People v. Hines , 61 Cal. 2d 164 ( 1964 )

TOBRINER, J.

In this capital ease, in which defendant entered a plea of guilty of murder in the first degree and in which the jury fixed the penalty at death, we reverse the judgment insofar as it relates to the penalty. The instructions and the prosecutor’s argument in the penalty trial gave rise to the errors which we condemned in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33] ; these errors, we find, were substantial. Because of the nature of the penalty trial, any substantial error, as we explain, causes prejudice. We reject, however, defendant’s contention that he suffered denial of both his right to a trial on the sanity issue and to a public trial. Nor do we sustain defendant’s contentions as to errors in the instructions, although we agree with his position that the tape recordings of his confession, which included his account of prior crimes, should not have been admitted in their unexpurgated state.

Defendant was accused by information, filed in the Superior Court of Los Angeles County, of the murder of one Billy Cooper. Defendant entered pleas of not guilty and not guilty by reason of insanity. After two continuances and a waiver of defendant’s right to be tried within 60 days, defendant withdrew his pleas of not guilty and not guilty by reason of insanity, entering a plea of guilty of murder in the first degree. Thereafter the jury fixed the penalty at death.

On July 1, 1962, defendant attempted the robbery of a liquor store in Venice. He entered the store, ordered a pack of cigarettes, took out his pistol, and said “This is a stick up.” Cooper, the attendant, tried to press the alarm button; defendant told him not to do so. “So then he decided, well, he was going to try, you know, to shoot me down, I guess, so he walked around the cigar section and reached for his gun, and when I saw the gun, you know, what could I do, man, so that was it.” Cooper got the gun, fired at defendant but missed him; defendant shot Cooper in the forehead; the victim fell behind the counter, and defendant reached over and fired three or four more shots into the body to make sure that Cooper was dead.

Defendant later confessed that he killed Cooper in order to avoid identification; that he entered the store for the purpose of robbing it and killing whoever was there; that he would have killed Cooper whether or not he resisted. After shooting Cooper, defendant panicked, took only a pack of cigarettes, and left the store.

As respondent states, “ [E]fforts to find the killer proved unavailing until the afternoon of July 11 when appellant walked into the Venice division police station,” and confessed the crime. He removed from a brown paper bag an automatic pistol which the parties at the trial stipulated was the murder weapon.

We discuss four aspects of the case: first, the errors committed in the penalty trial; second, defendant’s contention that he was deprived of a trial on the issue of sanity; third, defendant’s argument that he was denied a public trial in violation of his constitutional rights; fourth, alleged errors in the rendition of instructions and in the admission of evidence at the penalty trial.

Turning to the penalty trial, we note that the court gave the exact instruction that we held constituted error in Morse.¹ Furthermore, the prosecutor in his closing argument stressed that the only way the jury could be assured that defendant would not “be again on the streets of this community,” would be to return the death penalty. He also argued that “we assume that those persons responsible for paroling individuals do so conscientiously, but all human beings are fallible.” On the point of the improper diminution of the responsibility of the jury, the prosecutor argued that “neither would the return of the death penalty necessarily mean the death penalty. Regardless of what sentence you impose upon the defendant, be it life imprisonment or death, the Governor of this state has the power to pardon him, to commute his sentence, be it death, to life imprisonment”; and his last statement to the jury was, “Please listen to the Judge’s instructions carefully, with reference to what life imprisonment means, and the fact that death does not necessarily mean death....”

The instructions and statements constituted error. They improperly “diverted the jury’s attention from its own task of decision to the roles of the Governor, the Legislature and the Adult Authority, as well as to possibilities of reduction of the sentence by their action.” (People v. Terry (1964) ante, p. 137 at p. 141 [37 Cal.Rptr. 605, 390 P.2d 381].)

We must determine, then, whether under article VI, section 4%, of the California Constitution the error resulted in a miscarriage of justice.² We apply the recognized test that “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

In applying this test to a death penalty case we must recognize the deep-founded difference between the task of the jury in the penalty trial and its “usual function of finding whether or not certain events occurred and certain consequences resulted from them.” (People v. Morse (1964) 60 Cal.2d 631, 643 [36 Cal.Rptr. 201, 388 P.2d 33].) In all other situations than the penalty trial the jury deliberates under the court’s instructions and reaches its verdict within the area delineated by the judge. In the penalty phase the court gives no such instructions; “the jury must decide [this] question without benefit of guideposts, standards or applicable criteria.” (People v. Terry (1964) ante, at p. 154 [37 Cal.Rptr. 605, 390 P.2d 381].) The jury decides in its absolute and unguided discretion whether to exact the death penalty. In all other situations than the penalty trial the evidence must be narrowed down to the point at issue; in the penalty trial the evidence consists of a multitude of matters pertaining to the defendant (see People v. Friend (1957) 47 Cal.2d 749, 767 [306 P.2d 463]) enabling the jury to make “a complete and careful analysis of that person as a human composite of emotional, psychological and genetic factors” (People v. Morse, supra, 60 Cal.2d at p. 647.)

The isolation of the determination of the death penalty in the penalty trial, which proceeds without standards for the jury, plus the expansion of the subject-matter of the trial, which has reached very wide margins, gives to the jury an undefined task performed upon a showing of a mass of material. As a result the jury may conceivably rest the death penalty upon any piece of introduced data or any one factor in this welter of matter. The precise point which prompts the penalty in the mind of any one juror is not known to us and may not even be known to him. Yet this dark ignorance must be compounded 12 times and deepened even further by the recognition that any particular factor may influence any two jurors in precisely the opposite manner.

We cannot determine if other evidence before the jury would neutralize the impact of an error and uphold a verdict. Such factors as the grotesque nature of the crime, the certainty of guilt, or the arrogant behavior of the defendant may conceivably have assured the death penalty despite any error. Yet who can say that these very factors might not have demonstrated to a particular juror that a defendant, although legally sane, acted under the demands of some inner compulsion and should not die? We are unable to ascertain whether an error which is not purely insubstantial would cause a different result; we lack the criteria for objective judgment.

Thus any such substantial error in the penalty trial may have affected the result; it is “reasonably probable” that in the absence of such error “a result more favorable to the appealing party would have been reached.” Indeed, in thus defining the prejudicial consequence of error in the penalty trial we do no more than reiterate the rule of People v. Hamilton (1963) 60 Cal.2d 105, 136-137 [32 Cal.Rptr. 4, 383 P.2d 412], In that case, after enumerating the tests of prejudicial error in the guilt phase, Justice Peters, writing for the court, said, “ [I] t necessarily follows that any substantial error occurring during the penalty phase of the trial, that’ results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial. This rule of law has been hinted at, if not decided, in prior cases. In People v. Linden (1959) 52 Cal.2d 1, 27 [338 P.2d 397], it was said that error and misconduct in the penalty trial ‘implicitly invites reversal in every case. Only under extraordinary circumstances can the constitutional provision [art. VI, § 4%] save the verdict. ’ ” (P. 137.) (See also People v. Love (1960) 53 Cal.2d 843, 857 [3 Cal.Rptr. 665, 350 P.2d 705]; People v. Terry (1962) 57 Cal.2d 538, 569 [21 Cal.Rptr. 185, 370 P.2d 985]; Pait v. State (Fla. 1959) 112 So.2d 380,385.)

In characterizing the wide latitude and the loose function of the jury in the penalty trial, we said in People v. Terry (1964) ante, p. 154 [37 Cal.Rptr. 605, 390 P.2d 381], “To attempt to assess the effect of error in this legal vacuum is to superimpose one untestable surmise upon another. We must not pile conjecture upon conjecture and posit the decision of life or death upon a pyramid of guesses. Hence we must conclude that in view of the nature of this kind of trial, the above errors necessarily caused prejudice.” (Italics added.)

Our sole inquiry here devolves into a determination of whether substantial error, that is, substantial deviation from the standards established in Morse, has occurred. We have set forth above the incidents of the errors under the Morse test. That the deviations were substantial cannot be seriously questioned. We therefore hold that prejudicial error occurred in the instant penalty trial.

Defendant’s second contention, that he was deprived of a trial on the issue of sanity, succumbs to his waiver of the issue. Although the record shows some possible confusion as to this matter, defendant specifically waived the sanity defense, and, in addition, his counsel’s subsequent conduct in acquiescing in a procedure that necessarily rested upon such waiver corroborated it. Under such circumstances we cannot expect that a heavily burdened trial court should itself preserve an issue which is so lightly treated by the party himself.

The origin of the difficulty lies in the preliminary statement of defense counsel. Defendant initially entered pleas of not guilty and not guilty by reason of insanity, but, after the selection of the jury, defense counsel stated: “Me. Crigger [deputy public defender] : At this time, your Honor, it is the desire of the defendant to withdraw his plea of not guilty, and enter a plea of guilty as charged, and the other issue of not guilty by reason of insanity we would be willing to submit the matter to the Court or the jury on that particular issue, and submit it on the doctors’ reports, if that is satisfactory to the People. ’'

The following colloquy then occurred: “The Court: You want to waive your plea of not guilty? Mr. Crigger: Yes. So that the only remaining issue for the jury would be the penalty issue. . . .The Court : Then, what about the insanity issue? Mr. Light [deputy district attorney] : That is being waived. Mr. Crigger. Yes. We will waive a jury trial.

The trial court explained to defendant the effect of a plea of guilty and asked him if he wanted to change his plea. Upon receiving an affirmative answer, the court accepted the change. The following proceedings then occurred: “Mr. Light : Mr. Hines, in Superior Court Information No. 261235, on which you have heretofore been arraigned and entered a plea of not guilty, and also not guilty by reason of insanity, your counsel has informed the Court that you desire to withdraw that, both of those pleas, is that right, sir? The Defendant: That’s correct. Mr. Light : And you are doing this freely and voluntarily? The Defendant: Yes. Mr. Light: And I understand further, that it is your intention to enter a plea of guilty to the Information, as charged, to wit, alleging that you committed murder in violation of section 187 of the Penal Code, is that right? The Defendant: That’s correct. . . . Mr. Light : . . . Mr. Hines, as to the charge in Superior Court Information No. 261235, how do you plead, guilty or not guilty ? The Defendant : Guilty. . . . The Court: Very well. Then the only procedure will be to present to this jury . . . the issue of punishment. . . .” (Italics added.)

Although defendant argues that he did not intelligently waive both pleas but merely intended to follow his counsel’s statement that he withdraw the guilty plea and waive a jury trial on the sanity issue, the record shows his specific agreement to retract both pleas. Moreover, the trial court repeatedly indicated its understanding that the only remaining issue involved the penalty and that this issue was to be submitted to the jury. Not only did defendant’s counsel fail to disagree or object to the ongoing process of the trial, but when, immediately before reconvening court for commencement of the penalty trial, the trial court asked, “Anything else that occurs to you?” defendant’s counsel answered “No.”

Indeed the subsequent proceeding of the penalty trial itself was predicated upon a finding that defendant was guilty of the charged offense and a finding that "on any plea of not guilty by reason of insanity” defendant was sane.³ In permitting the court, without objection, to proceed with the penalty trial on the assumption that any such plea had been withdrawn, the conduct of defendant’s counsel confirmed the fact of defendant’s waiver. (See People v. Gaines (1962) 58 Cal.2d 630, 636 [25 Cal.Rptr. 448, 375 P.2d 296].)

We find no merit in defendant’s third argument, that he suffered a violation of constitutional right in that the court removed to its chambers the proceedings upon defendant’s motion to withdraw his pleas and to enter a new plea. The eases do not require that defendant must personally waive a public trial in order to establish the propriety of such proceedings; the hearing of the motion in chambers does not, in the absence of an objection, constitute an improper denial of a public trial. “ [I]t has long been held that the right to public trial may be waived without the expressed consent of either defendant or his counsel. ...” (People v. Cash (1959) 52 Cal.2d 841 [345 P.2d 462].)

The cases cited by defendant do not affect this holding. The presentation of defendant’s objection in both People v. Hartman (1894) 103 Cal. 242 [37 P. 153, 42 Am.St.Rep. 108] and People v. Byrnes (1948) 84 Cal.App.2d 72 [190 P.2d 290], distinguishes those cases from the present one. The requirement of the federal law that a defendant must personally waive the right to public trial, in contrast to the rule in this state, renders inapplicable Garcia v. Sanford (D.C. N.D. Ga. 1945) 62 F.Supp. 658. Likewise, the cited case of Hopt v. Utah (1883) 110 U.S. 574 [4 S.Ct. 202, 28 L.Ed. 262], which held that a defendant could not waive his right to be present at a hearing on challenges of proposed jurors, obviously does not apply here.

Defendant’s fourth contention relates to alleged prejudicial errors in the court’s failure to render certain instructions and its permission to introduce certain evidence. We proceed to explain, first, why we have found no merit in defendant’s claim that the court improperly refused to give defendant’s proffered instructions.

Defendant contends that the court erred in not instructing the jury that in case of reasonable doubt the lesser penalty should be exacted and that aggravating or mitigating circumstances must be proved by a preponderance of the evidence. Yet, as defendant himself recognizes, the decisions clearly hold that such instructions erroneously limit the jury’s absolute discretion in the selection of a penalty, and we see no reason to change the established rule. (People v. Hamilton (1963) 60 Cal.2d 105, 134 [32 Cal.Rptr. 4, 383 P.2d 412]; People v. Howk (1961) 56 Cal.2d 687, 697 et seq. [16 Cal.Rptr. 370, 365 P.2d 426].)

Nor did the court err in failing to instruct upon its own motion that the jury should view with caution oral admissions of defendant. The rule advocated by defendant, found in section 2061, subdivision 4, of the Code of Civil Procedure, has been held to be inapplicable to tape-recorded statements, which is the type of admission presented here. (People v. Gardner (1961) 195 Cal.App.2d 829, 832 et seq. [16 Cal.Rptr. 256].)

As to the admission of testimony, we find no error in two of the three instances of which defendant complains, but we believe error did occur in the third.

Defendant objected to the admission of the testimony of one psychiatrist that “... there [was] a good possibility that he [defendant] might [commit the same offense again], if circumstances were right,” and to the similar testimony of another psychiatrist. Defendant raised no objection to the testimony at the trial level. We believe People v. Bickley (1962) 57 Cal.2d 788 [22 Cal.Rptr. 340, 372 P.2d 100], completely disposes of the contention: “Such evidence obviously related to appellant’s mental condition and was admissible.” (P. 793.)

Defendant’s second claim that the introduction of allegedly “gruesome photographs” of the deceased worked error, since their probably prejudicial effect outweighed their probative value, cannot stand in the absence of defendant’s counsel’s objection to their admission. Since the penalty phase of this case must be retried, however, we take this occasion to express our difficulty in finding such photographs relevant. In view of the fact that defendant admitted his guilt and described the circumstances of the crime, we see no probative value in the photographs which would outweigh their prejudicial effect. (People v. Love (1960) 53 Cal.2d 843, 854-857 [3 Cal.Rptr. 665, 350 P.2d705].)

We have concluded, however, that the trial court erroneously allowed the jury to hear tape recordings of defendant’s confession without erasing, or otherwise deleting, the portions of the tape in which defendant mentioned prior criminal offenses involving narcotics violations and a purse snatching. In view of People v. Hamilton (1963) 60 Cal.2d 105, 129, 131 [32 Cal.Rptr. 4, 383 P.2d 412], the extrajudicial admissions of prior offenses should not have been admitted in the absence of corroborating evidence. This court in Hamilton, upon a thorough examination of the issue, held that the same standards of competency of evidence apply to the penalty trial as to the guilt trial; extrajudicial admissions of a defendant are not admissible “without proof aliunde that such a crime had been committed.” (P. 129.) (See also People v. Terry (1964) ante, p. 137 [37 Cal.Rptr. 605, 390 P.2d 381].)

According to the prosecution, even though defendant’s statements do contain admissions of criminal conduct, they should be admitted because they show “his attitude toward society and his outlook on life”; in support of this proposition the People cite People v. Linden (1959) 52 Cal.2d 1, 20 [338 P.2d 397], Yet, as we shall explain, Linden does not so hold.

In the first place, Linden involves the relevancy and not the competency of the evidence; the case does not touch upon the requirement for corroboration of the extrajudicial statement. In the second place, defendant’s allusion to his criminal record in Linden was inextricably bound into his expression of his contempt for the process of law enforcement: the officer testified that defendant boasted “that he was very tough to beat, and that he had beaten one other murder rap.” (P. 20.) Thus the Linden court explains that “defendant’s admissions concerning his criminal record were provable as necessary, inseparable parts of relevant admissions as to his attitude toward police officers and toward accusations of crime. ...” (P. 20; italics added.) In contrast, the remarks of defendant in the instant case as to other crimes could have been severed from the balance; the statements in themselves possessed no probative value other than disclosure of the fact of defendant’s commission of other crimes.

Respondent finally attempts to sustain the trial court’s position by arguing that defendant waived his objection in not requesting a suggested limiting instruction and by relying upon People v. Weitz (1954) 42 Cal.2d 338, 347 [267 P.2d 295]. That case does not hold, however, that the failure to request the limiting instruction forecloses the point upon appeal; indeed, it dealt with evidence clearly admissible for a limited purpose and with defendant’s failure to request an instruction to narrow its consideration to that relevant object. Here we pass upon incompetent evidence not admissible in the first place.

The judgment is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed.

Gibson, C. J., Traynor, J., Peters, J., and Peek, J., concurred.

1 The trial court instructed the jury that ‘ ‘ Every person guilty of first degree murder shall suffer death or confinement in the State Prison for life in the sole discretion of the jury. ... In making your determination as to the penalty to be imposed, you may, in exercising your discretion to choose between different punishments, consider as a possible consequence that the law of this State provides that a defendant sentenced either to death or life imprisonment may be pardoned or have his sentence reduced by the Governor and that if this defendant is sentenced to life imprisonment he may be eligible for parole at the expiration of seven calendar years. A trial judge may also reduce the penalty from death to life imprisonment.” (CALJIC No. 306 (rev.).)

2 Article VI, section 4%, reads as follows: "No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. ’ ’

3 Section 190.1 of the Penal Code reads, in part: “The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall first be determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, and has been found sane on any plea of not guilty by reason of insanity, there shall thereupon be further proceedings on the issue of penalty. ...”