*1 Apr. 1970.] In Bank. No. 10115. [Crim. PEOPLE,
THE Plaintiff Respondent, ALLEN, JUANELDA HAROLD ROGER TERRY and Defendants Appellants.
Counsel Frederick E. Schwartz, Watson and Howard L. under appointments by Court, for Supreme Defendants and Appellants. Thomas C. Lynch, General, Harris, Jr., Attorney Albert W. Assistant General, Attorney Edward P. O’Brien and Michael J. At- Kelly, Deputy General, torneys for Plaintiff and Respondent.
Opinion THE COURT. found A jury Harold and Juanelda Allen on Terry guilty counts of two first murder. admitted a conviction degree Terry felony prior of armed robbery. fixed jury death on each Terry’s penalty at. count. Juanelda received life sentences because she was old only years Code, 190.1). (see Pen. the time of the homicides § Terry’s appeal Code, (b)), has (Pen. subd. and Juanelda’s been
automatic § appeal consolidated therewith. 2, 1965, slain in the
About 11 on Marshall Burnett was February p.m. He shot four times and course of a of his Oakland drugstore. robbery cash of scissors. The robbers took stabbed seventeen times with pair of a shoe and what $700. worth about Prints man’s appeared stamps of a woman’s shoe were found on be the of the heel papers print spike these scattered about the An testified floor pharmacy. employee he had two hours before the when not been on floor robbery papers the store. swept he and Juanelda left their apartment
According Terry’s testimony, of Bur- about an hour before the and drove to the neighborhood robbery to the walked nett’s which to rob. The pair pharmacy, they planned left. and waited outside for 10 or 15 minutes until customers pharmacy this then entered During wait the details of the robbery. planned They store, and, Dristan. Juanelda asked Burnett for some according plan, item, them to this Defendants knew Burnett would turn his back to get announced, and, turned, while his back was drew his revolver Juanelda to turn out the store “This is then told lights Terry door, stick-up.” held his and close the front which she did. While gun Burnett, her to the cash then told Juanelda.rifled register. Terry empty did, safe, with the of a metal box which she which exception Juanelda held this box out of the safe while unable to remove. Terry pried *12 Juanelda some adhesive the then told to on Burnett. tape. Terry get gun Burnett’s found some and He his and Juanelda took back tape taped gun, at cut the took a of scissors and hands his back. behind tape, Terry pair the two at As broke free and which Burnett struggled Terry. lunged point him several the scissors and shot Burnett with stabbed together, Terry was dead. the store. Burnett times. Defendants then left differs from that Juanelda’s version of this Terry only episode in front while a denied that the had discussed waiting robbery pair a aware that and denied she was robbery the Terry planned pharmacy while on Burnett the admitted that she held he drew his She until gun gun. killed the store before safe, that she left the but testified Terry rifled Terry Burnett. later, on about four weeks occurred February homicide
The second store, was killed an Oakland at by Dick Safeway 1965. Leong, employee These his head. the back of into bullets, was fired of which one directly two to Burnett. used kill Leong the same from were fired gun bullets mid- around store closed he had after Safeway murdered soon up witnesses, was observed one of whom observed that night. killing a assailant was a another noticed a woman with white Leong’s Negro; car, sweater in the which was described as in color with one getaway light black front fender. Still another car’s license witness that the reported plate number was BOR 228. defendants, to be- and Juanelda left their
According Terry apartment tween 11 and 11:45 drove to the of the and night p.m. Leong killing of the store. testified that vicinity Safeway Terry previously observed the store on several occasions while Safeway robbery plotting and were familiar to wait with routine in Leong’s closing. They planned store, until had left the to the area his Leong deflating leaving prevent car, one of the tires the store on his and to force him at to enter gunpoint and the safe. car on On their open night killing they parked hill the store. store and a short time drove close to later overlooking whistled. out of the car and it when he told Juanelda to drive Terry got up tires, deflated one of but his car before started noticing Terry Leong’s Leong the flat. He started then while still in the lot and stopped Safeway parking announced, the tire. him with drawn change Terry gun approached “This is a then whistle signal stick-up.” Terry gave prearranged Juanelda, and she drove the car the street and blocking along stopped, entrance to the lot. to throw Meanwhile lug parking Leong attempted fired a wrench at but it out of his hands. fled. Terry Terry, Leong slipped shot in the air ran behind direction and chase. Leong’s Leong gave street, defendants’ car ran and into the Terry up shouting “Help.” across car and fired at felled over the roof of the car. The shot Leong Leong the back the street. into then ran across the street a bullet put car, in, Juanelda drove head. He ran back to Leong’s jumped off. from
Juanelda’s account of this differed Terry’s. only slightly episode She did know denied and said she with to rob the store planning he until he planned robbery Leong. began firing
Police found and arrested number defendants license by tracing the witness to the did The number BOR 228 by supplied check Leong killing.
out, BQR but the letters a car that matched the found trying police witness’ of the care used at the store description killing. getaway Safeway car This was owned Jones, one that incarcerated in Charles time defendants, One of the officers who arrested jail. Inspector eventually learned from of Jones’ that had Spence, Berkeley Terry police possession car in came time of the homicides. This information February informant, to the from a who also that reliable Berkeley police reported and Juanelda that were knew also Terry together. police living Spence
ballistics had tests showed the same been used to both and kill gun Leong Burnett and that what to be a woman’s heel indicated appeared print Furthermore, female in Burnett learned accomplice killing. Spence and a had woman in a recent Terry pregnant Negro participated Alamo, California, of a home and that in Juanelda robbery given birth to a child in an Oakland after the hospital January shortly Alamo episode. Allen, husband,
From Mosco Juanelda’s had also authorities estranged learned that and Juanelda were Mr. Allen Terry cohabiting. gave police a street address for the house where the lived. allegedly apartment pair When officers went to address observed in the parked carport . house an automobile which matched the apartment description car used in the homicide. Leong and another officer arrested near his on March Spence Terry apartment
4, 1965. learned from the room number of his went They apartment, it, and arrested Juanelda. The was then searched apartment officers, and used several evidence were seized. those Among pieces (the defendants at trial were a of men’s shoes of which against pair prints matched those caliber as found at Burnett’s bullets of the same pharmacy), homicides, those used made the in both women’s shoes which could have bloodstained, heel marks at the and which were spike probably pharmacy coat, and a woman’s also bloodstained.
Defendants confessions were and confessed. These jailed eventually were used them at trial. against
Police es- obtained several used from the home of his guns by Terry wife. One of the murder these was tranged weapon. also from some proved by Terry escape jail attempt
six arrest, months after homicide while he was trial on the awaiting this a revolver wielded fired charges. During attempted escape Terry and stated to a It doesn’t make “I have killed two men policeman, already. difference to me if I kill too." you took the of Bur- stand and admitted killing fully robbery nett and He testified that attempted robbery killing Leong. crimes with Juanelda these him and knowingly planned participated execution, she had with him in their and that knowingly participated to the several other robberies and burglaries Burnett-Leong prior episodes. and admitted both homi- Juanelda took the stand her involvement in cides, she denied but *14 robbery—on any knowledge Terry planned his drawn. the moment she observed him with either occasion—until gun She aided the Burnett after he his claimed she in robbery gun Terry pulled her On cross-examination out of fear that he harm if she didn’t. only might claimed, however, she Alamo She admitted her at the robbery. presence his the there that she did know that cohort Terry planned robbery then, however, She knew until started their loot into the car. they loading had robbed to the She also admitted on cross-examination loot. get that she he had killed Burnett but bullets for after bought Terry’s gun to the homicide. prior Leong
A testified that Juanelda was immature nonaggressive, psychiatrist and that she would one she loved. follow” whom Although “blindly ill, was not Juanelda mentally believed the reason psychiatrist aided Terry in two and fear homicides her love for of him.
Alleged Right by Denial to Trial the Court denied, a
Motions for were trial and defendants contend that nonjury the court erred. Before 1928 amendment to section of article thereby Constitution, I of the state a trial could not be waived in by jury felony Nakis, (See 92]; case. Cal. P. People People Garcia, 747].) P. The section now Cal.App. pro vides “A cases, in trial criminal waived all part: by jury may in by consent of both in parties, by court defendant and his expressed open counsel. . . .” “consent both requirement means parties” must consent to a waiver. prosecuting attorney Spencer, Our here is whether the Cal.App.2d inquiry to a his consent court trial. The contains prosecutor expressed transcript the following exchange: [Juanelda], for behalf of at On this Juanelda]: [Juanelda]
“[Attorney time desires to waive her be tried and to trial rights by jury, request the Court this matter on her behalf.
“The Court: Mr. District Attorney? If the defendant would motion in that “[The join prosecutor]: personally counsel, I would would which he I still indicate this anticipate expect, such would not waiver and would position any join jury, not consent to such process.”
The court then elicited Juanelda from waiver of trial jury personal and asked on the matter. A was taken counsel recess position Terry so that could confer. and his then and his attorney attorney court then waived trial. The said: expressly jury
“What is the of the District matter? position Attorney
378 have made a in reference to We statement prosecutor]: already
“[The We course a matter for determination would—of this is all [Juanelda]. the well as the Court—we would submit it to the Court for parties, determination in this matter.” the for
The then denied motions trials. judge nonjury the “we What was meant statement would submit it the If the meant that he was the decision as Court”? committing prosecutor to whether there should be a trial to or the determination of jury nonjury the he does not have to his wrong. give judge, clearly judge trial, to a can defendant consent non nor he overrule consent of the jury Under the this determination is left to the Constitution prosecutor. “consent of both and that means defendant and parties,” prosecutor. I, 7 of does not the concurrence of Section article supra, quoted require Boulad, court v. in this determination 235 Cal.App.2d 104]). v. Eu said to the 123 [45 Anything contrary banks, 789], 7 589 P.2d [46 disapproved. Cal.App.2d read we do not But there was no error here. As we the record “submit” to withdraw think that the word intended using prosecutor Rather, think, trial. we non previously objection jury expressed is, sense, that that he used the word “submit” in its normal prosecutor (MacDermot rule asking argument. court to without further Robbins, Grant, 396]; P. 19 Cal. [184 Jalof 19].)1 [120 Selection Jurors Illinois, U.S. 510 contends that under Witherspoon 1770], it to exclude cause
L.Ed.2d 88 S.Ct. was error veniremen the instant trial Bolla and Domato. Witherspoon, Although preceded Illinois, that decision is herein. U.S. (Witherspoon applicable fn. at L.Ed. p. atp. “a sentence of death cannot carried out if holds that
Witherspoon chosen venire- recommended it was or excluding jury imposed the death voiced for cause because men they general objections simply its inflic- or or conscientious religious against scruples penalty expressed from 784-785].) at The court L.Ed. tion.” excepted {Id. p. pp. would (1) “made clear who this veniremen unmistakably ruling generally general proceedings perhaps Court is more use in the of this 1 “No term means, to the parties ‘submitted.’ It leave than the term understood Carey (Ridgely (Md.) & argument.” 4 Harr. McH. Chancellor to determine without 167, 174.,) . *16 vote the without automatically against imposition capital punishment to of the evidence that be at the trial case regard any might developed before . (Id. them . . fn. L.Ed. at p. p. voir dire is forth relevant examination Mrs. Bolla set in the
footnote.2 After would unable to she stated she felt she be make Bolla, attorneys you questions did and Mrs. hear the asked the 2“The Court: myself given by prospective jurors? and the answers “The Juror: Yes. I did. you substantially questions, your “The Court: If were asked the same would substantially answers be the same? Well, fully. not “The Juror: way they In what would differ? Court: “The Well, depend “The Juror: it would on the I verdict. feel like I wouldn’t be able capital punishment, going capital to make a decision on the punish- whether it is to be ment or not. — analyze got “The Court: You have to we every possibility have to consider got possibility degree this case and we have to consider the a first murder con- defendant, concerned, Terry, occur, viction as far is and if that did I am will, intimating it necessity jury going then under the law the is to deter- have to mine punishment. the nature of the “Now, is, question occur, you, whether you any if that did whether could under verdict, penalty circumstances come out dependant upon testimony with death presented that was you? Well, religious my say I believe that “The Juror: beliefs would no. religiously your against You feel “The Court: beliefs are that? “The Juror: Yes. “The may interrogate, wish, Court: gentlemen, you You regard. if on Margaret “Examination of Juror M. Bolla “by Mr. Strellis Terry]: [counsel “Q. . . . first you of all do understand that law of California declares no preference. In you other words will never be in a Judge situation where the inwill you you A, B, C, effect tell I you if find bring that to should back penalty. a death might add conversely you will never be Judge you in a situation where the will tell C, you D, if find you and E bring should penalty back a imprisonment. of life “The presupposes law preference no Obviously great many whatsoever. there are a people who conscientiously abstract, are opposed taking to the of human life in the but asking you what we are today and important again the reason it is rather self- obvious, is you this: evidence, Could listen to all having heard all of evidence, your if in you own mind felt that this proper penalty, was a case for a death your standards, and these are mine, are not they are pros- not Mr. Jensen’s [the ecutor’s], they are Judge’s, not the your but if in own mind it came to whatever set of you standards peculiarly and personally would set proper you impose as a case for penalty, you death could carry then your out conscience and impose it without telling us any whether in particular sort of an you instance would consider this to a proper case or an improper case [«c]? “A. I think it would be rather hard for me to. — now, “Q. obviously this would not easy be an thing person for a to sit there and tell me that it would easy thing. be an It would seem to be a rather monstrous state- ment make on the face of it. —I “A. — “Q. All I asking all am you is even very if do it reluctantly and you even if set if
decision court whether capital punishment, inquired of first she “under circumstances” vote convicted murder could degree “Well, for the death and she I beliefs believe religious penalty, replied, my then, declares would no.” Defense counsel after law say explaining found no that the would not tell her that if she preference judge facts she return the death asked in effect whether certain should penalty, she felt the death if after she heard the evidence could impose penalty *17 a case the death of her own standards that it was the basis proper “I rather hard for me to.” This and think it would be penalty, replied, itself, could left that she if considered response, possibility open a under circumstances return death but some possibility penalty, in and asked when defense counsel continued eliminated questioning if that it was could the death she felt effect whether she return penalty reluctance, and she to even if she did so with do replied, proper thing great “I I don’t think could.” whole, thus a made viewed as unmistakably
When
responses
would
the death
vote
clear that she would
penalty
automatically
against
answer,
the con-
in
Her final
do so
the evidence
irrespective
presented.
“I believe
asked,
the answer
text
similar to
of the
is substantially
question
unable
venireman would be
so”
whether the
in
to the question
response
evidence,
death
to return a verdict
regardless
imposing
penalty
in
enunciated
the constitutional standards
and the latter
satisfies
colloquy
608, 464 P.2d
Floyd,
v.
Witherspoon. (People
Cal.Rptr.
This is not case where the venireman answered “I don’t think so” in “if he to the could a death such In reply question impose penalty.” Chacon, has context the answer been regarded ambiguous. 765, 10, 106]; P.2d see Cal.2d 772-773 also People Cal.Rptr. Osuna, 678].) P.2d 768-769 [76 Cal.Rptr. “Well, Nor this a case I I is where the venireman answered don’t think could death” to the whether she had send to any anyone reply question Hillery, re (In “one or the as far as the opinion other way penalty.” very high you you is a would standards before would decide that this situation which life, you your your you take a human could if felt in own mind and own conscience case, proper thing that it was the that it be particular to do in a albeit would you penalty? great reluctancy, would taken action that with could return death I don’t think
“A. I could. questions. no “Mr. Strellis: I have further prosecutor]: challenge Jensen “Mr. I would submit a for cause. [the right, juror you very “The Court: excused much.” All for cause. Thank Cal.2d The majority [79 the fore- stated that because the answer occurred in the context of Hillery the answer could not be construed as indicative going question reasonably to the venireman’s more than tentative doubts as anything present also the death This case differs willingness ability impose penalty. Vaughn, from 412-416 the veniremen who There under majority position 122]. were unable to how were held to have been excluded improperly predict Bolla was able to would vote in case whatever. Here venireman make such prediction. the footn Domoto’s relevant voir dire is set forth in
Venireman he was ote.3 he After indicated his capital punishment, opposition asked, what the circumstances “Is such that regardless your opinion were proven you that will be in this courtroom that would not return you added), (italics a verdict which and he would a death impose penalty?” *18 “I would a verdict the not return a verdict—I would not return of replied, facts, mind, death the said that the even in penalty, though my party asked, of made it The in the the guilty.” light question quoted response, that be clear that of evidence would unmistakably presented irrespective he not it was not error under would return death Accordingly, penalty. to exclude him for cause. Witherspoon
Several additional veniremen were excluded for cause on basis of their to opposition No capital punishment. claim made that under them, it was error to exclude our from review of Witherspoon 3 Mr. Domoto was examined as follows: “Q. [by such, prosecutor] murder, Is the being charge nature the case of of one you that would make it juror difficult for to serve as a any respect? trial in I “A. believe so. “Q. Well, you you do think try just you could this case would any other your case and make upon decision based the law and the facts? could, “A. As far as the facts are matter, concerned I think that excepting I the last except point for the last when it capital would punishment. come to “Q. Then, right. Domoto, All Mr. in reference prospective to that juror service as a trial, in penalty phase you of this do personally have opinion which is oppo- capital punishment? sition to Yes, sir,
“A. I do. “Q. your opinion Is regardless such that of what the circumstances were will proven you to in this you courtroom that not return .would a verdict would which impose penalty? a death — “A. I would not return a verdict I would not return a verdict pen- of the death alty, though facts, even my mind, said that party guilty.” prosecutor thereupon made a challenge Terry’s for cause. counsel stated “we would submit it . . . without further interrogation,” court allowed the challenge. are that was error to because
record we satisfied exclude them came within the also excepted group. for cause veniremen on the also contends exclusion of ground
of their to to a fair and denied him his opposition capital right punishment a cross section of the the guilt jury impartial representing community However, documen trial. in the absence phase persuasive . “We . . tation we must with the United States Court that agree Supreme conclude, on us or as a cannot either the basis the record now before notice, matter that the exclusion of of judicial capital jurors opposed issue of or results in an guilt punishment jury unrepresentative Eli, (See In re increases the risk of conviction.” also substantially Gonzales, 665, Cal.2d 337]; 929].) 426 P.2d 497-499 [58 Cal.Rptr. Dorado, 62 Dorado Problems Cal.2d 338 (People 361]) 398 P.2d thaj search of his contends evidence seized in the apartment as the fruit of arrest was inadmissible at the time Juanelda’s poisonous him of his from information officers elicited him rights prior warning Buchanan, silent and to have counsel. remain 887 [48 Cal.Rptr. *19 the near
After was arrested on sidewalk building, Terry apartment him his constitutional asked him one before of police advising question in the Dorado. in what to That was apartment rights pursuant question the went told did live. they Terry building Terry police, Apparently Juanelda, arrested to thereafter the immediately proper apartment, made their search. “ to was ‘a the contend single Terry question People state- to itself that lends of eliciting incriminating interrogations
process
”4
201,
Stewart,
571,
400
v.
62 Cal.2d
579 [43 Cal.Rptr.
ments’
(People
apartment he lived
questioning about which
police
argued by
the
4 It is
694,
Arizona,
S.Ct.
(Miranda
86
in,
383
Arizona,
97], affd. sub nom.
v.
L.Ed.2d
P.2d
Miranda
In whether of interro constitutes a determining questioning process we must which total situation gations, “analyze questioning envelops factors such as the by considering interrogation, place length and time of the the conduct of nature interrogation, questions, Stewart, and all other relevant circumstances.” v. police (People 571, 579.) 62 Cal.2d but a In the case asked instant single police arrest, after the arrest was in the where immediately question, very spot made. The or “accusa was not question “inquisitorial,” “intimidating,” Treloar, 100, 141, v. 64 410 Cal.2d 147 tory.” (People [49 Cal.Rptr. statements, 620].) Rather than to elicit tending incriminating a have form Police of identification from sought Terry. question patently a interest in arrest themselves. justifiable identify asking persons Graham, (See What Is ‘‘Custodial Interrogation?”: Anticipatory California’s Application 59, 105.) Miranda v. (1966) 14 U.C.L.A.L.Rev. Arizona a arrestee his name and address is Asking making “justifiable simply 444, of routine” type Jaquish, inquiry. Cal.App.2d Rivers, on another issue in 123] [overruled People Cal.Rptr. 1000, 851, 171)]; also (59 429 P.2d see People Cotter, vacated, 862], 405 P.2d [46 Cal.Rptr. Pike,
386 U.S. 1035]; L.Ed.2d 87 S.Ct. 575].) 242 [48
Cal.App.2d trial, It should also mentioned that did not object basis, fruit or seized at other when the evidence poisonous grounds admitted was apartment was him. Since the trial conducted against several months our Dorado after final timely opinion published, objection (See People issue for necessary preserve appeal. Doherty, [59 Cal.Rptr.
Juanelda did to the of her con make Dorado timely objection receipt fessions, therefore, and we are contention decide her Dorado required, on the merits. She contends that the was in warning given *20 ***5 sufficient* in that her that entitled to an the officer told she was arresting Rollins, 293, 221].) 65 Cal.Rptr. applicable Cal.2d 681 423 P.2d Under the law [56 here, police engage interrogations there was no if process error the did in a of Stewart, 571, incriminating (People which tended to elicit replies. 577 201, Cal.Rptr. P.2d [43 400 5 There are places police several in the record where asked Juanelda if she had right attorney,” been warned only “her to an place specific but in does of one language appear. arresting used said, ‘Juanelda, testified you officer “I then realize, course, officers,’ of police time, that are my we and I showed star her at this you trouble, ‘and that very are in serious and there a questions are number that we However, you. want to ask you you should first know that do not have to answer any questions anyone that else you, we or ask and you that if do to want answer the
384 if to answer and she desired she contends that she attorney questions, was entitled desired to to an whether or not she answer attorney questions. But Juanelda in her demonstrated that she did not testimony interpret in this restricted fashion. She testified “He [the officer] warning arresting . . . asked I know that I had to an I didn’t me did and right attorney, have to I unless wanted to.” asked “And knew When say anything you had a to an she “Yes.” A didn’t you right attorney, you?” replied simple have “the to an is sufficient warning right you attorney” comply Thomas, 698, Escobedo. 65 with mandate of Cal.2d 704 (People 305, 423 P.2d (19 den. 389 U.S. L.Ed.2d Cal.Rptr. 233] [cert. **6 143, 140)].)* 88 S.Ct. That is what was here. substantially done Juanelda also contends that because of her and ig immaturity norance of of her have intel the seriousness could not predicament is waived her self-incrimination. This ligently against argument privilege the conten not now to serious consideration. It is based entitled largely unable to make tion that as a minor and because she was immaturity may a valid have held that a minor majority waiver. The this court Lara, waive his constitutional (People validly rights. (20 U.S. L.Ed.2d den. 392 202] [cert. is here. 2303)].) The rule of that case controlling S.Ct.
Aranda and Bruton Problems Juanelda, in contends confessions extrajudicial trial in
which were read to the their jury joint implicated, Aranda, violation of Cal.2d 518 read, or He that the confessions should not have been either 265]. urges decided he was a severance. Aranda was November 1965. entitled to November 16 case commenced but The trial the instant attorneys Aranda until 6. The become aware of December the court did not and trial, was too late to then was of that it sever trial opinion judge with the mandate of Aranda therefore deleting comply attempted some all references to The result was from Juanelda’s confessions Terry.7 furthermore, anything you attorney present, entitled to have questions are us, you against you use later in a Do you probably tell will court of law. we ” was, ‘Yes, response Her I understand.’ understand this?’ . . . Arizona, began supra, inapplicable since the trial 6 Miranda v. U.S. Rollins, before the decision date that rendered. 683.) it, trial, permit anything joint about 7 The court is too late do said: “[I]t go portions of through effectively I can delete I have to these statements and see if beginning to offer . in this intended from prosecution them. evidence and . . The case has *21 statements, extrajudicial and at time motion use these so-called denied, I can’t see and severance before trial and I well commenced] [made can I point like to me at some future date how Supreme would Court out to read to the what ridiculous. Juanelda’s confessions were jury practically in their but the name “Harold” entirety, everywhere (Terry) appeared, consider word “deleted” was instructed not to was substituted. The jury ******8 done,* but it must what the nor this had been “deleteds” why replaced, were one and the have to that “deleted” and been obvious everyone Terry same. read to the contained these
For the statement jury questions example, on and “What time did and deleted leave answers. your you apartment said, ... He East 15th? Answer: Between 11:15 and 12:00. quarter ” ‘Well, Juanelda then You want to with me?’ I’m to the store. going go asked, She was told about to the store and gunshots. going Safeway hearing When I saw “Did think Answer: deleted doing shooting? you Question: Well, walk with I mean must him this man I he was. you figured have him? Answer: some reason. Deleted was him or holding shooting up, Well, all, I have at and when I heard never seen him with Caucasians any the man I Later in knew would [Leong] something happen.” yell statement Juanelda to the house. said that she he returned apartment
From this the knew that “deleted” was a male who lived Negro jury with Juanelda. The from the learned testimony jury previously officers that Juanelda and lived East police 15th. together was bound to know that “deleted” have been The Juanelda must jury Terry. statements and accused him of both the Leong clearly implicated Burnett homicides. a clear violation of Aranda. In in This was defining Aranda a statement can be used at a trial deletions when joint by making codefendant, to avoid stated: effective dele- opinion “By implicating tions, we direct and indirect identifications of codefendants mean only but codefend- statements that could nondeclarant against employed Aranda, ants otherwise once their established.” (People identity indicated that 530.) In footnote 10 to the it is opinion outside the con- made where no evidence effective deletions can best be of the crime. But in at the time fession links codefendants together gone days fifteen of trial when we have now for about sever this trial at this time in matter, defend- effectively try sever the case these two I can for trial this how impossibility attempting and the Court to do separately. practically ants It is as far as either these defendant’s are concerned. undoubtedly would commit error defendants, would stage give separate I I trials to these two . . . could this [I]f possibly proceed can’t have to certainly any question. do it avoid I do that. We joint awith trial.” by you only as evi 8 The court instructed: “These statements can be considered Allen, defendant, by you for against dence any Juanelda and cannot be considered co-defendant, against Terry. law purpose as evidence Harold For reasons of deletions portions certain these statements have been deleted. The fact that such your are not to by you have been made is not considered deliberations. You to be speculate on the reasons for such deletions.” what has been deleted nor *22 the instant case witnesses had testified that a man and a woman already were involved in both homicides. And confession related Terry’s basically the same facts as Juanelda’s and referred to both of them as being present.
The General that Aranda is because Attorney argues inapplicable did not have the alternative of trials and it judge granting separate would have unfair been to the to exclude the confessions. He People asserts that if the mistrial, had a so severance, as to a judge granted grant the double rule would have barred further of either jeopardy prosecutions defendant. This assertion is unsound. Before trial and before Aranda began decided, a motion to sever had been made and the said it was judge denied the court.9 The defendants never indicated in there any way after that Therefore, no if, desired a severance. when the they longer Aranda arose, later had a mistrial on his own question judge granted motion, mistrial, defendants would be deemed to have consented to the since it was to achieve their of severance. Of granted original objective course, if defendants consent to a mistrial cannot later they successfully Court, urge former Cardenas v. Superior (E.g., jeopardy. Moreover, 100 A.L.R.2d [14 Cal.Rptr. severance,
if defendants had refused to consent it would appear Aranda, had waived their under because would then have they rights the court from solution to the Aranda prevented utilizing only equitable problem.10 Juanelda, well, Terry’s perhaps
9 Prior to trial counsel for moved counsel Code, 1098). (Pen. transcript for a severance clerk’s an § does not contain However, entry motion, judge of this motion. the trial twice referred to which this said entry he he had denied. The contend that the absence clerk’s in the transcript concerning judge this motion indicates that the was in error when he trial stated such a plain twice that he recalled motion and that he denied it. The reporter’s ignored. reference to motion twice in the transcript cannot be But as out, infra, pointed grant a the failure to severance did constitute error reversible to either defendant. indicating in Aranda prosecutor successfully
10 There is dictum if the has severance, implicate resisted motion for confessions a codefendant must be Aranda, entirely excluded effective impossible. where deletion is However, 531.) unjust would apply against pros this dictum ecutor who resisted a motion for severance made the Aranda decision. he If before Aranda, however, so acts in the face of it would be proceed fair to make him with the trial without the confessions. *23 error, it not facts was there an Aranda under the was
Although The test the effect Terry. weighing prejudicial prejudicial Massie, 899, 66 922-923 an Aranda set in v. Cal.2d error is forth People stated, 733, 869], it “We must P.2d wherein is et seq. Cal.Rptr. that rea effects of all the may significant weigh impact prejudicial aof from the erroneous denial to have stemmed be assumed sonably “a reasonable if there is trial,” is but reversal only required separate favorable result have obtained more would that defendant probability at a trial.” separate is a codefendant confession that incriminates
When the part on the confession—or the latter in his own stand—generally repeated the Lara, 365, 392- v. Cal.2d Aranda error is harmless. supra, (People 154].) Gant, (60 393; 111-112 v. People Cal.App.2d the admission that rule here alleges Terry general applicable. him deletions with ineffective Juanelda confessions compelled (cf. take the stand and confess his Spencer, People guilt unless 715]). this fails But 163-165 argument [57 Cal.Rptr. con While he inadmissible. own before trial was also confession Terry’s that coerced, the record tends that his confession was finding supports and to take the stand Terry it what induced voluntary. Obviously, confession, not Juanelda’s ineffectively confess was his own extrajudicial deleted statements.
If the court had ordered a severance when the Aranda correctly problem itself, the case would not have heard Juanelda’s presented jury Terry’s Further, confessions. would not have heard her extrajudicial probably around, him, that testimony she Terry was afraid of and pushed had intercourse first on their date. There also they testimony beat Juanelda on one occasion that he threatened Terry kidnap her. If there had been trials Juanelda would have not separate probably him, testified Since she loved would have in- against Terry. probably testified, voked her self-incrimination. Had she against privilege have would been entitled to that her as that of an instructions testimony, Furthermore, should considered with caution. had there accomplice, trials, been not have would brought separate Terry’s attorney probably out—as he did on cross-examination of Juanelda—several crimes prior and Juanelda allegedly engaged together. effects, the denial of the had the it is
Although severance foregoing clear in view of the denial evidence of that the overwhelming Terry’s guilt trial was severance of Juanelda’s confessions at guilt receipt Massie, 899; (People error. 66 Cal.2d prejudicial Watson, P.2d Nor was it preju-
dicial tell the trial could error to that on consider all jury penalty evidence trial. guilt course,
Of if this error were have substantial could affected result, the error would that the verdict be reversed. require penalty Price, 55]; People Hines, *24 164, 622, 398]; People 168-170 390 Cal.Rptr. [37 Hamilton, 105, 4, 412], v. 136-138 383 P.2d Cal.Rptr. [32 Morse, 631, overruled People on other in 2d 60 Cal. 649 grounds [36 201, 33, 810].) 388 P.2d the in 12 A.L.R.3d But evidence did not the verdict. was question, reasonably, affect death There penalty evidence introduced at the trial num had committed penalty evidence, erous In view the intro priors. of this evidence properly duced, of the of the two Juanelda’s con extrajudicial brutality killings, fessions and even her court were testimony, insignificant unimportant. fact, trial, In at the did not that he was a penalty deny Terry’s attorneys vicious killer or a that this was man. condition They depraved argued due to a form of mental illness that he sudden out uncontrollable bursts of fury.
A further
not
the
question presented, although
by
argued
parties,
States,
476,
is whether under Bruton v. United
U.S. 123
391
L.Ed.2d
[20
1620],
S.Ct.
the
of Juanelda’s
violated
extrajudicial confessions
receipt
of
Terry’s
confrontation secured
the
of
right
Sixth Amendment
the
by
Constitution,
United States
made
to the states
Fourteenth
applicable
Texas,
(Pointer
923,
Amendment
380 U.S.
S.Ct.
L.Ed.2d
[13
1065]).11 Bruton
denial
holds that it is a
of cross-examination
right
guaranteed
Amendment,
confrontation clause of the Sixth
to ad
mit at a
trial
joint
of a
extrajudicial confession
defendant that impli
his
cates
codefendant
In Bruton
despite
instructions.
giving
limiting
the defendant who
made
confession did
take
here
whereas
stand,
Juanelda
trial
testified at the
and was
cross-examined
time by
However,
Hill,
Terry’s counsel.
in In re
majority
opinion
449],
that,
concludes
its
according
cases,
of Bruton in the
of recent
interpretation
light
right-to-confrontation
the admission at a
trial of an
joint
confession of a defendant
extrajudicial
which
seriously
codefendant
the latter
his
implicates
deprives
right
even if the
confrontation
defendant takes the stand
confessing
and gives
in accordance with his
confession.
testimony
prior
States, supra,
trial,
11 Bruton United
391 U.S.
decided
after the instant
Russell,
(Roberts
it is applicable
but
herein
Juanelda of an also complains her, which was confession, to which Terry’s extrajudicial implicated fact, confession read to the without In extrajudicial deletions. jury Terry’s was that she with her was to her case. It was consistent position helpful and that she were in of the two robberies until ignorant they progress, to in the under duress. She objects Burnett job only participated the deletions in It is her view that deletions made her own confessions. defense that since her distorted her confessions to her She urges prejudice. caused she was entitled to have jury was duress fear of by Terry, she made reference to Terry having know that in her first confession crimes. The later-admitted ordered her about two during psychiatric of fear of not that she had a Terry, tended to show particular testimony claims, her confessions Thus, it was error to distort “Mr. Deleted.” so all reference to Terry. removing unless they of deletions the making that Aranda forbids It is true Aranda, supra, (People v. the declarant” “without to can be made prejudice here. As already no 530), pointed but there was prejudice have could reasonable out, that any person to believe it impossible stricken with the word “Terry” confessions listened to Juanelda’s re “deleted” that the word without knowing inserted term “deleted” no been have there could circumstances ferred Under such to Terry. with the deletions. confessions Juanelda admitting to prejudice also that the Juanelda failure to her a grant complains separate trial, in with the Aranda was accordance underlying theory preju dicial to her other for reasons. She out that under doctrine stated points Massie, in whether the determining error was we must differences from the examine “significant prejudicial would have if the had joint trial occurred defendant been tried . . . In this connection asserts that Juanelda separately. [Citations.]” trial full to joint gave cross-examine Terry’s attorneys opportunity Juanelda and to out facts that would not been admissible had bring have held, trials been of which took full ad separate they opportunity vantage. counsel not to Terry’s Apparently part strategy that their client but prove was innocent that Juanelda was equally guilty; that since she could not be the death because of her given penalty age he should not have that is true that him. It counsel imposed penalty upon were a first verdict Terry obviously degree attempting get against Juanelda, brought out much evidence apparently unknown to the and which was prosecution Juanelda very damaging and to her defense. But all this evidence would been admissible have she been afforded a trial. could have testified fact separate every now had he been called a witness for challenged such prosecution trial. There is to believe separate no reason he would not have done so. circumstances, Under such the error was not prejudicial. Juanelda
Although does complain Terry’s receipt *26 confession, extrajudicial which her and which read was to the implicated deletions, without jury of that confession violated her federal receipt constitutional of confrontation under the right we have interpretation States, given Bruton v. United supra, U.S. in the of recent light Hill, right-to-confrontation (In re supra, 997). cases How ever, since as stated his confession was to her case we previously helpful “ believe there is no ‘reasonable that the evidence possibility question] [in ” California, have contributed might the conviction.’ Chapman to 386 U.S. L.Ed.2d Coerced Issues Confession contends his confessions were coerced
Terry beatings, physical hours, from him for and and preventing sleeping many by long grueling The contention lacks merit. interrogation.
The record arrested discloses about noon March Terry 2:30, him first confession at about he his interrogation began gave a.m., a.m., 4:30 second 5. Police testified his confession 4:56 March refused statements. that for several hours to make Terry any incriminating twice before He was warned of his Dorado at least any rights process interrogations began. of the jury,
His at voir dire examination outside the attorney, presence of coercion. cross-examined the officer on vigorously interrogating point beaten or about being He asked the officer if he knew Terry anything He if he did not confess. struck or threatened with violence inquired being he was show about which allegedly taken Terry jail photographs treat called to Terry’s beaten.12 He asked whether a had been physician was beaten or denied Terry bruises received beaten. The officer by being threatened; he or knew about nothing photographer. physician then and submitted Terry’s question attorney dropped inquiry admissible. voluntariness the court. found the confessions to The court testified that officer In the the interrogating presence jury confess, but admitted no violence or threat was Terry get employed he would confess. for several hours before Terry interrogated the two admitting took stand. responsibility While Juanelda, he stated that he had lied in his confessions killings, protect had not when he slept he said at a time his confessions were obtained confessions, he of his for'26 hours. discussed the reliability he Although made no mention of or threat of violence. beating
There was evidence ample which the found upon judge jury Terry’s confessions to be our voluntary. Making assessment of the independent uncontradicted evidence as we must do in such cases v. Under- (e.g., wood, 937]), we cannot state that Terry’s confessions were coerced.
Search and Issues Seizure revolver, contends his the murder was errone weapon, admitted into
ously evidence because was the of an product illegal *27 search and seizure. As he not raise the contention Terry recognizes, may on because his appeal no time at trial the admis attorneys to objected Talbot, of the 691, sibility People v. 64 Cal.2d 709 weapon. (E.g., [51 so, course, photographs were not introduced at the trial and are not in 12 These Terry’s appeal. They attached an exhibit to His the record on are one of briefs. augment photographs. to include these denied counsel moved to the record This court caution, motion, Terry, and the but out of an abundance of in fairness to we have photographs. They Terry’s body, examined the do show some bruises on but there show, nothing testimony, beating to and were the of a or were no result by police. Terry opportunity ample points inflicted the to offer evidence on these point, but he did not do date, In absence of evidence on and late so. at this body must assume that the bruises on his did police we not result from violence. 392 417, P.2d (17 551, 414 385
Cal.Rptr. den. U.S. 1015 L.Ed.2d 633] [cert. 729)] Ireland, People 87 S.Ct. on another in ground [overruled 70 522, 188, Richardson, 580]; Cal.2d 540 P.2d People [75 Cal.Rptr. 573].) however, P.2d Terry urges, that failure [334 sham, to rendered object counsel a and farce a itself representation by Ibarra, grounds (People reversal. Cal.Rptr. 487].) In Ibarra the record disclosed on its face good for an and grounds objection demonstrated that counsel there was ignorant (P. 465.) of the him legal entitling In the instant case principle object. was Terry two skilled and there is represented by attorneys, nothing the record that the search which intimating the revolver was produced unreasonable and hence prohibited.
Officer Armando testified on that March 5 he went to a house occupied Carole wife, father, and by defendant her Terry, Terry’s estranged owner of the house. invited Armando and a fellow officer come in. They bedroom, Armando went to Mrs. from her up there took Terry’s closet the revolver and it to Armando. gave attaches to
Terry brief an affidavit Mrs. Terry supplemental stating that she consented to the search under duress from her father. It was only her father there, her who invited into bedroom. ob- While police police served some had stolen. In Mrs. closet her father saw goods Terry Terry’s leather some cases. One of these was and a rifle wea- and other unzipped could be seen inside it. Mrs. father had to pons said Terry’s weapons be removed from his took house. The them. The murder police weapon them. This affidavit is not this among the record part appeal, court augment, denied motion to the affidavit having Terry’s to include record, record. But even if it were facts in the recited part affidavit do not make the search seizure unreasonable. father, evidence,
Mrs. to uncontradicted according owned Terry’s house. Either he or or Mrs. both invited to make search. Terry police search, Police observed various firearms while Mrs. either making or her father consented to their Since neither Terry seized. being house, there, lived at this nor was Mrs. was entitled to let guest Cruz, search it for his effects. Cal.2d police 889]; Eyk, v. Van 150, 364 P.2d It is immaterial her whether consent father, duress obtained due to such was not since duress applied There is was in a no evidence that the murder police. weapon box sealed or other container which Mrs. Terry, Terry might Cruz, belonging *28 People supra, not have had to be (Cf searched. v. authority permit 867; Murillo, People 61 Cal.2d Cal.Rptr. Cal.App.2d ex were lawful. sum, attorneys the search and seizure Terry’s In fact at trial. admitted this pressly penalty and seizure record that the search
Even if it were clear from the
here. The
would
unlawful,
the Ibarra
were
no violation of
appear
principle
did not result
in failure to object
of skill
exercise
single lapse
resulting
Ibarra,
460, 465), did
a
trial
in denial of
fair
supra,
(People
465-466),
not render
and did
(id.,
defense
pp.
Terry
deprive
was
sham. Proof
counsel a farce or a
Terry’s guilt
representation by
affected
been
could not
have
ruling
and
overwhelming
possibly
California,
(Cf.
inadmissible.
murder
was
Chapman
weapon
trial,
never
at the
18.)
told the
they
U.S.
As
penalty
attorneys
jury
Terry’s
murder.
innocent of first
intended to
was
degree
urge
Terry
evidence
incriminating
Both
Juanelda contend
Terry
was inad
her arrest
incident to
seized at
a search
their
during
apartment
Aher.
to arrest
cause
missible because the
did not have probable
police
ruled
made, but the trial
on this basis
properly
judge
timely objection
that the
had
cause to arrest Juanelda.
police
probable
Ross,
The
law is summarized in the case of
applicable
on other
(revd.
69-70
429 P.2d
606]
1850]):
“A officer arrest a without a peace warrant whenever he may person has reasonable cause to believe that the to be arrested has com person mitted a (Pen. Code, felony. (3).) subd. § ‘Reasonable cause’ is defined as that state of facts as would lead a man of care and ordinary to believe and prudence entertain an honest conscientiously strong that the crime. of a suspicion person guilty Ingle, 407, 412 577]; .) . . [2] [2 No exact formula exists for cause, reasonable and each case must be decided on determining the facts and circumstances to the officers at the time were presented to act. required [Citations.]” in the instant had police case reason for ample entertaining
a that Juanelda in the Burnett “strong suspicion” participated Leong She concedes that killings. had reasonable cause arrest police Terry. This is an consideration in the reasons the important weighing police to arrest her.13 to the Eyewitnesses Leong observed that woman slaying was the driver of car. A and a man woman had getaway reportedly 13 Reasonable cause to arrest following: Leong was based on the killed by Negro escaped male who in a car description which matched the of one *29 394
followed home from the store before several the Leong Safeway days homicide. What a to be woman’s heel indicated that appeared spike print a woman was also in the Burnett murder. Who was this woman? implicated a (see 10, ante), learned from tested informant fn. Berkeley police Roy Williams, that Juanelda and were This information Terry living together. was corroborated Juanelda’s husband. Oakland were entitled to by police the information to them the v. rely (People supplied by Berkeley police. Ross, 64, (20 67 Cal.2d on other U.S. 70 391 470 supra, [revd. grounds, 750, Schellin, 1850)]; 245, L.Ed.2d 88 S.Ct. v. 227 People Cal.App.2d 593].) 251 The Contra Costa sheriff’s office informed [38 Cal.Rptr. County officer that had been identified as a arresting Terry participant recent at Alamo. He had been there robbery accompanied pregnant records disclosed Juanelda birth to a about Negro girl. gave Hospital baby a month later in Oakland. She had also visited in Alameda recently County Jones, Charles owner of the car used at the jail Safeway episode, himself associated with criminally Terry.
This information “inclines the mind believe” that Juanelda was woman crimes. and Burnett accompanying Terry Safeway Pharmacy 407, True, 413.) v. 53 Cal.2d the information leaves Ingle, (People supra, doubt, (Id.) room for this is The arrest was because but permissible. proper of her were able to entertain reasonably strong police suspicion Ross, 64, v. Cal.2d on other 67 70 [revd. (People complicity. lawful, grounds 470].) 391 U.S. Her arrest the search of the being apart- Gilbert, People ment incident to that arrest was also lawful. 63 (E.g., 690, 909, 365], U.S. 263 P.2d vacated 388 [47 Cal.Rptr. 1951].)14 L.Ed.2d 87 S.Ct. [18 lawful, were
Defendants also
that even if the search
argue
police
evidence,”
of the defendants. There
seized “mere
clothes
e.g.,
wrongfully
need
here defendants’
no
to discuss
distinguish
attempt
P.2d
Proof of
Terry
prejudicial
proof
escape
contends that the
effect of
of his
from
jail outweighs any probative
might
respect
guilt
value it
have in
to his
was, accordingly, erroneously
Terry
admitted into evidence.
concedes that
escape
jail pending
ordinarily
from
trial is
admissible as an indication of
guilt (e.g., People Burnett,
Cal.App.2d 651,
consciousness of
v.
654-655
Cal.Rptr. 6521; People Kostal,
Cal.App.2d 444,
[59
[323
1020], disapproved
grounds
Superior Court,
P.2d
on other
in Funk v.
593];
Ellis,
529, 537,
[340
see
Cal.Rptr. 385,
393],
argues
fn. 12
421 P.2d
but
that the rule
applied
escape
should not be
where
occurs several months after incarceration
argument
previously
rejected by
commenced. This
has
been
California
Ellis,
753]; People
courts
188 Cal.
693-694
P.
Kostal, supra,
Cal.App.2d 444, 451).
precedents
These
are sound.
likely
contends it is
that one who has been incarcerated several
escapes
p05:
months
because he cannot bear further incarceration. This is
sible,
probable
only
expects
guilt
proved
but it is also
one who
his
to be
attempt
escape
stay
at trial will
and that an innocent man will
for trial
liberty.15
any event,
in order to clear his name and win lawful
In
question
escape goes
weight
given
the
escape pending trial,
of time of
to the
to be
evidence of
admissibility.
not to its
In accordance with section
(see People Hill,
1127c of the Penal Code
119-120
Cal.Rptr. 234,
(19
586] [cert.
den.
Juanelda contends the examined court erroneously permitted about her in other robberies and crimes with alleged participation Terry, the Alamo particular robbery.
Evidence of Juanelda’s involvement in the Alamo robbery *31 relevant. Her defense was that at both plainly the Burnett and homi Leong cides she was unaware that had criminal intent until he drew his Terry gun; thereafter, duress, she claimed she under out of fear for only participated her If Juanelda knew about the Alamo this tended to safety. robbery, establish that she to have understood from con ought Terry’s reasonably store, duct at Burnett’s and at the before he drew even Pharmacy Safeway his that he gun, robberies at those planned places. Although proof of involvement in crimes admissible to show prior merely propensity Cramer, 230, 126, for crime v. 67 129 429 [60 (People Cal.Rptr. 582]; 232, 363, P.2d v. 66 Cal.2d 424 238 Kelley, People [57 Cal.Rptr. 947], motive, P.2d or such evidence is admissible knowledge, prove intent when such is an issue in the case v. 44 Cal.2d People Sykes, (e.g., Buice, 166, 769]; 324, People 170 P.2d v. 341 [40 Cal.App.2d [280 Torres, 877]; 189, 480]; People P.2d Cal.App.2d Gonzales, 867, 81]). see P.2d In 877-878 People Cal.App.2d words, it tends other of involvement in crimes is admissible if proof prior “ ” defense’ ‘to matter to be overcome material sought proved 166, and, rebut 170), 44 Cal.2d (People Sykes, supra, particular, Wells, fear” a defense-that a criminal act was done out of “honest (People Witkin, 330, 53]). Cal. Evidence (See P.2d 342 [202 generally, (2d 1966) 303-306.) ed. § pp.
Juanelda also that even if the of the Alamo was argues proof robbery relevant, it was inadmissible because there was no clear and convincing Wade, her with the crime. connecting proof 116]; v. Rosenfield, [1 Cal.Rptr. 243 Cal.App.2d There was such evidence. She admitted she was at the of commission this crime and that she realized that a present had been committed when and his robbery Terry accomplice began loading the car. She there loot into was no clear and alleges convincing proof was a she she in the with principal—that actively participated robbery thereof. But such knowledge was not Evidence proof necessary. of the Alamo was relevant whether or not Juanelda was of robbery guilty time, at that since she learned this incident that robbery concededly was a robber. This of his character tended to knowledge gained her rebut claim of to rob the and the ignorance design Safeway pharmacy. Erroneous Report Newspaper
Effect her new denied motion the court Juanelda contends erroneously Tribune Oakland of an erroneous trial which was based on the ground near December article report testimony. appeared on the had admitted trial, stated that Juanelda end of the guilt after stand that she “had casing robbery knowledge planned incorrect information testified. This stores.” Juanelda had not so article. correct otherwise one isolated sentence—in an sentence—the last article, Juanelda does not read this allege any juror and we must trial, not. At did the outset of the selection presume they during jurors, court, the time of and on the every adjournment very day article in admonished question judge carefully printed fully (Pen. not to jurors Code, 1122) discuss the case and not to read § articles about the case or about trial. any newspaper *32 article, Even aif had read the he would not have been in juror likely it, fluenced since the itself heard Juanelda and would by jury testify have realized that the In was inaccurate. newspaper report event, of the because continual admonitions news about given jury to a before would be entitled new trial because of papers, single sentence she would to forward be come testimony, misreporting required with some evidence—such or more read the as affidavits—that one jurors (Cf. 236, sentence and Kroeger, influenced it. v. 2d People 61 Cal. by 245 369].) [37 Evidence
Insufficiency of Juanelda contends there was insufficient evidence to support verdict her. This contention jury’s merit. against lacks She admitted par in both the and Burnett ticipation There was evidence Safeway episodes. that she was with when he “cased” the market and pharmacy prior to the commission of the She crimes. knew from Alamo that was a robber, and she for his bullets to the bought gun prior Safeway robbery From this and considerable other a attempt. arose evidence inference strong knew, fact, that she before the on both occasions of criminal Terry’s intent. inference, This reasonable with coupled Juanelda’s admissions and evidence, circumstantial was more than sufficient to the verdict. support Newland, Cal.2d 778].) P.2d (E.g., People 681 [104 Judicial Misconduct Alleged
James Williams, who raised Juanelda from was called infancy, her to about various events to her in He testify occurring years. prior was asked to describe Williams, her reactions when Mrs. Juanelda whom mother,
treated as her died 1961. The on the prosecutor objected ground, others, In court among immateriality. overruling objection words, stated: “This could the basis be In other expert’s testimony. are to have to certain facts to I have listened they going present expert. psychiatrists, get can all enough somebody spit- excited about old, that, on the are two when months or like ting you something floor then this is if some and it be that she had they say thing important, may reaction when the died woman factor this be might very important as far as the (Italics added.) is concerned.” next witness expert very called awas relied on Juanelda psychiatrist, diagnosis strongly her as a individual who follow into passive Terry—even might blindly and fear of him. of her love crime—because it could have been is but remark somewhat ambiguous, The judge’s would little weight that the indicating judge give viewed jury would be miscon If so such remark diagnosis. interpreted, psychiatric Brock, P.2d Cal.2d 645 (Cf. People duct. did 889].) did to it and not ask But Juanelda not object the error In such circumstances it. disregard admonition to jury Corrigan, Cal.2d (E.g., can not raised appeal. normally P.2d 953]; People Amaya, P.2d 556 [310 However, 324]; People Avery, could not cure and an admonition that when an objection settled does remarks, failure to object preclude caused by prejudice improper *33 618, 622 Mahoney, 201 Cal. v. People on (E.g., the error urging appeal. Arends, 496, P.2d 507-508 607]; People 155 [318 P. v. Cal.App.2d [258 180]; 166, Zammora, P.2d 532]; et 66 205 People seq. [152 v. Cal.App.2d This Weeks, 514].) 708, P. People [286 v. 104 713-714 Cal.App. obvi would admonition, been had one such a case. An requested, not have clarified the ously ambiguity. Instruct on
Failure to Accomplice Testimony motion, not, because its the court did on own Terry complains could not convict on uncorroborated instruct the that it testimony jury Code, (Pen. 1111) of an of an testimony § accomplice accomplice (former be viewed with distrust Code Civ. Juanelda—should —namely Proc., 2061, 4). While the such instruc judge required give subd. § Warren, 2d (People tions a case v. 16 Cal. on his own motion proper Catlin, 1024]; v. People see P.2d 169 118-119 Cal.App.2d [104 254 wás a case. The sub 113], very P.2d this not proper question [337 was an To instruct mitted to the was whether Juanelda jury accomplice. have been might about testimony jury accomplices respect Arends, 496, 512- supra, to her. 155 (People Cal.App.2d prejudicial 513).
399 the instructions on need be Ordinarily, testimony accomplice witness is court’s own motion when the given only accomplice Gurule, 854-855 called (People People Cal.App.2d Melone, 459]; People v. Cal.Rptr. Cal.App.2d [162 505]) his codefendant or when a defendant in testifying implicates Catlin, while his own (People confessing guilt Cal.App.2d stand, 255). instance, for all In the latter the confession on the' prac declarant was tical the decision whether the relieves the purposes, jury is little an there When defendant has confessed his guilt, accomplice. him need to about testimony giving accomplice worry prejudicing testi Juanelda for the his codefendant. But here instruction protection witness, denied her behalf, fied in her own not as a guilt. prosecution Thus, instructions. it was not incumbent to testimony give accomplice Green, Cal.App.2d Marrone, out that in points Cal.App.2d 721], in circumstances not from the instant distinguishable case, the court held it was not error to instructions on give accomplice There, here, one defendant admitted the criminal acts testimony. doing with his codefendants but denied he had criminal intent. If we along decided, assume without that Marrone case is deciding properly instructions; Marrone holds it was not error to distinguishable. it give Therefore, does not hold must be it would given. appear that where a denies while defendant testifies in his own behalf and guilt codefendant, the trial it is at most for the discretion of incriminating whether own motion. instructions on his judge give testimony accomplice
Furthermore, even if Marrone required giving instructions instant'case, in the the failure to do so could constitute possibly preju dicial error He confessed stand, and, his on the against as we Terry. guilt seen, have this confession was out-of-court judicial compelled by prior confession and not errors at his trial. by any procedural occurring
Juanelda also contends that the court erred in to instruct failing about in to which jury accomplice testimony regard Terry’s testimony seen, incriminated her. As we have stand, confessed on the and there Terry fore the instructions had to be on the court’s own motion. given (People Catlin, 247, 255.) In view of the other evidence Cal.App.2d her own including confessions the failure to so instruct was testimony not prejudicial. Cross-Examination Juanelda
Scope of of
The court to elicit on cross-examination permitted prosecutor of Juanelda—and over fact that she had sexual relations objection—the of their first date. Juanelda contends that this line
with on inquiry however, that the was not relevant and was It would appear, prejudicial. defense Juanelda had testified she loved her fact was relevant. Terry; to mind, was that her state of caused love-fear respect syndrome her to to his coercion at the caused robbery-homicide Terry, pharmacy yield robberies he was and not to him learn whether planning question That each instance. to the fact in and the pharmacy supermarket prior that her date was evidence with on their first intercourse Moreover, a childlike love. with him was rather than relationship physical of the entire on direct examination Juanelda scope inquiry opened up her with The cross-examination by prosecutor Terry. relationship therefore proper.
Juanelda also about complains cross-examination of part elicited from her the fact that she was by Terry’s attorneys. They denied of her oldest child when she and Mosco Allen were divorced. custody also her about welfare on the claim They questioned drawing payments of with James Williams at a time when she was with living actually living Such cross-examination was she had That Terry.17 plainly impermissible. been found unfit to have of her child and that she was custody guilty welfare fraud were not relevant to of her to Terry. question relationship The cross-examination on these matters was bad an attempt prove character, which cannot be done until and unless the accused first puts Code, 1101, 1102; Witkin, Cal. (Evid. evidence his character. §§ good However, (2d 291-292.) it was not 1966) Evidence ed. § preju pp. Juanelda’s to the line dicial. In each instance as soon as attorney objected did not move no further. Her cross-examination attorney proceeded an admonition and did not strike her answers on these two request points off cross-examination to the cut the court never Although jury. squarely resulted. no error of substance on these two the record reveals topics, Failure to Give Instructions Requested
Juanelda that the argues court’s failure to instruct the jury diminished was error. She submitted four instructions on dimin capacity ished all which were the trial court. This was not rejected capacity, error. There was no evidence that she a mental condition which possessed made her mental state harboring “incapable particular constituting Anderson, element (People of the offense” 366 [46 43])—that is, in the crime of “a robbery, specific Butler, intent to steal” 573 [55 Cal.Rptr. *35 Terry 17 Itis clear from the record that wished to guilty establish that Juanelda was by receiving of welfare fraud cealing aid dependent for families with children while con person assuming an “adult spouse male the role of to the mother . . . .” (Welf. Code, 11351, 1508.) formerly § & Inst. §
401
diminshed
of
703]).
no
at all
Because there was
evidence
capacity
P.2d
421
on that
to instruct
Juanelda,
court was not
the
of
the
on
required
part
332,
Bandhauer,
524,
v.
528
[58 Cal.Rptr.
subject.
178)];
167, 88 S.Ct.
(19
den.
The instruction refused erroneous. If Juanelda because it is properly Code, aided and abetted crimes, (Pen in the two was a she principal §31; Etie, People v. 1069]) and as P.2d 119 28 Cal.App.2d [258 Cain, such v. with murder guilty equally (e.g., People felony Cabaltero, 190]; 216 31 752 People [31 Cal.App.2d Cal.Rptr. 364]). It Juanelda could be an P.2d is clear [87 Cal.App.2d aider and abettor or without ever to take the intent money forming if, other from Burnett or an aider or abettor She was property Leong. with criminal knowledge encouraged, Terry’s promoted, purpose, Holford, or assisted in commission of the crimes. (People 423]; People Belenger, [45 Villa, 918]; Cal.App.2d People Cal.App.2d 128, 133-134 P.2d aids and abets does One who have the fruits of crime. intention (E.g., necessarily enjoying Lewis, statu 461] [encouraging Cal.App.2d tory rape].)
The court also instruction rejected following requested “The Juanelda: intent of defendant Allen to commit a specific robbery cannot be inferred at a because of fact a occurred robbery merely
402 is, course, where she was This of a correct statement of place present.” Hill, Sears, law (cf. People 118; Cal.2d People 938]), Cal.2d [44 Cal.Rptr. being presence but one which, factor others, with would a together that finding support she had the intent to rob or to in assist The in specific robbery. general struction on intent that was was not When specific given adequate. facts, defendant bases his contention of innocence on is en he particular titled to have the instructed on the law as it relates to those jury general facts, Granados, if he submits instructions thereon. proper Kane, Cal.2d 346]; P.2d 698-702 People The failure to Juanelda’s instruction on give particular error, intent was but it of little specific and significance, prejudicial. The court also refused to Juanelda’s instruction on give proposed aof But there was no evidence scope conspirator’s liability.18 presented at the trial from which the could guilt jury conceivably hypothesize either was other than in the of to furtherance the common design killing rob. Burnett killed either to and Juanelda to make their enable Terry without the informed or of escape robbery, police being immediately to identification. reason for the prevent only possible killing Leong must have been to instruction— identification. Since prevent proposed the law—had no the facts of the although correctly stating application case it was People Eggers, properly rejected. (E.g., P.2d 1].) Photos Admissibility Allegedly Inflammatory Both defendants contend the court admitted in evidence improperly six color slides on wounds of Burnett. The depicting body People McNie, Burnett, called Dr. who pathologist performed autopsy how with Burnett died. illustrated his two McNie explain testimony charts, front back of a and human containing drawings respectively form, on wounds. He which McNie had marked locations of Burnett’s testified each had several color about wound. The also extensively slides of Burnett’s nude the wounds. Outside the body presence depicting these slides on their admissi- were to the court to rule jury presented Discussion on When the trial this matter was held off the record. bility. resumed before the six of the slides without jury were objection. displayed proposed 18 The reads: “You are conspirator instruction instructed that where a [or acting jointly who is the commission one of a crime with an act another] commits object conspiracy which is neither furtherance of the crime or intended probable consequence attempt object, nor natural of an alone attain he act, responsible is bound responsibility no therefor attaches to any of his confederates.”
The contend that defendants one of these People objected only slides, the off the record but record indicates that the discussion during Therefore, the of slides. was asked to rule on the all the judge admissibility when the there no need for the defendants to make formal objection evidence, considered slides were admitted after the had in already judge the of ruled defendants. question admissibility against nude,
The
the
are hideous and
photographs
grotesque, displaying
dead,
of
bloodstained
dotted with
crimson-hued
Burnett
numerous
body
Dr.
had
with
McNie
illustrated
testimony
drawings
punctures.
already
the
of
human form which the stab wounds were marked. The
photo
died.
of
were
little use to the
in
how Burnett
determining
graphs
jury
of
medical
But
were
some relevance in
testimony
understanding
166, 170
and so were
v.
63 Cal.2d
admissible.
People
Nye,
(E.g.,
1033,
328,
(16
403
den.
U.S.
L.Ed.2d
P.2d
384
1026
736] [cert.
Cal.Rptr.
20,
I960)];
15,
58
21
86 S.Ct.
Cal.2d
Darling,
Cal.Rptr.
People
484,
P.2d
The
“the
372
of whether
question
probative
value
offered
of
into evidence
preju
possible
outweighs
photographs
of its
dicial effect is a
for the trial court in the exercise
judicial
question
841,
Harrison,
622,
627 [30
discretion” (People
V.
785,
Mathis,
665];
63
381 P.2d
Cal.2d
423 [46 Cal.Rptr.
People
105)];
(17
S.Ct.
den.
majority, requires confession addition, that Juanelda’s In I am of judgments. opinion reversal of her was inadmissible and that the error in admitting requires I failure to grant separate believe that the trial court’s guilt judgments. trial reversal of her also requires guilt judgments. as to death In penalty imposing my opinion, judgments Illinois, under the Witherspoon
must be reversed compulsion with the I U.S. L.Ed.2d S.Ct. majority’s 1770]. disagree the consti- for cause under Bolla excluded juror opinion properly enunciated tutional standards in Witherspoon.
Mrs. Bella’s first statement her attitude toward the death concerning “Iwas feel like I be able wouldn’t to make a decision on penalty the capital . . .” statement not a This sufficient basis exclud clearly for punishment, First, Mrs. ing Witherspoon. Bolla, Bolla cause under Mrs. “in quali T feel’ her statement not be fying that she phrase suggested might Vaughn, certain of precise position.” *38 122].) Moreover, 455 P.2d the statement that “I [78 wouldn’t able to make a decision on the contains capital punishment” the same “I as the statement that cannot serve on a ambiguities capital statement, one, case.” The former the latter in the like “is punishment nature of a as to her to serve on the It is ability conclusion summary jury. to the that she had susceptible interpretation ‘general objections death or . . . conscientious or inflic its penalty religious against scruples Illinois, tion.’ (Witherspoon v. at supra, U.S. at L.Ed.2d p. 785].) Her answer mean p. might also that because of her conscientious about the feelings death find she would penalty distressing to impose such a (People punishment.” Goodridge, Cal.2d Cal. 840 [76 421,452 637].) Rptr.
Mrs. Bella’s next statement inwas to the trial court’s response inquiry if whether were convicted of first could murder she under degree “Well, vote circumstances for the death I believe that penalty; reply beliefs my religious would no.” This statement falls short say woefully too the First, unambiguous demanded Witherspoon. her state response by ment was “I hedged (See People Vaughn, supra, believe.” by phrase 406, 416.) More the statement be importantly, “my religious liefs would no” is say that she has susceptible merely interpretation “religious against the infliction of the death but that she scruples” penalty be able might to set (See aside those Witherspoon or beliefs. scruples Illinois, 510, 515-516, supra, 391 U.S. fn. L.Ed.2d 781 782, 784].)
Similarly, court’s next that “You feel beliefs your inquiry religiously that?”, are against “Yes,” to which Mrs. Bolla hedged replied “I (People feel” phrase Vaughan, 413) Cal.2d and asked her about her religious only. scruples
In to the defense response counsel’s she could whether inquiry impose the death in a case which felt she in her own mind was a one penalty proper death Mrs. Bolla “I think it would be rather hard penalty, replied, that, for me to.” The of this statement is such deci- although implication her, sion would be “rather hard” for Mrs. Bolla could in some cases return distaste “a statement, reflects strong which merely This a death verdict. the stand- sentence,” not meet does clearly a death of imposing prospect Fain, 588, Witherspoon. enunciated ard if considered that response, themselves concede The majority “[t]his circumstances under some itself, she could left open possibility However, 380.) go (Ante, a death . . .” return p. penalty, con counsel when defense was eliminated “but that assert: possibility return could whether she and asked in effect tinued his questioning if to do even if felt it was the thing death proper penalty ” I could.’ reluctance, T don’t think and she she did so with replied, great I could “I don’t think difficult how the (Id.) It is to understand reply juror the death can eliminate the possibility [impose penalty]” when this court some a death could under circumstances return penalty, *39 an un constitute has held that this statement does not repeatedly very under any to return a death ambiguous inability expression penalty Osuna, 462, 759, circumstances. v. (People 768 Cal.Rptr. Chacon, 772-773; 678]; 765, 452 P.2d People v. Cal.2d 69 Cal.Rptr. 10, 106]; 857, Hillery, see In re Cal.2d 733, P.2d that Chacon and Osuna stating to distinguish by majority purport think so’ in T don’t is not a case where the venireman answered
“[t]his a con- In such to the ‘if he could the death reply question impose penalty.’ Chacon, text the answer been as has regarded ambiguous. Osuna, 772-773; Cal.2d 768- Cal.2d see People also Chacon 769.)” is that (Ante, 380.) The of this statement p. implication Osuna were where the states juror limited to the situation narrowly “I don’t think so” in he could to the “if reply question impose precise death because it in “such a context” was only was made penalty”—that the answer regarded ambiguous. statement, to the Chacon of the both
Contrary implication majority’s and Osuna whole or in the answers quoted—in given by part—only which the neither case set forth the jurors; prospective precise question Osuna And when Chacon and one reads the jurors responded. language clear it becomes that these cases were with the ambiguity concerned answers, in jurors, inherent the statements caused the ambiguity by by excused a “think.” In Chacon we held the word prospective improperly answered, he could “who T don’t think when asked if impose so’ juror or no unambiguous yes He was allowed an death not to give penalty. Osuna, 772-773; added.) In italics (69 answer to the Cal.2d question.” Chacon, we held relying upon excused four improperly prospective jurors “who stated that did ‘think’ they could the death impose but none an answer penalty, unambiguous to the gave [of whom] question he could (70 768; whether or could not so.” added.)1 do italics case, In the instant Mrs. Bolla stated “I don’t think I when could” asked whether she could return the death if felt she that it were the penalty proper to do even if would thing with do so reluctance. Like the great prospec- Osuna, tive Chacon Mrs. jurors Bolla did not give “unambiguous answer” when asked whether she could the death A impose penalty. pro- spective juror’s he does not “think” he could when asked reply whether he answer; could ever the death is an it indicates impose penalty equivocal that the juror has some doubts as to and is not cerain in his own position mind that he could not the death Such an impose re- penalty. equivocal sponse is not the clear” simply statement of automatic “unmistakably oppo- Illinois, sition demanded Witherspoon. (See Witherspoon 510, 522, 21.) U.S. in.
Until the People recent decision in Floyd, 726 [83 64], Burke, written Mr. Justice this court had never held that a statement of death opposition penalty hedged by words such as equivocal “think” or “believe” satisfies the Witherspoon of an of automatic requirement unambiguous expression to the (See death opposition penalty. my dissenting opinion *40 Floyd, supra, 694, 732-733, 1 Cal.3d 1.) Floyd fn. The in majority ignored the cases that answers the term were prior holding “think” am hedged by and, in biguous (see both in stating unnecessarily my incorrectly opinion, id.) that is “I believe in juror excluded who answers so” properly response to the he death whether would unable to return a question penalty 726.) verdict regardless (1 of the evidence. Cal.3d at p. Floyd the set forth in
By above broadly by applying proposition Osuna, the of Chacon and the narrowly restricting holdings majority in obviously the the California latter cases: rule overruling Apparently henceforth is that a does not “think” statement he juror’s prospective Hillery, 857, 863, supra, prospective 1 In In re stated that we “[the scruples concerning juror’s] expression imposition capital punishment first of of statement, ‘Well, appeared anyone in her I think I death.’ have don’t could send We itself, not, by Witherspoon requirement satisfy the such a statement would held that unambiguous inability death expression imposing of an absolute consider added.) ....)” (Italics (People v. . Chacon penalty any case. Osuna . . in juror making prospective responded, in question We set to which then forth juror’s response was made com point context in which the additional already juror’s in statement pounded ambiguity present we had found itself. could the death satisfies the constitutional standards
he impose penalty Witherspoon. in enunciated “viewed'as assert that when Mrs. statements are majority Bolla’s
whole,” her automatic under circum to the death penalty opposition I (Ante, 380.) made As have stances is clear. pointed unmistakably p. above, unam out one Mrs. Bolla’s statements constituted to the death under biguous expression past opposition penalty Rather, of this court. indicated holdings one of Mrs. Bolla’s responses that she could return a death verdict in some cases every single one statements of to the death were opposition hedged “[h]er penalty think,’ feel,’ T believe,’ such as T T .” phrases . . [and] Vaughn, supra, 416.)2 71 Cal.2d It is difficult to see how the of these statements can result combining in the clear” state “unmistakably Witherspoon ment that demands. I would hold that de “[h]aving firmly Witherspoon clined to the sort of give ‘unambiguous yes or no answer’ required Chacon, (Pe ople supra, 765, 772), 69 Cal.2d [Mrs. Bolla] excused.” (People v. Vaughn, 406, 416.) improperly 71 Cal.2d The error in one excluding juror violation of the standard enunciated Witherspoon (In automatically reversal of the death sentence. requires Arguello, re 71 Cal.2d 921]; 14-16 452 P.2d [76 Cal.Rptr. People Bradford, 346-347 450 P.2d I Thus would reverse the because of as to penalty judgments Witherspoon error.
There is another error reversal requiring of Terry’s judgments. penalty I Although agree that the conceded violation of under Terry’s rights Aranda, People v. 265], may [47 Cal.Rptr. be deemed reasonably harmless as to his I must dissent guilt judgments, from the majority’s conclusion that this error was harmless as to the penalty *41 judgments. prospective juror 2 The Vaughn, held improperly excluded for cause in 406, 412-417, 71 Cal.2d predict any able to how she would vote in case whatever insofar as she was able to state that “believe” she did not or “think” that bring could ever in she a penalty. Similarly, death unequi Bolla never stated Mrs.
vocally that she could not impose ever only penalty, the death but that she did not Vaughn Beivelman, “think” she could ever do distinguished People so. V. 70 Cal.2d 60, 78-79, Cal.Rptr. 913], fn. jurors were prospective P.2d where the unequivocally able to state they that penalty any would vote never for the death in predict case whatever—to they how would qualifying predictions vote without their equivocal by such terms as “think” or “believe.” note,
As the correct assessment majority any of the of an Aranda impact error must of all of “weigh prejudicial impact significant effects that be assumed may to have stemmed reasonably from the erroneous denial of trial,” a and we must reverse if separate there “a is reasonable probability that the defendant would have obtained a more favorable result at a sepa Massie, rate trial.” (People at 922-923 pp. And, note, as the also even if an majority error as to
nonprejudicial guilt, we must reverse a penalty death verdict in the face of substantial error which could have affected result. Hines, also, 398]; 168-170 see Penalty Death (1968) Cases 1434-1441.) Cal.L.Rev.
In relevant describe the of the Aranda error part, majority impact as follows: “If the court had ordered a severance when the Aranda correctly itself, problem would presented case not have heard Terry’s jury Further, Juanelda’s extrajudicial confessions. have would not probably him, heard her around, that her that she was afraid of testimony Terry pushed and that had their intercourse on first date. There was also testimony beat Juanelda on Terry one occasion and that threatened he to kidnap If her. there had been trials have Juanelda would not separate probably him, testified Since she loved would in- against Terry. have probably testified, voked her against self-incrimination. Had she Terry privilege would have entitled been to instructions that her as that of testimony, Furthermore, there should be considered with caution. accomplice, trials, been would have separate Terry’s attorney brought probably out—as he did on cross-examination of Juanelda—several crimes prior (Ante, 387.) and Juanelda allegedly engaged together.” p.
I would add this Aranda error Terry’s effects of description case the fact have removed from evidence— jury severance would Juanelda, that to Juanelda’s duress dominated relating theory—that Terry life submissiveness, he to coerce her into used her her love youth, of vicious and brutal crime. “were error substantial
In these incidents of Aranda denying assert 388), (ante, majority blandly could have affected result” p. affect the death “the did not penalty evidence in question, reasonably, trial that verdict. was "evidence at the There introduced penalty evidence, evi- and the numerous In view of this had committed priors. introduced, Juanelda’s of the two brutality dence killings, properly her court were and even testimony, insignificant confessions extrajudicial fact, trial, In did not the penalty Terry’s attorneys unimportant. or a man. argued that he was a vicious killer They deny depraved *42 form of that was due to a mental illness that he this condition (Ante, 388.) sudden fury.” uncontrollable outbursts of p.
It not at is clear that would have did argued Terry’s attorneys the trial had a if a severance trial been Even penalty granted. separate tactics, the would not have the trial altered argument attorneys’ penalty of is resolution the harmless error unsatisfactory. majority’s totally question a we of defendant’s now have evidence that introduction Although empirical (A verdict the that he will receive a death priors heightens probabilities Study (1969) Penalty Jury First-Degree-Murder Cases of California 1326-1330), the reason Stan.L.Rev. has altered nothing Hines what criteria harmless our virtual as to error rule: penalty ignorance Hines, ex (Id., 1420.) are we In single applied any jury. penalty p. render amined trials which of inapposite unique aspects penalty rule harmless error which guilt “reasonably applicable probable” a with errors. Because of the absolute discretion afforded jury presented material,” “a of which mass because “[t]he prompts precise point not even to us and in mind of one is not known may penalty juror “ the effect of error him,” to assess known and because ‘[t]o attempt an one untestable surmise in this vacuum is to upon legal superimpose ” “ ” error,’ since other,’ we substantial reaffirmed the rule ‘any been to have have a must be deemed preju reasonably may swayed juror, 168-170, cited.) (61 dicial. Cal.2d and cases at pp.
Whatever have would been the result if the incidents of an Aranda only violation were the introduction Juanelda’s and confessions evidence several I submit it defies to assert that evidence priors, reality a coerced and a submissive into life of homicidal crime could young girl not have a on issue of It bears em reasonably swayed juror penalty. that the concede this evidence have would been phasis majority probably absent had Aranda a vindicated severance. To been Terry’s deny rights that this evidence could have affected his death verdict and reasonably affirm that basis is to “pile conjecture conjecture upon posit the decision of or life death Terry, upon pyramid guesses.” I Accordingly, would reverse alone. verdicts because of Aranda error Terry’s penalty
As to Allen, Juanelda should be judgments reversed. guilt In the first the Escobedo-Dorado place, to her was insuf- warning given ficient and as a law, matter of and in the incomplete second place, record shows that before did confessing knowingly intelligently waive her constitutional Her inadmissible, confession was therefore rights. and the error in it was admitting reversal of the prejudicial requires her. judgments against
410 discloses exact words transcript given to her warning before she confessed. The and officer told her after her arresting interrogating arrest that the to wanted “and that if do want police interrogate you to answer the entitled to an are have This questions you attorney present.” course, insufficient, was and incorrect. Of she was warning incomplete entitled to have whether to answer an or not wanted attorney questions. a to an To hold that that the accused was entitled have warning attorney if she decided to answer is sufficient to reduce the only warning questions to a (People mere “ceremonial formula.” is v. Such a warning inadequate. Ford, 480, 556].) As said in that 489 was [44 Cal.Rptr. Cal.App.2d to as case accused is entitled “full advice to with full compre rights, what counsel at hension of consist.” The basic for requiring purpose to advice as is to enable the accused secure stage interrogation expert so, all, to whether he make and if of what nature. should comments 977, Illinois, 484-486, 478, L.Ed.2d U.S. In Escobedo 490 [12 982-983, 985, that the to 1758], it indicated 84 S.Ct. right clearly from obtain advice to and to counsel was consult with an attorney right to whether decision as could make an him so that the accused intelligent Arizona, In Miranda to self-incrimination. exercise his against privilege 1602, 721, A.L.R.3d 694, 86 S.Ct. L.Ed.2d 384 U.S. 470 [16 to to counsel includes 974], that the “right it was held right expressly of the Escobedo A to consult with counsel comparison prior questioning.” Miranda from that this last quotation Miranda demonstrates opinions which are that case stated in rules not one of announced newly it was. as was decided retroactive, Escobedo not but why explanation set forth stated rules to the newly Miranda is retroactive as not Although Rollins, Cal.2d 681 in that Cal.Rptr. (People opinion to with counsel 221]), prior consult P.2d it clear that the right is quite thereof, under the rules existed advised and the interrogation right the instant Escobedo, times in relevant at all and so existed announced in case. It is true that Escobedo-Dorado has held been purposes warning “ sufficient if tells the accused that ‘right officer he has a interrogating ” Thomas, . .’
to an
.
704-705 [56
attorney,
(19
U.S.
L.Ed.id
den. 389
[cert.
233]
140)].)
not
S.Ct.
But such
broad and
mislead-
is
general
language
It
here
that the
does
does
suggest,
right
ing.
warning
given,
It has
is limited
circumscribed as to time
counsel
uniformly
place.
when the
is
conditions
been held that
rendering
accompanied by
warning
Escobedo,
is insufficient.
than the
it more limited
right
guaranteed
Even if the were sufficient there is no evidence that Juanelda warning and waived her constitutional She was an knowingly intelligently rights. immature minor of 17. While it is true that a of this court have majority minor, case, held that a ain waive constitu- may proper competently Lara, tional rights (People [62 Cal.Rptr. (20 2303)]), den. U.S. L.Ed.2d
202] 88 S.Ct. [cert. determination of whether a has minor waived those is rights governed by 381). rules much (id., stricter than those to adults In the applicable p. case of minors this court is to consider of circum- “totality required stances” In the circumstances” waiver. of surrounding minority “totality ais most factor here more than but there was much minority important alone. Juanelda was a of a race. She was member minority peculiarly immature. She was time confessed. for some before she No grilled friendly adult was addition, In her was fact that the present. warning given incorrect, if and is suf- not on the scales must misleading, weight heavily ficient to them in of her when of the “totality favor considered tip part circumstances” under which the confession was secured.
The circumstances under which this confession was obtained are accu- described in Juanelda’s rately brief as follows: “We have here a opening young, old, seventeen year immature . . . Negro who is girl abruptly arrested and handcuffed a of horde Police officers her entering apartment with course, . This, her, drawn. . . it, guns makes as she termed ‘more nervous than . . . She is then anything.’ Police quickly transported Station and in a 8'x 10' room with placed no windows and a peephole in, allows one to see but out. not to see . . . She not told how long will be there or Court, when she taken to will be nor is she infor- given any mation her call her or concerning ability place telephone family to anyone else for aid or . . advice. . She is drilled intermittently by [jv'c] officers in and out and her alone various coming leaving periods . environment. . . . . She is alone in an
time. . antagonistic completely she has to what Without get rights ability explanation specific funds, . . limited education . lack without counsel and advice and her passive personality maturity, judgment, non-aggressive or .' did her to sufficient determination . . exercise ingenuity permit *45 in this environment she needed obtain the counsel and which to support the facts which and not sure that the whole was to be just presented story the Prosecution.” helped of
Moreover, knew or was advised there is no evidence that Juanelda her. available to elements of of the defenses the first murder or degree Lara, Cal. 2d (People supra, warnings While such are not indispensable offense, and of the 376), of the nature Juanelda’s certainly ignorance of coercion, the of the defenses of and is duress “totality part possible that her waiver considered, circumstances” to be and bolsters argument that uncontradicted was and Her unknowing unintelligent. testimony held could be when she was that she arrested did not know criminally the for committed responsible killings by Terry. Hildabrandt,
The caséis indistingushablefrom People Cal.App.2d There an of subnormal 99]. 18-year-old boy intelligence confessed after an hour of the police grilling preceded by general warning that he had “a (Id., 426.) to have an at with him.” right attorney present p. court, The after the examination appellate making required independent (id., of the 428) record the counsel at to determine whether waiver of p. made, had been and that the facts the found under knowingly intelligently was insufficient and was as a mere general warning given formality, a that as matter of law the had failed to meet its burden of prosecution Davis, on the issue. 66 Cal.2d 181 [57 proof the The court mentioned accused’s lack of experience state, the his with and the shabbiness and mental police, physical youth, that (244 431) and came to the conclusion warning Cal.App.2d p. there had waiver. not been knowing intelligent a reversal of the
There error is another judgments requiring prejudicial as to Juanelda. discloses
As out the in the transcript majority opinion, reporter’s pointed motion for a severance. The trial counsel for Juanelda moved that to prior When the trial became denied, tried was and the were judge jointly. parties Aranda, rule announced People supra, aware then recently for reasons to a severance he refused majority grant however, contend, that The to hold majority correctly inadequate. Massie, In trial was not to her a failure prejudicial. grant separate effect 899, 921, court in discussing prejudicial a to trial stated one test dif- was grant “significant failing separate ferences from the trial that would have occurred if defendant had joint been tried . . standard fail this but separately, recognize majority to apply properly. this standard in mind it is that if ever defendant
Keeping apparent trial, it was Had defendant Juanelda Allen. the trials prejudiced by joint been have to cross-examine counsel would not been able Terry’s separate Juanelda. The record in effect demonstrates that attorneys Juanelda as if not more so than did prosecuted effectively prosecutor. it was the in a effort to save counsel Apparently their plan Terry’s desperate life, client’s first try prove although guilty murder, Juanelda was in that she degree helped actively equally guilty, in, al- crimes. counsel plan, argued participated Terry’s *46 Juanelda, their client of murder was and was first so though guilty degree since because of her could be she not the death youth, given penalty, should death who not sentenced to either. It was sug- attorneys Terry’s Juanelda stabbed Burnett. On trial gested Terry’s attorneys guilt devoted their entire to first convictions murder argument degree securing of Juanelda. It was in cross-examination attorneys who out Terry’s brought Juanelda, of before it could be halted that she had been by objection, of denied her and had of a welfare child been custody probably guilty (at fraud. Other facts not of which the was aware prosecutor apparently out) least he their did not them were counsel in bring developed by Terry’s cross-examination of Juanelda. brought damaging subject They up very of for Burnett Juanelda bullets revolver after the killing, purchasing Terry’s but intimated that before also Safeway episode. Terry’s attorneys Juanelda had had with with gone actively target shooting Terry, planned In him the a in Oakland. Alamo and instigated burglary robbery, words, other Juanelda not evidence counsel against Terry’s produced known to the prosecution. cross-examined the Terry’s called attorneys Juanelda psychiatrist
more than effectively did the It was prosecutor. who elicited him they from the admission that Juanelda had the and to aid and ability competency abet, and that the on direct went to motivation. psychiatrist’s testimony only It is clear that had trials held been of Juanelda separate prosecution would have been different from the trial. Because of the vastly joint joint trial, were there three Juanelda from two different attorneys prosecuting of view information, sources of points who were two chances given to her guilt to argue as well jury, as two chances to cross-examine her. This demonstrates eloquently how and why aby joint prejudiced trial. What at the happened joint trial tended to obscure Juanelda’s main
defense, intent at either of the that she did know of criminal Terry’s of draw his and that she aided him out crimes to him revolver prior seeing admitted evi- fear once he had drawn his there was Although gun. properly had been that Juanelda knew robberies dence strongly suggests planned was to the effect testimony both places, produced psychiatric follow that she and that she would blindly was immature and submissive about it. man she loved without thinking circumstances, a at her not have fair trial such Juanelda did Under joint a reversal. The trial. with the other errors this deprivation requires Coupled Sarazzowski, course, is, fair of trial a miscarriage justice. 7,11 Juanelda; as error to I conclude that there was Escobedo-Dorado counsel; that her con-' no of her that there was waiver right intelligent have admitted into secured and should not been fession was illegally trial; evidence; and that these she was denied erroneously separate her. a reversal as to were errors require prejudicial to Juanelda Allen Thus, as I reverse the would guilt judgments relate insofar as penalty. only judgments denied a rehearing April appellant Terry petition Peters, J., to read as above. and the was modified printed opinion *47 should granted. petition opinion