In Re Hillery , 71 Cal. 2d 857 ( 1969 )

TOBRINER, J.

In his petition for a writ of habeas corpus after a second penalty trial, petitioner Booker T. Hillery, Jr., presently under sentence of death after conviction of first degree murder (People v. Hillery (1965) 62 Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382], reversed as to penalty, cert. den. (1967) 386 U.S. 938 [17 L.Ed.2d 810, 87 S.Ct. 958], reh. den. 386 U.S. 1000 [18 L.Ed.2d 355, 87 S.Ct. 1310]; People v. Hillery (1967) 65 Cal.2d 795 [56 Cal.Rptr. 280, 423 P.2d 208], cert. den. 389 U.S. 986, [19 L.Ed.2d 496, 88 S.Ct. 486], reh. den. (1968) 390 U.S. 913 [19 L.Ed.2d 887, 88 S.Ct. 822]), contends that under the rule of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the trial court erroneously excused for cause certain prospective jurors who expressed conscientious opposition to the death penalty. Upon a review of the voir dire examination conducted at petitioner’s second penalty trial, we have concluded that a Witherspoon error occurred.

Mrs. Bernice Hope, a juror whom the trial court excused for cause because of conscientious opposition to capital punishment, did not make it “unmistakably clear . . . that [she] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before [her]. ...” (Id. at p. 522 & fn. 21 [20 L.Ed.2d at pp. 784-785].)

The trial court excused Mrs. Hope for cause after she stated that she did not think she could follow “the law” of California with respect to the imposition of capital punishment. The court never explained, however, that the jury decision as to penalty would be “a subjective evaluation that you must make on your own.” (See People v. Varnum (1969) 70 Cal.2d 480, 495 & fn. 9 [75 Cal.Rptr. 161, 450 P.2d 553].) Neither did the court adequately explain that Penal Code sections 190 and 190.1 vest in the jury an “absolute” discretion to determine whether a defendant in a capital case should suffer death or life imprisonment, and that this discretion remains completely unlimited by any rules- of law which might otherwise control a juror’s determination as to the penalty in the case before him. On the contrary, the trial court suggested, by its questioning of Mrs. Hope and by statements and questions directed to other jurors, that “the law” of California required a juror to concur in a verdict imposing the death penalty in certain defined classes of cases.

We have consistently condemned exclusions for cause based upon a juror’s statement that he could not vote for the death penalty “in a proper case,” when the trial court, by failing to define the term “proper case” in light of the juror’s absolute discretion to determine the appropriate penalty, suggests to the particular juror “that the law classes certain kinds of eases as ‘proper’ for the infliction of the death penalty and that, if the defendant is found guilty of a crime of this class, the jury will be required to impose the death penalty.” (People v. Teale (1969) 70 Cal.2d 497, 515 [75 Cal.Rptr. 172, 450 P.2d 564]; People v. Morse (1969) 70 Cal.2d 711, 742 [76 Cal.Rptr. 391, 452 P.2d 607] see generally, People v. Varnum, supra, 70 Cal.2d 480, 491-496.) The same considerations which support the rationale in these cases require us to hold erroneous the instant exclusion for cause based upon a juror’s statement that she could not follow “the law” of California. Here the trial court, by failing to explain that the law of California grants to the jurors absolute discretion, devoid of’ standards or directions to determine the appropriate penalty, suggests to the particular juror that “the law” required a juror to' concur in a verdict imposing the death penalty in certain defined classes of cases. Accordingly, under compulsion of Witherspoon, we must reverse the judgment imposing the death penalty.

The specific voir dire examination of venireman. Hope extended over five pages of the record.¹ At the end of the exchange between the court and Mrs. Hope, the trial court stated the basis for his exclusion for cause: “[W]e don’t quarrel with anyone who disagrees with our law, of course, but it disqualifies you to serve as a juror in this case.” Mrs. Hope’s statement of disagreement with “the law” and of her inability to follow “the law” appeared in the context of the trial court’s statements that, “[I]t is the law of Califomia and it includes the death penalty,” and “ [I]t is on the statute books, it is still our law to be applied in a. proper ease, . . The trial court never explained to Mrs. Hope that the law.of California provided that the determination as to the imposition of capital punishment would rest within the absolute discretion of the jurors. The court never explained that, “What constitutes a proper case [for the imposition of the death penalty] is . . . for the juror to decide.” (People v. Bandhauer (1967) 66 Cal.2d 524, 531 [58 Cal.Rptr. 332, 426 P.2d 900].)

The inevitable result of the trial court’s unexplained references to “the law” and “proper case” was that Mrs. Hope responded to the examination under the impression that “the law classes certain kinds of cases as ‘proper’ for the infliction of the death penalty and that, if the defendant is found guilty of a crime of this class, the jury will be required to impose the death penalty. A venireman under this impression, conceiving that his oath as a juror might require him to concur in a verdict of death in a case which the law deemed ‘ proper ’ for that penalty — but which he himself did not deem ‘proper’ therefor — might well reply in the affirmative to the court’s question as to whether his scruples would prevent his concurrence, in a verdict of death ‘in a proper ease.’ ” (People v. Teale, supra, 70 Cal.2d 497, 515-516.) A fortiori, such a juror might well respond in the affirmative to a question as to whether his scruples" would prevent him from following “the law” which is “to be applied in a proper ease.” Such a response in either case does not satisfy the mandate of Witherspoon that the prospective juror must make it “unmistakably clear . . . that [he] would automatically .vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before [him]. ...” (Witherspoon v. Illinois, supra, 391 U.S. at p. 522 & fn. 21 [20 L.Ed.2d at pp. 784-785].)

In the present case, Mrs. Hope indicated that she did not think she could follow “the law”; and that she understood that “it [presumably capital punishment] is still our law to be applied in a proper case.” Unless at some time during or prior to the specific voir dire examination of Mrs. Hope, the trial court corrected the erroneous impression generated by the references to “the law’-’ and “in a proper case,” we must conclude that this juror’s exclusion for cause violated the rule of Witherspoon as applied in the Teale and Varnum cases.

An examination of the preceding voir dire directed at other prospective jurors reveals that the trial court never adequately explained that “the law” of California allows a juror to determine the penalty in his absolute discretion; neither did the court define “proper case” in terms which would adequately explain that “What constitutes a proper case is . . . for the juror to decide.” (People v. Bandhauer, supra, 66 Cal.2d 524, 531.) In fact, the trial court referred to the “rules of law to apply to the facts,” thus affirmatively suggesting that “the law” required the imposition of capital punishment in certain defined classes of cases.

Early in the voir dire, the trial court told the jury that it had “absolute discretion” to determine the penalty “under the law, which the court will give them.” (Italics added.) Although the court here correctly stated that the jury decision at the penalty trial rested, within the jurors’ absolute discretion, the court proceeded to obscure this correct statement by suggesting to the jury that the court would render instructions -on rules of law which would guide and limit the jury in reaching its verdict. The trial court generated a contradiction within its own statement by speaking on the one hand of “absolute” discretion and on the other of a jury determination “under the law.” Indeed, absolute discretion necessarily requires freedom from controlling rules or instructions. By stating that the court would render instructions on the law relevant to the jury’s determination of the penalty, the trial court implied that the jury decision would not rest within the jurors’ absolute discretion. Under such circumstances, we may not assume that the jury panel in general, nor Mrs. Hope in particular, understood that the jury decision as to penalty would involve “a subjective evaluation that you must make on your own.” (People v. Varnum, supra, 70 Cal.2d at p. 495 & fn. 9.)²

The trial court further obscured a correct statement of the nature of the jury decision as to penalty when it referred to “the evidence and the law [which] warranted [capital punishment],” and, “. . . [o]ur laws do provide" for the death penalty in the proper ease.” The prosecutor added to this confusion when he referred to “the factual situations that are presented in a proper case for the death penalty.” These references inevitably imply that standards for decision-making exist outside a particular juror’s subjective determination; they suggest legal categories (e.g., certain defined “factual situations”), in which the jury must impose the death penalty. The references are misleading because, in fact, the juror’s decision as to penalty involves no guides or standards; the jury renders its verdict after each individual juror determines the appropriate penalty within his absolute discretion.

The trial court neither' explained to Mrs. Hope in particular, nor to the jury panel in general, that “the law” of California allows the jurors to determine, within their absolute discretion, what constitutes “a proper case” for the imposition of capital punishment. For this reason, the trial court committed reversible error in excusing Mrs. Hope for cause after she stated she could not follow “the law” which “includes the death penalty” and which is “to be applied in a proper case.” Accordingly, the judgment imposing the death penalty upon petitioner cannot stand.

Nor can we accept the Attorney General’s argument that statements by Mrs. Hope rendered earlier in her voir dire examination reveal an adequate basis for excusing her for cause under Witherspoon. Mrs. Hope’s first expression of scruples concerning the imposition of capital punishment appeared in her statement, “Well, I don’t think I could send anyone to death.” We have held that such a statement would not, by itself, satisfy the Witherspoon requirement of unambiguous expression of an absolute inability to consider imposing the death penalty in any case. (People v. Osuna (1969) 70 Cal.2d 759, 768 [76 Cal.Rptr. 462, 452 P.2d 678]; People v. Chacon (1968) 69 Cal.2d 765, 772 [73 Cal.Rptr. 10, 447 P.2d 106].) Furthermore, the trial court’s question to which Mrs. Hope responded sought to determine only whether she had ‘‘ an opinion one way or the other as far as the penalty. ’ ’ We have consistently held that an affirmative response to such an inquiry cannot stand as a basis to sustain a challenge for cause under Witherspoon (In re Eli (1969) ante, pp. 214, 215-217 [77 Cal.Rptr. 665, 454 P.2d 337]; People v. Osuna, supra, 70 Cal.2d 759, 769; People v. Risenhoover (1968) 70 Cal.2d 29, 55-56 [73 Cal.Rptr. 533, 447 P.2d 925]; In re Anderson (1968) 69 Cal.2d 613, 617-618 [73 Cal.Rptr. 21, 447 P.2d 117].)

Because her statement occurred in the context of a question whether she had any opinion “one way or the other” concerning the alternative penalties, we cannot reasonably construe Mrs. Hope’s response as indicative of anything more than tentative doubts (“I don’t think I could . . . .”) as to her present willingness and ability to impose the death penalty. Such a construction coincides with the gist of the earlier portions of her voir dire examination in which she repeatedly assured the trial court that she had no “fixed opinion” as to what the penalty should be in this case, that she maintained an “open mind” as to that ultimate determination. Although we recognize that these assurances occurred in the context of an inquiry by the court into Mrs. Hope’s exposure to pretrial publicity, we doubt that such assurances, even in this context, could have been given by a person who would ‘ ‘ automatically vote against the imposition of capital punishment without regard to any evidence that might be developed a,t the trial of the case before [him]. ...” (Witherspoon v. Illinois, supra, 391 U.S. at p. 522 & fn. 21 [20 L.Ed.2d at pp. 784-785].)

Finally, the Attorney General points to Mrs. Hope’s next statement, “I don’t think I could put anyone in the — not necessarily in this case, but in any case — The Attorney General argues that this statement constitutes an unequivocal declaration that the juror would never vote for the death penalty “in any ease.” Such a reading stretches the comprehensibility of the statement. Indeed, the statement lacks meaning or significanece because the triál court “did not allow her to complete her replies, and her partial answers do not make it ‘unmistakably clear’ that she ‘would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial. . . .’ ” (People v. Risenhoover, supra, 70 Cal.2d 29, 56.) Indeed, the most that we may discern from this incomplete response is that Mrs. Hope’s conscientious opinion concerning capital punishment would apply not only in the present ease but “in any case.” We have no reason to believe, however, that Mrs. Hope would automatically vote against the imposition of capital punishment in any case.

Thus, we remain faced with the trial court’s excusing Mrs. Hope because she stated that she could not follow ‘ ‘ the law. ’ ’ Yet in no instance did she ever receive an adequate explanation that “the law” placed the decision as to penalty within her absolute discretion., unguided and unlimited by rules of law, standards, or instructions. Under such cirumstances, Witherspoon and our own Teale and Varnum cases require that we reverse the judgment imposing the death penalty.

The writ is granted as to the penalty trial. The remittitur issued in People v. Hillery, Crim. 9801, is recalled and the judgment imposing the death penalty is reversed insofar as it relates to the penalty. In aE other respects it is affirmed.

Traynor, C. J., Peters, J., Sullivan, J., and Molinari, J. pro tem.,^* concurred.

1 ‘The Court: Q Mrs. Hope, I believe you have been present throughout the proceedings today, have you not?

"Mrs. Hope: Tes, sir.

“Q You understand that we are interested in selecting a fair and impartial jury to determine what the penalty should be in the defendant’s ease?

"A Yes, sir.

“Q Either life in prison or death?

“A Yes.

“Q One or the other?

"A Yes.

“Q Depending upon how the jurors view' the evidence and the law which will be given to them by the Court. Do you happen to be acquainted with Mr. Hillery?

“A No.

‘ ‘ Q Before you came to the courthouse were you among the numerous people, I imagine, who read and heard something about this case?

"A Yes, I read it in the papers, heard something about it over the radio this morning.

"Q Was there anything about what you read or heard which left you with any fixed opinion or beliefs as to what the penalty should be in this case?

"A No.

“Q You are perfectly open minded at this time, is that right?

“A Yes, sir.

“Q You won’t close your mind and determine what the penalty-should be until after you have heard the testimony, heard the instructions so far as the rules of law are concerned, is that correct?

"A No.

“Q I mean, would you keep an open mind and wait to make up your mind until after you have heard the Court’s instructions and all evidence?

“A Yes, sir.

"Q All right. You see, that is a requirement, of course. I take it, then, you have no opinion one way or the other as far as the penalty, life, imprisonment or death, as you sit in the jury box, is that correct?

“A Well, I don’t think I could send anyone to death.

“Q Well, that was the next question I .was going to ask you. Do you entertain such a conscientious opinion as it would preclude you -from assessing the death penalty in a proper ease?

“A I don’t think I could put anyone in the — not necessarily in this case, but in any case—

“Q You understand, do you, that it is the law of California and it includes the death penalty?

“A Yes.

“Q There has been a lot of sparring, discussion, and debate about the matter, but- it is on the statute books, it is still our law to be applied in a proper case, do you understand that?

“A Yes, sir, I understand that.

“Q I take it, from your response, that even though that is the law you don’t think you could follow the law, is that it?

“A No, I don’t think X could.

“Q All right. Well, you are entitled to your conscientious beliefs, of course, and’we don’t quarrel with anyone who disagrees with our law, of course, but it disqualifies you to serve as a juror in this case. So, the Court will necessarily have to excuse you.

“A Yes, sir.

“Q Maybe we will get you in some other ease at some other time.”

2 Later, in the voir dire examination of the prospective jurors, the trial court stated, “This matter is entirely within the discretion of the jury after they have heard all the evidence, have been instructed by the Court concerning the rules of law.” (Italics added.) Such a statement fails, for the reasons discussed in the text, adequately to inform the jury that the decision as to penalty rests within their absolute discretion without controlling rules of law, standards, or instructions.

During the voir dire, the prosecutor told the jury that the decision as to penalty “is solely open to your discretion.” This statement occurred in the context of his explanation that neither party possessed the burden of proof at the penalty trial. The prosecutor did not define the quality of the jurors’ discretion as “absolute.” Later in the voir dire, the prosecutor stated that a juror may exercise his “absolute discretion, of course, based upon the instructions that the Court will give you. ’ ’ As with the similar statements by the trial court quoted above in the footnote and in the text, such a statement failed to inform the jury that the decision as to penalty rests within their absolute discretion without controlling rules of law, standards, or instructions.