*1 Appeal People by him for the opinion prepared Court of Cal.Rptr. my opinion (Cal.App.) 55 471. In Rolon there was (Cal. prejudicial Const., VI, ). art. error § May 23, 1967.] No. 10267. Bank. [Crim. Respondent, THE PEOPLE, Plaintiff and v. LAWRENCE MODESTO, Appellant. GLENN Defendant and

699 Parsons, appointment Supreme E. under Russell Appellant. and Court, for Defendant James, Lynch, Attorney General, William E. Thomas C. Attorney Sokolow, Deputy Norman General, and H. Assistant Respondent. Attorney for Plaintiff and General, jury time, a found TOBRINER, J. For the third has degree guilty of the first murders Connie defendant appeal Mary penalty fixed This is Mack and has death.1 (Pen. 1239, (b).) Code, subd. automatic. § possible suggests us seven The record bases for before reversing judgment examination, we below. After careful find them all without merit. to be (1) that the trial court We examine here the contentions change granted for defendant’s motion should police venue; (2) statements should that defendant’s ground judgment first reversed on the in tlie trial was 1The jury refusing on issue of man trial court erred slaughter. to instruct (People (1963) Cal. 225, Modesto Cal.2d 722 [31 Rptr. v. 59 guilty 33].) jury two found P.2d defendant retrial, Upon time was sane at of first determined murder, counts again fixed the on each count committed, was penalty each crime ground judgment on in the trial was reversed at death. second from the statements obtained the conviction rested part (1964) v. Illinois 378 U.S. 478 [12 of Escobedo defendant violation (People v. Modesto Cal.2d 977, 1758], S.Ct. 398 P.2d Cal.Rptr. 417, November the trial court retrial, 12, 1965, The ease was set for and on change prejudice for of venue. The without defendant’s motion denied jury February 14, 1966. On defendant on impanelled February guilty guilty on insanity; reason entered of not pleas guilty charged. as On March found March defendant granted to withdraw his insanity plea. defendant’s motion the court proceedings the issue of the court penalty, day, The next after jury’s judgment determination with the accordance pronounced for of the two murders. of death each penalty should suffer manslaughter gave in- the court requested In the present trial, complying law this ease established with the thereby structions, 722; made 59 Cal.2d Modesto, supra, by People re which were held inadmissible introduce the statements attempt 436. Cal.2d supra, People Modesto, *5 adduced excluded; (3) that the evidence have been support first prosecution a conviction of failed to erroneously trial court limited defense murder; (4) that the improp- (5) prosecution closing argument; counsel’s guilty by suggested that, if the defendant were found not erly “set free” rather than con- insanity, he would be reason of (6) errone- institution; that the fined a mental upon defendant’s failure to take the ously commented improper prosecutor’s references to stand; guilt trial two trials infected both the the defendant’s first Preliminarily, we penalty trial error. and the with reversible at defendant’s trial. the evidence introduced summarize Phase Guilt p.m. 28, 1961, Mr. and approximately 10 on October Mrs. At daughters their two in bed went to a bar Ardel Mack left Upon guitarist in a dance band. where Mr. Mack worked as a returning a.m., Macks found their nine- home around year-old lying A daughter, Mary, on the floor. trail blood dragged body had been near her dead indicated she badly head had after her face and been short distance beaten. Mary’s sister, Connie, have celebrated her who days disappeared. birthday later, had thirteenth several top lying usually wore to bed was on brassiere which she floor; brassiere,

her blankets sheets on bedroom blood, stained with blankets, and the sheets were were pillow. underpants similarly Her Connie’s mattress and apparently put although had them on bloodstained; she before going 28, they were later discovered stuffed to bed October Mary’s toy next to a in box at the foot bed.

Suspicion immediately defendant, a focused spent preceding day drink- family most friend who had During ing Mr. the afternoon of October beer with Mack. up home; picked drive her she refused the two men Connie to her front next to the defendant until father to ride in the seat taking home, the men insisted that she so. After Connie do drinking. their Later that drove around town and continued bar; evening Mack at the around defendant saw Mr. misunderstanding with after a p.m. defendant left 10:30 pay drinks; he knew the Mr. Mack was to for some over who plan until 2 did not to return home a.m. Macks approximately was arrested at his home The defendant Asleep bed, wearing a.m., in his he was 2:30 October 1961. only pair hands, of shorts. His as well as the a bloodstained clothes strewn about floor his room, were stained with right right blood, fender, rear as were rear door handle, mat, and the floor the rear seat of his ear. The blood appeared by body moving on the to have been smeared seat in many directions. Semen stains marked T-shirt, trousers, wearing. the outside of his and the shorts he was sledgehammer four-pound Officers removed a with a head ear; analysis from the trunk of defendant’s closed chemical dis- heavily hammer had been smeared with blood but had been washed. began question

Police a.m., defendant around 6 after an body begun. intensive search for Connie’s Officers *6 suggested might to the defendant that still Connie be alive and that, help her, they might if he could them locate be able respond save her did life. Defendant immediately, but after a few minutes of silence he said “Water.” Several added, minutes later he 62 and “Avenue the storm drain.” telephoned Officer immediately Captain Mabbitt Brooks and suggested that the search be extended to include area by indicated the defendant’s remarks. Approximately later, two hours several officers took the drain; defendant to the storm he showed them where Connie had family attorney fallen in. An by contacted the defendant’s represent then arrived him; to in he the defendant privately police conferred joined car and then in the search. along As the defendant walked bank the storm together drain with attorney police officers, three he parked said that had his automobile at the drain and had dragged body Connie’s from his car to the culvert in order to wash face; some blood off her he said that she had somehow slipped through corrugated into water pipe, metal he could not see her had searched for her moans, but could hear her and that he going without success before home to bed. Soon after the defendant had made these statements, the officers learned body that Connie’s had been discovered drainage moments earlier ditch downstream from the point at which said she had fallen into the water. She was naked waist; parallel below the four about scratches length high two inches portion were visible on the outside right thigh, her and five similar scratches could seen be on corresponding hip. pathologist area of her left A testified that the by finger- scratches could have been caused human fingernails ; nails defendant’s caked were with blood at the Although hymen

time of his arrest. Connie’s had apparently ruptured, pathologist been could not state whether or not sexually body she had been since her had molested remained moving in rapidly water over nine for hours. Autopsies girls showed that severely both had been beaten heavy object midnight. with a metallic sometime around Mary’s injuries resulted from brain multiple death caused Although skull fractures. cause of immediate Connie’s injuries drowning, death was her head would likewise proved injuries Many girl’s fatal. to each head sledgehammer. could have been inflicted defendant’s The defendant’s admitted that wife her husband had away shortly midnight driven from home before and had blood; time covered returned some thereafter with he had by referring attempted “fight” to account for blood with an unidentified man. The wife testified that fight she later discovered that had no such occurred. prove prosecution sought killings to (Pen. were 189) murders the first Code, ground § and they wilful, deliberate, either premeditated, were or perpetrated during the attempted commission burglary, rape, or an child-molesting commission act of punishable under Penal section Code 288. Defendant did not testify. theory of defense defendant, The central was that the killing

far either Mack sisters, from fact tried to argued save Connie’s life. Defense counsel that the defend ant, alcohol, inexplicably his mind clouded from decided midnight shortly before to drive from his home to the Mack up” order *7 girls; upon residence in to "check on the that, two arriving destination, lying Ms he saw at Connie wounded on house; put front of her the lawn in the he into car his driving nearby doctor; with the intention suddenly her of to a that he stop the decided to storm drain to wash some dragged body face; blood from Connie’s her he across that, shortly thereafter, for that and purpose; the road somehow she slipped According theory, into water. this to the find tried vain to her she drowned defendant before but gave up soon and with returned home covered Connie’s blood. upon theory, entirely Defendant’s which rested unfounded speculation, hardly successfully could be reconciled with his including anyone, alert his to wife, failure to the fact suggested possible still might alive; theory Connie be defendant, had who, of if not the key question to answer for defendant’s did not account sisters; it Mack attacked the wife; it left unex- attempted exculpatory statement his it clothing; his and stains on presence semen plained shorts, the his blood for the blood could not account car, which his the blood rear seat of smeared over the which had been washed fingernails, or blood his encrusted sledgehammer. from his defense, primary Recognizing bis line of the weakness of sought establish that the defendant for defendant counsel killings if that, even time of the at the was so intoxicated requisite formed the assailant, he not have could had been the by any of the felonies enumerated kill commit intent to or to the defense prosecution. The evidence adduced testimony that largely of consisted connection midnight quantity beer before had a substantial consumed people several appeared drunk to who and that he somewhat evening. Based tests his behavior observed alcohol level at 3:30 a.m showing that defendant’s blood that, expert percent, a medical testified approximately was assuming .15 had consumed no alcohol after the defendant girls at the his alcohol level time p.m., 11:30 blood expert high percent; as .20 testi- could have been as killed average level of would individual this alcohol fied that markedly impair coordination, acuity, visual muscular judgment. prosecution’s regard in this evidence convinc- The although ingly that, the defendant had been demonstrated through- in full his faculties drinking, he remained control of night morning. out There was no demon- evidence intoxication, was, in strating such as it that the defendant’s plan any way impaired ability to formulate action or significance. comprehend its rejected surprisingly, both theories advanced Not finding the defendant and returned verdicts defense guilty degree of two first murder. counts of

Penalty Phase During penalty phase prosecu trial, prior including convictions, tion introduced evidence nine grand (Pen. Code, § 484), burglary for two for one theft (Pen. (Pen. Code, § 459), for second murder one " § 187). Code, called three women to the witness also September Medina, that in first, stand. The Miss testified *8 raped

the defendant her and threatened kill to her if she went police;' second, Barnett, Mrs. testified that December 1960the defendant threatened to harm her two-year- go old son unless she would for a “ride” with him; third, Kelley, Mrs. testified to details of degree the second murder imprisoned for which had defendant been in 1955. Kelley Mrs. the had been a witness to that murder; she said that killing purchase followed the victim’s refusal whiskey for the virtually defendant. After defendant had decapi tated his victim, Kelley got he Mrs. told that “he a thrill out killing. enjoyed very He Kelley it much.” Mrs. testified further that the defendant then having boasted of killed four others and threatened to make her his next victim because he " ’’ couldn’t leave a witness. The testimony relied of Miss Medina strengthen argument Mrs. Barnett to its that the defend- probably ant entered Mack home with the intent

gratify urge a sexual with Mack; testimony Connie Kelley employed support prosecution’s Mrs. tion was posi- probably that the Mary killed Mack because had she witnessed did whatever he to Connie. The defense presented no counter the evidence to ease thus constructed the prosecution; penalty fixed the at death. Publicity

Pretrial alleged itself, reaching Before errors the trial discuss defendant’s contention that we threshold the trial granted change court his motion should have for venue ground on the that he obtain fair trial in could not River (Pen. County. supported Code, 1033.) side Defendant his § illustrating inflammatory with newspaper motion exhibits coverage of his first two trials and court’s reversals of judgments argued that, therein. He as a result of such prospective jurors publicity, must have known of his extensive including record, criminal the fact that at the time of the parole judg on the instant case he was from a homicides degree murder; ment of conviction of second he had killing confessed to the two victims this case and had previously having been sentenced to death for murdered police thought them; that he had told “he intercourse judge of them”; with one and that the at the first trial had jury’s agreement with indicated conclusion. newspaper supporting articles defendant’s motion spanned period of over a decade. The first dealt with published second murder trial on 1955; last, published May 18, 1965, April 29, discussed *9 prohibiting a defendant’s rule comment on silence the (Griffin (1965) v. 380 609 L.Ed.2d 85 106, U.S. [14 California impact upon 1229]) possible and S.Ct. coming its defendant’s forth trial court denied the motion without retrial. The During prejudice 12, proceed 1965. voir on November dire jurors prospective ings, properly the court admonished all reading listening any or news refrain from about the case might which it. broadcast mention points indicating any specific that Defendant to no evidence juror finally as in

person to serve was fact influ selected reports newspapers adversely by articles or in the or enced argues only possibility preju that media; he the other pervasive was that trial court diced the abused its so pretrial change denying in venue. discretion the motion On appeal in the conviction obtained defendant’s second from rejected (People Mo precisely this v. trial, contention. we Although desto, supra, pp. 442-443.) 62 Cal.2d at canwe longer say, trial, as could after defendant's second that we jurors difficulty experienced securing in who “no were 443), publicity” (id., p. find aware of earlier not no the we jurors significance ultimately in the fact several of the having of the or of selected recalled read accounts crime previous courts, encounters defendant’s with the since the accepted jurors panel final defense exhausting such the without peremptory challenges renewing its and without every change significant its motion to venue. pertinent argu respect, facts therefore, to defendant’s rejected they when we ment the same now were are disposition argument previous appeal. on defendant’s Our pursu trial, defendant’s contention after his second identical case, thus doctrine of the law of forecloses ant to the relitigating (See People (1964) v. Terry the issue at this time. 137, Cal.Rptr. 605, 381]; 61 390 P.2d cf. Peo Cal.2d 151 [37 Hillery Cal.Rptr. 280, ple (1967) 795, v. Cal.2d [56 208].)2 423 P.2d 2Although intervening apply if an would not decision doctrine (People Terry, applicable legal principles v. altered clarified 9), supra, p. The 61 Cal.2d at 151 fn. no such alteration occurred here. (1965) cases of Estes v. Texas 381 U.S. 532 L.Ed.2d recent 1628], Sheppard v. Maxwell 384 U.S. 333 S.Ct. eases, ruling 1507], In both dis 86 S.Ct. not affect here. do prevented ruptive activities courtroom were held to have Sheppard process calm and due demands. While concentration which

Introduction of Defendant’s Police to the Statements similarly of the law of the case defeats The doctrine challenge admissibility effort to body was discov statements made before Connie’s primarily concerned with ered at time when the officers were recognized possibility rescuing We on defendant’s her. previous appeal retrial; would arise on we held that this issue “paramount saving life, possible, if interest her justified impeding their clearly rescue the officers rights silent by informing to remain efforts defendant of Since these statements were of counsel. assistance voluntarily lawfully obtained, is no basis for there made (People Modesto, supra, their Cal.2d exclusion.” supra, 319, 328.) 446; People Jacobson, 63 Cal.2d see also supported amply presented retrial evidence judge questioning the trial factual conclusion locating primarily with police concerned *10 that, properly recognized missing girl.3 The trial court the predicated prior ruling our which we since the facts holding ruling precluded the that unchanged, remained intervening decision No inadmissible. statements defendant’s law;4 rule that therefore applicable rule of altered the only the put it, law of not judge “the trial remained, as the ’’ State, of this ease. but explicitly length, declined to hold pretrial publicity it at court discussed (See process. publicity of due a denial in itself worked that such U.S. (See People 616.) p. v. Jacobson p. 354, also 16 L.Ed.2d at 555].) 515, Cal.Rptr. 319, Thus the (1965) 405 P.2d 325 [46 63 Cal.2d accused, requires such as under circumstances governing these, the still rule showing prevail; has been prejudice no such in order to to show attempted here. questioned him him did not take who that the officers *11 question sufficiency of the no of 5There is course evidence to identify assailant. the defendant suggest presented was to the defendant 6Nb evidence suffered permanent impairment, temporary, ability any either his from to (cf. contemplated gravity People of his act v. Nicolaus reflect 635, 787]; Cal.Rptr. (1967) People 423 P.2d [56 65 Cal.2d v. Cal.Rptr. 777]) (1967) comprehend 65 Cal. 850 P.2d inor his Goedecke duty ability his to conform conduct to the to commands Conley (1966) society (cf. People Cal.Rptr. 815, Cal.2d 411 P.2d tending support any evidence whatever such a contained to theory transpired, what we would of course conclude that gravely prejudicial depriv- court committed the trial ing error opportunity theory to jury. A careful record, however, examination of the entire reveals might support hypothetical furnish which for the evidence argument by attorney.7 ruling constructed argument improper, judge simply carrying the trial out proceedings duty during his “control all trial, to and to argument

limit . . . the of counsel relevant and material (Pen. confining Code, § 1044) by matters” counsel’s factual argument to the record. correctly

Defendant states that prevent failure to take his stand should attorney not be held to from draw ing fairly supportable all inferences appearing evidence the record; only we hold that defendant’s failure to take the stand attorney engage does not entitle his purely specu argument, substituting lative testimony his own for that of the defendant in theory order to insulate the of the defense scrutiny from the of cross-examination.

Prosecution’s Discussion of Insanity Defense We now consider the prosecutor’s contention that the concerning insanity comments require defense reversal of judgment explain below; we our conclusion that clearly improper comments were that, special but under the case, they proved circumstances of this nonprejudicial. to be during Several times the selection jury panel, of the final plea alluded to defendant's guilty by of not insanity reason of that, and stated if the defendant were found insane at the time he committed offense, he would be “turned loose.” That statement constituted obvious mis- conduct, only not it because misstated the law8 but also urged because it usurp reposed functions stat- (See ute in People other hands.9 v. Sorenson (1964) 231 judge correctly observed, 7As the trial testimony there was “no tend ing to anything yard indicate that the Defendant .. . observed in the (Italics added.) or on the road.” provide 8Penal Code sections 1026 and 1026a that a defendant ac quitted grounds insanity appropriate must be confined in an in stitution, judicial hearing to be released finding without a and a sanity. restoration to 9Compare People Morse Cal.Rptr. 60 Cal.2d 644 [36 33], 388 P.2d *12 Cal.Rptr. 657], and cases there 88, 91-92 Cal.App.2d cited.) of a trial on in the course misconduct had occurred If such harm worked incalculable insanity, it would have the issue by jurors inflammatory minds of the planting in the “they insanity they returned a verdict of suggestion that if person community dangerous upon the turn loose

would (People Mallette doing much mischief.” capable of present P.2d In the Cal.App.2d 294, 299-300 at the commencement however, the error occurred case, subsequently with guilt, and defendant trial on the issue of insanity. if guilty by Even we plea reason of not drew his prosecutor’s misconduct view that accept the were to deeply erased an too rooted be appealed to a sentiment grounds acquittal of an on effect instruction as to the true supra, Cal.App.2d p. Mallette, at (see People v. insanity misconduct constituted that such 300), could not hold we defendant rendered matter here, since the reversible error sanity waiving right trial. to a moot Testify Failure to on the Comment Defendant’s upon prosecutorial contention that comment turn to We present trial with reversi- silence infected the defendant’s prosecution’s examine the comments con- error; we ble presence although they improper, does that, their clude federal test of harmless require a new trial under the not constitutional error. many on which presented with occasions trial conspicuous absence from the upon defendant’s to dwell attorney suggest did not stand.10 Defendant’s witness person, clothing, on his defendant’s found on the blood in anyone than other the two car, from could come his ultimately that one of the Indeed, conceded girls. he dead girls, car; defendant’s in the Connie, had been drain; and that had had driven her to the storm defendant body place her slid where the road to the dragged her across of intoxi- presented evidence water. Defense counsel into the was unconscious argue that defendant did not but cation suggested no killings; he during night any time how could not recall that the to believe reason transpired what had in his car or be had come to Connie dire, told most if not all of for the 10On voir counsel compelled that, although jurors prospective the defendant could be the to any testify, time. choose to do so at he could posture silence defense, there. Given jury. great significance to the inevitably assumed prosecutor closing argument, fn. 11] [See ease; in the defendant’s repeatedly exploited this weakness commenting dangerously close to he came several occasions stand, in violation of take the failure to the defendant’s trial, year before the almost a the rule announced One supra, 609.11 California, 380 U.S. Griffin *13 only to prosecution not came close by for the comment counsel Discussing the fact that it. crossed the line but Griffin Mary’s near in a box underpants had found Connie’s been obviously . . . after she “Now, prosecutor argued: bed, the didn’t walk over hammer, little Connie that had hit with been might in 11Implying sexually have attacked Connie defendant that the dragging noted that the canal, prosecutor her body his car before of action. from some type “was smeared the blood on the back seat . here tell . . you Connie isn’t to know, What action? I don’t because might Addressing the defendant theory that himself to defense counsel’s injured bleeding and in front of Mack home have seen Connie might trying doctor when he nearby stopped drive her to a have been to just into the canal, before she slipped to wash the blood off her face riddled with fatal that correctly theory observed this prosecutor in the record any that no supported defects and noted evidence properly occasions, prosecutor had occurred. On several such version of what testifying that this was what that was done or “Who is . . . added: doing? this? is Who to . . . This Modesto was . . . Mr. testified (Italics added.) testifying.” He commented further Lawyer] [Modesto’s that the defendant did the defendant’s “testified” only attorney that Noting night murder. that defense Mack home on the not enter the did not kill only had to establish not counsel attempted girls whatever to the two happened the Maelc sisters but also that night did not amount to first murder, prosecutor expressed jury to what the defendant believe. curiosity expected to precisely gentlemen, I didn’t it. I wasn’t “Is it . . .: ladies and ... do ‘Well, I didn’t . . .’ is it: believe I now then [or ‘If] you was, rape there ” ‘If I I didn’t mean to ....’ you her’ believe [or; did, In summation after of defendant’s penalty trial, phase erring again noted that counsel “testified.” Bef only defense prosecution defendant’s 1955 murder said: “This is what trial, prosecution to to Mr. Laraize victim of the 1955 This is the [the murder]. happened man that shows go would back and rob a remorse, Then corpse. go? I don’t Tcnow what he told that he told them where did he Jury, if anything. goes What does he do? He down another bar with this to (Italics added.) . . . . . .” Kelley . Mrs. these references to the fact repeated only We cannot approve “testimony” to offer attorney attempted any explain incriminating adduced nor can we coun- evidence prosecution, remarks about tenance the couching or his method of prosecution’s trial, defenses in the form of which testimony the de- hypothetical might given if fendant he had chosen to take the stand on his own Although speaking, behalf. these statements did amount not, strictly we testify, comments the defendant’s failure observe here that upon bordered conduct held they constitutionally impermissible We trust that such statements will not be future repeated trials. Griffin. got . over they . . How pants in that box. put those there I there. Neither was wasn’t you, because can’t tell there I “ little attorney].” (Italics added.) [T]hese [defendant’s pants] But, there. over whoever . ddin’t take girls . . [the pool is [him], because there [a of] did had blood on So, is ... . some- right the box . down there where . . blood Who took them over there. body who had blood [him] person only Who around who had is the had blood on him? girls? You know he is. him, two little who blood on besides sitting.” just sitting in this courtroom—and He is here added.) (Italics us now leaves more to

Although the comment before than did the remarks which jury’s imagination the Griffin unconstitutional,12 ignore trans- we cannot court held parent implications for the the words chosen counsel rulings of the courts the instant case. The judgment must turn on the not be esoteric that should so phraseology superficial prosecutor’s between this difference improper in that found Griffin. context, the phrase from another comment To borrow magical incantation, is not “a condemned Griffin spell.” (Time, slightest from which will break the deviation 484, 87 Inc. Hill U.S. (Fortas, J., dissenting].) “simple, rugged As S.Ct. 534] people,” ordinary to a it ... is communication *14 (Ibid.) appraised in its effect.” “entitled to be terms of net perspective, this the comment disclosed Viewed from must record before us be deemed violative of the constitu in the decision. tional doctrine enunciated Griffin only beginning, end, But this is not the of our Supreme recently has inquiry, for the United States Court prohibition against upon a held that the comment fair failure take the stand is not “so basic trial that infraction can never treated as harmless be error [its] [foot ” (Chapman 18, 386 note U.S. omitted] California 824]). Chapman 87 S.Ct. L.Ed.2d The court departures rule, that some from like reasoned Griffin may procedure, in the formalities trial certain defects disapproved explicit in 12The comment somewhat more Griffin presented here; things prosecutor than there the one said: "These deny explain. has not seen fit to the stand and [the defendant] take world, anybody know, in if And know. the whole would this defendant would dead, you story. is can’t tell her of the [The she side victim] The (380 p. 611, p. 108.) at defendant won’t." U.S. L.Ed.2d at completely The fail to touch the merits of a verdict. occasion prosecution demonstrating particular that a hears burden entirely proved inconsequential; violation once G riffin showing made, however, has been the violation no such must a basis for reversal. We therefore longer serves as Chapman in with test of harmless decide, accordance proved error, whether the has constitutional complained did “beyond a reasonable doubt that the error (Chapman verdict obtained.” v. Cali to the not contribute 705, 710, L.Ed.2d 87 S.Ct. fornia, supra, 386 U.S. at the outset that, Chapman, We note unlike this clearly which, “in case is one absent constitutionally comments, jurors honest, might very forbidden fair-minded brought not-guilty (Id., pp. in verdicts.” 25-26, well have at p. 711.) overwhelming Given evidence that degree murder, including committed first defend highly incriminating police statements ant’s and his attempted exculpatory wife, to his think statements we it most any jury unlikely have reached a would different conclu prohibited if the comment had not been articulated. sion even requires Chapman however, rule, us to look further. We The simply affirm the instant conviction because we deem it cannot improbable that more favorable to the defendant a result error; in the have reached absence would been Griffin precise Chapman was, all, the test which that formula after impermissible. held time, At the we need not reverse this conviction for same might be able conceive of some

the possibility, reason we sole remote, that a could have however been question. Chap- influenced the comment marginally and, of “reasonable doubt” man test is couched terms juror judgment every who a criminal tell sits courts “possible” than must be more a in case, a reasonable doubt complete certainty is unattainable the affairs doubt, since record, of the entire we can Upon an examination of men. might possibility that the error reasonable conceive of arriving juror in at the verdict any materially influenced this case. impact distinguish the conclusion, we must reaching prosecutor’s impact silence from of the defendant’s concerned with silence; if we comment *15 disregard the not latter, we could rather than the former fail- the defendant’s present in the case of devastating effect

713 Griffin, in “What the said But, stand. as court take the ure to help thing. infer, given court, is one jury may from the no the the silence of the court solemnizes may it infer when What quite (380 another.” against him is into evidence the accused p. 110].) p. L.Ed.2d at at 614 U.S. [14 recognize Fifth Amendment . . . that “the We n forbids” by the that only all “instructions court not [the any guilt” but also “com is evidence silence accused’s] (380 the accused’s silence.” U.S. on ment the p. 110].) Nonetheless, in p. L.Ed.2d 615 at at [14 particular contri a comment assessing possibility that upon the to which must focus extent to conviction we buted might jury’s have increased inclina the comment itself an indication silence as tion to treat may guilt. this effect risk a comment will prosecution14 if either court13 become considerable against into silence of the accused evidence “solemnizes p. p. 110]) by (380 telling at L.Ed.2d at him” U.S. 614 [14 testify from failure of to “that defendant] [the . from the . . the inferences facts evidence be [should] (386 p. at in favor State” U.S. L.Ed.2d drawn [17 however, 711]). comment, likely p. forbidden is less at A to (386 p. rights” of defendant U.S. at the “substantial affect merely p. 710]) *16 714 explicit subject;15 nor the comment itself either was

the Chapman with what the Thus we do not deal here extensive. repetition machine-gun of a denial characterized as “a court designed and to make rights, all calculated of constitutional (386 the ...” version of evidence worthless. [defendant’s] p. 711].) p. 26 L.Ed.2d at U.S. at [17 compelling largely and unchal- Moreover, in contrast presented by prosecution, defense here lenged the the evidence inherently entirely upon theories, two one of which was relied upon implausible other which turned evidence of and the of subject challenged intoxication, which the a prove prejudicial, way a order to comment touched. evidentiary gap in fill an which could not to comment serve prosecution’s must at least touch a live nerve the the case intrin- defense, inert such not one which has been rendered any prevent generating it improbability from sic as would juror. posture reasoning Thus the a real doubt the mind of point minimized to the the in the instant case of insignificance defense Although possible impact comment. the an inadvertent and irrele- that comment as we cannot dismiss beyond a etiquette, we are convinced vant breach in trial contri- presence its at defendant’s trial that reasonable doubt degree murder to first nor neither to his conviction of buted penalty. imposition the death the Improper to Prior Trials References finally persistent prosecutor efforts of the We consider the impress upon jury personally fact that to the guilt already had and that he convinced of the defendant’s judges persuaded previous juries trial that and two other two Seizing fn. die. the defendant deserved to 16] [See charge prosecutor and two defense counsel’s offense, had prior enormity of the over juries, blinded against defendant,16 glaring looked defects the ease (see p. expressly 615 380 U.S. at to decide 15The court declined Griffin may require p. 110]) the court Bruno the defendant fn. 6 L.Ed.2d at whether [14 (See disregarded. v. charge jury must be that Ms silence 287.) States, supra, United 308 U.S. argument, proper limits of defense 16If these remarks exceeded the remedy prosecution appropriate “to call [such would have been for the ’’ (People stopped. it the court and have to the attention of error] 842].) prosecutor (1897) in this P. Kramer 650 [49 Cal. People’s permitted ease, however, to characterize defense counsel go Having misguided. groundless comments to allowed such ease as retaliatory justify rely upon uncorrected, prosecution may them to (People Cal.2d 725-726 v. Kirkes its remarks of own. 1].) P.2d that he would repeatedly declared for the counsel guilty. be prosecute man he did not believe to whom never is tanta recognized that a declaration such We prosecutor believed assertion that mount testimonial inception prosecu guilty very from the defendant implies any it such assertion since tion; condemned we have guilt beyond proof prosecution possesses supra, (People Kirkes, has examined. which implication was seri That 723-724 P.2d Cal.2d prosecutor compounded when ously case judges jurors trial other that 24 other stated presented theory crime; accepted the facts eloquence judges own jurors, rather than his those *17 the “be them that defendant prosecutor, had convinced ’ presid gas judges longs ’; the ... in the chamber and prevented surely have ing trials would at defendant’s three attempting man to an to his death. him from send innocent invoking judges juries, thus and the beliefs of other predicated upon defendant was with which evidence prosecution trial, confronted counsel for the at the instant argument. clearly overstepped permissible bounds of the guilt surely defendant, Whatever the he is entitled to a the by hearsay trial to conclusions which uninfected references unspecified evidence, others reached17 on the basis of prior verdicts, rulings of former trial 17Insofar as the and the the judges refusing grant penalty to life to trials to reduce the new jurors employed suggest judges imprisonment, 2 24 were and to guilty penalty, believed those verdicts and sons whom the defendant deserved the death and rulings per constituted testimonial assertions obviously Twenty- opportunity question. highly persuasive had no to defendant jurors judges thereby four and two enlisted as prosecution, witnesses for witnesses whom the defendant could neither the cross-examine. nor confront Such a violation of the confrontation clause (Pointer (1965) 400 of the Sixth Amendment v. Texas 380 U.S. [13 923, 1065]) might S.Ct. L.Ed.2d when it for to be to be 85 constitute reversible error even perpetrated complicity attorney, is with the of defendant’s own knowingly intelligently agree if the defendant “himself did not proceeding right tried in would ... which he not have ’’ against him, the witnesses confronted with cross-examine his ‘‘ by (Brook right his to confrontation cannot be waived counsel ....’’ (1966) 1, 314, 318-319, Janis hart v. 1245].) 384 U.S. 7 L.Ed.2d 86 [16 S.Ct. present case, however, Brookhart differs from that most of the prosecution’s in this ease at the instant trial. witnesses testified Defense counsel, People’s made testimonial having having questioned these witnesses and countered the argument chief, prior verdicts in ease in referred to the objection prosecution employed when those verdicts in a may right capacity. forego Just as defense counsel to specific consulting witness without first cross-examine a defendant 1, 314, 319, Janis, supra, (Brookhart v. 384 U.S. 8 86 [16 S.Ct.

716 improper,18 and ruled subsequently been which has much of challenge in effectively could which defendant

none of present trial.19 unfortunately initiated this Although counsel defense prosecu- verdicts, the previous damaging of the discussion defense further than those of the went tion’s comments underly- reasoning supposedly they referred to insofar as ing jury present and invited the first two verdicts predecessors what two of no “less than case do [its] did.” nonetheless conclude that improperly We remarks by added do not entitle to a Having trial. embarked analysis

new own case, objected trials in this defense counsel former neither prosecutor’s requested rebuttal comments nor disregard Although be told them. by some comments prosecutor may place disadvantage the defense aat which no judge by effectively admonition irreparable the trial can cure before People (see, e.g., (1964) harm results v. Alverson Cal.Rptr. 479, 803, Cal.2d ; 426 P.2d P.2d cf. Peo [36 711] ple Bandhauer, ante, p. Cal.Rptr. 332, v. challenged 900]), in this the remarks case were not of that (Cf. People Perry (1939) character. v. 14 Cal.2d 387, 396 559, P.2d 124 A.L.R. Here, Bandhauer, objectionable statements entered prosecutor’s argument gradually; but in case, unlike timely objection Bandhauer, the defense would have J., (Harlan, concurring)), 1245] so too the tactical decision reflected may the conduct of the defense in the case bind the accused. (See Henry Mississippi 443, 379 U.S. 451 [13 L.Ed.2d 564]; Janis, supra, 85 S.Ct. Brookhart cf. 384 U.S. *18 L.Ed. [16 314, 319, 1245].) 2d 86 S.Ct. by inadequate 18Defendant’s first trial was marred instructions (People Modesto, supra, pp. 727-731), improper v. 59 Cal.2d at evidenti (id. ary rulings pp. prosecutorial 732-733), (id. 734), p. at misconduct at parole (id. p. 735) and the introduction of since held inadmissible statistics at which we have (People Morse, supra, 631) v. 60 Cal.2d and penalty (In which would have entitled the defendant to a new trial re Cal.Rptr. 220, 420]). Jackson [39 Cal.2d 508 393 P.2d in part upon The conviction defendant’s second trial rested an unlawfully (People Modesto, supra, obtained confession v. 62 Cal.2d at pp. 445-446) part upon unfavorable references to defendant’s testify (id. p. 447), in privilege refusal against violation of the defendant’s (Griffin California, supra, 609). self-incrimination v. 380 U.S. multiple previous 19To the proceedings extent that errors in the trials, contributed to the verdicts obtained in errors were first two indirectly repeated every jury at the trial time the rely upon was invited to the conclusions embodied in the earlier verdicts. reaching from harmful comments ever prevented the most appropriate pre- instruction could have jury; and an exerting from which did reach the those remarks vented statements. beyond that defense counsel’s own any impact objection may circumstances, not be made for an such Under the first time on (See People (1963) 60 appeal. v. Purvis Henry Cal.Rptr. 104, ; 384 P.2d cf. 323, 343 Cal.2d 424] [33 448-452 L.Ed.2d 413- Mississippi, supra, 379 U.S. 416, 85 S.Ct. judgment The is affirmed. Sullivan,

Traynor, J., McComb, J., Burke, J., J., C.

White, J.,* concurred. PETERS, J.I dissent. opinion appealed again my judgment

In must from once This is so because several errors were committed be reversed. during recognizing trial. this While that very majority indeed, were serious some of these errors prejudicial. doing so, they purport they hold were not prejudicial apply the federal test of error announced Chapman California, U.S. S.Ct. 824], my opinion do not do so. but majority correctly state that is the evidence overwhelm- ing girls killed, the two the evidence overwhelmingly demonstrates defendant killed them. They record, that, view of there is therefore conclude possibility guilty no reasonable that other than verdict guilt only could returned. If or innocence were the have been agree analysis. guilt I with this But or issue involved would only innocence was issue involved. there was also not Here degree guilt. guilt issue, On this unlike the involved or overwhelming issue, or innocence sive. There was a the evidence conclu- grave very question as to whether the intoxicated that the of the crime was was so degree manslaughter. reduced to second There was also a grave question whether, defendant was not so as to even if degree, intoxicated as to reduce he was so intoxicated that agree penalty. he should not suffer the death While I that the and did several errors involved could not not affect the deter- say guilt, I cannot that there is no “reasonable mination of Supreme sitting assign- Justice Court under *Retired Associate ment the Chairman of Judicial Council. *19 718

possibility” did they not affect the determination of the crime. clearly prejudi in mind the federal test of We should have applicable. recently here It was error, cial restated Chapman Fahy Connecticut, case, supra, followed v. which it 171, 85 84 S.Ct. In that case was 375 L.Ed.2d U.S. [11 229]. prejudicial held it can that error must be deemed unless be " possibility” error said complained might there is no reasonable that the (p. have contributed the conviction Chapman, supra, specifically p. 173). 86, 11 L.Ed.2d language and held that “before a federal reaffirmed this then harmless, be held the court must be constitutional error can beyond it harmless able a belief that was to declare pp. (386 p. L.Ed.2d at 24 reasonable doubt.” U.S. [17 p. rule, 710-711, 828].) 87 S.Ct. at Under this once error is prejudicial unless the found, it is and therefore reversible appellate affirmatively find is no “rea court can that there possibility” might have the error contributed sonable to finding conviction. No such can be made affirmative here. there several serious errors. One of case, the instant were great concern, majority which the show

the most serious with so, prosecutor’s repeated rightly was the comments explain damaging take the stand and failure against necessarily him. This included evidence that evidence majority frankly concede that intoxicated. The lie was not prosecutor “repeatedly exploited” argument closing directly and on at least occasion violated the fact, one v. year trial in down a before rule laid Griffin 1229], 106, 85 California, 380 609 L.Ed.2d S.Ct. U.S. [14 this failure of defendant Repeatedly, commented on prosecutor against him. explain The time adverse evidence again argued impliedly defendant could have and explained time implying least not, did thus at that silence but argument clearly an admission. That errone- constitutes prejudicial. tacit admission rule has been and most The ous police concerned, by repudiated, accusations are insofar as v. Illinois, 378 Supreme Escobedo U.S. States Court United 1758], 84 this court 977, 478 S.Ct. [12 Cal.Rptr. 169, People 398 P.2d Dorado, 62 Cal.2d 338 v. [42 Cal.Rptr. People Cockrell, 788, v. 63 669 Cal.2d ; [47 361] People Ridley, 671, 676 ; 408 Cal.Rptr. Cal.2d P.2d 116] Ellis, (See People also P.2d 124]. Cal.Rptr. 421 P.2d 529, Cal.2d prosecutor to the defendant’s repeated references affirmatively clearly improper. Can we declare silence that there repeated possibility” that these is “reasonable *20 member at least one of have convinced not references could degree rather than some other jury for to vote first at least could not have induced one degree, and reduced penalty rather jury to death than vote for the member of the ? not. life Of course prosecutor repeated arguments about made The explain against him the evidence of the defendant to failure hit certainly have, have, and could

must responsibility by reason of intoxication diminished defense of an devastating I am to make affirmative with effect. unable possibility” “reasonable that that there is no declaration verdict far not have affected the so as the these errors could degree of is concerned. the crime chargeable prose serious is most error also Another personal impress upon jury his only did Not he cutor. guilt degree murder, first but in the defendant’s of belief persistent prior repeated references to the trials made and passed judges already jurors had which 24 those of necessarily which included the defense diminished issues, majority forthrightly admit that responsibility. The these overstepped propriety and arguments bounds of prejudicial erroneous, the error but hold because object, and could failed to an admonition have defendant cured argu The is unrealistic. erroneous error. This most shattering had must have effect on defendant’s ment responsibility. made, of diminished Once admoni defense jurors’ personal opinion minds from the tion could erase judges prosecutor of and his statements that two jurors already twenty-four had decided that defendant was repudiated guilty degree murder, the defense first responsibility. People is not of diminished This ease unlike ante, Cal.Rptr. 321, 889], Brock, p. 645 P.2d re opined cently filed, judge in which the trial that defendant jury they guilty, and then admonished were the judges given admonition, in that of the facts. The case sole an instruction, did not An cure error. admonition here equally would have ineffectual. been cavalierly Another error which I serious cannot dismiss majority insanity is discussion as do the the erroneous if found insane defendant would be “turned defense—that was error and frankly concede loose.” majority error, serious but conclude that it could most not have been plea insanity prejudicial because the was later withdrawn. Obviously sanity did issue, the error not affect the because jury. when it was withdrawn that issue became moot from the argument impact could have had a But the well most serious jury. effect, any It, in told the on the other verdict conceivably turning than death could result loose the again. This, course, People kill violated defendant to Cal.Rptr. 33], Morse, 388 P.2d I cannot Cal.2d possibility” argu- say that is no there “reasonable have this ment did not effect. errors, errors, during serious committed Thus there were Although reasonably possible this trial. it is not that those finding guilt, could have affected the there is far errors possibility than a that such could more reasonable errors finding imposi- of the of the crime and affected the tion penalty. death For these reasons I would reverse judgment. Appellant’s petition rehearing for a was denied June *21 J.,* place Mosk, J., who White, sat deemed himself 1967. opinion disqualified. Peters, J., petition that the granted. should be assign- Supreme sitting Court under Justice of the *Retired Associate Council. ment the Chairman of Judicial notes 3Defendant told them approximately hours after he two until the drain to storm was might medical assistance that no found. He adds be where Connie police. The record his in statement the mentioned area called body however, was immedi demonstrates, for Connie’s that the search defendant, adequate ately and that indicated the area extended to nearby. stressed de The evidence were available medical facilities finding questioning that trial court’s provides for no basis fendant the dominant interrogation challenged objective was the rescue of Mack. of Connie (1966) 384 U.S. v. Arizona Miranda note that 4We bearing 974], 1602, on the instant ease has 10 A.L.R.3d 86 S.Ct. February principles began present 1966 and the retrial since pre-Miranda govern trials in this state. in Miranda do not announced Cal.Rptr. 423 P.2d (People 65 Cal.2d v. Rollins the Evidence Sufficiencyof urges the evidence was insufficient to that Defendant he jury’s acted with deliberation support the conclusion accept any view We such of the premeditation.5 cannot surrounding the murder circumstances us. The record before preceding including of after events girls, two supported injuries, amply nature their noon Mack had entered the home that their assailant determination fully girls alone, intend knew would be when at a time he punishable Penal rape an under Code ing act to commit acci killings were neither that the themselves section impulsive.6 purely nor dental even properly permitted to consider evidence jury deciding upon his mental alleged intoxication killings. Given the weakness of state at time rejecting justified view certainly jury was evidence, the stupor and that he had in drunken defendant had acted manslaughter degree murder. only or second committed Counsel’s Limitation Defense Argument Closing permitted urges court have that the trial should Defendant jury. theory case counsel to his defense This contention lacks substance. permitted argue defense counsel The trial court stopped reaching his ear before the Mack resi- that, defendant walked across the dence; front his yard, might have come contact with foot into Connie’s wounded might driving been her body; and that he to a doctor stopped at the storm drain. before however, permit not, did The trial court defense to that, stopped car, as defendant suggest to the he saw attacking mysterious ; assailant Connie front of her house sledgehammer from his trunk that he took the order to culprit fled fight intruder; and that oft before the of the attack. If defendant could reach scene the record

Notes

notes L.Ed.2d at if that comment 23 [17 suggestion that, among and includes defendant’s silence no might therefrom, inferences drawn the various which be those probable. are more As the to the defendant unfavorable Griffin, pointed suggestion such a “the out absent court always natural guilt is not so or irresistible.” inference of p. 110]; (380 pp. L.Ed.2d at cf. Bruno U.S. at 614-615 States U.S. L.Ed. United imply prohibited do mean that a S.Ct. We ordinarily necessarily long is or even harmless so comment unaccompanied implies guilt; it a statement silence is any such simply absence of statement note tends we mitigate independently damaging effect comment rule. uttered violation Griffin included The comment involved case might drawn guilt an from suggestion inference be silence; court rendered no instruction the defendant’s 13See, e.g., California, supra, page L.Ed. U.S. at 610 [14 Griffin page 2d at 107]. e.g., Chapman 14See, appendix opinion v. Calif the court’s 712-720], pages supra, pages at ornia, 26-42 [17 386 U.S.