon Wilson for testified People. Terry guilty against on A was returned each verdict jury robbery count, finding crimes of murder with the degree. penalty then on the to be first Trial was issue punishment on count the murder and the was fixed death. Terry’s judgment trial, motions for in arrest of and for new punishment imprisonment reduction of life were denied. prescribed by pronounced Sentence as on first law was counts, six imposed consecutively, to run death sentence appeal (Pen. for the murder. The is automatic. Code, §1239.) p. 6 m. about Officers Brizendine On June patrol driving police duty in a car on Owings were They Island Naval area of the Terminal Station. noticed cars, one a black 1950 Cadillac the other a maroon two single Chrysler, driver, each occupant, move parking and turn onto out of lot Seaside Boulevard. About proceeded 10 minutes later the two officers down Seaside standing and saw the same two cars Boulevard the side parked the road. A Ford was front of the Cadillac. Observing that the hood on the Cadillac raised and looking engine, stopped Wilson was into the two officers give Terry Chrysler, to parked assistance. was in the which was directly stopped behind the Cadillac. officers police Chrysler; car to the side of Brizendine for- walked Owings ward to Cadillac walked to the rear of the Chrysler. police car toward Brizendine asked Wilson what *7 replied, just was the matter and Wilson don’t know. It “I quit running.” responded running Brizendine it was ago. a At that moment heard, appar- little while a shot was ently coming police from the rear of car the and the rear Chrysler. of Owings the turned saw Brizendine and fall to Terry ground firing gun. Terry the shooting as stood a then started Brizendine, hitting leg. at in him the Brizendine began firing saw Wilson move out from the Cadillac and him, hitting Terry Wilson in toward the Meanwhile hands. Brizendine; advanced on an exchange was there of shots between the two and Brizendine retreated behind the Ford. Terry stooped to fire under the at Ford Brizendine but Terry ran out of ammunition. Chrysler, then ran to got the with him, into the driver’s seat and Wilson beside out backed driving Owings’ car, body the over sped fallen and down Boulevard. Seaside Owings’ body Brizendine went to lying Officer Officer pool
a of saw that Owings’ gun blood and snapped was still police then went to his car and the holster. Brizendine broad- Chrysler description over the the radio. A few cast a of Chrysler returning saw the down later Brizendine minutes high speed. Apparently a rate the of Boulevard Seaside egress the bridge at of road was raised and pontoon the end Terry Mocked, so around had swerved from backtracking island was by police met car that had been alerted and exchange gunfire There an broadcast. was Brizendine’s police Chrysler sped past car. Meanwhile Wilson Chrysler moving Terry and continued jumped out police pursuing A few minutes later the the road alone. down Chrysler. they After brief search upon the abandoned came custody. took him Terry on and into In the the road found hospital, hitchhiked to the he was Wilson had where meantime custody. taken into Magnum Chrysler was .44 there found In abandoned cylinder. Owings spent shells in had died six revolver with head, expert gunshot an of a wound as the result Magnum trial revolver as criminologist at the identified Chrysler Further search of the firing death bullet. Angeles equipment over which the Los Police radio revealed heard; could be and two tin F.B.I. calls Department and arrest, car’s trunk. At time of in the found helmets were Terry indicating found on that he papers were identification Durfy Warren on name of and Wilson going then was indicating going then the name of Michael he was Dupree. theory Terry Owings shot prosecution’s It was the implication in a avoiding arrest because process period state committed over a of robberies series presented Accordingly, prosecution years. evi- some three existing conspiracy robberies establishing to commit dence Terry Wilson as well as with certain defendants between Vashon, Jack Corser Chuck Stan- persons—Richard other mainly Angeles- gang operating the Los five-man ford—a Terry supposedly leader; Vashon, Hollywood area. during pur- in court the trial for Stanford Corser robberies. various poses identification occupied apartment an Terry Vashon In March 1958 1958, Stanley Soboroff, Hollywood. together On June Drugstore Hollywood Thrifty manager for an assistant money way bag carrying on his Boulevard, *8 p. m. A man hold- deposit. It was about 2:30 make a bank to him to on street and told gun the ing a accosted Soboroff bag gunman, the “Drop bag.” handed the the Soboroff (a Buick) waiting car 1957 black jumped into a who then away. general sped Vashon fitted robbers the the two Passers-by description gunman. on of the noted the license Hollywood police found in the Buick, which the abandoned the About four weeks six weeks later. hills some before robbery Drugstore Thrifty black Buick been a had though parking lot, a reported stolen from with different plate Buick at the time observed license. license robbery belonging as to a car in was identified plate missing days as garage, U-Drive which was noted a few robbery. apparently general This was the before modus operand! change of a stolen car, of the robberies: use with Thrifty plates Drugstore license robbery to thwart detection. This charged was neither one of robberies nor one alleged support in conspiracy the overt acts but was introduced in evidence to show the commencement of the ensuing alleged Terry’s series robberies and held relevant shooting Owings waiting any motive in Officer without companion 24, talk with him and his officer on June 1960. theory prosecution In with this line introduced evidence of robberies committed alleged which were neither overt acts support conspiracy count nor robberies charged robbery counts but which same followed the general pattern Terry wherein was identified as the driver waiting car and holdup Vashon was identified as the man accosting gun: March, robbery his victims with a 1959, a noon of the Bank Beverly Hills; August of America in 1959, manager Thrifty Drugstore assistant of another in the West- area, chester en make a deposit; August route to bank guard money a Brink’s picking up in the afternoon at Emporium Stonestown, store in (the only San Francisco robbery outside of California), Southern shooting holdup; wounding guard during October 23, manager Safeway store Reseda on his return from January 8, 1960, the bank. employee On an of an El Monte market robbed on his from bank; return Vashon was as identified the driver who gun, also wielded the and Corser passenger holdup identified car. charged Then follow the robbery robberies the five counts alleged among and also support the overt acts in conspiracy (1) January 22, 1960, count: James Deglas, res- in Reseda, taurant owner was robbed of $225 some which he just bank; withdrawn from the Corser was identified as *9 Terry waiting gunman car; as the driver and
the wearing false mustaches were and robbers beards. employee 1960, Eambaud, an a 4, Fred of Covina (2) March money bags way on make of some his school, robbed goatee. gunman wore false mustache deposit; the and bank Danielson, manager of 21,1960, Morris (3) March Sav-On Hills, bag of a currency was robbed Drugstore in of Granada carrying deposit; bank he for Wilson checks was and Terry gunman and as the driver. as was identified Weiss, manager Holiday April 25, Theodore (4) Valley, Fernando of cheeks store San robbed Hardware currency way his a bank deposit; on Stanford and make gunman. (5) 16, 1960, June as Eunice was identified Drugstore Martin, girl for the office Sav-On the Azusa an money shopping center, was robbed and checks while en deposit; bank to make Wilson was identified route to the as Terry as the driver. gunman and also offered several other robberies Evidence was alleged neither as overt nor as businessmen, acts additional following general 1960 and the same crimes, committed carrying money that the victims were either pattern in deposit at the leaving money or the bank with- bank always daytime involved men— robberies two drawn. Terry usually was the gunman; driver but his and driver varied—Wilson, often or Corser. companion Stanford Stolen used, plates changed, the license were robbers in cars were wearing false many were described as mustaches instances having Terry seen goatees. testified and Witnesses and “casing" gang markets and banks members different committed; repeat there were later were robberies before usually robbing area, about the same de- in and offenses way used in the rob- to the same bank. Guns positors on the Terry having purchased by been or identified were beries January during period In involved. his confederates acting charge against Terry of child- police on furnishing minor, Terry’s went to narcotics to molesting and apartment there, in bed searched apartment, saw Wilson paraphernalia. Numer- Terry’s narcotic car, and found testify to identification of were called ous witnesses making People’s plates, robbers, cars and license stolen lengthy dovetailing extremely detailed evidence their confed- of defendants and alleged activities criminal set-up. gang erates having guilty and four and pleading to counts one After dismissed, other counts Wilson testified People. for the Wil- Terry son said that had known since 1955 Terry having him of told committed certain robberies with Vashon Terry Wilson Corser. stated that told him about the advantages casing places, noting persons in the area, and planning accordingly; Terry the robberies made lists nearby; markets to watch banks they make-up used going and false mustaches and beards before jobs; their stolen, that various plates cars were license changed, and then jobs completed after the the cars would be abandoned. respect With to June Wilson stated that he had *10 previously questioned by police been the about the black Terry Cadillac which he and had couple jobs used on a of Terry thought they get it; and should of rid that they decided it take out the area and so drove to the Naval Base, Terry in the Cadillac and in Wilson the Chrysler; they that battery engaged taking were in the out of the Cadillac when police stopped give help. officers the story Wilson’s cor- roborated that of Officer Brizendine as to the shooting of Owings. Officer Wilson stated that he gunpoint was forced at by Terry in get Chrysler, escape car, they sped as scene; in from that course of the wild drive down the Terry’s spent road when pursuing police, he, Wilson, jumped ammunition firing in at the out the Chrysler, Terry eventually and continued on. Wilson hitchhiked to hospital. a 26, 1960, by police Wilson On June was interviewed County Angeles Hospital. Los Terry Wilson that said had police the officer. He further stay- shot told the that he was Terry ing Hollywood apartment in a with and would take (Terry them there. never to the consented search of the apartment stipulated Terry and it was that testify would given permission he not there.) that had Wilson to reside A premises a guns search of the revealed number and am- robberies, munition such as were used in the a notebook containing a list of markets such as robbed and the expert by handwriting writing Terry’s, as was identified mustaches, a tin helmet such as box beards and was worn by perpetrators robberies, number of cut plates. license Terry which he had with Wilson also related conversation July custody on while both were in in the Hall Justice 1960; day Terry That on he said that homicide Luger gun he wrapped sweater, in brown which had Chrysler after the cars were from the moved Cadillac.to Owings parked; that asked what was Officer sweater Terry responded business; that it was none of his that seeing Terry jerked it so was, the officer insisted on what exposing gun; as away that the officerreached sweater Terry further that for his him. Wilson stated as gun, shot story, “slapped Terry his he his knees.” told “cackled” Terry go him had asked said that Wilson his nerve; Terry that Vashon had lost also robberies because police working with the while with Vashon when trouble had the make-up (a searching apartment, Vashon’s police, confiscated some blackening process) darkener tooth skin as mustaches, sunglasses. hats as beards and well in his behalf. He Terry own stated that testified he had years ago some seven from Oklahoma. to California He come purchased many he firearms, including admitted purchases prosecution, related witnesses for the as those guns, felony but none after collect conviction he liked to against he knew that it 1959, because would be in March possession then to be of firearms. He for him law denied any having participated Vashon, Corser, robberies ever he He had never or Wilson. said been in San Stanford part taken in 1959 so to have the Brink’s Francisco Emporium in Stonestown. He hav- robbery admitted markets in the notebook found ing the list made just making possible a list of police but said employment for a He stated that Wilson, friend. places Cadillac; that when Wilson the black wanted to he, owned *11 police looking the because the Cadillac get rid of Chrysler, drive in his in agreed and did Wilson to it, he they Base where intended to leave to the Naval the Cadillac working was to remove the Cadillac; that while Wilson the police approaching got car and battery, saw the Wilson in gun the car under a sweater; the was that panicky because Terry asking (Owings) approached to see the officer when sweater, for the sweater and reached under the was what the fell; officer that other officer gun off and the went the Terry shooting panicked, returning (Brizendine) started bleeding voluntarily from wounds that gunfire; Wilson the they pur- the Chrysler; sped that as down road the got into Terry shooting them, told Wilson to police at the sued Terry finally as not to be killed. denied get of the car so out killing the officer as Wilson laughed about that had ever custody- reporting in their in related conversation while July 11, on 1960. rebuttal, expert type In firearms described how the gun that acted; that was used homicide it would not pulled. trigger fire was unless People’s theory on stated, As case rested that above being questioned by police Terry, apprehensive of because engaged, of robberies in which he had been of the series shot Owings; flight escape that his motive was to Officer arrest. premise Terry rested on The defense was innocent any conspiracy robbery charges; or of police criminal that the two stopped Terry on
officers the road beside Wilson and cars; and without cause undertook to search the two lunged (Owings) grab one of the officers forward to Terry, startling discharging from him and sweater gun, resulting in the accidental death of the officer. Terry not Appellant challenge does sufficiency to grounds sustain his His evidence convictions. for reversal alleged generally concern denial of rights constitutional respects, in certain rulings erroneous of the court on the presentation evidence, errors the instructions, improprie- prejudicial ties in the comments, court’s misconduct deputy attorneys. two district We arguments consider these they appear in which appellant’s the order brief. Appellant legally 1. was committed because he was arraignment. denied counsel at his arraignment 27, 1960, was June Long Beach Municipal transcription Court. No of the proceedings was Allegedly Terry made. that time asked the magistrate private to be secure allowed counsel and said that he had purpose funds for but a continuance was refused; a deputy public appointed represent defender Terry arraignment proceeded; course of the arraignment, Terry brutally told how he had been police beaten an confession; Terry effort obtain written said that he attorney own wanted be his did not deputy want the public defender proceeded but the court nevertheless for preliminary continued the matter July examination to 1. preliminary Terry At the represented by examination (Russell private Parsons), quash counsel who moved Terry proceeding against ground of improper on the arraign- Terry ment; the motion was denied and was held to answer for murder. *12 Terry (represented by August 1960, present 8, counsel
On moved to aside the information Duncan) set because of Prank § (Pen. arraignment Code, 995); August on improper and again and The matter motion was renewed denied. 16 the (Terry’s against affidavit heard on the basis of affidavits police deputy public two defender and the affidavits testimony deputy public the who officers) defender and According Terry arraignment. at to the represented the public both deputy affidavit, defender’s defendants Terry right counsel; to when specifically advised their employ to that not he had funds said he was sure whether represent public counsel, deputy the volunteered to defender thereupon Terry Terry private until counsel and obtained as appointed deputy public to act court defender Terry’s Terry objection; no Wilson advised attorney; made private and court that he have his own counsel would hearing; later the preliminary matter was for continued public Terry jail but before deputy at the defender visited they Terry retained confer, that had were able he learned testimony deputy public In his defender private counsel. Terry He that recitals of his affidavit. added confirmed the private counsel; that had asked for continuance secure Terry appeared Terry that been had stated he had beaten on injuries, showing his face sustained some bruises to have had no eye wearing bandages; closed, and that he had and one Terry arraignment. prior to previous conversation arraignment Terry’s he had told recited that affidavit him he magistrate money taken from had been had he been lawyer; not been allowed to call that had police sign and tortured because he would beaten public confession; that a would court said defender him; he appointed for that he said that wanted his own be would like a continuance but court neverthe- counsel proceeded arraignment, and without further with the less hearing July preliminary 1, 1960. The set comment Terry had police affidavits that. stated June two long distance call to Oklahoma and discussed placed attorney; phone hiring of an he was taken as soon during custody prior requested; at no time he Terry arraignment on June threatened or right counsel, nor consult and that denied abused (an Parsons, in fact consulted with counsel associate Terry preliminary represented hearing) at the on June who arraignment). (two days before
553
Upon
Angeles Superior
this substantial
conflict
Los
August 16, 1960, proceedings
appellant’s
Court at
denied
motion
Penal
quash.
under
section 995
his motion to
Code
and
Appellant
magistrate
cites Penal Code section 859 that “the
upon
request
must,
defendant, require
peace
a message
any
officer to take
to
counsel whom the defendant
may name,”
must,
delay
and the “officer
per
without
. . .
right
form
guarantee.
duty”;
that
that the
to counsel is a constitutional
;
(U.S. Const.,
VI
Const.,
I, 13 ;
Amend.
Cal.
art.
§
People Napthaly,
deputy public
29].)
2. The drawn. information following The information, prescribed the short form by Penal Code, 952, charged sections 951 and defendants with the of murder, “crime in violation of Section Penal Doyle Code, felony, committed as That the follows: said Terry and Ross Edison on or Alva about the Jr., Wilson, *15 day 24th of June, 1960, County at and in the of Los Angeles, State of California, unlawfully did willfully, feloniously aforethought and with malice murder Vernon J. 0wings, a being.” human
Appellant argues that such information was not sufficient give to him charge notice of degree of first murder; specific in the allegations absence of of raising circumstances murder to the level first degree, charged he was in fact degree, second statutory and the form allowed Penal Code sections 951 952 is unconstitutional. sufficiency of the assailed degree information a as first charge upheld murder People was Jordan, v. 45 Cal.2d 697, 484], 709 People P.2d Atchley, [290 132 Cal.App. 2d 446 P.2d appellant Moreover 444, [282 tran- 160].
556 appreciate in to proceedings so as preliminary script of the (see homicide involved of the the circumstances the main 394, Marshall, [309 456] [foot- Cal.2d during examination the voir dire 5]) and 4 and
557 day guard picked up a who had before Brink’s loaded way parked money on to his truck box was robbed outside 1959, by 17, check on November store. The was found searching appellant’s police Oklahoma course police department’s was in the red 1954 Chevrolet while it parking appellant being in then in lot Tulsa and held custody. stipulated police police It was Oklahoma appellant’s not then warrant for nor a did have a arrest arresting search for the officers did not warrant car. testify only the said he but officer who found the Oklahoma fragment given back cheek under the seat. check was passed over to the chief and then to a 6f detectives federal postal testifying again and the officer never saw it inspector, until it to him at was shown the trial. He further testified appellant that both and the car were released that day, and appellant driving was later seen the car Tulsa. There were piece identifying no marks on the of check. Appellant argues fragment such check was inadmis exclusionary People sible Cahan, under the rule of 44 v. Cal. 434, 905, product 2d 445 50 513], P.2d A.L.R.2d as the [282 illegal of an search and seizure. He also cites Elkins v. United 1437, States, 364 206 1669], U.S. S.Ct. 4 L.Ed.2d [80 States, Rios v. 364 253 1431, United U.S. S.Ct. 4 [80 L.Ed.2d 1688], applying the Cahan rule reference federal validity prosecution, dependent court with its on whether the police obtaining conduct of officers in state evidence in the arrest and search was lawful. Appellant argues possession further that the chain of properly prior established frag admission the cheek negation any possibility
ment in
evidence,
alteration
question
between the time the
evidence
was first secured
production
(People Riser,
its
court.
566,
47 Cal.2d
[fingerprints
;
580-581
P.2d
a glass]
also Dobson
1]
[305
Com.,
Cal.App.2d
Industrial Acc.
782,
[251
City
sample] ;
blood
McGowan
Angeles,
Los
349] [a
Cal.App.2d
389-392
21 A.L.R.2d
[a
1206]
analysis] ; People
Smith,
Cal.App.
blood alcohol
330-331
analysis].)
P. 816]
[stomach
unnecessary
it
We find
to decide the novel and difficult
exclusionary
question
whether
rule should be extended
by an
to evidence obtained
unlawful search
made
another
state,1
state
officers of that
or whether the
fragment
check
Attorney
following
supporting
1The
General cites the
the admissi
bility
549-551 ;
of such evidence: 55 N.W. U.L. Rev.
v. Win
*17
testify-
sufficiently
(although
note that
identified
we
was
fragment
positively
the check
as the one
ing
identified
officer
found).
if error occurred in its introduc-
which he
Even
had
prejudicial.
hold
tion,
the facts
this case we cannot
it
under
only
robbery
great
of a
number of
was
one
The Stonestown
weight
cumulative
and,
to
robberies testified
view
appellant’s
testimony
con-
to the other robberies and
tending
of this evidence
with
the introduction
them,
nection
robbery
be
appellant
Stonestown
cannot
to connect
with the
prejudicial. (People Tarantino, 45
v.
Cal.2d
have been
held to
505].)
590, 598
P.2d
[290
argues
Appellant
that after
arrest his co-
also
his
police
gave
consent to the
Wilson
unauthorized
defendant
apartment:
appellant’s
of evidence in
for search and seizure
beards,
mustaches and
guns
ammunition,
false
certain
pair
gloves
and tin helmet were
notebook,
letters,
red
objection. Two
in evidence over
there found and introduced
by
police
was interviewed
days
his arrest Wilson
after
police
appel
agreed to and
take
hospital; he
did
appellant
stipulated that
apartment. It
was
lant’s
testify
to the search and that he would
given his consent
given
permission
Wilson
to live there. While
that
had not
he
key
apartment, appellant argues
appellant’s
Wilson had
purpose
only given
for
key
to Wilson
that the
was
appellant’s apartment,
bringing certain items to store
that Wilson would
not with the idea
live there. The
apartment
he had leased the
testified that
landlord had
Durfy
name of
appellant under the
Warren J.
sometime
1960,
agreement
20,
with the
that
15 and
between June
July
appellant
posses
1 but
could take
rent was
start
leasing
date;
at the time of
any time before
sion
appellant
that he had a
said
friend who would
apartment,
24,
him;
that on June
when the landlord
occupy it with
appellant
friend,
saw
his
stopped
the premises,
Dupree (codefendant
as Michael
Wil
introduced
who was
Dupree
then
name), and it was
indicated that
son’s assumed
occupy
apartment
would
man who
the other
was
objection
overruling appellant’s
to the intro
In
appellant.
unlawfully
evidence because
the above-recited
duction
reasonably
that it could
be in-
the court concluded
seized,
201, 202-203] ; People
Touhy,
terheld,
v.
N.W.2d
been any conspiracy nothing indicate defense; that there was a sur Wilson’s counsel make prosecution between While prosecution its ended case. prise move as pending probation hearing against Wilson and the awas there plea guilty to two imposition of incident to sentence not indicate counts, these considerations do of the seven upon his punishment would be conditioned eventual Wilson’s pre prosecution accord a testimony as a witness. We must duty judge it is to sumption good faith to the trial whose probation impose upon application for sentence. rule discharge 1099 authorizes Penal Code section any jointly charged before the “at time de of a defendant may gone that he into their defense . . . be fendants have any people.” Obviously must such defendant witness for the nullify completely present at the trial and it would have been if had heard the purpose the fact of this section disqualify him from testi testimony of would other witnesses guilty pleaded further fact that Wilson fying. prevent the other does not the dismissal of to two counts plea pursuant against him 1099. After his to section counts remaining counts were the guilty counts, to the two of only against charges pending him and unresolved. Their dis reasonably falls within the circumstances missal under these credibility of 1099. Wilson’s purpose of section existing properly a testimony the circumstances under jury’s question to left determination. *19 be improperly discovery motion denied. Appellant’s was 6. appellant made mo trial was After the started, any asking addresses, discovery names, in effect for tion for posses eyewitnesses in the of all memoranda or statements charged and relating to crimes prosecution all the sion of the charges had not but give on the various could evidence who Following preliminary discussion at examination. testified motion as court counsel, court and viewed between charged, by many crimes extremely broad reason agencies involved, and the numerous law-enforcement various motion granted might called, be and so who witnesses ordering that the defense should part part, denied it in persons be furnished the statements of who would be called preliminary, witnesses, as statements of witnesses at the copies police reports charged of all of infor- all crimes attorney deputy mation or to which the district alluded opening statement. The court stated that the order was any specific broad in its but if terms situation arose bring not then therein, covered counsel could it to the court’s specific ruling. Appellant’s attention for no counsel made objection ruling bring any specific to such and did not situ- ruling ations to the court’s attention for nor indicate the material him furnished under the court’s order was not investigative purposes. for large sufficient Obviously, amount of charges against appellant material was involved of ramifications willing-
and the court indicated its ness in its thought any specific discretion broaden its if order the defense special
situation called for treatment, so satisfy as to the needs of the defense the same time prosecution. overtax the simply language Appellant’s couched indi motion request a “blanket cating to learn the facts, he wanted prosecution to defense counsel all the state turn over inspection had,” showing cause for it no “better ments which benefit of all information which than a mere desire for the investigation People in their been obtained ha[d] the crime.” (People Cooper, v. 53 Cal.2d [349 appellant’s response 964].) order motion The court’s (Vetter largely in sound discretion rested Superior Court, its exercise Cal.Rptr. 890]), Cal.App.2d [10 requests specific willing consider further and it was appellant’s might appropriate rulings counsel deem (People progressed. Mitman, 184 Cal. make as the trial App.2d Cal.Rptr. ; Gallegos, 180 712] Rptr. 413].) Cal.App.2d 274, 277 Cal. attorneys guilty prejudicial deputy district 7. misconduct. many Appellant instances of miscon lists claimed appellant (e.g., duct. Some them the characterization gunmen and “animal”; as an as one of the most “vicious you your “on fam killers’’; and as one whose attack is properly persons community”) fall ilies and all other attorneys prosecuting are under the rule that allowed wide epithets descriptive range comment and the use which (People reasonably Wein, warranted the evidence. are *20 562 457] ; People 50 Glaze, Cal.2d 396 P.2d 139 Cal. [326 965] ; Patterson, Cannizzaro, Cal.App.2d P. 118 [72 ; People Cal.App. 992] 1066].) (e.g., jury Others that appellant guilty should either find of murder in the first degree or loose; appellant’s carrying turn him that gun day killing was an indication intent to kill appellant
if got cornered) no amounted to more than the argument legitimate prosecutor might inferences which the properly argue from the evidence. production appellant’s alleged
The eoeonspira tors, case, not who were defendants in the in the courtroom purposes by partici for of identification various as witnesses pants proper pro in the several robberies was a testified to orderly presentation People’s cedure In case. testimony of the several witnesses to distinct occurrences persons in by participants, which these their identification necessary was per witnesses to establish that the same by being sons were to referred different witnesses. difficulty establishing testimony this fact the oral personally acquainted witnesses who were not with these participants in to require the robberies is too obvious further Additionally, objection no comment. made counsel procedure. appellant for to this improper prosecutor It was for the to state to paid jury that he was make decisions such one permit plead guilty Wilson to to two counts and dismiss might the other so that Wilson a witness; counts become gave that something further statement “we [Wilson] testify” colloquial way make him ring was no more than of refer charges to the dismissal of the in order that Wilson might become witness under Penal section Code 1099. We appellant prejudiced by cannot see how could have been this frank practical admission effect of a dismissal under section. statement that Wilson had more to by testifying fear if for life than he had continued testimony trial murder had foundation in Wilson’s appellant had threatened to “take” “with Wilson him” against say if became a him, Wilson witness and we cannot argument. legitimate that it exceeded the bounds of argument police A reference made to two got Long who officers trouble Beach. Such comments be should avoided under the settled rule facts not in but can argument, we not be referred should evidence particular incident. appellant in this prejudice to no find *21 appellant argument made that since was The stealing: robbery robbery is of previously convicted been a thief so that concept of honesty, this “It also involves a thief and thing. me generally You show the same a liar are concept of this it involves you a because liar, I show will ” pro 2051 of Procedure section honesty. Code Civil impeached may be “A witness far material: vides, so as here honesty, truth, by general reputation for evidence that his ... or wrongful particular by of integrity bad, but not evidence is of the may by examination except it be the acts, shown been judgment, that he had witness, or of the the record it well felony. this is a . . Under section convicted of .” “ con of crime of which he was nature the settled [t]he establishing inquiry fact proper subject a of in the is victed ’’ (People Williams, 228 220, 27 of his Cal.2d conviction. People David, 639, 12 646 692] ; also Cal.2d see [163 721] ; People v. 196 28 P. ; Cal. Craig, [235 [86 811] People Eldridge, 442] ; People v. P. 147 Cal. Hane, 697].) lan P. Chin Cal. it guage quoted of above makes clear that while section 2051 wrongful may generally “particular not be of acts” evidence impeachment “par purposes, of such admitted for evidence judicially wrongful ticular as are established convic acts” purpose by may proof of for that tions of felonies be admitted authority upon Counsel cite no such convictions. presented right argue question to the nature here as felony particular a which witness has been convicted relating weight purpose but impeachment, as to its may felony rule that the nature of the of the settled view part impeachment, can no be as we see established argument why of this sort not be reason permitted. reasonable should specifications presented misconduct but A few other are they record, are from an examination of we satisfied that importance matters of trivial and could not have concern appellant. prejudice resulted There was error instructions. 8. gave The court instructions on
1. usual presumption gave statutory and also of innocence defi- (Pen. Code, 188) presumption guilt of malice nition § Appellant argues opposing that these murder. instructions jury applying presumptions
would confuse appellant’s guilt. determination of propriety giving presumption the instruction on the along of innocence with the standard instruction on malice recognized supra, Graham, discussed Cal.App.2d prosecution’s consistent with the 530-532, full reliance on introduction of than evidence rather any presumption appellant’s to show malice. jury killing
2. The court instructed the robbery prevent the commission of a or to an arrest for such an offense, with arrest, “wilful, intent so evade delib premeditated” degree.” erate and and “murder of the first Appellant argues improper such instruction was no because account was taken of the element, remoteness time jury might robbery have understood that committed person many years prior killing subsequent might to a still holding be the basis for murder of homicide degree. first *22 jury reasonably any could not been misled have on time element in connection with and commission of the robberies subsequent killing with intent to evade arrest therefor. applied only The instruction itself tionally to one who “does inten- police kill a officer of shoot with the intent thereby evading being arrested for the of commission said robberies”; jury fully and the instructed on the time necessary to formulate such an intent. give cautionary 3. The court failed to a instruction admissions; such given instruction must be without re quest. (People Deloney, v. 41 832, 532] ; Cal.2d 840 P.2d [264 People Riley, see also 35 625].) Cal.2d 286 P.2d [217 cautionary No necessary. instruction was The so- appellant’s called admission referred to in prison a brief was guard’s testimony appellant prisoners that as and some other being transportation Long a returned bus from the appellant court, say Beach he laugh saw “I have been ’’ already. seven Appellant offered medals later took stand and appellant that he admitted had made this However, statement. that guard misinterpreted import claimed of words; appellant that fellow-prisoners telling had been his story lengthy a police brutality pris one get oners said a beating should medal for his appellant responded he already. had been offered several dispute There was no having about the words been uttered by appellant only implication. but as to their cautionary A
565 properly instruction required danger is where there is misinterpretation of a defendant’s words but not as to the meaning jury or inference is entitled to draw from dispute them if there is no about the words themselves. (Frank Kleinberger, Cal.App. Meline Co. 62-63 1042].) deputy attorney P. district in clos [290 ing argument appellant’s laughing referred to the fact showing when he made the statement as a lack of remorse, premeditation Laughter rather than accident. would seem to be conduct rather than an admission, oral and so not covered cautionary Appellant instruction. not did re quest such instruction, give and the failure to the instruction, necessarily if error, prejudice even does lead to where strong against there (People is case the defendant. v. Cars well, People 51 Cal.2d 99] ; supra, Riley, 279, 286 ; Cal.2d Griffin, Cal.App.2d 502].) prejudicial We are satisfied that no error occurred on the trial of guilt. the issue of At the trial on penalty, however, types three of error occurred, misconduct the cumulative effect of which must operated
be prejudice held to have appellant. to the opening 1. At penalty prosecution the trial on the produced as its telegraph-office employee first witness a who telegram identified as one sent witness Wilson Poulopoulos. Poulopoulos Mrs. Mrs. the wife appellant's brother of spectator wife. She had been constant during appellant’s daily trial and had seen Wilson in telegram your courtroom. The cigarette read: “Does taste lately? different, “Lucky.” Switch from Kools,” signed: hots to and was objection telegram Over the that the had not been any way appellant connected it was admitted in evi- argument dence. prosecuting attorney On argued that telegram certainly this “can be construed as threat or an *23 keep admonition to (Wilson) to his mouth shut.” Wilson had by appellant testified to a threat him made to if he should prosecuting attorney become a argued witness. The further sending that telegram story “corroborates Wilson’s you get any about ‘If talking, you ideas about I will take with ” (the alleged me’ by appellant Wilson) threat ; and he individual, cunning, drew the conclusion: “This a is cruel regardless many of how tears he sheds.” by While evidence of efforts a defendant himself to prevent testifying witness from against are him, admissible 566 by person make of such efforts another in order to evidence it must be established this was done admissible (People Weiss, v. 50 authorization of the defendant. Cal.2d People Cal.App.2d ; Perez, 169 553-554 P.2d v.
535, 527] [327 People 539] ; Gilliland, Cal.App. 473, P.2d v. 39 477-478 [337 People 179] ; Golden, P.2d see v. 55 250, 255-257 2d [103 Cal.Rptr. 80, 448].) 358, 370 359 P.2d Cal.2d [11 recognizing points Attorney General, while this rule, The person’s authorization the third that the defendant’s out may attempting proved to influence a witness be conduct (People Kendall, Cal.App. v. evidence. circumstantial People 418] ; Moore, Cal.App. 213-214 2d [244 People 857] ; Cal.App. v. Burke, 2d Attorney 435].) (quoting P. The General from his 91-93 [122 following brief) out the circumstantial evidence as that sets present “In case we have the fact that on which he relies: telegram sent, the fact that the sender was related personal deep him, appellant, and took interest saw yet frequently after, before and did not know him Wilson. justify an inference seem sufficient to of authori This would by appellant.” zation sending telegram obviously proves noth
The relationship ing of the sender to its authorization. appellant proof personal are no of authori and her interest Relationship prove the defendant does not authoriza zation. supra, (People Golden, p. 370; 55 Cal.2d at tion Perez, Cal.App.2d p. 478) and the interest of supra, clearly higher person stands on no the third the defendant Poulopoulos ground. The that Mrs. did not know Wilson fact personally no as circumstantial evidence of authori has value admittedly daily during him had seen zation since she his name his connection trial, and from that fact knew Poulopoulos remaining factor, that Mrs. case. telegram appellant and after was sent visited before had proves only appellant opportunity had the to authorize telegram sending of the but has no value as circumstantial prove he in fact did so. No rule is evidence “ surmise, than the one that ere better settled conjecture, [m] equivalent suspicion is not the of reasonable inference and or proof” (People Bender, constitute 27 Cal.2d does not proof opportunity an 8]) to do P.2d proof mere 186 It do that the act was fact done. can no act is no suspicion or that the conjecture, create surmise more than have, The life of may it could been done. have, act because
567 even the most hardened criminal should be on such not staked flimsy foundation. prosecuting attorney argued 2. The that the authorities parole prisoners enough prison space are forced to not because provided is for all of the felons who are in convicted Califor- you pipe. got nia. “It is like a You it to have full and want put a in got bean one bean has end. One to come out the up penitentiary. They other. . . We send a man . need got a bed for man him. One has to come whether he out, is ’ ready argument or not.' While this was based on in facts not evidence, improper and hence under the rule that it is miscon- argue (eases duct facts not in infra), evidence cited since objection no it, only prelude was made to we refer to it argument specific in evidence, objec- facts not to which tion was made, support and which were in stated this general argument. prosecuting attorney The followed this general argument following; with the (counsel Duncan “Mr. for appellant) you eight didn’t tell about . . . cases we got in have paroled State of California first-degree repeated they murderers who got when out. you
“Then he tell about this Coors’ where didn’t case, guy up in Colorado, escapee who killed this Coors is an Mr. doing life on murder. ...” going am Honor, “Mr. Duncan: Your I move to cite Attorney regards
District misconduct the statements eight repeats on the reference and the to the Coors matter apparently the man is of that accused crime. If an objection, “The Court: is it is overruled and the motion is denied. request
“Mr. Duncan: I would the court to admonish the jury. request is denied.” “The Court: objection clearly proper under the well prosecutor rule that it is misconduct for the settled to refer to argument jury. (People facts not evidence to the v. Cal.Rptr. 777, Cal.Rptr. Love, 720, 481, 56 Cal.2d 730 17 [16 People 33, 809] ; Kirkes, 719, 366 P.2d 39 Cal.2d 724 [249 1] ; Evans, 636].) 39 251 242, Cal.2d [246 objection specifically While the was not made on that ground held, it has been even civil that if evidence eases, any purpose general objection is inadmissible for to its admissibility (Scott Co., is sufficient. v. Times-Mirror 181 Cal. 1007] ; 357 12 Frink, P. A.L.R. Short v. 151 [184 ; Roche Llewellyn Cal. P. Iron Co., Works [90 200] Morehouse, ; P. Morehouse Cal. 147] Times- 738].) As stated P. 88, 93-94 Cal. page “It has been held supra, 181 357 : case, Mirror Cal. in all objection is sufficient cases general ... stated, if could be specific grounds of which the objection, ’’ *25 reasoning in of these cases fits the The obviated. prosecutor is objection since under no circumstances
stant and no matter how argue not in facts evidence entitled specific have objection, grounds thereof could not been length prosecutor argued at Following obviated. this the raped little “guy Long this here Beach that ease 3-year-old. up it hours of He tore her so bad took four . . . put together again. tried him. He went surgery to her back I Terry went. He was back up to Atascadero where this same according They year fully said, half to them. cured, probation.’ ‘Put him on Maltby says I “Judge psychiatrist, ‘How can do . . . ineligible probation. for won’t
that. . . .? He is law permit it.’ “ says, him back to us as ‘Oh,’ psychiatrist ‘then send ’ presently insane. “ says report judge says, ‘How can I do that?’ the ‘The he is sane.’ report psychiatrist says, ‘Oh,
“The written ago. may month now.’ He was sane then. He be insane they he was “From month to month couldn’t tell whether people you. are sane, insane, or . . . These what-have to trust on whether gets they you Terry back on want or street not. . . . one
“I I that shot it out with them time. know had one here rob- them on armed He didn’t kill one. He shot it out with bery. got. In 1951 I was life, to life he Ten to in 1947. Ten again right trying him for another armed in this courtroom years he had robbery. In was back on the street and four up for a ten to life sentence.” been sent last-quoted objection this While no was made to spe immediately upon argument of it followed argument, objection which was made and cific facts not evidence to objec properly under the rule that once overruled, falls argument overruled, is made of evidence or tion to class objection necessity repeat when other no same there is argument the same class is offered or made. or evidence 154] ; Cal.App.2d P.2d (Wilcox Sway, 560, 570 v. 69 [160
569 Norwood, Cal.App.2d Moore v. 359, 368-369 P.2d [106 939].) argument,
As to all of this
highly
which was
inflammatory, we are likewise satisfied that no
admonition
judge
jury
could have cured its effect on
(People
v.
Love, supra,
p.
People
732 ;
56 Cal.2d at
p.
Kirkes, supra,
v.
any justification
at
Cal.2d
nor is it
making
726),
argument of this character that it is in
argument
answer to
(People
made
counsel for the
Kirkes, supra,
defense
v.
pp.
People
725-726 ;
Cal.2d at
Sampsell,
are concerned as “heinous” one. Indeed and cruel and brutal one as well. majority opinion driving
As stated the two officers police cars, car noticed “. . two one black 1950 . Cadillac Chrysler, single other a maroon 1950 each with a occupant, driver, parking of a move Out lot and turn onto later Seaside Boulevard. About 10 minutes the two officers proceeded down Seaside Boulevard saw the same two cars standing parked A on the side of the road. Ford was in front Observing Cadillac. hood the Cadillac was looking raised and that Wilson was into the [defendant] stopped give engine, (Empha- assistance.” two officers Owings added.) inquiring Officer sis While of Wilson as difficulty Terry to what was the with the vehicle, latter’s herein) mortally (appellant shot and Owings, wounded Officer gun on shooting then turned his Officer Brizendine, leg. Terry Defendant shooting continued latter in an him also, Brizendine effort to kill Officer until the for- supply Thereupon of ammunition was mer’s exhausted. de- Terry Chrysler ran to the major- and as stated in fendant ity “got opinion, into the driver’s and with seat, [defendant] him, driving out car, Owings Wilson beside backed over sped body, and down Seaside (Emphasis Boulevard.” fallen added.) savagery, All this evidence of cruelty unusual *27 depravity jury immeasurable hearing, was before the penalty on the Terry’s as was evidence of prior defendant convic- offenses, moral tions of wit: Penal (Crimes Code section 288 against or acts) children: Lewd lascivious and section 286 of (The against infamous nature). Penal Code crime To me evidentiary it seems manifest that these features of the cause engaging posses- now sing our attention strictures this case as one “extraordinary People circumstances” to in referred Love, supra, People Linden, 56 Cal.2d 733 and supra, 52 Cal.2d 27 under which the constitutional pro- (art. VI, 4%) vision can “save the verdict.” § adopted just to was provision referred The constitutional People stands as declaration of this state and public policy therein “No them of under which as declared: any case, judgment aside, granted, new trial shall be set or improper ground jury, of of the or of the misdirection any any rejection evidence, or for admission or of error as any any pleading, or for as to matter of matter error unless, cause, an procedure, including after examination the entire opinion evidence, the court shall be complained miscarriage has resulted in a the error justice.” (Emphasis policy added.) of the Manifestly, provision disregard constitutional is to errors which would not change they prejudice result of trial unless constitutional rights. However, Watson, 46 Cal.2d 835 [299 243], rights guar- after review certain fundamental to an anteed accused as contrasted with other rights, this every court said: “. . . not right invasion of constitutional necessarily requires a reversal; involving that generally, error infringement any right, a constitutional like other error, requires a further determination whether the defendant has been prejudiced, ‘opinion’ and the final test is the reviewing court, in the sense of its belief or conviction, error; ordinarily the effect of the and that where the result appears just, appears and it that such result would further have been reached the error not been committed, if reversal will (Emphasis be ordered.” added.) ‘‘ ‘ my I cannot reconcile an conscience after examination of cause, including the entire the evidence’ . . . it is reason- ably probable that a result more appealing favorable to the party would have been reached the absence of the error” (People Watson, supra, p. 836) when, Cal.2d as was further stated just the Watson page case cited at “Nevertheless, the necessarily test . upon . . must be based probabilities reasonable upon rather than possibilities; mere purpose otherwise the entire provision constitutional (Emphasis would be added.) defeated.” foregoing
For the reasons, I judgment would affirm *28 572 degree first and the of murder of the conviction
both as to the by jury. imposed penalty Dissenting. Concurring and With Justice CHAUER, J., S judgment majority's affirmance I concur in the White degree first guilt of murder adjudicating defendant’s from the reversal in White’s dissent I also concur Justice penalty it to the for the judgment relates insofar offense. opinion purposes of the that under the for if I assume Even (which appears law to me to be present state of decisional People (1961) Love demonstrably unrealistic; see 56 Cal. Cal.Rptr. [21-27], 739 17 Cal. 731-733 2d People (1961), ante, 33, 809] ; Love Rptr. 481, People Cal.Rptr. 481, ; v. Kidd 366 P.2d p. 809] 748 [17 Cal.Rptr. 793, 366 P.2d 759, 771 (1961) 56 Cal.2d holding majority correct in that the trial court 49]) are respects1 during proceeding to determine in three erred legitimate judg basis reversal of the penalty, I find no by majority, whether considered related ment. The errors against so trivial when singly or in combination are viewed proof overwhelming guilt, of defendant’s abundance are: asserted errors 1The telegram in evidence of a receipt admission of evidence: The 1. As to (who during had de- trial the state’s witness Wilson been sent defendant murdered Police Officer day companion fendant’s Owings) brother of defendant’s wife, the wife by Vernon J. cigarette reading: from hots lately? taste Switch your different, “Does signed: “Lucky.” Kools,” illustrating argument matters of record public reference 2. As to “argued knowledge: general that the authorities are or The prosecutor enough not is provided because prison space forced to parole prisoners argument in In his felons who are convicted California.” for all of the “eight got eases we have . . . California of paroled also mentioned got first-degree out” and stated that murderers who when repeated they arguing this Coors’ you counsel when “didn’t tell about the defendant’s guy this Mr. Coors is an up Colorado, where the who killed case, majority doing The further relate life on murder. ...” escapee prosecuting an asserted conversation between reference attorney’s concerning judge “little a man who raped and a psychiatrist Of case he had tried. the earlier-case and to an earlier old,” 3-year In 1951 I was said “Ten 1947. defendant, right life, the prosecutor trying again him for another armed robbery.” in this courtroom arguing effect of the death penalty: As to the deterrent 3. argued prosecuting majority “The attorney states opinion argument greater penalty supported deterrent effect of the death [seemingly or all record public of facts matters the recitation by general knowledge] as those held in evidence of the same character supra, People Love prejudicially Cal.2d [1961], erroneous 730-733.” and of his character as demonstrated his sustained course of conduct and the nature his crimes, as to make the assumed errors de minimis. majority refer to their decision Love, (p.
supra, they Cal.2d) wherein stated “it is knowledge capital punishment not a matter of common is than or is not a more deterrent imprisonment,” effective attorney prosecuting suggesting hold that the erred to the jury penalty that the death would have been a more effective *29 imprisonment proved than life deterrent so-called to be in way by certain he of illustration, cases which mentioned particularly margin which are more described here (fn. 1) majority opinion. as well as for myself, As I quite if, example, person am convinced that mentioned prosecutor having as been sentenced “Ten life” in being for a and as back on trial similar in 1951, offense first occasion received death sentence and been executed, would been so have deterred that he would not again years have been back Yet, for a similar offense four later. majority it is argue insist reversible error to to a jury that man who has effectively been executed is more from deterred further than a man crimes who has been im- prisoned paroled. pointed As White, out Justice this is court under con- stitutional a judgment mandate not to any reverse “for error any procedure, matter of after an examination unless, including cause, evidence, entire the court shall be of opinion complained that the error has resulted miscarriage justice. adopted November [Amendment (Cal. Const., VI, §4%.) art. 1914.]” In the I record before us no find basis whatsoever for an any objective conclusion that error or combination of errors miscarriage in a justice. has resulted Accordingly, obedient mandate of our Constitution, to the I judg- would affirm the entirety. inment its McComb, J., concurred. petitions respondent appellant and of the for a
rehearing May 16,1962. Schauer, J., McComb, were denied J., J., opinion White, petition were of the of plain- respondent granted petition tiff and should be and that the appellant of defendant and should be denied. notes by the defense and made both frequent was reference jury, might for first be inflicted penalty that to the prosecution the degree appellant and his counsel real- both short, In murder. charge of covered. murder ized what presumption Appellant denied the 3. was benefit of innocence. argues Appellant that Penal Code sections presumption of to operate dispel innocence and 1105 to through trial the burden entitled and shift which is guilt. degree His proof a lesser on him to establish may from rule that argument it is clear but stem killing nothing more, shown but an unlawful is where first, degree. second, and not should be murder verdict ) 313, 319 (People Craig, 49 Cal.2d 947]. stage nothing any to at is the record indicate that There appellant presumed guilty. proceedings to be was motivating alleged killing causes of the circumstances theory great prosecution’s were shown detail under impli tracing appellant the series of crimes wherein setting gave CALJIC The court instructions No. cated. premeditation degree to in first forth the law with reference murder, reference murder in the No. 305 with second reference No. 305-A with to the course which should degree, jury in the event of as to be followed doubt whether degree, in the first or it was murder second No. 308-B with involuntary manslaughter, and No. 310 with ref reference manslaughter. the distinction between murder erence requested appear who the homicide It does not instructions. People Graham, Cal.App.2d 521, In 530-532 Cal. Rptr. prosecution, these 893], murder standard instructions operative presumptions analyzed and the were discussed process principles of law with due where the consistent fully applicable jury informed instructions of the prosecution of law and relied rules evidence intro any presumption rather than on in court duced show malice. defendant's improperly Evidence was admitted. 4. Appellant objects the introduction into evidence scrap security Exhibit social cheek which was Emporium cashed August Stonestown on